*1 areas, appellee, are taxed to the problems many including appeal to arise in Costs of Donna Harlow. compensation. workers’ guidance legislature from the Without
authorizing the extension of workers’ com- pensation parties benefits to such as Ms.
Harlow, awarding we are constrained from surviving spouse.
Ms. Harlow benefits as statutory with comply The failure to license, marriage along for a requirement knowledge deficiency, with the of that dooms Ms. Harlow’s claim. The trial STATE of Tennessee incorrectly “remar- judge relied riage” ceremony, subsequent living ar- rangement, finding basis for Ms. REID, Paul Dennis Jr. surviving a “lawful Harlow wife” and Therefore, spouse. that a legal we hold Tennessee, Supreme Court of marriage did not Har- exist between the at Nashville. death, lows the time of Mr. Harlow’s surviving and thus Ms. Harlow is not a Nov. 2002. spouse compensation under workers’ Rehearing Denying Order Petition for statute. 19, 2002. Dec. Ms. Harlow an additional argu raises ment that she is entitled to death benefits dependent
as an actual of Mr. Harlow because she was a ... who “[w]ife [was] wholly supported by employ the deceased
ee at the time of death....” Tenn.Code 6—210(c). §Ann. Because we hold that 50— surviving spouse, Ms. Harlow is not a she not a meaning likewise is “wife” within the of the statute. II. the trial erred in Whether court
commuting lump award to sum. Because we hold that Ms. Harlow is not spouse under the workers’ surviving statute, compensation we need reach commutation issue. CONCLUSION After a careful review and consideration record, finding we of the reverse the trial court and remand for dismissal. *12 DeVasher;
Jeffrey Deaner; A. C. Dawn Baker; Michael Engle; J. and David As- Defenders, Nashville, sistant Public Ten- nessee, Appellant, for the Paul Dennis Reid, Jr. Summers,
Paul G. Attorney General and Reporter; Moore, Michael E. Solicitor General; Smith, L. Jennifer Assistant At- General; torney Johnson, III, Victor S. *13 General; District Attorney Kathy Mor- ante, Thurman, Moore, Tom Roger Grady Moore, Attorney Assistant District Gener- als, Appellee, for the State of Tennessee.
OPINION DROWOTA, III, C.J., F.
FRANK opinion court, delivered the which ANDERSON, E. RILEY M. JANICE HOLDER, BARKER, M. WILLIAM JJ., joined. case, capital defendant,
In this Paul Reid, Jr., Dennis was convicted of two counts of degree first murder and one count especially aggravated robbery for killing Captain two employees D’s and rob- bing one of employees. As to each murder, conviction of degree jury first in the sentencing found hearing proven State had three aggravating cir- beyond cumstances a reasonable doubt— (1) that the defendant previously was con- felonies, victed of one or more other than present charge, statutory elements of which involve the use of violence to the (2) person; that the murder was commit- purpose ted for the avoiding, interfering with, or a preventing pros- lawful arrest or another; ecution of the defendant or (3) that the knowingly murder was com- mitted, solicited, directed, or aided defendant while the had a defendant sub- stantial role in committing attempting or commit, fleeing or after having was a he called a committing attempt- got busy signal. When substantial role later, no time minutes one robbery. Tenn. Ann. second a few ing commit Code (7) (1997). something 89-13-204(0(2), (6), Believing § answered. another wrong, Butterworth contacted Finding aggravating these circum- father was a Captain employee D’s whose outweighed mitigating stances circum- doubt, police employee’s The fa- the Metro officer. beyond stances reasonable Wells, ther, arrived sentenced the defendant to death on Officer Jeff and, manager of after the assistant each murder conviction. trial court scene door, entered the imposed Captain D’s unlocked the subsequently twenty-five-year and noоn to aggravated 11 a.m. especially sentence for the rob- restaurant between dead, lying Hampton face bery and ordered find and Jackson conviction this sentence the restaurant’s consecutively to be to the death down on the floor inside served two appeal sentences. On direct the Court walk-in cooler. Appeals, of Criminal the defendant mount- shot execution- victims had been challenges ed to both numerous his convic- floor. style lying Hampton while on the fully tions and sentences. After consider- been in the back had shot twice claims, ing the defendant’s Court *14 and in the Jackson had head once back. Appeals Criminal affirmed the trial court’s shot in the head once been four times Thereafter,
judgment. the case was dock- in According the back. to medical Ann. eted in this Court. See TenmCode examiner, head wounds two of Jackson’s 13—206(a)(1)(1997). § carefully After 39— fatal, two other head wounds were but the and fully reviewing the record and the superficial, and the shot to her back were authority, relevant the defendant’s convic- incapacitating. If immediately was not tions are and sentences affirmed. had been inflict- these less serious wounds first, testified ed the medical examiner Background
I. move; and, may able to Jackson have been fact, gloved pattern a blood of Jackson’s A. Guilt Phase near, above, body her shelving hand on but The proof offered the State at. the attempted had to indicated that Jackson guilt phase of this trial demonstrated that floor after she was pull up herself from the 16, 1997, Sunday February morning, shot with a .32 shot. The victims were sixteen-year-old Sarah Jackson and twen- weapon, probably a revolver. caliber Sev- Hampton ty-five-year-old shot Steve were dollars, thousand, forty en one hundred they prepared open and killed as coins, taken in the including was $250 Captain D’s restaurant on Road Lebanon wallet, which con- robbery. Hampton’s Donelson, Hampton Tennessee. was to pay intended to use tained that he $600 restaurant; Jackson manager rent, missing. also was part- a high working was school student Blackwell, police considered the defen- time Kevin first at the restaurant. D’s, suspect a crime on Captain dant this June spoke area director for with .in County after in Cheatham Hampton telephone his arrest on the around 8:15 kidnap attempting to morning. allegedly Over an hour 8:30 a.m. a.m., later, manager Shoney’s restaurant. From Michael But- around 9:45 to arrest, obtained defen- police but unable terworth arrived for work was photograph. Al- fingerprints dant’s the restaurant because the doors enter finger- though of the defendant’s telephoned were Butterworth none locked. D’s, Captain several prints were found at Captain neighboring from a restaurant D’s belonging Hampton items morning, Steven were told him Hampton Carter day discovered one after lying the murders would be there but busy would be alongside Ellington Parkway, a four-lane unable to talk until approximately 2:45 highway in East Nashville.1 Among the p.m., Sunday after the lunch rush. But- items found was a movie rental card be- terworth testified that the man left longing Hampton. The defendant’s dark-colored car. right thumbprint was found on this card. murders, About a week after the Butter- The area Hampton’s where belongings worth, Carter, Cassidy, and James another were found was 11.5 miles from the crime employee who present night was be- scene and 1.2 miles from the defendant’s murders, fore the helped police prepare a home. composite they man had sketch of the Police prints also found several shoe in- provided seen. description they was Captain side D’s near the Although safe. сonsistent with defendant some re- design tread prints of these shoe did spects, but did not include a the sketch match, length prints of these shoe it indicated that the man mustache and was consistent with shoes seized from the may ponytail have had hair in a long worn addition, defendant’s residence. “pulled straight back.” The de- State introduced into photo- evidence a fendant wore a mustache at this time and 16, 1996, graph, July dated which showed did ponytail, although not have a there was the defendant wearing pair of dingy testimony that hair had been below his
white police tennis shoes that had not collar at that time that he combed his found in his residence. hair straight back. Two witnesses identified the defendant *15 After assisting composite, with the Car- as the man by Captain who came D’s the ter and Butterworth at looked hundreds of night before inquiring the murders about a police photographs but were unable to job. Michael Butterworth and Jason Car- an make of 1997 identification. June ter testified that a man came into the police the showed Butterworth and Carter through restaurant the exit door around 10 individuals, a photographic lineup of six p.m., shortly closing before night the be- including the defendant. Although Butter- fore the murders. This man said he was positive worth was unable a to make iden- in applying part-time job interested for a tification, positively Carter identified the and that he Shoney’s just worked at down defendant inquired as the man who had proof the road. The showed the defendant job about a the night worked a cook before the murders. Shoney’s as at a 2.1 miles later, from A short time these murders. Butterworth saw the Butterworth and defendant gave employment appli- during report Carter the man an a television news cation and told him about manager, the his arrest. Butterworth immediate- Hampton, Steve working ly police would be the called the and informed them next day. When the man if anyone asked the defendant man was the who came into would be at Sunday Captain the restaurant on night D’s the before the murders. murders, Hampton’s personal 1. Police discovered ef- been robbed but unaware of the Mr. provided by fects because of information Mr. Simpson immediately reported discovery his who, Simpson, looking Charles while for alu- 17, 1997, police. day, February The next alongside Ellington Parkway minum cans on officers returned to the same area and found murder, the afternoon of the discovered license, card, Hampton’s driver’s credit movie Hampton’s children’s identification cards. card, rental and birth certificate card. Believing that the owner the of cards had tall, Hampton whose trial, compared as explained that he At Butterworth feet, eight five inches. height the was of this identification because was sure as to the report, opposed photo- news a.m., passerby, another Around 9:30 lineup, him to the graphic enabled hear Farmer, noticed “a car that sort Mark voice, way lips see the his defendant’s to Farm- place.” According looked out of talked, way he and he moved when see er, car was to medium-sized small trial, During and walked. both Carter car-length away parked a about Butterworth identified defendant oppo- budding headed front man who had into the restaurant come arrows of the drive-thru site direction Saturday Hampton night before and initially re- the lot. Farmer painted on Jackson were killed. car, fight a blue but membered it was may paint- trial he it also have been stated people Three other who had been driv- also “pinkish plum color.” Farmer ed by Captain restaurant ing D’s on away walking hurriedly noticed a man testified, morning linking murders the car. from the restaurant toward Jerry defеndant to the murders. Mar- stopped passenger at the When the man lin, the restaurant at passing who Farmer up, car and looked side a.m., approximately saw a Ford 8:45 blue man his face testified that “elevated wagon damage with the left station ... like eyes it our sort seemed rear, front, possibly “parked to the left another, caught and when he saw one angle funny at a toward the real’ of the head, him, watching dropped I was building.” proof prior showed way.” in a just suspicious down completely murders, light the defendant drove a these passenger The man side entered wagon blue 1988 Ford Escort station tall, man as car. Farmer described the which had been involved an auto acci- neck, dark large with a build muscular result, January dent of 1997. As of hair eyebrows eyes, and dark full head appraised by compa- car was an insurance said the which was slicked back. Farmer ny February 8, and was found shirt, pants, a white dark wearing man was damage to end. have the left front Marlin new,” white, Farm- “not tennis shoes. car testified that the defendant’s in the day the next er heard about the murders *16 company’s photographs insurance was sim- report what police twice to called in the Captain ilar to the car he observed seen, no one him. he had but contacted lot parking morning D’s the mur- televi- Farmer saw the defendant on When ders. 1997, Farm- in June of sion after his arrest again police er and identified called a.m., Around 8:50 Debbie Hines was he near the as the man had seen defendant by Captain way D’s on her to driving morning the murder. Captain D’s on the man, a church when she saw whom she Hampton, identified stand- later as Steve to show proof The State also offered the restaurant ing doorway inside had been interested defendant was talking holding to a man outside who during the months before obtaining gun a Hines paper profita- white his hand. described and had discussed murders and bility the unidentified man as dark-haired fast food restaurants. Jef- robbing Potter, at frey five inches taller than the defendant’s co-worker approximately was Shoney’s, that the defendant Hampton. description This was consistent testified at he made money who was dark-haired with the with defendant dissatisfied feet, other Shoney’s told Potter there were three inches approximately six ways making money, way Bohn, one to do The defendant told Robert robbery. so was whom purchased The defendant had two pis- also .25 automatic murders, asked Potter tols after the get gun, previ- where he could a that he had ously had a .32 caliber revolver and then had asked and “didn’t get gun Potter to way like the it shot” and something wanted for him. Potter refused. clip with a that held more shells. Accord- co-workers, Another of the defendant’s ing expert testimony, .32 caliber revolv- Tackett, Danny Wayne testified that he ers generally do not automatically eject had first met the defendant in while casings bullet manually and must be working ShoneyA at The defendant had opened after six shots to remove the car- moved to Texas but returned to Tennessee tridges weapon. and reload the previ- As in 1996. Tackett described himself as the stated, ously the victims this case were defendant’s best friend in Nashville and times; shot eight with a .32 caliber revolver said the defendant had lived with him a therefore, perpetrator would have been few weeks after the defendant returned to required weapon during to reload the Tennessee, near the end of 1996. Prior to shooting. murders, these the defendant had asked proof State also offered to show both Tackett and procure Tackett’s wife to defendant, pay whose net occasion, a handgun for him. On one week, per around was in finanсial $120 Tackett accompanied the defendant to a trouble before these had murders but pawn shop in Nashville where the defen- large cash, money, mostly sums of after- revolver, dant selected a .32 caliber but wards. Tackett described the defendant’s purchase Tackett weapon. refused to financial situation before the murders Later, the defendant asked Tackett’s wife “desperate.” The defendant and Tackett purchase him, gun for but she also discussed making money by robbing fast refused to do so. The defendant then food restaurants in the night, middle of the arrangements made for another when there Shone/s would be no witnesses but employee procure him, gun and he plenty of cash. Tackett testified that he gave Tackett cash hold $200 $300 had assumed these discussions were sim- for him until he met employee with the ply hypothetical and did not believe the pay gun. for the Although their co-worker defendant was being serious. The defen- successfully procured shotgun, the defen- dant day was scheduled to work the murders, purchase dant refused to weapon, say- say but he called to he would not coming be car A ing that it was too because of trouble. large and that he murders, short time after these the defen- needed a weapon. Shortly smaller before job dant quit Shoney’s. murders, however, these the defendant ar- *17 rived unexpectedly at Tackett’s house to proof showed that shortly after retrieve the money Tackett was holding these murders the defendant had large for him. The defendant left with the mon- purchased amounts of cash and items and ey but returned about ten minutes later paid off obligations example, cash. For with a man Tackett did not know. The Tackett observed the defendant with $100 defendant asked Tackett to “vouch” for five-dollar bills. Tackett When $200 him to the man. Tackett un- advised the bills, why many asked he had so five-dollar identified man that he and defendant “just replied, defendant to be differ- acquaintances, were and the two men left ent.” The defendant had obtained a $200 together. using loan his car title as collateral on 4, attempted prosecu- undermine the 1997, paid February and the defendant also 21, through 1997. cross-examination. February off in on tion’s case this loan cash 1997, 18, paid February defendant cross-examined vigorously On The defense bills, cash, witnesses, twenty-dollar all in out dis- pointing identification $2000 Ford prepaid ap- lease on new red towards the defendant’s crepancies between later, days by Two he returned to descriptions Escort. given and the pearance paid dealership car and off the remain- emphasizing that and these witnesses $3,127.92. balance of the When ing suspect were because these identifications lease— he had the salesman asked where obtained only a brief glimpse witnesses had these cash, large distance, this amount of the defendant man, while from a substantial “Well, replied, very been at sav- good I’ve per thirty forty car miles driving a my helping to be me.” ing going and dad is addition, ques- In the defense asked hour. However, proof the de- there was no that was weapon murder to show that the tions had As to the savings fendant account. located, missing trash that a can never account, proof checking defendant’s located, was the restaurant never a balance of on December showed $742.61 were not fingerprints that the defendant’s 1996, 19, January a balance of on $134.45 crime, at the scene of the found 22, 1997, February a balance of on $139.95 police adequately investigate failed 2,1997, and a Febru- balance on $803.67 scene, paper, such found at the items 27,1997. ary butts, and hairs located on cigаrette bodies, that the victims’ bloodhounds and the be- Billingsly
