*1 has a corpus petition habeas that Searle’s fugitive connection to her current
direct
status. and because fugitive
Because is a Searle directly connected to fugitive
her status not allow pending appeal, we will
her obey a court order
Searle refuse a favorable conclusion
then seek obtain matter. appeal regarding
on the same
Thus, conclude that Searle is not enti- we hearing on the merits of her
tled to a corpus petition.
habeas
V. Conclusion that under the facts of this conclude
We
case, the defendant was and remains Tennessee,
fugitive from the State of fugitive significantly
her status is connect- appeal. Because we find pending
ed fugitive disentitlement doctrine case,
applies to this we hold that the de- hearing on the
fendant is not entitled to a petition
merits of the for the writ of habe- corpus. appeal
as The costs of this are plaintiff-appellee, Tammy
taxed to the surety,
Searle and her for which execution
may necessary. issue if of Tennessee
STATE James ROLLINS.
Steven Tennessee,
Supreme Court
at Knoxville. 4,
Jan. Session. 16, 2006.
March *5 Rollins, defendant, Steven James murder, of premeditated
was convicted fel- murder, ony aggravated especially robbery. The merged trial the felo- judge murder ny premeditat- conviction with degree Upon ed first murder conviction. conclusion of sentencing hearing, jury found established State had beyond following doubt reasonable (1) five circumstances: the de- previously fendant was convicted one or felonies, than present more other statutory elements charge, whose involve (2) person; the use of violence heinous, especially atrocious, murder was or in that involved torture or cruel it seri- beyond necessary abuse physical ous death; (3) murder was produce avoiding, purpose committed with, a lawful interfering preventing or prosecution the defendant or arrest Fallin, Randolph City, H. Mountain Ten knowingly another; murder was nessee; Roger Day, City, G. Ten Johnson directed, or aided committed, solicited, * (at trial appeal) nessee and on for the had a while appellant, Steven James Rollins. *6 committing attempt- substantial role in Summers, Attorney Paul G. General and after fleeing commit, having ing to or was Moore, Michael Reportеr; E. Solicitor committing or at- in a substantial role General; Mclntire, Chapman Michelle As- (5) robbery; commit, any and tempting to General; Attorney Greeley sistant H. (70) seventy murder was the victim of Wells, General; Attorney District and Bar- age or older. See Tenn.Code years Staubus, ry Attorney P. Assistant District (14) (5), (6), (7), 13—204(i)(2), § Ann. 39— General, appellee, for the of Tennes- (1999). these finding After further see. outweighed circumstances OPINION beyond reason- mitigating circumstances BARKER, C.J., M. delivered WILLIAM doubt, a sentence jury imposed able court, opinion in which E. death. ANDERSON, RILEY M. JANICE challenging appealed, The defendant CLARK, HOLDER, and CORNELIA A. of death.1 and sentence his conviction both JJ., BIRCH, joined. JR., ADOLPHO A. affirmed. Appeals The Court Criminal J., concurring dissenting filed and automatically docketed opinion. The case was * However, attor- these noted, Appeals attor- on his behalf. As the Court of Criminal motions trial. to prior withdraw neys allowed to were neys Stacy L. James T. Bowman and Street con- his challenged initially appointed represent de- were defendant has 1. The his robbery or argued pre-trial aggravated at trial and especially fendant various viction of crime, which sixty-year sentence for widower, § lived alone in a camper this Court. See Tenn.Code Ann. 39-13- next door 206(a)(1). Thereafter, shop. Although this Court entered to the bait Bussell suf- arthritis, requesting an order specifically fered bad eyesight, and parties difficulties, issues following address the three breathing remained ac- (1) argument:2 at oral whether the inter- independent person for a tive and of his by rogation of the defendant the sheriffs aware age. Local residents were defen- officers after his arrest violated the frequently Bussell accommodated custom- dant’s state and federal constitutional night late at by opening ers his business such court rights to counsel that the trial camping fishing supplies. sell bait or defen- by refusing suppress Furthermore, erred local residents were aware (2) statements; dant’s trial whether the large that Bussell carried amounts cash refusing court defen- $1,500 erred allow the $1,000 to person, on his at least at co-defendant, Greg dant to call his Flee- time, any given according to Walter Hos- nor, to stand his the witness to invoke kins, years friend of five Bussell’s privilege against