Bernie defendant Parkway police Ellington used center, longed to fitness the same not be- stopped near a residence did February either or during the last week of long to the defendant. first week of March the defen- Billingsly dant told he had about receiving proof and hearing After $3,000 that like he would to invest court, trial instructions from the tips on market Billingsly asked stock guilty the defendant deliberated and found later, investing. to three Two weeks felony degree first premeditated Billingsly defendant told that he had read especially as to victims and murder both pur- Barrons Investment Guide and had with robbery. accordance aggravated chased a mutual fund. v, Cribbs, this Court’s decision (Tenn.1998), court the trial After the defendant’s in June arrest of conviction as police jugs judgment seized four entered one one-gallon containing over coins from each victim. $1000 appeared lay- residence. The coins to be Sentencing B. Phase to their according
ered denomination. Tackett testified that he had not seen sentencing proceeded The case to the containing bottles when he large coins sought the death hearing where the State helped the move when the defendant degree con- for each first murder penalty lived with him. defendant viction, cir- relying upon aggravating three (1) the defendant testimony cumstances: presented The defense of one or more felo- Agent previously convicted Investigation Tennessee Bureau of *18 nies, Zavaro, present charge, said the DNA other than who that Samera the use statutory of which involve cigarette butts inside elements found on discovered (2) person; that violence to the Captain D’s not match DNA of did purpose for murder was committed or the victims. The defense defendant avoiding, with, interfering or preventing couple’s a affected the three children. The lawful prosecution arrest or oldest child has everyone. the defen- withdrawn from (3) another; dant or Their youngest that child associates the murder his birth- committed, day knowingly solicited, with his father’s death because the direct- ed, family had birthday celebrated his aided defendant while the night before the murder. The middle defendant had a substantial role in com- child, daughter, often asks who will walk commit, mitting or attempting to or was her down the aisle at her wedding. Ms. fleeing having after a substantial role Hampton testified that her husband’s committing or attempting to commit rob- adversely death had also affected her fi- bery. 13—204(i)(2), § TenmCode Ann. 39— situation, nancial which she described as (7) (1997). (6), and “rough.” Paula Guidry, Hamp- Sue Steve In support of these aggravating circum- mother, ton’s testified about how the death stances, prosecution presented the tes- son, child, of her only her had devastated timony of Texas assistant district attorney her psychologically. She described their Johnson, Brian who prosecuted had relationship as very close and said that she defendant when he was convicted of aggra- will get losing never be able to over him. robbery Texas, vated County, Harris impact Several witnesses described the parties 1984. The stipulated that the of- family. Sarah death on her Jackson’s aggravated fense of robbery as defined in Jackson, Jerry father, her testified the Texas Penal Code is a crime whose “part died,” of me has that it is hard for statutory elements involve the use of vio- him happy, to be that it him is difficult for person, lence to the and Johnson testified weddings to attend and see other fathers prosecuted the defendant had been walking aisle, their daughters down the and convicted of this A crime. certified and that his family’s relationships were coрy of judgment was entered into “broken” as a daughter’s result his evidence. upon The State relied the evi- death. Mr. Jackson felt guilty because he presented dence guilt phase at the work, had allowed daughter his and he support trial to the aggravating circum- opined that his family would never recover. stances that the defendant knowingly com- daughter He described his an intelligent mitted during robbery the murder girl, who had loved children. The next the murder was committed for the witness, Jackson, Wayne Sarah Jackson’s purpose of avoiding prosecution. arrest or brother, older told the that his sister’s prosecution presented also victim death had him extremely angry made impact evidence. The first witness was heart, “hardened” his that he knew she wife, Hampton’s Steve Hampton, Deanna had during suffered and had been afraid who Hampton testified that had been crime, and that her suffering was twenty-five died, when he they had senseless. He further testified that had he children, three, three ages six eight, relationship close with sister during his and that he had a good been father. Ms. childhood and said having he would miss Hampton testified that her husband’s an relationship Finally, adult with her. death had devastated her and led to her described how difficult her death had been everyone, withdrawal from even chil- her parents they because both felt a dren. Both she and her children had re- great guilt allowing deal of her to counseling, Hampton ceived but Ms. testi- work. He also testified that his sister’s fully fied that she would never adversely recover. murder had younger affected his brother, Hampton’s Steve death adversely had also who had withdrawn and would not *19 Morez, er, Danny The talk about her death. witness who married whom last Jackson, was Sarah moth- Be- daughters. Gina Jackson’s later had two more she daughter away er. Ms. described her Jackson cause the father was defendant’s happy fun-loving much, as and and testified the defendant and his home so just she had two days been killed before paternal sister Janet lived with their birthday. her seventeenth Ms. Jackson difficulty disciplin- had grandmother, who daughter’s also her described how death of age four or ing By the defendant. seriously had affected her younger son. problems in causing five the was defendant Jackson, Ms. who was still undergoing seriously neighborhood and misbehav- expressed very also how counseling, diffi- ing at He mail from the home. stole cult her had daughter’s death been for her. neighbors, neigh- clothes from stole had She testified that she believed her clotheslines, his put tacks in grand- bors’ daughter be safe working would at the soup, grandmother mother’s his barricaded neighborhood Captain D’s and said she room, in her fire her bed while she set often thought daughter about how her it, dog to death a was and beat her with during must have felt crime. Ms. baseball bat. explained Jackson ordinarily that Sarah neglect, Because of his father’s the de- was not to work on Sunday allowed but until fendant did start school not he was was on the she Sunday allowed work years seven old. His sister Janet testified a money was to earn extra to buy killed a that the had “hard time” in defendant player CD for her car. Ms. Jackson relat- school, entering Shortly school. after ed the deep feeling guilt experi- she had psy- defendant referred the school was allowing enced as a result of her daughter chologist and later described as suffer- was Sunday morning to work the she was ing dysfunction.” from “minimal cerebral killed. Ms. Jackson described Sarah age eight, At the he was to a sent family member of outgoing most Houston, Texas, boys Catholic school for and testified that the re- family Jackson county for later became the school family membered her at gatherings by set- neglected dependent and children. He candle, ting picture, out a a Sarah’s went to mother she live with his when place setting. put going up learned that he was to be presented defendant several wit- time, adoption. At this the defendant’s sentencing: private nesses at investiga- Paul Leon mother “renamed” him Morez defense, tor for the the defendant’s older her her because his name reminded sister, a speech pathologist, neuroradiol- former husband. When defendant was ogist psychologists. and two This testimo- thirteen, Morez. his mother divorced ny revealed that the defendant was born with his un- defendant lived mother Texas on November and had two he til was sixteen. He was asked to leave sisters, older Linda and Janet. The defen- sexually attempted after he assault his
dant’s home life was described as unstable. Reid, sisters mother. After he lived Sr., his father, private His Paul inves- sporadically cars, with his father but was basi- repossessed an tigator who was alco- cally early on his own. 1980s he away a good holic from home deal married, he divorced in 1984. but time. The defendant’s mother During marriage, city had stolen years father divorced when he was three equipment to a business. One of the father start old. The defendant’s received cus- warned defendant’s had ex-wife tody and his sisters the defendant sister Janet him. The defendant lived marry while Linda lived with his moth- his sister *20 with another in woman 1994. This woman he date suffered another injury head when reportedly said that the defendant slipped 1990, had a he Finally, at work. in he temper, had kitten thrown her across the a suffered concussion and loss of con- room, and had held her down on the couch sciousness as the result of a car accident. put pillow and a face. her His sister Patsy Casey Allen, a speech licensed him, Linda frightened was of he and had language pathologist who evaluated threatened to kill her. Janet testified that 1998, in defendant testified that attempted sexually he had molest her defendant lan- speech suffered from teenager when she was a and had threat- problems guage of persons characteristic ened with grand- her a knife when their with injuries. hy- traumatic brain Allen mother died. Janet testified that her pothesized injuries these ac- were brother paranoid became after was im- he quired than any rather the result of devel- in prisoned Texas. She also described opmental delay. “joking” how defendant had been Auble, Dr. Pamela a clinical neuropsy- acting “silly,” at his in father’s funeral May in chologist specializing brain abnormali- 1997, by a wearing Burger King crown on ties, testified that she had evaluated the his calling head and himself Paul.” “King defendant and found evidence of brain shirt, He had also green worn a lime damage, particularly the left frontal shorts, and tennis shoes to funeral and lobe, significant which caused “a mental change despite refused to repeated re- impairing disorder” “his in per- behavior a quests from his sisters to do so. Janet way.” Dr. vasive Auble’s evaluation en- further testified that the defendant had tailed more than eight hours of interviews drugs used recreationally but otherwise year over the course of a and the adminis- drugs. hated eighteen tration of standardized tests. juvenile defendant had a record of She also reviewed the defendant’s medical simple auto theft and assault. Another and school records and interviewed his charge of forging checks was dismissed mother and two of his sisters. Dr. Auble 1982, paid when he off the checks. In he noted there had been malformation was arrested charged with several birth, of the defendant’s left ear at possi- armed robberies but was declared incom- bly indicating brain left damage petent to stand trial hospitalized and was lobe, temporal hearing that the defendant’s Later, 1984, in Texas. he was convicted ear, impaired in his left and that he aggravated robbery in Texas. He hyperactive had been since birth. Dr. Au- dropped out school but later earned his ble testified that the defendant dis- first GED and was enrolled in Volunteer State 1978, played psychosis evidence then Community College the time of his ar- again from 1982 to 1987. After his rest. aggravated conviction for his robbery, Testimony continued, showed that symptoms responded defendant but he had multiple injuries suffered during head medication. In re- the defendant five, life. his When he was ported being had been delusions monitored hit the head In Department with brick. he Texas of Correction. la-He his fractured skull problems mini-bike accident ter denied no and received hospitalized and was time. some On treatment. the defendant wrote occasion, Texas, another hit head the wind- governor letters the Wash- Post, ington shield of a car that him in- struck while he and the citizens of Texas was riding forming his bike. At a later indefinite them that he had been under gov- Institute, Pysehiatric con- York surveillance 1985 and the New eminent since *21 of inter- twenty more than hours very costly to the ducted this surveillance was defendant, interviewed reported views with taxpayers. He delusions similar sister, and re- sister, mother and defendant’s to government of surveillance his provid- all the defendant’s records viewed girlfriend, his ar- police his and the after Dr. Amador concluded the defense. case, by ed and in rest in this Dr. Auble para- from had suffered that the defendant history Dr. of and 1999. Auble related a type, for schizophrenia, continuous noid family. in the mental illness defendant’s diagnosed Dr. also twenty years. Amador IQ had an reported She that the defendant cognitive as a disor- having the defendant opined instability in and of the 80s that the by head personality change caused der and devastating his was childhood environment trauma, type. combined neurological abnor- for someone with his Dr. Auble the defen- diagnosed malities. upon diagnosis Dr. Amador based his temporal psychotic, secondary dant as delusions longstanding the defendant’s damage cognitive lobe with and disorder and de- government about surveillance changes injuries. brain personality repeated medical of eval- history fendant’s malingering that he opined She was type of and treatments for some uations that he a and testified needed structured psychotic disorder. dysfunction brain Dr. that the environment. Auble admitted pointed Dr. also out that de- Amador met the for anti-social defendant criteria prescribed eight had at least fendant been personality disorder that such a but felt his life- anti-psychotic drugs over different diagnosis helpful. was not Dr. Auble also which, general, improved his be- time that Multi- agreed neither the Minnesota Amador, According Dr. these havior. (“MMPI”) phasic Personality Inventory with- person have drugs would rendered personality nor the Rorschach test re- illness out mental comatose. of psychosis.
vealed evidence Dr. Auble opined Dr. Amador defendant’s also had a conceded the defendant brain,” illness, psy- his “broken mental of history malingering. interfaced chological and social stressors Kessler, Dr. Robert M. a neuroradiolo- deal with ill-equipped him render testified that Resonance gist, Magnetic asked results of When about the reality. (“MRI”) Auble, Imaging and Positron Emission Dr. Dr. by administered the tests (“PET”) Tomography of the defen- Ror- scans testified that MMPI and Amador adjunct dant’s brain taken revealed are not tests are tools and schach atrophied. of his was the left side brain in clini- diagnostic primary tools used opined large portion Dr. of Kessler that a dur- opined Dr. practiсe. cal Amador temporal ap- crimes, left lobe defendant’s commission of the de- ing the not to Ac- peared functioning properly. be of his was under influence fendant Kessler, portion to Dr. of the cording delusions. responsible auditory brain is visual was last witness for the defense processing, processing as well as emotional Ingle. his Joe As result Reverend memory. Dr. diagnosed Kessler relationship defendant pastoral with the his suffering defendant abnormalities members and his conversations with functions, likely trauma to
brain caused family, Ingle real- Reverend defendant’s after the of six or seven. age head reality ized that defendant’s version reality Amador, “utterly contradictory” to the Xavier psycholo- Dr. a clinical result, family. University by his As a employed by and revealed gist Columbia Dr. contacted Amador and convinced him next State’s witness was Dr. Helen to evaluate the defendant. Mayberg, professor psychiatry Toronto, neurology at the University rebuttal, presented the State the tes- qualified expert who was as an neurolo- timony Raymond Jr., Lackey, the attor- gy, neuropsychology and functional brain ney had represented who the driver of a imaging. Mayberg Dr. had reviewed Dr. car involved a minor accident with the Kessler’s MRI and PET early Lackey agreed defendant’s car in scans and 1997. tes- *22 they tified the really abnormality that defendant had “a that showed evidence of done job” fine representing April himself in restricted to the temporal left side of the 1997 in County the Davidson General Ses- however, Mayberg, opined lobe. Dr. that Lackey sions Court. the testified that de- these congenital abnormalities were and fendant had friendly respectful been and not medically known to be associated with before, during, and the after proceeding. schizophrenia or pre- the commission of Lackey only admitted that had he brief meditated murder. contact with the defendant and before dur- last The State’s witness was Dr. Daniel ing relatively the short trial that and the Martell, neuropsychologist. a forensic Dr. defendant’s claim was unsuccessful. Martell interviewed the defendant over The State also introduced evidence days two for about twelve hours and also showing early that in 1997 the defendant all reviewed of the defendant’s records and developmental had earned A’s in courses reports the from in this experts the other English, study math and skills at Volun- case. Dr. Martell concluded that de- Community teer College State that and he fendant neurocognitive suffers from a mild was “on the way to level college classes.” disorder, disorder, personality antisocial Johnson, then recalled Brian and a delusional disorder. Dr. Martell prosecutor in the 1984 aggravated robbery determined that the defendant was born Texas, case in who that the testified defen- hearing, with an abnormal brain leading “performed dant had antics” whenever the speech learning, and disorders. Dr. Mar- jury inwas the courtroom his com- during tell was certain that the defendant met trial, petency falling such as back- over criteria for personality antisocial disorder2 chair, wards in his shooting paper in the and he probably said that was also suffer- band, air with a and making rubber a ing from a delusional disorder grandi- with paper placing and attorney’s hat it on his persecutory ose and features that was head. The stopped “put- defendant had substantial remission. Dr. Martell further ting jury on” when the was not testified that these disorders had not sub- courtroom. Several months after de- stantially impaired judg- the defendant’s convicted, fendant was he wrote a letter to capacity ment or his to conform his con- Johnson, apologizing for his behavior in requirements duct to the of the law toor courtroom, stating that felt threat- right contrary, know To the wrong. prison, ened in asking and Johnson for opined Dr. Martell that the facts of this help in shortening his sentence. Accord- letter, case ing Johnson, illustrate the defendant had been in which the effectively able to use his pass cognitive defendant offered to abilities information inmates, execute, plan, about other his logically cover-up written criminal and not bizarre or unreadable. actions. Dr. Martell had found défen- deceitfulness, personality irritability aggressiveness, 2. Antisocial disorder character- norms, ized the failure to conform to social and lack of remorse. 15, 1997, February minutes on low for a few IQ to 80 and a dant’s be between murders, when night before IQ, said that the various tests average employment at inquired about re- defendant to the defendant did not administered also worked with D’s. Butterworth Captain psychosis. any veal evidence of the composite drawing police to create surrebuttal, again the defendant once not defendant, drawing was although the testimony of Dr. Xavier presented the ap- with the defendant’s entirely consistent Amador, diagnosis his who reiterated identify Attempting pearance. defen- schizophrenia and testified many Butterworth looked perpetrator, the influence of delu- dant was under in June of police photographs, he killed sion when the victims. photographic Butterworth was shown upon found proof, Based photo of the defen- lineup contained proven aggravating State had persons. five other While dant and beyond circumstances a reasonable doubt persons out positively ruling *23 aggravating circumstances and that the shown, identify to was unable Butterworth circumstances be- outweighed mitigating man whom array in the as the with anyone Therefore, the yond a reasonable doubt. The next February 15. spoken he had on the defendant to death sentenced television, news on watching while the day, murder. degree each conviction of first coverage the defen- Butterworth saw arrest, recognized the immediately dant’s Suppress II. Motion to defendant,- identify police the to and called Admissibility Captain at Identification man he encountered A. him the
Testimony Butter- the before the murders. night D’s able to identi- explained that he was worth to pre-trial defendant filed a motion because, photo- the unlike fy defendant suppress testimony identification report lineup, enabled the news graphic Farmer, Butterworth and Mark Michael voice, see him to hear the defendant’s procedures to leading arguing talked, when he way lips moved his their were identifications of defendant heway walked. see suggestive violated due unduly his process rights. The court this trial denied Farmer, the record indicates As to Appeals of Criminal motion. The Court Captain D’s 9:80 driving by around he on the that no state action affirmed basis of the murders when morning on the a.m. in the identifica- was involved witnesses’ restaurant and saw a man leave the he from the television tion of defendant car in an unusual man- approach parked Court, In this the defendant coverage. Farmer building. at front of the ner presence absence of argues that or eye contact be- man made direct and the urges dispositive, action is not state suspicious away man fore the looked the circumstances this Court review hearing After about mur- manner. surrounding identification the witnesses’ ders, police three phoned Farmer process determining due when whether the man report seeing times to cir- A of the was violated. brief review restaurant, police never contacted but the surrounding these identifica- cumstances Then, what he had seen. him about necessary place this issue tions is 1997, televised news Farmer saw June context. arrest, instant- the defendant’s coverage of man he as the stated, the defendant ly recognized the record reflects previously
As murders, morning had seen on the spoke with the defendant that Butterworth and again police called the with perm. this infor- 917 (Tenn.Crim.App.), app. denied (Tenn.1987) mation. (refusing to find the identifica -unduly suggestive tion and violative of due Significant to analysis our is the undis- process police because the not arrange did puted police fact that had not told the encounter the defendant and between either Butterworth Farmer watch victim); Dixon, v. State 656 S.W.2d the television news broadcasts that result- (Tenn.Crim.App.), perm. app. denied ed identifying their the defendant. (Tenn.1983) (refusing find the identifica viewing Their is best described as acciden- unduly suggestive tion and violative of due tal, inadvertent, or coincidental. It was process because a confrontation between by police. not orchestrated To the con- the defendant and the victim was not a trary, the record police reflects that offi- showup arranged by police); v. cers had advised the defendant after his (Tenn.Crim. Mosby, 639 S.W.2d arrest that he could coverage. avoid media (re (Tenn.1982) App.), perm. app. denied jacket covering head with and by fusing to find the unduly sug identification facing during proceedings the wall court so gestive process and violative due be the television cameras observers cause there was no state action where the would be unable see his face. The victim identified the defendant after a defendant at first indicated he intend- neighbor showed the single photo victim a toed follow advice. before leav- Just State, Bishop graph); however, jail, ing the appar- defendant *24 (Tenn.Crim.App.1979) (refusing to the find ently mind, changed stating “This is unduly suggestive identification and viola- going to the be Paul Reid trial.” There- process tive of due because there no was fore, head, the defendant did not cover his state action where a witness first identified turned everyone around and faced single picture the defendant from a in a in the courtroom during the arraignment. Moreover, local newspaper). holding, in so Thus, the defendant’s decision to make it a the law in Tennessee consistent with the trial,” action, “Paul Reid rather than state adopted by jurisdictions a majority rule of directly led to Butterworth’s and Farmer’s gen that have considered this issue. See testimony. identification Annotation, erally “Admissibility In- of While this not previously Court has Court Identification As by Affected Pre issue, addressed this it is well-settled Ten Trial Encounter That Was Not Result of nessee the law in absence state of Police, Prosecutors, by Action and the in action the process, identification consti Like,” (2001) 86 A.L.R. (citing 5th 463 process tutional due rights impli are not cases). scholarly opinion, In a the Rhode cated; therefore, the analysis adopted by Supreme why explained Island Court Supreme the United States Court Neil unnecessary: broader rule is 188, 375, Biggers, v. 409 U.S. 93 S.Ct. action, conclude that absent [W]e state (1972) appropriate L.Ed.2d 401 is not no constitutional violation would See, Drinkard, e.g., this case. State v. the give rise to creation of an exclusion- (Tenn.Crim.App.), perm. 15-16 ary rule been has committed. (Tenn.1995) app. (refusing denied to find unduly suggestive identification violative process police of due because Probably guarantee best of due not arrange did process the confrontation between as pre- such a situation witness) the defendant and the (citing by sented аt bar case would be cases); Newsome, v. State opportunity cross-examination in or- testimony properly of expose the lack credi- identification
der to witness’s This is without merit. further but- admitted. issue bility. opportunity is This by requirement and enforced tressed Validity Warrants B. of Search prove every of that the state element crime, ac- that the trial including identity argues next The defendant erred Appeals doubt. of Criminal beyond a reasonable court and Court cused by evidence only suppress certain guarantee supported by refusing is also under the au- from his residence requirement unanimous seized thority warrants —Warrants power of trial of two search but also verdict evidence, argues 149. The defendant including 146 and justice to review the were invalid because both warrants credibility, on a motion for new trial. particularly de- were not items seized Thus, due-process of defen- rights warrants, in the the affidavits scribed cases, case, in all dant criminal a nexus not demonstrate each warrant do adequately protected from violations are place activity and the between the criminal process fashioning without the due searched, police failed to be and the rules, exclusionary whether additional copies of warrants deliver personally pursuant to the Federal or Rhode of Tennessee violation defendant Island Constitution. 41(c). Addi- Procedure Rule Criminal (R.I. Pailon, 590 A.2d tionally, contends that War- the defendant 1991). the affidavit rant was invalid because by refer- expressly incorporated was not soundness This case well illustrates the ence into the warrant. Supreme of the Rhode Island Court’s anal- Amend both the Fourth Under Here, scrupulously ysis. the trial court ment to the United States Constitution applied the rules evidence which admit I, 7 of the Tennessee and Article section unduly only relevant evidence that is not *25 a must con search warrant Constitution or The prejudicial misleading. defendant’s of the items to particular description a tain attorneys effectively cross-examined these Henning, 975 be seized. See State witnesses, focusing upon the weaknesses cases). (Tenn.1998) 290, (citing 296 S.W.2d prop- court their identifications. trial limitation, serves as a requirement This erly eyewitness the as instructed to a governmental intrusion into upon both testimony, this accordance with Court’s property and privacy rights and citizen’s 607, v. Dyle, decision 899 S.W.2d discretion of law enforcement upon the (Tenn.1995). jury’s verdicts of 612 To the Id. sat conducting officers search. unanimous, and trial court guilt were the a requirement, war isfy particularity the as approved these verdicts the thirteenth to reason rant “must enable searcher Supreme juror. Like the Rhode Island identify things ably and ascertain process Court, due we conclude that the seized.” Hen- are authorized to be which quite ad- are rights of criminal defendants (internal quota ning, S.W.2d 296 975 protected existing rules and equately by omitted). This Court tions and citations in- of state procedures. Absent evidence has stated: and Farmer’s volvement in Butterworth’s the search is to defendant, purpose of constitu- where of the identifications so property, it should be specific and find process implicated, is not tional due preclude the as to particularly described analysis adopted by the United States On the seizing any of other. applicable. possibility Supreme in Neil is not Court hand, other if purpose be to seize been taken the restaurants and the specified victims, property, any property but weapons, murder and financial which, specified of a character reason records. Providing description every- of character, of place its thing and of the where may which have been taken from the and the circumstances under which it victims and the possi- restaurants was not found, all, may be Nonetheless, if found at be would ble. the warrants described illicit, description, as save to such of property character with suffi- character, circumstances, place and particularity cient “to enable searcher would unnecessary, ordinarily reasonably be and to identify” ascertain and impossible. subject items Henning, seizure. Therefore, at 296. descrip- S.W.2d these State, Lea v. 181 Tenn. satisfy tions the particularity requirement. (1944); Henning, 352-53 see also at 296. S.W.2d Finally, the au plain view doctrine Applying thorizes officers princi conducting these well-settled a lawful search crime, contraband, ples case, facts in to seize fruit this we note that of evidence though Warrants 146 and 149 of criminal conduct even authorized searches it is not specified in warrant when these defendant’s residence items See, plain e.g., items are in be view. State v. may “which identified” be property (Tenn.Crim. Meeks, longing restaurants,3 to the victims or the (Tenn.1993). App.), perm. app. denied “may items that be used to cause case, Appeals the Court Criminal the death of the victims.” Warrant 149 properly held that the were enti officers additionally authorized a “any search for coins, hats, shoes, jars tled seize the all financial records to include those knives, un photographs, and other items indicating” money paid by the defendant plain der the view these doctrine because an automobile lease around time in plain items were view officers An the murders.4 affidavit was attached justifiably considered these items be warrant, each setting forth the nature crime, contraband, or fruits or evi circumstances of crimes and not dence of criminal conduct. This issue ing several items had been taken from without merit. restaurants, including bags. bank agree with that, We the trial .court and the The defendant argues further that, Lea, Appeals Court Criminal as -in because the crimes had been committed *26 purpose the of the search was not to find several months the before warrants were specific property, 1997, to of a property but find in issued June of the information character, i.e., specific may items that have the affidavits a was too stale to establish investigation, At authority 3. the time of the this defen- evidence that was the seized under investigation dant was also under for the mur- of these and at exe- admitted trial. Officers ders, robbery employees and of of a coins, assault cuting jars Warrant 146 seized four of Nashville McDonald’s restaurant. shoes, pairs bag, six of one duffle one brown Bible, carry bag, photographs, assorted one Law 4. enforcement officers executed seven knives, three and three hats. Officers execut- warrants, challenged search and the defense ing photograph Warrant 149 a seized box pretrial all of these warrants in motions. The albums, bag containing photographs a and State, however, gave prior notice to that trial mail, negatives, bag a of assorted letters and it did not intend the to introduce evidence items, molds, toiletry keys, and women’s teeth pursuant seized to the other five warrants. magazines, papers, assorted and notes. Thus, appeal, challenges on the the defendant validity only 146 and 149 the Warrants and
275 the the or victims to taken from restaurants place the crime and the nexus between cause the have used to may also contends or that been be searched. defendant the affidavits set do not indicate that victims. The that the affidavits death the D’s Captain that police probable had cause to believe of the out circumstances robberies, including at of the crimes would be located evidence McDonald’s only the defendant’s residence. who had survived person fact repeatedly stabbed had the crimes been an probable cause To establish further The affidavits left for dead. a from which affidavit must set forth facts had fingerprint the defendant’s noted that may drawn that reasonable conclusion be to belonging an from item been recovered place for the evidence will be found victims, Captain D’s one a which the warrant authorizes search. extremely bloody, were murder scenes (Tenn. Vann, 93, v. 976 S.W.2d State be blood could on victims’ 1998); Longstreet, v. State S.W.2d and that defen- clothing, defendant’s (Tenn.1981). addition, In the affidavit his on possession or dant could still have a must contain information which will allow instruments violence used premises facts magistrate to determine whether the or items personal the victims to murder probable at are too to establish cause stale Clearly, the affi- to the victims. belonging is sought. of the warrant time issuance why provide explanation an davits Vann, lapse at 105. 976 S.W.2d While capable are by the warrants sought items of time the commission of a crime between of, fact, likely to be hidden are may and the issuance of search warrant As this residence. Court the defendant’s incriminating evi affect the likelihood Smith, explained in found, probable dence will be cause is weap- is a object of the search where the case-by-case v. determination. State clothing or worn in the crime used (Tenn.Crim. Meeks, 876 S.W.2d crime, inference that the time of (Tenn.1993). In App.), perm. app. denied are at the offender’s residence the items determination, making this courts should in those especially compelling, at least is un activity consider whether the criminal is unaware perpetrator cases where the investigation der was an event or isolated identify been that the victim has able protracted pattern of conduct. Courts police. instrumentali- him to the Other nature of the also should consider the be in the offender’s likely ties are also sought, the inferences as property normal home, especially when there reason hide evi to where a criminal would of them he would make use believe dence, perpetrator’s opportunity there. v. dispose incriminating evidence. State (Tenn.