self-incrimination maintenance man. Hoskins recalled that jury’s presence; and whether man- displayed Bussell often this “wad” of cash datory provisions review of Tennessee change provided as he to customers. Hos- 39-13-206(c)(l) Code section Annotated kins other of friends and Bussell’s require reversal death defendant’s against opening cautioned Bussell relatives sentence.3 Upon thoroughly considering shop at night the bait late while he was by these and all defen- issues rаised against change from making alone and his dant, on appeal, the record rele- and the cash, knowledge, “wad” but to Hoskins’ authority, vant affirm we the defendant’s operate Bussell continued to his business degree conviction of first murder and sen- thirty years. for the preceding as he had tence of death. handgun Bussell owned and carried a protection, July approxi- his
I. BACKGROUND murder, mately one-month before his Bus- purchased Derringer sell a two-shot hand- A. Guilt Phase gun carried it with him at all times in proof prosecution offered pants pocket. front Hoskins was trial thirty- established that speak Bussell person last with be- Rollins, seven-year-old Steven James *7 telephoned fore his murder. Bussell Hos- victim, killed the eighty-one-year-old John 21, 2001, p.m. August kins at 10:30 on to Bussell, robbery. thirty a during For plans day. discuss Hoskins’ for the next years murder, prior to his owned Bussell operated McGuire, and the Fisherman’s Paradise Ottie who had been Bussell’s shop barbeque bait years, and restaurant the friend ten at arrived the bait County Colonial area Heights shop morning of Sullivan 8:30 a.m. on the around Bussell, 22, 2001, near Kingsport, a August intending Tennessee. to have break- imposed consecutively setting argument, trial court death to to the 3. "Prior of oral sentence. Court shall review the record and briefs and assigned. may all errors The Court consider setting argument, 2. "Prior to the of oral designating ordеr those it enter an issues Court shall review the record and and briefs argument.” at wishes addressed oral Tenn. assigned. may consider all errors The Court Sup.Ct. 12.2. R. designating enter an it order those issues at argument....” wishes addressed oral Sup.Ct. Tenn. R. 12.2. Busseil, fingerprints belonging as latent nor shoes to was their custom. fast with suspect compared a be worried when he noticed which could McGuire became lights bloody scene. footprints were off and the found that the restaurant walked next locked. McGuire door still autopsy An that the victim had disclosed camp- to and found door Bussell’s door twenty-seven possibly sustained and twen- open morning newspaper er and partly had ty-eight knife wounds and bled in the on still box. McGuire knocked death from these wounds. While most Bussell, camper’s window and called for injuries these would not have been imme- respond, and when Bussell failed fatal, diately cutting a deep six-inch wound nearby to a hall for McGuire went fire near left and began the victim’s ear fearing that Bussell had suffered a help, his neck had sliced extended across heart attack. through artery carotid his left common have Eventually County Deputy jugular and vein and would rendered Sullivan immediately Free victim unconscious and Sheriff Jamie arrived at the bait An- looking through After led his death within four minutes. shop. window and lying other incised wound to the victim’s neck seeing the victim’s head on the floor racks, jugular had cut into vein and shop display of the bait between two his prompt fatal chained would have been without Officer Free removed care. A third wound to the “closed”sign open and the locked medical stab kicked penetrated had the vic- door. Officer Free then found Bussell’s victim’s shoulder have lung on the floor tim’s and heart would also body lying pool in a of blood Bus- immediate medical care. shop. of the bait been fatal without behind counter Stevens, addition, In Dr. Harlan pajamas sell clothed and house Gretel was blood-soaked; performed the au- clothing pathologist forensic who slippers; his was painful regis- topsy, multiple but non-life breathing. he was not cash noticed the victim’s open empty; change threatening draw- stab wounds to ter was abdomen, back, er, collarbone, chest, empty, lying was on the floor also hands. Dr. testified that the all body. Several minnows and Stevens beside painful, on these wounds would have been dip used out the minnows were cups others, than but none of these tank. Bussell’s some more floor near the minnow threatening. Dr. bloody life A trail of wounds was itself Derringer missing. shop explained pres- further bait to Stevens