Dellinger, 79 469-70 Where, here, a S.W.2d at 572. 2002); Smith, 561, 572 eliminated believes has perpetrator (Tenn.1993). all that law en- incapacitated witnesses so case, unlikely are discover criminal conduct under forcement officials *27 unreason- activity, it is neither an event. his criminal investigation was not isolated perpetrator warrants, unlikely nor the crimes able As indicated weap- murder clothing, or the apart, keep month the would one with occurred almost 23, 1997, ons, during crime at or taken on March items last crime committed Smith, 868 at 572. prior to time residence. See S.W.2d three months less than trial court Therefore, conclude that the we being sought. the warrants were correctly Appeals Criminal and Court of sought any items that had been warrants 276
found that the forth ty copy affidavits set sufficient was a taken the warrant and a facts magistrate from which the reason- receipt property taken or shall ably could have that a concluded nexus copy place leave the a receipt at from existed place between the and the crime to which property (Empha- was taken.” be searched and that the facts were suffi- added.) case, sis In this the officers left ciently probable recent establish cause. residence, the warrant at the defendant’s place from which property
The defendant next claims that taken. This issue is without merit. the trial court and Court Criminal Ap peals should have held the warrants invalid Lastly, the defendant contends executing because the officers the war because, 149 Warrant is invalid unlike rants to personally copy failed deliver a 146, expressly incorpo Warrant it does not the warrants to him at the Cheatham rate by probable reference the affidavit County required Jail Tennessee Rule cause. we Again, are constrained to dis 41(c).5 of Criminal Procedure We dis agree. indispens anWhile affidavit is an agree. able prerequisite of a issuance undisputed
It is
that the officers execut-
warrant,
search
an affidavit is not consid
ing the warrants were
aware
defen-
part
ered
of the warrant
in this State.
dant’s whereabouts.
It
also undisputed
is
Henning,
possible to leave
copy
person
a
with the
persons
on whom
search
warrant
Sufficiency
III.
of the Evidence
served,
being
is
make
shall
search
The defendant next
that the evi-
asserts
conducted under said search warrant an
presented
dence
to support
insufficient
illegal
and any
search
seizure thereun-
his convictions because
failed
the State
illegal
der an
seizure.
prove
a
beyond reasonable doubt his iden-
added.)
(Emphasis
Court
As the
of Crimi-
tity as the perpetrator of the crimes.
noted,
nal Appeals
no
pres-
there was
one
proper
for an
inquiry
ap
ent on whom the officers could serve the
pellate
challenge
reviewing
court
a
to the
executed;
warrant at
the time it was
therefore,
sufficiency
support
of the evidence to
it
possible
was not
for the offi-
whether, considering
conviction is
the evi
copy
person
cers to leave
with the
being
41(c)
light
dence in a
most favorable to the
require
served. Rule
does
offi-
prosecution, any rational trier of fact could
copy
cers to deliver a
of the search war-
person
present.
rant to a
who
have found
.essential elements
is not
In-
stead,
(d)
beyond
crime
subsection
of Rule
reasonable doubt. See
indicates
Virginia,
that an
taking property
officer
under a
Jackson v.
U.S.
S.Ct.
Hall,
“give
person
(1979);
warrant shall
to the
277
res-
18(e).
robbing fast food
by the
dant had discussed
R.App.
guilty
P.
“A
verdict
way
a
to ob-
as
court,
taurants with co-workers
by
approved
the trial
accredits
jury,
at a
had worked
money,
tain more
he
for the
testimony of the witnesses
the
crime, that
the
near the scene of
favor
and
of
resolves all conflicts
State
Shone/s
night
job
the
application
he
obtained a
had
Bland,
v.
prosecution’s theory.” State
the
Captain D’s
from a
before the murders
651,
(Tenn.1997). Ques
958 S.W.2d
659
him to come back
who informed
employee
witnesses,
credibility of
the
tions about the
speak
manager,
the
to
with
next afternoon
evidence, as
well
weight and value
this
he asked
Hampton, and that
Steve
by
all factual issues raised
the evidence
anyone
at
whether
would be
employee
fact,
by the trier of
and this
are resolved
de-
following morning. The
restaurant
or re-evaluate the
re-weigh
does not
Court
help
a friend to
fendant also had asked
Nor
substi
may
evidence. Id.
Court
to
prior
him
a
caliber revolver
.32
obtain
its
from circumstan
tute
inferences drawn
total
The victims were shot a
crimes.
by the trier
tial evidence for those drawn
weapon,
a .32 caliber
eight
of
times with
Carruthers,
fact.
v.
35 S.W.3d
of
See State
revolver,
had to man-
probably a
which
be
State,
516,
(Tenn.2000);
557-58
Liakas v.
these
ually
after six shots. After
reloaded
(1956).
856,
Tenn.
286
859
199
S.W.2d
crimes,
a man from
the defendant
told
entirely
may
A
based
on
conviction
be
a .25
purchasing
whom he was
automatic
circumstantial evidence where the facts
a .32 caliber
pistol
previously
that he
had
clearly
“so
connected
are
interwoven and
way
shot
it
but did
like
revolver
guilt
pointed
of
finger
unerring
that the
is
clip
had a
something
and
wanted
at the
Defendant
ly
Defendant and the
placed
Two witnesses
hold more bullets.
Smith,
v.
alone.”
868 S.W.2d
State
Cap-
his vehicle outside
the defendant and
(Tenn.1998),
Duncan,
quoting
569
State v.
the murders.
morning
tain
on
of
D’s
(Tenn.1985).
63, 67
A verdict
698 S.W.2d
a
matching
saw man
Another witness
of inno
guilt
presumption
of
removes the
standing at
appearance
defendant’s
replaces
presumption
cence and
it with
Captain
talking
door
D’s
Steve
on
guilt,
appeal
defendant has
morning
of the murders
Hampton
illustrating why
the burden
the evidence
man
white
this unidentified
had
said
support
the verdict ren
is insufficient
the defen-
paper
Although
in his hand.
Carruthers,
jury.
35 S.W.3d
dered
finan-
experiencing serious
dant had been
557-58;
Tuggle,
at
S.W.2d
crime,
proof
prior
cial trouble
(Tenn.1982).
contrast,
the State on
$6,000 in cash
spent
over
showed
legiti
appeal
strongest
is entitled to the
crime. Police
within two weeks
the trial evidence
all
mate view of
$1,000 in
at the defendant’s
found
coins
legitimate
inferences which
reasonable
crime.
months after this
residence
few
may be
from the evidence. See
drawn
cash and
taken
The total amount of
coins
Carruthers,
557-58; Hall,
S.W.3d at
during
robbery was
Captain
D’s
599; Bland,
659.
S.W.3d at
$7,140.
fingerprint was
The defendant’s
review
appellate
The standard
belonging
a movie rental card
found on
upon
whether the conviction is based
same
victims,
discovered
which was
one of the
Carr
or circumstantial evidence.
direct
discarded on
day
after the murders
Vann,
uthers,
557-58;
TV. Cross-Examination personal knowledge that she had no of the Kirkpatrick of Janet of merely agreed facts the crime and had her Following with sister. this testimony, trial, Prior to the defense team inter- defense counsel for a moved mistrial. The viewed defendant’s A sum- sisters. trial court sustained defense counsel’s ob mary joint of the provided interview was jection question to the but denied de experts, the defense experts, the State’s fendant’s request for a mistrial. prosecuting attorneys. During and the trial, penalty phase one of addition, when the returned to sisters, Kirkpatrick, defendant’s Janet tes- courtroom, provided the trial court direct, tified his behalf. Kirkpatrick On following curative instruction: discussed much con- information gentlemen Ladies and jury, be- summary joint tained inter- you fore upstairs your went for after- view, and she de- acknowledged break, noon General Thurman had asked previously fendant had been incarcerated. question I this witness. sustained cross-examining Kirkpatrick, Before objection, an and that information now prosecuting attorneys approached the may stricken from the record.- You not bench stated their intent to impeach reason, you consider that for Kirkpatrick’s testimony her by questioning must it if you treat as had known never about information sum- interview it. mary detrimental defense that brought during not out Again, you you may direct. Defense I remind not object did inqui- allegations counsel to this fine of consider of criminal behavior ry at the bench even though, prior conference crimes regard, you’ve with found, the trial they “fully afternoon, court hearing except were been as to interview, aware of the contents of that how it relates to the mental health including the underlying previ- upon facts of the relying defendant. The State is robbery.” prior ous aggravating conviction for its robbery. 6. This incident occurred in Texas and resulted the defendant's arrest and conviction
279
conviction
felony
violent
robbery-
previous
fendant’s
involving
circumstance
the
(i)(2)
circum-
aggravating
the
support
to
the
charge that was committed on
dates
been in-
therefore had
jury
stance. The
may
copy,
you
on the certified
and
not
by
question
this
both
prior
formed
to
criminal
consider other crimes
other
the
proof
and
that
de-
prosecution
defense
reason,
than the
any
behavior for
other
prior
had a
criminal record.
fendant
mental condition of the defendant.
new information to
question provided little
instruction,
Despite
the de
this
immediately
trial court
jury,
the
and the
fendant submits that the trial court erred
the
objection
the
and instructed
sustained
argues
He
refusing
grant
in
to
a mistrial.
question
any
the
“for
jury not to consider
prosecutor’s question
that
the
informed
you
it
if
had
and to “treat
reason”
previously
the
the
jury that
defendant had
addition,
In
the trial
never known it.”
a
under cir
attempted to commit
crime
jury
to “consider
court advised the
not
identical
these
cumstances
almost
criminal behavior
crimes or other
other
crimes,
therefore,
prejudicial
was so
reason,
than
mental con-
the
for
other
trial
instruction
the
court’s curative
pre-
are
dition of the defendant.” Jurors
could not remove its effect. The State
follow the instructions
sumed to
responds
properly
that the trial court
de
Stout,
689,
trial
v.
46 S.W.3d
court. State
request
nied
a mistrial.
the defendant’s
Williams,
(Tenn.2001);
v.
977
715
State
is
decision of
law well-settled
(Tenn.1998).
101, 106
these
S.W.2d
Under
not
whether or
to enter mistrial rests
circumstances,
trial
did not
court
within the
discretion of the trial
sound
by
the defen-
denying
abuse its discretion
Court
not interfere with
court. This
will
mistrial. This issue is
request for a
dant’s
trial court’s decision absent
clear
merit.
without
abuse of discretion on the record. See
Adkins,
642,
State v.
786
644
S.W.2d
Relating
Alleged
to Victim
V.
Errors
(Tenn.1990);
Inlow,
State v.
52 S.W.3d
Argument
Impact
Evidence
101, 105(Tenn.Crim.App.2000).
The defendant next contends
in
case
no
The record
this
shows
abuse
impact
under
of victim
evidence
admission
question
of discretion. The
which
about
Nesbit, 978
of State v.
guidelines
complains
posed during
the defendant
was
(Tenn.1998),
upon his
infringed
S.W.2d
sentencing
al-
hearing. The
had
ex
facto laws
right
post
to be free from
ready
guilty
found
defendant
com-
in
decision
State
violated this Court’s
murders;
therefore, any
these
mitting
908,
(Tenn.1994),
Smith,
v.
prejudice
question
associated with the
sentencing proceed
holding
capital
by
timing.
minimized
its
The defense
conducted
accordance with
ings must be
object
ques-
team
line of
did
this
the law effect at
time
offense
Once an
tioning at
bench conference.
argues that
The defendant
committed.
made,
objection was
court imme-
trial
when these
under the law effect
jury-out
committed,
at a
diately
impact
considered
issue
ev
were
victim
offenses
Moreover,
prosecu-
hearing.
before the
because this
idence was not admissible
State,
team,
tion
defense
posed
question, the
had held in Cozzolino
Court
(Tenn.1979),
attempting the defendant’s
that evidence
illustrate
capital sentencing
problems,
presented
had
extensive was admissible at
mental
if
to an
only
aggra
in-
it was relevant
regarding
hearing
the defendant’s
evidence
cir
addition,
mitigating
or to a
circumstance
vating
volvement
other crimes.
proof
by
raised
defendant.
presented
of the de-
cumstance
had
Initially
stating,
we
the Ex
expressly rejected
note that
this Court
interpretation
Post Facto
its
of Cozzolino
by
Clause does not
own
now advanced
defendant,
pointed
apply
judicial
gen
many
terms
decisions. See
prior
admitting
decisions
10;
evidence
erally
§§
U.S.
Art.
about
Const.
9 and
*31
crime,
I,
and
11;
nature
circumstances of the
§
Tenn.
Rogers
Const. Art.
v. Ten
though
proof
necessarily
even
such
is not
nessee,
451, 456,
1693,
532
121
U.S.
S.Ct.
to a statutory
related
1699,
(2001).
aggravating circum-
697
the ex
L.Ed.2d
To
stance,
emphasized
and
that
impact
victim
process protects
tent
that due
interests
encompassed
evidence is
within the statu-
protected
similar to those
Ex
by the
Post
tory language “nature and circumstances
Facto Clauses of the state
federal
and
Nesbit,
of
crime.”
for the process at all times. defendant, the culpability of the not an While “a few jurors shed tears response emotional to the evidence. during portions of the victim impact testi- Victim impact evidence is not the same mony,” the trial court noted “none of the as an aggravating circumstance. Proof *33 jurors overly became They, emotional. of an impact adverse on the victim’s simply demonstrated a normal reaction to family proof is not of an aggravating testimony.” [such] thoroughly After re- circumstance. Introduction of victim record, viewing the agree we with the trial impact way evidence in no reheves the court and the Court of Criminal Appeals State of its prove beyond burden to a that impact the victim evidence reasonable aggrava- doubt at least one unduly prejudicial and did not render the ting circumstance which has been al- sentencing proceeding fundamentally un- leged. may You consider this victim fair. impact evidence determining the ap- Next, the defendant avers that a propriateness penalty the death only contradiction exists between Tennessee you that-the existence one if first find Code Annotated section 39-13-204(g)(l) or more aggravating circumstances has and jury regarding instruction victim been proven beyond a reasonable doubt impact evidence set out by this Court in by independent evidence the vic- from Nesbit. The evidence, defendant maintains that this tim impact and that the find contradiction renders victim impact evi aggravating circumstances out- found dence irrelevant. Tennessee weigh Code Anno finding one or more miti- tated section 13—204(g)(1)provides in gating beyond circumstances а reason- 39— pertinent part: able doubt.
If jury unanimously that determines Nesbit, 978 (emphasis S.W.2d at 892 add-
(A) (1) At least one statutory aggra- ed). The says defendant a contradiction vating circumstance or several statu- exists provides because the statute tory aggravating circumstances have jury shall return a verdict of death proven by been beyond the state a upon finding the existence of an aggrava- doubt; reasonable and ting beyond circumstance a reasonable (B) Such circumstance or circum- outweighs any doubt that mitigating cir- proven stances have been by doubt, the state beyond cumstances a reasonable to outweigh mitigating circum- while the Nesbit instruction allows the beyond doubt; stances impact reasonable to consider victim only evidence then the sentence shall be death. after it has found that at least one aggra- Nevertheless, we wish to exists, Georgia.7 and that and vating circumstance instruction was outweighs emphasize circumstance that the Nesbit aggravating Nesbit, beyond circumstances a reason- mitigating simply suggestion. (“[W]e following
able The defendant concludes hereby suggest doubt. at 892 by the impact ”). evidence is “mooted” victim lan- By suggesting this instruction.... purpose in the and serves no instruction preclude indi- we not intend to guage did sentencing scheme. judges trial or the Committee vidual (Criminal) Jury Instructions Pattern argument,
Assuming,
the sake
(“Commit-
correct,
Tennessee Judicial Conference
certainly
defendant is
tee”)
necessary
appropri-
because,
making
no
as the
complain
has
basis
Indeed,
out,
to this instruction.
points
any contradiction be-
ate revisions
State
Committee,
in-
which is
judges
the instruction
tween the statute and
trial
Smith,
See, e.g.,
judges,
ures
his benefit.
are often
composed of trial
better
7;
Bush,
13, n.
v.
S.W.2d at
State
the practical
effective-
situated
assess
(Tenn.1997);
n. 10
State
particular
or ineffectiveness of this
ness
(Tenn.1986).
Carter,
jurisdictions approach take a “minimalist” by advising jury the that victim simply asserts, de the State the As cir- impact aggravating evidence is not an object contemporaneously fendant failed cumstance. argument jury that prosecutor’s the to the what the victim’s death should consider beyond dispute that ef
It is
the
community”
and that
“meant
the
must
subject
fective
on this
instruction
the
jury
[the defendant]
should “show
impact
that
jury
advise the
victim
evidence
mercy
to Steve and
same
that
showed
aggravating
circum
the same
an
failure
Despite defense counsel’s
Sarah.”
used
stance. As to
instructions
cura
object,
provided
the trial court
jurisdictions,
note that the Nesbit
other
we
instruction, stating, “Ladies and Gen
precedent from tive
upon
was based
instructiоn
Jury, you are to
an
of the
do
jurisdictions, in
tlemen
particular
other
Oklahoma
cases).
Nesbit,
for its con-
(citing
instruction to the Committee
this
7.
The defendant also contends They THE I COURT: can consider. during rebuttal argument prosecutor will—ladies I gentlemen jury, improperly told that it could con you will instruct as to are to you how sider the victim impact during evidence weigh things. weighing process in in engaged flammatory argument designed to elicit an you can GENERAL THURMAN: But response irrational and emotional consider that. You consider what Sarah *35 jury. The defendant contends that the had in consider- go through Jackson to improper argu factors, cumulative effect of this ing aggravating these after she following shot, ment mandates is knowing reversal. had was after she to wait excerpt an shot, of the to argument Hampton which being Steve was and she objects: next, shot, defendant was and how after was she get up, thinking she was to struggling GENERAL Aggravating THURMAN: survived, maybe, maybe maybe I’ve he circumstances. We’ve talked about gone, you is and his weighing when are those. General Moore talked about background, childhood, weigh his what them, they really and are not an issue. kind of man stand and calm- could there Engle Mr. admits that all aggrava- those reload, time, in ly one at a that shell present are ting circumstances in this there, pistol while she and struggling is case, so that is not the issue now. Now pity, what kind of man cannot have and issue, you you have the if weighing did what kind of man walk in there and about, weigh you what if we’ve talked young girl? that execute it, weigh any you mitigation found Reid, man, Mr. and I it very slight, submit is This kind of and he can’t blame his I think there is one but verdict under mother. He can’t blame his father. He complained viewed of The conduct of 1. Department can’t blame the Texas and circumstances responsible. This of the facts light He is Correction. case; expert man. That the man wit- is to you for the defense didn’t want nesses measures undertaken 2. The curative that from That the man suffered see. is prosecution; court by the with psychosis hardly this that can’t deal prosecutor mak- 3. The intent of Paul Reid the world. That is the man. improper arguments; ing the shop- celebrating, spending money, his improp- effect 4. The cumulative functioning he рing. It like is looks any other conduct and errors er well; is it? pretty doesn’t While record; and are you toasting margarita his circumstances, think about weighing strength and weakness 5. The relative that are where saying the three children the case. my parents Think about the daddy? is Nesbit, these Applying at 894. day through struggling get to one more factors, opinion that we are of the celebrating. he is
while Any impropriety error was harmless. a lot this case is though Now even closing argument slight. prosecutor’s Paul mitigation about Reid and used prosecutor should have While consider, you have have you don’t there “weigh,” rather than “consider” word faces, lives, and the forget those those acted prosecutor that the is no evidence destroyed, those lives were besides faith, fact, responses and in bad two, of the will tell Judge families. objections indicated that he was defense you can that. You consider you consider comply precisely with attempting weigh when you aggravating those Moreover, trial dictates Nesbit They people real circumstances. were objections, proper- court sustained defense with real dreams— jurors as to the nature ly instructed Honor, sorry, MR. ENGLE: Your I’m evidence, impact empha- function of victim but, of the again, this is a misstatement jurors apply the law should sized law. court, ju- and reminded provided THURMAN: It is not GENERAL evi- argument of counsel is not rors that law. can con- They misstatement of the This a well-tried case dence. was that, sider Your Honor. end, and the cumulative effect beginning in- THE it—I will COURT: Consider apply simply does not because factor they in terms of how struct Finally, the nearly trial was error-free. should consider this. strong, sentencing very case State’s three proof aggravating for- clear THURMAN: But don’t with GENERAL *36 theirs, lives, proof and substantial rebut- only all the not circumstances get Reid, Accordingly, mitigating Paul and it’s the evidence. destroyed by ting were circumstances, no have responsibility the these we time for him to face under any improper argu- the in finding for him to have for that. It’s time hesitation closing prosecutor’s during Each know the punishment. you of ment ultimate Nesbit, at 893-94. justice. 978 S.W.2d It’s time for harmless. what is. you. Thank Proportionality Review VI. prejudicial the effect evaluating statutorily required Finally, this court is improper prosecutorial argument, any of (1) of the whether: sentences to determine must consider: this Court 286 in imposed any arbitrary imposed
death were
fash-
death
than
was never
in a case
(2)
ion;
supports
jury’s
the evidence
the
characteristics,”
with similar
but
instead
finding
statutory
of
aggravating circum-
that no
death
“assure
aberrant
sentence is
stances;
(3)
supports
the evidence
the
affirmed.” Id.
jury’s finding
the
circum-
aggravating
circum-
outweigh
mitigating
stances
While
is no
there
mathematical
stances;
(4)
the
death
sentence of
is
comparing
or scientific formula involved in
disproportionate
penal-
excessive or
to the
cases,
generally
similar
this Court
consid
imposed
cases,
ty
in
considering
similar
(1)
(2)
death;
the
ers:
means of
man
the
both the
the
nature of
crime and the de-
death;
(3)
ner of
the motivation for the
§
fendant.
Tenn.Code Ann.
39-13-
(4)
death;
(5)
killing;
place
of
206(c)(1) (1997). A
of
thorough review the
similarity
circumstances,
of the victim’s
in
record
that the
reveals
evidence
suffi-
cluding age, physical and mental condi
support
jury’s
cient to
of the
finding
tions, and the victim’s
during
treatment
three aggravating circumstances and the
(6)
killing;
presence
or
absence
jury’s
circum-
finding that
aggravating
(7)
provocation;
or presence
the absence
outweighed mitigating
stances
circum-
(8)
justification;
injury
to and
beyond
stances
a reasonable doubt. Addi-
effects
non-decedent victims. See
tionally,
there is no indication thаt
Vann,
Bland,
(citing
287
in
Carruthers,
he suffered was
re-
role,
chological disorder
or
35 S.W.3d at
death.”
666).
committed these
Bland,
mission at the time he
at
(citing
570
958 S.W.2d
pre-
Finally,
evidence was
no
offenses.
the
in this case in
Considering
record
cooper-
that the defendant
sented to show
that,
factors,
proof
of
the
shows
light
these
re-
the authorities
exhibited
ated with
D’s,
robbing a
the defendant
Captain
while
nothing
and there is
killings,
morse for the
employees
repeatedly
unresisting
shot two
in the
indicate the defendant
record
they
down
the floor.
lying
were
face
to rehabilitation.
amenable
had been shot at close
Sarah Jackson
no
capital
two
cases and
two
While no
range
times in the back of the head
four
alike,
compared
are
we have
defendants
Hampton
in the back. Steve
had
and once
present case with
the
circumstances
close
in the back
range
been shot at
twice
degree
of similar first
the circumstances
the
and
The
head
once
the back.
penal-
the
murder cases and conclude that
suggested
number of wounds
de-
imposed
present
is not dis-
ty
case
manually
.32 caliber
fendant
reloaded his
imposed
proportionate
penalty
during
revolver
the assault. Both
rob-
Chalmers,
See, e.g., State v.
similar cases.
bery
appear
pre-
and the murders
to be
(Tenn.2000) (imposing
28 S.W.3d
meditated,
intentional,
well-planned,
and
aggravating
upon finding
death penalty
lacking any
impulsiveness.
indicia of
(i)(2)
defendant
where the
circumstance
robbery
apparent motivations for
and
twenty-eight-year-old
and robbed a
shot
greed
are
a
to avoid
murders
and
desire
Cribbs,
victim);
v.
State
prosecution.
(Tenn.1998)
penalty
(imposing
death
thirty-nine-years-old
defendant was
(i)(7)
(i)(2)
aggrava-
and
upon finding the
at the
these
time
crimes were committed
twenty-
where the
ting circumstances
and
in 1984
had been convicted Texas
a
murdered
three-year-old
defendant
aggravated robbery.
the defen-
home);
her
burglarizing
woman after
felony
dant had two
indictments
Texas
(Tenn.1997)
Bush,
neurological damage);
868
by Judge
S.W.2d authored
David
Hayes,
G.
and
joined
at 561
(imposing
penalty upon
by Judge
death
John Everett Williams
(i)(5),
(i)(12)
(i)(6), (i)(7),
Witt,
and
finding
Judge
James Curwood
ag
&
Jr. Rele-
portions
opinion
vant
of that
published
are
gravating
despite
circumstances
mitigation
appendix.
hereafter as an
The defendant’s
evidence that the defendant had been hos
convictions and sentences are
pitalized
affirmed.
depression, paranoid person
disorder,
sentences
death shall be carried out
ality
neurosis,
depressive
chronic
provided by
day
as
law on .the 29th
paranoid
disorder);
and
delusional
State v.
2003,
April,
Howell,
(Tenn.1993) (im
unless otherwise
ordered
VII. Conclusion dispro- arbitrary defendants portionate imposition penalty. of the death We have considered the entire record See, Austin, 447, e.g., 81 S.W.3d this case and find that the sentences of (Tenn.2002) J., (Birch, 467 concurring and imposed death were not in any arbitrary dissenting); Godsey, State v. 60 S.W.3d fashion, that the sentences of death are not (Tenn.2001) 759, J., (Birch, concurring excessive or disproportionate, Bane, and dissenting); State v. 57 S.W.3d supports jury’s evidence finding of the (Tenn.2001) (Birch, J., concurring statutory aggravating factors and the Chalmers, dissenting); State v. jury’s finding that aggravating these fac- (Tenn.2000) (Birch, J., outweighed tors mitigating beyond factors Keen, concurring dissenting); State v. a reasonable doubt. We have also consid- (Tenn.2000) (Birch, J., ered all the assignments defendant’s context, dissenting). this case is error and require conclude none re- distinguishable from those listed. respect versal. specifi- With to issues not herein, cally concerns, addressed we affirm the I grave expressed deci- have Appeals, dissents, sion the Court of Criminal the aforementioned about
289 proto- comparative proportionality review employed by majority capital
col
for
argued that the removal
selection. He
has, my opinion,
been no
cases. There
prospective jurors
oppose
who
of
cause
meaningful
to
and rectify
effort
address
because of
imposition
penalty
of the death
effort,
This
these concerns.
lack
philo-
“sincerely held”
moral or
religious,
my
held
strongly
combination with
convic-
I,
6
Article
section
sophical beliefs violates
properly
that
is not
fulfill-
tion
the Court
He further
of the Tennessee Constitution.
to determine
statutory obligation
its
ing
“whether
question,
asserted
sentence of death is exces-
whether “the
moral,
‘sincerely
religious,
or
juror’s
held’
penalty im-
disproportionate
or
to the
sive
preclude them
beliefs
philosophical
would
cases,”1
in similar
causes me to
posed
jurors,” vio-
following
their oath as
respectfully disagree
3, 4, 6,
with the decision
I,
8,
17
lates Article
sections
penalty
in this
imposed
XI,
affirm the death
8 of the Tennessee
and Article
section
Indeed,
Appellant
I
reverse the
ar-
Accordingly,
case.
would
Constitution.
only
which
consti-
gued
inquiry
the case
that the
is
sentences
death
remand
prospective
a
permissible when
tutionally
re-sentencing.
juror
opposition
an
the death
expresses
philosoph-
penalty upon religious, moral
APPENDIX
wheth-
grounds
determining
ical
is
(Excerpts from the Court of Criminal
trial
sincerely
is
held. The
er
belief
Decision)
Appeals’
Appellant’s
court
motion.
denied
denial
Appellant now contends
IN THE
OF
COURT
CRIMINAL
was error.
APPEALS OF TENNESSEE
AT NASHVILLE
competent
person
A
otherwise
juror
may
disqualified as a
because
not be
13, 2001
March
Session
religious beliefs.
In other
of his or her
words,
put
be
forth
religious
no
test shall
STATE
v. PAUL
OF TENNESSEE
probe
Religious
tests
reli
person.
REID,
DENNIS
JR.
Sundquist,
See
v.
955
gious beliefs.
Wolf
Direct
from the
Court
Appeal
Criminal
626,
(Tenn.App.), perm.
ap
631
97-C-1834,
County,
for Davidson
No.
(Tenn.1997)
denied,
v.
(citing Torcaso
peal
Blackburn,
Cheryl
Judge
1680,
494,
Watkins,
488,
U.S.
81 S.Ct.
367
(1961);
1683,
Paty
Bobo,
945,
(Tenn.),
727 S.W.2d
949
cert.
denied,
872,
204,
484
108
U.S.
S.Ct.
98
Concerning
B. Other
Voir Dire
Issues
(1987).
Ap
L.Ed.2d 155
Court
Appellant
additional
raises
peals, in
v. Sundquist, reaffirmed this
Wolf
issues
trial
regarding the
court’s direction
principle, stating:
pro
of voir dire within the
selection
It is now
that a
settled
criminal defen-
Specifically,
Appel
cess
his case.
rights
dant’s constitutional
are not vio-
improperly
lant contends that
the court
lated
excusing prospective jurors for
limited the
Appellant’s ability
learn
cause when
personal
their
beliefs con-
potential
jurors’
about
attitudes toward
cerning
penalty
the death
prevent
would
evidence,
mental health
improperly ques
substantially impair
perfor-
their
jurors concerning opinions
tioned
about
juror
mance as a
accordance with
death penalty,
improperly
com
their
and their
instructions
oath.
expected
Appel
mented that
the court
(cit
Sundquist,
v.
291
(Tenn.1993),
denied,
presence
238,
оf the tentative
cert.
510
ducted out of
248
U.S.