footprints led inside had ran- on the victim’s feet been ence of blood camper, the victim’s which clothing found inside as well as defеnsive wounds Blood smears were sacked. injured hands indicated that had been variety the victim’s camper on $1,150 struggled in but had remained alive and A wad of personal belongings. fled from his attacker. Dr. Ste- lying of the with and was found on floor cash that the nature of wounds opined items. vens camper covered other *8 initially a that victim did suggested the Tennessee experts Forensic from attacker, job” his “fairly fending off good Laboratory Investigation Bureau of Crime considering age his and health. process- ultimately 112.5 man hours spent murder, Rich- after victim’s Shortly the area shop, camper, and ing the bait for Russell, officer ty- investigative ard chief physical no evidence outside but found De- Virginia County, the Scott Sheriffs The found the crime. blood ing anyone to County to the reported In- Sullivan partment, belonged to victim. at the scene a Department conversation Sheriffs identifiable vestigators neither discovered knowing anything he or participating had with the defendant about one or particular, month before the murder. In about the victim’s murder. the defendant told Officer Russell that two to police investigate continued of the acquaintances defendant’s had men- victim’s murder and received information robbing guy tioned “an ... old owned which, 26, 2001, on September resulted shop some ... taking kind of a bait team investigation underwater time, monеy.” his At that Officer Russell County Department Sullivan re- Sheriffs believed that the referring defendant was trieving Derringer from Bussell’s the Hol- already to a crime that had been commit- meantime, ston River. In the the defen- ted. determining After that no such crime Angela Salyers dant and left Tennessee occurred, had Russell forgot Officer about in Michigan’s traveled to a rural area learning defendant’s statement. After Peninsula, Upper two-day drive a murder, of the victim’s Officer Russell re- 9, 2001, County. Sullivan On October Sul- layed the to information the Sullivan Coun- County livan officers arrested the defen- ty Department. Sheriffs Salyers Michigan. dant and After re- 25, 2001, August On the defendant and ceiving warnings and signing Miranda4 girlfriend, Angela Salyers, were inter- rights, gave waiver of those defendant County
viewed Sullivan officers. The a statement in Michigan admitting he agreed accompany defendant the offi- had killed The defendant then Bussell. Department cers to the ques- Sheriffs extradition, Saylers waived and he and tioning. County Sullivan Bobby Detective returned to with the Tennessee Sullivan defendant, Russell interviewed the whom County group officers. The arrived late he cooperative described as respon- on October and the defendant then sive. The expounded upon defendant speak asked to with officers “to clear up” information previously given to the things. the lateness of some Due to Virginia pоlice, telling Detective Russell hour, delayed meeting the officers with the that about Ricky one month earlier Frasi- time, 12. At that until October er, for whom the defendant worked aas gave the defendant second statement roofer, Cowden, Larry the defendant’s recounting robbery his involvement co-worker, going mentioned to the trailer and murder of the victim. This second of an old man who had a large sum of first, with the statement was consistent money and on the “knocking trailer and provided additional detail. but him in knocking the head. He said he had $40,000.00 The substance the defendant’s maybe two something.” The de- that, Gregory statements was that he and “Ko- fendant further admitted about three earlier, jack” discussing ways get Fleenor accompanied weeks were he had Frasier money buy cocaine Cowden to a drive-in restaurant when across suggested robbing the road from the victim. The defen- the victim’s trailer while trailer, they gloves purchased pairs watched the victim’s but the dant four at a meeting defendant denied ever the victim convenience store. The Flee- Arizona, law, 436, 479, In Miranda v. 384 U.S. a court of that he has the (1966), 86 S.Ct. presence 16 L.Ed.2d attorney, and that if he of an can- Supreme prior United State Court held that attorney appointed not afford an one will be interrogation, police custodial must in- questioning prior any for him he so if susрect form a *9 desires. silent, that he has the to remain that anything says against be he can used him in nor, shop buy into Salyers, girlfriend, and Fleenor’s Ash- went the bait some bait ley drove to the Cooper, things