1339,
prospective
L.Ed.2d 687
other
ly
jurors
S.Ct.
selected
Middlebrooks,
(1994); State v.
provides
rule
no
jurors.” Although the
(Tenn.1992);
Teel,
317, 329
State v.
scope of
determining
test for
whether the
(Tenn.),
denied,
cert.
rule’s
to fulfill the
questioning
adequate
1007, 111
voir the trial court limited Appellant Guilty was issues, requiring any into mental health question attempt clarify to be an to a Appellant The cites to numerous position in questionnaire stated or be a statements the trial which court he general inquiry juror’s regarding the abili- “implicitly conveyed asserts that the court ty testimony.7 to consider mental health expected guilty to found [Appellant] be Appellant The now that the limi- murder, contends first-degree penalty a of so that him placed prevented tations on voir dire phase necessarily would occur thereafter.” developing possible challenges cause Appellant that the inference The contends against jurors already expressed who had to from the trial court’s directions implied evi- negative attitudes about mental health venire that the court “viewed the completed question- any type 6.The venire an extensive with someone who suffered from disorder, prior to of mental illness or emotional or naire to voir dire. Pursuant of someone who has lost control their be- Appellant’s questionnaire request, includ- havior? multiple inquiries regarding ed mental health Question you opin- 48 Do an Number hold Of issues. relevance to this issue: use ion about defendants who mental Question you Number 44 Do believe an for health as excuse their actions? diagnosis provided by psy- a or treatment psychologist qualified or or chiatrist other group during voir 7. The court’s restrictions professional might helpful? be over the dire arose from the court’s concern Question you, anyone Number Have Reid, case S.W.2d 166 recent of State family personal your ever or close friend (Tenn.1998)(notice requirements of to intent any type inpatient out-patient received of or mitigation and use mental health evidence as counseling mental health Question or ability treatment? any to withdraw notice intent at of evidence), you, any Have mem- prior Number 46 presenting time such your family ... personal ber of or close disadvantage to the unfair State. any type psychotropic ever friend taken drug depression, or other medications for Appellant specifically prospec- 8. The refers anxiety any psychological psy- or other jurors Again, Hodges tive and Fears. based problem chiatric Question or disorder? upon per- exercise failure to all available you Appellant Number 47 Have ever had an emptory challenges, the has waived unpleasant experience challenge jurors. or confrontation to individual Sufficiency III. [Deleted: con- [Appellant’s] foregone convictions as Evidence] he avers that Accordingly, clusion.” prejudice resulted court’s comments Evidentiary Phase Issues: Guilt IV. judicial process reversal. requiring Admissibility Testimony A. 36(b). P. See Tenn. R.App. Seryeant Hunter chal- reiterating Without verbatim the tri argues Appellant language of the trial court to lenged Sgt. Johnny by permitting al court erred court, venire, that the acknowledge we an witness testify expert as Hunter “until is found example, used term spatter analysis. Specifi the field blood mur- doubt of guilty beyond reasonable that this tes cally, Appellant contends first-degree” rather than the der right to a his constitutional timony violated guilty beyond “unless he is found term unfairly trial because the defense was fair of murder the first- reasonable doubt find no surprised. disagree and error. We Appellant degree.” argues prejudice by the qualified was court Sgt. Hunter considering the context in which without expert fingerprint anal- testify as an provided. In- the court’s statements were spat- comparison, well as blood ysis deed, challenged comment of the one analysis. The Appellant complains ter court, plaсed in full context the court’s no notice that the that he received advance instruction, provided: intending expert to introduce *43 spatter of anal- testimony in the field blood hasn’t of guilty Mr. Reid been found opportuni- the and that he was denied ysis That is anything. is what the trial the witness. effectively cross-examine ty to about, that so I want to make certain provided report, which was Sgt. Hunter’s you presumed understand he is innocent trial, mentioned prior the to to defense you, as he front of and that sits found, was spatter no blood that visible stays him he is presumption with until amount of exception with the a small found after guilty you proof hear the At on floor around the victims. blood the case, just asking the we so because are trial, pat- Sgt. Hunter testified about blood you questions possi- to regard with the surrounding floor and found on the terns case, punishments ble in this I want area, specifically noting the absence you make that he keep certain mind tes- spattering. Sgt. Hunter further blood anything, has guilty not been found spattering that tified the absence blood we to ask these you but the reason have lying on that the victims were indicated jurors that must questions is we have fur- they were shot. He ground the when possible pun- who can consider all three pattern the on a stated that blood ther ishments. victims, the right of one of shelf the Jackson, she had at- indicated that Sarah Appellant’s argu- disagree with We the up being to lift herself after shot. tempted the compels this instruction ment that finding implied that the court to the Sgt. Appellant contesting The is not Appellant’s guilt. entire the Given the qualifications, rather insists Hunter’s but dire, voir we conclude that context of the testimony in surprised by he was that juror could no reasonable have believed Although Appellant ar- respect. the this instructing was him or her Sgt. that the court that Hunt- that he had no notice gues spattering at testify issue is about blood guilty to return a verdict. This er would he trial, explain how Appellant the fails to without merit. prejudiced by (Tenn.1999); Shuck, was testimony. State v. Over (Tenn.1997). trial, year Appellant pro- before the was copy report, vided with a of Sgt. Hunter’s case, present Agent Littlejohn In the which stated that a small amount of blood placed that a testified ruler was the near was found on the floor near the victims. print at shoe found the crime scene before Appellant complain The Sgt. cannot about photograph the was taken. negatives simply Hunter’s testimony because developed later pho- were and “one to one failed to significance report find the made, tographs were and that would be properly timely provided which was negative where enlarged the is to where by him the State. This issue is without actually ruler in the photograph the the merit. size of print same the ruler next to the at scene, ... photographs so would Testimony Agent
B. of TBI Linda exactly print be the same as the at size Littlejohn Regarding Length length crime scene.” Both tread and were of Shoes Seized using technique. determined this same comparing photograph After Appellant argues that tri shoes, Agent Littlejohn testified that none by al court erred Bu allowing Tennessee treads the shoes recovered Investigation reau of Agent, Linda Little- Appellant’s apartment matched john, testify length the shoes print left Although at crime scene. Appellant’s seized from the apartment Littlejohn could Agent testified she within were range of unidentified speculate as not to the actual size of the print shoe left the scene of the crime. worn the perpetrator shoe because dif- Specifically, he tech contends styles slight- vary ferent and brands would “measuring” nique enlarged used in however, ly length, testify, she did photographic negative shown length print of the shoe found at the admissibility meet standards of ex *44 fell range lengths scene within the of of pert set in testimony forth McDaniel v. pairs nine of the shoes seized from the (Tenn.1997). Transp., CSX 955 S.W.2d Appellant’s apartment. Specifically, she Additionally, Appellant the the asserts that print testified that the shoe the found at Agent Littlejohn’s testimony admission of measured 12 scene and inches 3/8 R. violated Tenn. Evid. 702 and 401. length. Appel- The shoes taken from the of Determinations the admissi apartment ranged lant’s from 11 13/16 bility of expert are testimony made within length. to inches inches 12½ the sound discretion of the trial court. First, Appellant that the contends Ballard, Stale v. 855 S.W.2d court in admitting Agent trial erred Little- (Tenn.1998). The standard of review john’s testimony regarding length appeal is whether the trial court its abused print comport the shoe because it did not excluding expert discretion in testimo expert testimony with standards set ny. The abuse discretion con standard McDaniel, forth at We 257. that, reversal, templates before the record Appellant that note does not contest “applied a judge must show that an incor respect measurement technique this with standard, legal rect or reached a decision to the tread testimony, identification which which against logic is or that reasoning Rather, only was favorable to him. injustice party caused an complain to the respect technique attacks with to ing.” Shirley, print. State v. length Appellant 6 S.W.3d the shoe and there right, All is by THE COURT: argues that the trial court erred further reads, regard with literature violating Tenn. R. Evid. which scientific this, technical, I mean— scientific, special- or other “[i]f knowledge substantially will assist Yes, ized there is. LITTLEJOHN: or of fact understand the evidence trier subject to is this THE COURT: —and issue, a fact in a witness to determine proven disproved? being able be skill, expert by knowledge, qualified as an LITTLEJOHN: Yes. may tes- training, or education experience, so there are scien- Okay, THE COURT: opinion in the of an or other- tify form this? principles tific behind wise.” Yes. LITTLEJOHN: McDaniel, Supreme the Tennessee up blow it one- you THE COURT: So consider may held that a trial court Court on-one, which the exact size of is following determining factors when just make a com- print, you and then (1) reliability of wheth- scientific evidence: in tread other- of both and parison has been tested er scientific evidence wise, you that apparently did which has been methodology with it that does [defense counsel] this case (2) tested; has been whether the evidence object to? subjected peer publication; review or Yes, your LITTLEJOHN: honor. (3) is potential rate of error whether a DEFENSE: Correct. (4) known; whether, formerly required you so Okay, THE COURT: used accepted Frye, generally by evidence compare methodology same (5) community; wheth- in the scientific that, tread, you prints, has expert’s research in the field er the comparison? to make the size used independent litigation. been conducted Basically.... LITTLEJOHN: McDaniel, at In this 265. text, along that the above conclude We instance, dialogue place the following took testimony presented other with during jury-out hearing: than hearing, more satisfies jury-out Well, let Ms. THE me ask COURT: The evi- forth in McDaniel. factors set Ms. Littlejohn couple questions. jury-out both the hear- presented at dence Littlejohn, you had training the technique trial indicated that ing and you terms of the conclusions Agent Littlejohn was standard used drew, procedures these standard were *45 accepted in field widely and procedure used that field? comparison. Agent footprint and of shoe Yes, I mean— LITTLEJOHN: expert as an Littlejohn properly qualifies Okay, and it the blow-
THE COURT: is comparison her footprint and and in shoe up, comparison— ing the one-on-one testimony substantially have assist- would education, her trier of fact due to ed the Uh-huh. LITTLEJOHN: R. training. and See Tenn. experience, your —and is that THE COURT: what Moreover, Appellant 702. Evid. training indicates? testimony during cross-ex- to solicit able yes, ... ma’am. LITTLEJOHN: length print of the that amination And is the standard THE COURT: fairly among common would be found in your used field? without This issue is population. general Yes, merit. it is. LITTLEJOHN: Appellant
The argues ceipts also had not been properly authenticat- Agent Littlejohn’s testimony concerning ed. The trial court objection overruled the range length of was irrelevant. See Tenn. register receipts found the cash ad- R. Evid. 401 and 402. Tennessee Rules of Upon issue, missible. reviewing this we Evidence 401 defines relevant agree evidence as receipts were admissible. having any “evidence tendency to make 901(a) Rule of the Tennessee Rules the existence fact that is of conse provides Evidence requirement “[t]he quence to the determination of the action of ... authentication is satisfied evi probable more probable or less than it dence sufficient to the court to support a would be without the evidence.” Clearly, finding by the trier of fact that the matter testimony concerning prints the shoe in question proponent what its claims.” found at compared the crime scene as 902(7) Notwithstanding, Rule states that Appellant’s shoes seized from the authenticity extrinsic evidence of is not apartment is relevant evidence that was required precedent as a condition to ad properly admitted. This issue is without missibility when the item or sought items merit. “[inscriptions, be admitted are signs, tags, purporting or labels to have been Admissibility Register C. of Cash affixed in the course of business and indi Receipts Appellant’s Seized from cating ownership, control or origin.” In Residence case, present two receipts of the were Appellant The argues that the tri from Wal-Mart receipt and one was from al court erred in admitting into evidence Sports. receipts Jumbo All three were register receipts cash Ap seized from the form, printed name, bearing the retailer’s pellant’s residence that properly were not address, and other relevant information. pursuant authenticated to Tenn. R. Evid. printed This material constitutes an “in Specifically, 901. he contests the authenti scription” purposes satisfying for Rule receipts prosecu cation of the because the 902(7). See, e.g., Hing United States v. tion representa failed to call as witnesses Chan, Shair F.Supp. respective tives of the testify businesses to (E.D.N.Y.1988) (a hotel record on hotel as to legitimacy accuracy stationary was held to be self-authenticat receipts. prosecution, through the DeLeon, ing); No. CA testimony of Postiglione, Detective intro (Ohio 2000) App.2d WL 646502 May duced register receipts three cash seized (bill of sale for bearing automobile dealer’s (1) Appellant’s from the residence: a Wal- name and address held to be self-authenti receipt $78.34, Mart in the amount of dat Cohen, al., cating); Neil P. et. Tennessee (2) 17, 1997; February ed a Wal-Mart (4th 2000). §§ Law Evidence ed. 9.02[9] receipt dated day the same in the amount Thus, the cash register receipts were self- (3) $69.29; receipt from Jumbo authenticating properly admitted at 18, 1997, Sports dated February trial. This issue is without merit. purpose for the introduction $97.41. *46 receipts of these was to show that the Closing Argument V. at Guilt Phase Appellant spent large had a amount of A. Prosecutorial Comment money period in a short of time after the Appellant’s on Failure despite murders the fact that he was Testify trial, dire financial at the trouble time. At objected defense counsel to the Appellant argues introduc that tri the The tion of receipts, arguing the that by the re- al court erred denying defense coun when, why talked did during for about [Defense counsel] sel’s motion a mistrial put in the statement. Because the State closing of the arguments guilt/innocence it, jurors, a and as have gave you, he prosecution the phase, the commented on it, it. You did hear and we right hear prosecu Appellant’s testify. failure to A reason; he put for one because on prohibited commenting strictly tor is given explain after chance to was chance testify. the not to on defendant’s decision gotten fingerprint his could have on how (Tenn. State, v. Coker surprised it He said I’m that card. not However, Crim.App.1995). prosecutor’s he an on there. Would ever have is proof statement is unrefuted or un- explanation? counsel] [Defense improper is an comment contradicted not air, out of the and there is grabbed one testify. upon a defendant’s failure to anything in fact evidence for no basis (Tenn.Crim.App.1991); Thomas, 818 S.W.2d else, said, maybe his car well broke y, at Cour down. 378. added). main Appellant (Emphasis case, present Appellant In the the prosecution’s the statement of tains that However, testify not at did trial. video explana an “When would ever have taped following statement to the detectives the fact clearly upon tion?” commented Appellant’s played the arrest was before during Appellant explain that the failed jury. tape, Appellant In this stat police presence his statement to his finger that he did know his ed not how property on that had been fingerprint got Gallery print Hampton’s on Movie Addi possession of one of victims. Nonetheless, card. he also told detectives prosecutor tionally, he contends that the surprised “I’m not it is on there.” Appellant’s wrongfully commented During guilt/inno closing arguments failure to take the witness stand offer phase, explanation disagree. cence made fol an trial. We defense counsel clearly direct argument This was rebuttal lowing statements: argu counsel’s earlier ed toward defense I the evidence that card believe showed picked Appellant have ment that the could day, was found the next over hours walking card up the movie while after happened. after You robbery heard do not find that the car broke down. We Ellington Parkway, that it was found on be characterized as a fairly can statement mile Appellant’s] about a from [the failure to tes Appellant’s comment on Appellant] house. You heard that [the most, At was mere tify. the comment had car that all the time. broke down prosecution its by proof argument If a person something was near or uncontradicted. See unrefuted you your car breaks down and walk at 378. This issue Coury, 697 S.W.2d pick something, you might up without merit. throw it back down. Four months after fact, you may even remember During Comment B. Prosecutorial that. Closing Arguments questioned Additionally, defense counsel that the trial court Appellant argues reasoning prosecution’s playing ob- by overruling defense counsel’s erred its videotaped during trial. statement dur- jection prosecution’s statement re- closing arguments, prosecution Appellant’s argument that the ing closing prints as left sponded to defense counsel’s comments was the “same size” shoe foot Specifically, Appellant at the scene. follows: *47 298
contends that prejudicial the comment was testified that it is common for the same prosecutor’s “because the vary length uрon comments con- “shoe sizes” to based the brand a name and manufacturer stituted misstatement of the of the evidence on Accordingly, Agent shoe. Littlejohn de- a crucial matter.” specifically clined to identify print the shoe Closing arguments are an im as being particular size. Because the portant parties tool for the during the trial Appellant’s shoes taken from the apart- process. Consequently, the attorneys are ment ranged length from 11 and 13/16 usually given wide latitude in scope of inches, inches to 12 Agent Littlejohn and ½ arguments, their see Bigbee, State v. 885 testified that she had no doubt that 797, (Tenn.1994), S.W.2d 809 and trial print scene, shoe found at the which mea- turn, judges, in are accorded wide discre sured 12 length, and inches in fell 3/8 tion in arguments, their control of those range within the length of of shoes taken Zirkle, 874, see v. 910 S.W.2d 888 Thus, Appellant’s apartment. from the (Tenn. App.1995). Crim. Notwithstanding Appellant could not be excluded from such, arguments temperate, must be based having print. left the upon trial, the evidence introduced at rele During closing arguments the guilt/in- tried, vant to the being issues and not phase, nocence prosecution made the improper otherwise under the facts or law. following respect three comments with State, (Tenn. 357, Coker 911 S.W.2d 368 Appellant’s “shoe size”: Crim.App.1995). To justify a reversal on killer, likely, More than it was ground of improper argument of coun print could that Ap- have excluded [the sel, it must affirmatively appear that the pellant] if it was the killer? [sic] Of improper conduct affected the verdict to course, if it was a 7 size or size 8 or a prejudice of the Harring defendant. 9, size but it fit in the size the shoe State, 338, ton v. 215 Tenn. 385 S.W.2d Appellant] [the wears. (1965); McBee, State v. (Tenn.Crim.App.1982). S.W.2d footprint The could have him. excluded Furthermore, the following factors must The same size of Appellant]. [the be by considered this court in making such 1) a determination: the conduct com footprint Who ahas the same size as the of, plained in light viewed of the facts and one left at the Ap- crime scene? [The 2) case; circumstances of the the curative pellant]. measures by undertaken the court and the added). (Emphasis Appellant argues 3) prosecutor; prosecutor the intent of the prosecu- the above comments made 4) statement; in making improper prejudicial misrepresented tion were cumulative effect improper conduct proof. disagree. prosecutor We 5) record; other errors never referred to the unidentified shoe the relative strength or weakness of the print particular being size. While it 809; Bigbee, case. State v. might preferable have been more for the Buck, (Tenn.1984). prosecution terminology to use the “within case, present Agent Little- range length Appellant’s] [the shoes” john testified that the unidentified shoe size,” instead it of “same is clear from the print found at the crime scene was within prosecution record before us that the range length of shoes seized simply Littlejohn’s referring Agent tes- Appellant’s from the timony residence. She also explained where she that the crime *48 print scene shoe range fell within the seized from Appellant. shoes As the Moreover, concedes, as the facili State noted, correctly trial court “the did tation is a lesser-included offense of both nothing that, argue position more than its first-degree especially aggra murder and because the length print of the unknown robbery. generally vated See State v.
was not
length
inconsistent with the
(Tenn.1999).
Burns,
VI. Instructions on Lesser- Second, evidence. Id. the trial court must included Offenses evidence, determine if the in viewed light, legally support is sufficient to a con Appellant argues that it was error viction for the lesser-included offense. Id. for the trial court to deny request for at 467-469. jury instructions as to the lesser-included responsibility offenses of Criminal for facilitation of first-degree facilitation of mur- felony is defined Tenn.Code Ann. der and facilitation of especially aggravat- (1997) § 39-11-403 and reads as follows: ed robbery. respect With premedi- to the (a) A person criminally responsible tated first-degree charges, murder if, for felony knowing the facilitation of a court jury instructed the on the lesser- specific that another intends to commit included offense of second-degree murder. felony, required but without the intent respect With to the especially aggravated § for criminal responsibility under 39- robbery charges, the court instructed the 11-402(2), person knowingly furnish- jury on the lesser-included offense of ag- es substantial assistance the commis- court, gravated robbery. The trial howev- felony. sion of the er, declined to jury instruct on the We are unable conclude under lesser-included offense of facilitation. the test announced Bums that reason that, Initially, we note Tennes anyone able minds could find that other see, irrespective party’s of a request for a Appellant than the was involved in this instruction, jury lesser-included is the “[I]t prosecution crime. nor the Neither the duty judges juries of all charging cases Ap theory defense advanced the that the prosecutions any felony of criminal ... pellant responsible criminally was for facil charge as to all the law of itating the acts of another at trial. To the each offense included in the indictment.” prosecution’s theory contrary, it was the 40-18-110(a) (1997). § Appellant responsible Tenn.Code Ann. that the solely *49 Seventh, Appellant points the At rants. the to robbery. for both the murders and Farmer, testimony the of Mark who testi- trial, defense, Appellant, the in his assert- “possible” fied trial that it that at was position prosecution the that the failed ed in the someone else could have been driv- identity perpetrator. establish his as the to However, er’s the car. he did not side of appeal, Appellant gives On the several was, testify thought that there or that he why he reasons was entitled the lesser- person car. there was another in the In- First, Appellant the included instructions. stead, it only acknowledged he that would police he points to his statement to where Appellant possible. Finally, have been “I says, triggerman.” am not the This argues composite drawings do that not statement, however, way in no indicates trial, him. The at how- evidence resemble participation person. another Sec- ever, the drawings indicates that were sim- ond, Appellant points to his statement many ilar that features between the says know where he he did not the victims composite Appellant drawings and the was “not his surprised” fingerprint but match. on the Movie card. Gallery was victim’s juror no could We find that reasonable tracking also insists He the bloodhounds’ presented that the accepted have evidence to a of a scent the location card manner established the commission nearby implicates the involve- residence offense facili- the lesser-included person. of another we again, ment Once case contrary, tation. the entire is To interpret per- do not to mean another this Appellant sole centered around Moreover, no son was involved. evidence defense perpetrator Appellant’s and the presented support con- was at trial Thus, the trial court being involved. Third, Appellant argues that tention. properly declined instruct person have been another could involved facilitation the lesser-included offenses of many fin- because there were unidentified facilitation of first-degree murder and left crime The gerprints at the scene. especially aggravated robbery. This issue public scene was a restaurant and it crime is without merit. expected many that fin- unidentifiable would found at such a loca- gerprints be Night VII. Late Sessions Court Fourth, Appellant points tion. Appellant argues print that one fact shoe never identi- error trial committed reversible court again, expected public fied. Once it is night” court ses holding numerous “late many prints, restaurant to have whether main Appellant Specifically, sions. fingerprints prints, belong shoe night tains the late sessions caused Fifth, the persons. Appellant unidentified less effective attorneys to be tired and maintains that were found in an cigarettes been had normally than would have they ashtray proof in the at restaurant. they for more given opportunity been however, trial, that the cigarettes Parton, indicated rest. employees’ found at station
were
break
(Tenn.Crim.App.1991), this court ad
the night
night”
and had not been removed
be-
court
issue of “late
dressed the
employees
when the
went
follows:
fore
home.
sessions as
friend,
Sixth,
Appellant argues
that his
night
late
It
this state that
is clear
Tackett,
Danny
and the
“only
testified
court
should be scheduled
sessions
com-
Appellant
previously
require
had
discussed
it.”
when unusual circumstances
McMullin,
Regard-
fast
for a of Justice may Character evidence be an into incident had led to rumors of impeach used limited circumstances to unprofessional possibly illegal conduct (evi 404(a)(3) witness. Tenn. R. Evid. See by Dr. Martell in a penalty federal death dence of character of witness admissible as letter, repeated- case.11 In his Dr. Martell 609). provided in Rules 608 and How ly any wrongdo- asserted his innocence of *52 ever, extrinsic evidence of conduct other ing sought investigation an so that he may than criminal conviction not be used could receive a letter of exoneration from to attack the character of a witness. See Department Specifically, Justice. 608(b). Accordingly, Tenn. R. Evid. Dr. emphasized that these had allegations properly Martell’s letter was excluded as damaged professional reputation and extrinsic of Dr. Martell’s charac evidence threatened his “financial status.” The al- ter. legations concerned an affidavit Dr. Mar- Moreover, certain conditions must tell signed had in a federal case. This allowing inquiry be satisfied before on affidavit by attorneys was discussed cross-examination of the witness about judge and the in chambers.12 Dr. Martell specific probative of conduct instances was denied the opportunity to hear the solely of truthfulness or untruthfulness. allegations or to defend himself if needed. 608(b). First, upon See Tenn. R. Evid. In denying admission of Dr. Martell’s request, hearing the court must hold a letter, found, trial court in relevant jury’s presence outside the and must de part: alleged pro termine that the conduct has says It I ques- must determine that the bative and that a reasonable factual value proposed good tions are in faith rather R. inquiry. basis exists for the See Tenn. an place 608(b)(1). than effort to before the requirements Evid. If these are unfairly prejudicial sup- met, information then court must determine ported only by conduct, unreliable rumors. I’m exceptions, within limited going to determine that there is no rea- no more than ten must have occurred inquiry. years sonable factual basis for that commencement of the action before Capi- Appellant acknowledges 11. Members of the National Network of that the alle- 12. The that, gation against by defense Dr. Martell was Attorneys alleged tal Defense in the case counsel that matter and that there is no Spivey, signed of United States v. Dr. a Martell allegation by defense coun- evidence that false affidavit. did, fact, occur. sel that, prosecution. gering or Tenn. illness in his See R. Evid. mental 608(b)(2). opinion, Appellant’s disor- delusional During der in remission. cross-ex- case, present In the the court amination, per- requested defense counsel determined that no “reasonable factual ba audiotape an of a mission to introduce existed Appellant’s sis”- for the inquiry. by Posti- June 1997 interview Detective agree. Appellant We offered no evi Meadlin, glione Dorothy Ap- Ms. by evidencing dence of conduct Dr. Martell Martell, pellant’s former landlord. Dr. Rather, only proof untruthfulness. of opinions Appellant, forming his by fered was written letter Dr. Martell had testified that he and consid- reviewed requesting exoneration because of false ru in- taped ered the contents the audio proof mors. letter itself is not Dr. trial terview. The court denied defense Martell’s untruthfulness. Where there is request, the con- finding counsel’s no factual inquiry prior basis for an into tape hearsay and tents of the constituted witness, conduct of the court shall bar appropriate.” Specifically, were “not any such attempt interrogate a witness court stated: speculation based mere or See rumor. you Mr. I’m not to let do Engle, going v. Philpott, 882 S.W.2d just appropriate. this. It is flat out not “An (Tenn.Crim.App.l994)( attempt you I still why why don’t understand — through ques communicate innuendo her as a You could don’t call witness? which negative tions are answered witness, you have called her as impermissible questioner when the no has you Detective if Postiglione, could call question.”); evidence to support see reason, that, had in order put order v. Bowling, also State *53 try to tape, to authenticate the but to (Tenn.Crim.App.1983); Neil P. et Cohen get information of she has to the what al., Law Tennessee Evidence Martell], say through in who is [Dr. § Accordingly, 6.08[7][d]. we conclude that expert Reid’s testifying as an about Mr. the trial court did not abuse its discretion condition, mean, exactly I just mental preventing in into Dr. inquiry Martell’s you think this what rule of evidence do to the Department letter of Justice. Fi to? belongs nally, we fail how the written to see letter by Dr. Martell that establishes Dr. Martell then to intro- sought Defense counsel preju is biased favor of the State or testi- transcript duce a of Ms. Meadlin’s against Appellant. diced the Sеe Tenn. R. mony the provided by The State State. Evid. 616. This issue is without merit. objected, had not noting that the State transcript of provided defense counsel a Tape-
C. Court’s Refusal to Admit point, At this taped audio interview. Recording Dr. to Rebut Martell’s the tran- defense counsel conceded Testimony script supplied by District Attor- testimony, ney’s judicial district. During his Dr. Mar- another Office court, opined response inquiry by further Appellant tell suffered disorder, stated that he intended type from “delusional mixed defense counsel themes, tape, about whether persecutory grandiose with ask Dr. Martell con- tape making in substantial He he his qualified remission.” considered however, clusions, tape. diagnosis, noting his and how evaluated Appellant history has further that he did lengthy a of malin- Defense counsel added
305
872,
(Tenn.1998),
denied,
not call Ms. Meadlin as a witness because
cert.
526 U.S.
1359,
sixty-eight years
1052,
she is
and infirm.
old
119 S.Ct.
Circumstance the defendant is convicted case where murder is felony unconstitutional. We jury finding The verdicts returned so. decline to do premeditated both Appellant guilty of felony murder and murder. The trial XI. Failure to Instruct on Non- merged the verdicts into properly court Statutory Mitigators first-degree count of At the one murder. phase trial During penalty hearing, subsequent sentencing the State authority, acting pursuant statutory phase proceeded penalty intending request filed a for non-statu- Appellant prove felony murder aggravating tory includ- mitigating circumstances be circumstance, § Ann. Tenn.Code 39-13- charge. jury Specifically, ed 204(f)(7). objection Appellant’s was non-statutory mitigating circumstances as- permitted overruled the State request serted were: (i)(7) aggravator. use subse- damage. 1. Reid suffers brain Mr. quently aggravating found the circum- applied beyond stance doubt. reasonable in- 2. Reid sustained several brain Mr. juries a child. as State, Carter v. S.W.2d adequate never 3. Mr. Reid received (Tenn.1997), supreme ap our court as a treatment for brain injuries proved felony aggra use of the murder child. vating general circumstance to a verdict of. adequate 4. Mr. Reid has received first-degree acknowl murder. While an injuries as treatment for his brain, State, edging decision Carter adult. 624, Appellant contends 5. Mr. Reid was born with a deformed permitting the court erred the State to ear, impairment. along hearing with rely aggravating on the murder cir felony adequate cumstance to a sentence 6. Reid never received seek of death Mr. (i)(7) ear “vio medical treatment his deformed because use of factor hearing principles death-sentencing resulting impairment. lates the der, sufficiently of death- Appel We note the State and narrows the class that both 13. defendants, acknowledge legislature’s response to eligible creating lant thereby no Mid *55 Middlebrooks in its 1995 amendment to P. problem. See v. James dlebrooks State (i)(7) aggravator. aggravator amended 02C01-9812-CR-00376, Stout, 2000 WL No. applicable knowingly "was the murder where Jackson, (Tenn.Crim.App. Feb. committed, solicited, directed, or aided (Tenn.). 2000), granted, perm. appeal defendant, defendant had a while the substan Appellant disputes of the this court's review committing attempting tial role in or to com statute, arguing Middle- amended felony].’’ specific enumerated Tenn. [amit analysis applicable even is still broolcs .with 13—204(i)(7)(emphasis § Code Ann. add 39— language. rea We find no sound current ed). This court has concluded that holding in State v. son to overrule this court's aggravator, applied even in cases amended James P. Stout. felony where the sole is that of mur verdict men- damage, specific spite 23. In of his brain 7. Mr. Reid suffers from the childhood, Mr. illness, tal and difficult schizophrenia. mental illness lifestyle. has tried to lead normal Reid unaware that he suffers 8. Mr. Reid is has made efforts better 24. Mr. Reid schizophrenia. himself. ade- 9. Mr. Reid has never received GED, and he 25. Mr. Reid obtained his medical treatment for his schizo- quate college at 39. age then attended phrenia. tasks, po- daily In his Mr. Reid is 26. offenses, Mr. 10. At the time of the to others. lite and courteous any Reid was not involved course 27. STRICKEN schizophrenia. treatment for his Mr. Reid does well a structured 28. offenses, 11. At the time of the Mir. environment, prison. such as any medication to taking Reid was not case Mr. Reid’s convictions 29. schizophrenia. his control upon circumstantial evi- were based 12. Mr. Reid released from When wаs dence. Texas, placed prison he was not Appellant’s re- The trial court denied the any plan follow-up medical care for to the jury to instruct the verbatim quest schizophrenia. his Instead, trial proposed instruction. child, lacked sub- 13. As a Mr. Reid court, upon v. Odom and relying guidance, discipline, stantial and love that a verbatim Hodges, State v. found parents. from his instruction Appellant’s reading parents 14. Mr. Reid’s were divorced com- amount to an unconstitutional would very young. when he was still court, the evidence. The trial upon ment 15. Mr. Reid was taken from his moth- instead, jury request- on the instructed very early age. er’s care at a includ- general categories, mitigators ed 16. Mr. Reid’s father was absent ing: great during early deal childhood History of childhood. 3.
years. illness or mental or emotion- 4. Mental 17. Mr. Reid did not start school until al disturbance. years
he was almost seven old. injury damage. Brain 5. placed boys’ in a 18. Mr. Reid was history. 6. Educational age eight. home at in a envi- 7. Performance structured 19. Reid was a social outcast as Mr. ronment.
child. relationships. Family history and 8. years, Throughout 20. his childhood specific stat- to instructions on addition at- only sporadic Mr. Reid had school utory mitigating circumstances and tendance. non-statutory mitigating above mentioned child, Mr. Reid aware of 21. As a circumstances, provided the court at the hands of his sister’s sexual abuse following: stepfathers. one of his back- Any aspect of the defendant’s 9. [you] or character which believe ground lacked 22. Mr. Reid substantial *56 child, reduces the defendant’s blameworthi- family support as a and he contin- ness. support lack that as an adult. ues to
308 (court in recognized at 32 risk of
S.W.2d
to unconstitutional
amounting
struction
factor which
Any
mitigating
10.
other
evidence);
upon
comment
see also State
by
by
produced
raised
the evidence
is
(Tenn.),
346, 356
cert.
Hodges, 944 S.W.2d
at ei-
prosecution
either the
or defense
denied,
118 S.Ct.
522 U.S.
sentencing hearing;
guilt
ther
or
(1997). Instead, the
L.Ed.2d 407
instruc
is, you
any aspect of
shall consider
non-statutory mitigating circum
tions on
favor-
the circumstances of the offense
stances must be “drafted so
when
supported
which is
able to the defendant
by
jury, the statu
they are considered
by the evidence.
circumstances are indistin
tory mitigating
complains that the court
Appellant
The
non-statutory
guishable
mitigat
from the
refusing
in
committed reversible error
Odom, at
ing circumstances.”
S.W.2d
specific
on
non-statu-
jury
instruct the
essence,
on a
32.
In
an instruction
non-
in
circumstances set forth
tory mitigating
be
statutory mitigating circumstance must
additionally
He
contends that
request.
his
phrased
general categories
similar
the trial court in-
the manner
which
statutory mitigating circumstances.
jury regarding non-statutory
structed the
355-356;
See,
at
e.g., Hodges, 944 S.W.2d
adequate-
did not
mitigating circumstances
Odom,
at 33.
ly
jury
mitigating
define for the
evi-
Appellant essentially
Again,
presented.
dence
lack of
complains that
the trial court’s
Odom,
In
State v.
S.W.2d
general
cate
specificity and instruction
(Tenn.1996),
deter-
supreme
court
purpose of the instruc
gories defeated the
that:
mined
convey
picture
a fair
tions and did not
mitigating cir-
jury
[on
instructions
argu
identical
mitigation proof.
This
enabling
critical in
are
cumstances]
rejected by
supreme
our
court
ment was
jury
sentencing
to make a
determination
In
Hodges,
309
(Tenn.
9,
Nov.
granted,
applicable
Hodges,
perm,
appeal
law.”
944
to the
1999). Accordingly, the trial court’s refus-
S.W.2d at 352. The court observed
“
jury
proffered
as to the
al to instruct the
in
‘[j]urors
solitary
do not sit
isolation
circumstances
non-statutory mitigating
parsing
for subtle
booths
instructions
mer-
not error. This claim is without
way
meaning
shades of
the same
”
it.
Id. at
lawyers might.’
(quoting
352
370, 380-81,
California,
v.
494 U.S.
Boyde
Especially
XII.
Sentence
(1990)).
1190,
110 S.Ct.
Tenn.Code (16) (1997). (12), (13(b)), (10), Additionally, A. Enhancement Factors applied mitigating the trial court factor 8 Especially aggravated robbery is a class upon Appellant’s mental condi based § felony. A Tenn. Ann. 39-13- Code tion, applied mitigating factor 13 403(b). offender, I Range As standard upon majority testimony” “the of the based especially for sentencing range aggra- during capital penalty developed robbery twenty-five fifteen vated is phase, including Appellant’s childhood 35—112(a)(1) § years. Tenn.Code Ann. 40— history family history. and his Tenn.Code (1997). Ap- The trial court sentenced the (13) (1997). .40-35-113(8), § ap Ann. On pellant to the maximum sentence of twen- peal, Appellant only challenges the tri ty-five years especially aggravated for the application al court’s of enhancement fac (16). robbery During sentencing, (3), (10), conviction. (5), tors applied following the trial court seven First, Appellant contests enhancement factors: (3), factor application of enhancement “that the offense involved more than one previous 1. The defendant has a histo- Appellant con Specifically, victim.” ry or criminal of criminal convictions victim, only tends that because one Steve behavior in addition to those neces- Hampton, named the indictment sary appropriate establish especially which he was convicted of upon range. victim, aggravated robbery that the other 3. The offense involved more than one Jackson, considered a Sarah cannot also be victim. robbery. especially aggravated victim of 5. The defendant treated or allowed a Appellant argues further there exceptional
victim to be treated with prove that the was no evidence at trial cruelty. attempted ever or perpetrator robbed Thus, Appellant rob Sarah Jackson. 10. The defendant had no hesitation asserts, application trial of en court’s committing a crime when the about erroneous. hancement factor 3 was When high. to human life was risk factor, however, trial applying this of the felo- During 12. the commission court that Sarah Jackson was reasoned ny, willfully the defendant inflicted robbery. agree. also a victim of the We injury upon person, another bodily “victim,” This court has defined as used re- or the actions of the defendant 40-35-114(3), § as be Tenn.Code Ann. sulted the death of or serious scope person entity or ing limited in bodily injury person to a victim or stolen, killed, injured, property had that is other than the intended victim. destroyed by perpe property or had 13(B). felony was committed while Raines, crime. State v. trator following forms of (Tenn.Crim.App.1994). (3) if is may
release
such release
court
also held that factor
This
has
pa-
...
prior felony conviction
to enhance a sentence when
applied
not be
separately convicted of
Appellant
role.
pain
suffering
infliction of
notes the
against
committed
each vic
the offenses
de-
Williamson,
gratification
or from the
its own sake
tim. State v.
*59
therefrom,
merely pain
and not
rived
(Tenn.Crim.App.1995); see State v.
82
as the means of accom-
suffering inflicted
Lambert,
(Tenn.Crim.App.
Thus, cruelty
charged.
the crime
plishing
1987). Accordingly, statutory enhance
infliction
physical
than the
requires more
(3)
there
apply
ment factor
does not
when
bodily injury upon a victim.
of serious
separate
are
convictions for each victim.
Freeman,
25, 31
v.
943 S.W.2d
State
cruelty”
“exceptional
note that
We first
(Tenn.Crim.App.1996).
Ap
Because the
especially aggravated
is not an element
separate of
pellant
§
was not convicted of
Ann.
39-13-
robbery.
Tenn.Code
victim,
Poole,
and because
against
403(a)(2);
fenses
each
at 98. More-
945 S.W.2d
clearly
over,
bodily injury,
as de
which
proof
Jackson was
victim
of serious
Sarah
Raines,
especially aggravated rob-
properly
the trial court
is an element of
fined
(3)
necessarily establish the
bery, does not
applied
during
enhancement factor
sen
“exceptional
factor of
cruel-
enhancement
tencing. This issue is without merit.
Poole,
Exceptional
at 98.
ty.”
945 S.W.2d
Second,
Appellant challenges
in cases of abuse
cruelty
usually
is
found
of enhance
application
the trial court’s
Williams,
v.
920 S.W.2d
or torture. State
(5), that
treat
ment factor
“the defendant
247,
(Tenn.Crim.App.1995).
or allowed a victim to be treated with
ed
“excep
recognized that
This court has
exceptional cruelty during the commission
degree.
cruelty” is a matter
tional
Appellant
Specifically,
of the offense.”
Moore,
No. 02C01-9306-CC-
State
that “there
no
in the
contends
is
evidence
(Tenn.Crim.App.
Nix, 894, (Tenn.Crim.App. 922 S.W.2d 903 Constitutionality XIII. of Tennessee’s 1995). However, this court has held that Penalty Death Statutes (10) may applied enhancement factor be myriad raises a Appellant The high where the defendant creates a risk to of Ten challenges constitutionality to the person the life of a other than the named provisions. The penalty nessee’s death 448, Bingham, victim. State v. 910 S.W.2d Appellant have challenges by raised (Tenn.Crim.App.1995). 452-53 We con rejected by previously been examined Jackson, presence that the clude Sarah body up law decisions. The law ease indictment, not named in the who was Tennessee’s holding constitutionality during robbery Hampton of Steve cre penalty provisions, specifically death life, high ated a risk to her which ultimate currently by raised rejecting the claims ly unfortunately resulted her death. as follows: Appellant, are recited properly ap trial Accordingly, the court penalty 1. death statutes Tennessee’s (10). plied factor Enhance enhancement the class of death meaningfully narrow (16), however, inapplicable ment factor is defendants; specifically, eligible especially aggravated to the offense set statutory aggravating circumstances robbery injury is an element of bodily § Ann. 39-13- forth Tenn.Code Nix, 922 at the offense. S.W.2d 903. (i)(7), 204(i)(2), (i)(6), and whether Thus, erroneously applied trial court collectively, provide a or singly viewed (16). Notwithstanding the errone factor narrowing for “meaningful basis” (16), application factor ous of enhancement first- those convicted of population of remaining we that the six enhance believe eligible to those for degree murder Vann, mit against ment factors balanced two 976 See sentence of death. factors, support maximum igating fully (Appendix); State v. S.W.2d at 117-118 (Tenn.1994). Keen, 727, imposed by 742 twenty-five year sentence 926 S.W.2d trial court. capricious- is not 2. The death sentence in that arbitrarily imposed ly Sentencing
B. Consecutive (a) vested with is not prosecutor The Appellant argues that or The next as to whether unlimited discretion penalty. See by ordering espe the trial court erred not to seek the death Hines, 573, 582 v. 919 S.W.2d cially robbery conviction to be State aggravated
313
367,
(Tenn.1995),
denied,
Maryland
Mills v.
U.S.
[486
cert.
519 U.S.
late
847,
1860,
117
133
L.Ed.2d
L.Ed.2d
[136
82]
S.Ct.
100
384
108 S.Ct.
(1996).
(1990)
McKoy
v. North Carolina
]
(b)
108
110 S.Ct.
penalty
imposed
U.S.
[494
death
is
(1990)
Brimmer,
discriminatory
in a
manner based
See
].
L.Ed.2d 369
economics, race,
87;
upon
geography, and
Thompson,
at
768
876 S.W.2d
Hines,
gender. See
DAVID G. Proportionality [Deleted: XIV. JOHN EVERETT CONCUR: Death]
of Sentences WILLIAMS, Judge, JAMES CURWOOD WITT, JR., Judge. Conclusion PETITION DENYING ORDER review of the issues thorough After a FOR REHEARING us, mandated and the record before 39-13-206(b), (c),' §§ Ann. PER Tenn. Code CURIAM. herein, af-.‘v for the reasons stated we Reid, defendant, has Paul Dennis for two Appellant’s firm the convictions of this opinion to rehear the petition filed a (cid:127) murder and one: first-degree counts of Upon 2002. filed on November Court robbery and especially aggravated count of consideration, DE- petition is due plus accompanying sentences of death NIED.
twenty-five years. accordance with § Ann. 39-13- mandate of Tenn.Code to adhere to BIRCH continues Justice 206(c)(1) adopted pri- principles and the dissenting in his initial expressed the views Tennessee Supreme or decisions in the denial of opinion, but concurs Court, the entire rec have considered we rehearing. petition *62 cause and find that the sen ord imposed of death were not
tences fashion, sup arbitrary the evidence discussed, jury’s ports, previously cir finding statutory aggravating cumstances, jury’s and the that the finding T. KING John outweighed circumstances aggravating mitigating beyond circumstances reason §Ann. able doubt. See Tenn.Code 39-13- Anne B. POPE.
206(c)(1)(A),(C). propor comparative A Tennessee, Supreme Court review, na tionality considering both “the at Nashville. defendant,” con ture of the crime and the of death vinces us that the sentences ar%»j, Dec. 2002. disproportionate to"'' neither excessive nor cases. Ac penalty imposed similar Appellant’s cordingly, affirm the con we first-degree mur for two counts of
victions especially aggravated and one count of der robbery resulting sentences and the but, 1, 1999). rejected by prior decisions provides only been also ary The new statute irrelevant, prior now, persons death to" capital that those sentenced to defen- as the also is may to be executed January choose by subjected death elec- longer dant is no signing injection by a written waiv- lethal trocution. Hence, argument Appellant’s has er.