then victim’s bait Fleenor “checked out.” The while midnight. The defendant shop around shop telling left the bait after defendant the at the no rang shop. doorbell When the pay Fleenor to the victim for minnows. answered, one the defendant knocked on the agreed but instructed defen- Fleenor camper. the an- door the The victim sneak into the camper dant to and steal swered, and defendant told the the victim he find. de- anything value could The buy bait. The that he needed some for camper ransacked the five or fendant the into defendant followed victim the bait joined ten minutes until Fleenor him. and, while the victim was bent over shop, the asked where the vic- When defendant tank, the dipping minnows from the defen- was, responded, “I care tim Fleenor took victim’s grabbed dant the shoulder. When of it.” The testified that he defendant for gun, victim reached his defen- hit thought this meant that Fleenor had dant a lock-blade knife from his pulled Fleenor, however, head. the victim the pocket began stabbing and victim. eventually that had told the defendant he The could not how defendant remember him, by “cutting” killed the victim warned many times he had stabbed victim. shut, and keep the defendant to his mouth stabbing, defendant made After Salyers, Cooper, kill threatened to him, by shaking the victim was dead sure family defendant’s if the members his hands then defendant washed keep The defen- quiet. defendant did not tank and his knife in the minnow before little, only he had “a dant testified that searching through Fleenor in joining pocket knife in his while bitty Old Timer” drugs, camper money, victim’s had knife. The de- Fleenor a lock-blade Fleenor anything else of value. found said that he could read fendant $1,000 $1,200 in the victim’s wallet. The write, that the October 9th provided he Knoxville, then where Flee- group drove that promised officers statement because cocaine, nor purchased group which ride to Tennessee Michigan he could away the consumed. The defendant threw Salyers, girlfriend, same car with clothing victim’s wallet and the that accepted that he had blame for wearing he had been when defendant he was afraid Fleenor killing because The also the victim. killed father, of whom and of Fleenor’s both gun the victim’s into Holston threw with the defendant were incarcerated Flee- According River. jail. defendant admit- Kingsport nor that he kill the victim and suggested he fif- that had they no The de- ted on direct examination “leave witnesses.” felony pointed insisted that he never intended convictions but prior fendant teen he had kill the victim and that beеn case pleaded guilty each out that had evening. on cocaine the entire “strung out” On cross- guilty. he had been because with the He his last statement concluded examination, defendant intimated punished.” admission: I “I know should be County investigators sup- had the Sullivan he had plied the details of statements statements, Contradicting of these both that he given. explained The defendant at trial that Flee- the defendant testified erroneous and false writ- had initialed the nor killed the victim. The defendant had could neither ten because he statements maintained that he had been afraid For any proficiency. nor write with read unaware Fleenor Fleenor the defendant impeachment purposes or to kill the victim. to rob planned prior he had thirteen instruction, acknowledged that At Fleenor’s *10 about, injuries aggravated for and that burglary walking convictions these August 1995 to November and one painful. The last would have been witness felony of conviction theft. Carpenter, for the was Marie State niece, through whom the State victim’s State, in Testifying rebuttal De- for the presented impact testimony. Car- victim Bobby Russell, tective who had the officer penter eighty-one-year- that testified statements, taken the defendant’s denied old had no children and a victim had been con- supplying defendant with details to her. father-figure Cаrpenter explained the victim’s offi- cerning murder. Another that with tele- by she talked the victim cer, Watkins, Karen rebut the testified to phone night, saw him concerning every weekly, testimony defendant’s events occurring during Michigan him to The ride from sometimes drove the doctor. County. Sullivan Rana of operated Jandron shop victim had his bait and bar- County in Marquette Department Sheriffs thirty for Al- years. becue restaurant Michigan testified that told the defendant though victim was not in the best her that he could read and write little health, go still able as he was to come and bit, “enough to A write a letter.” video- closing, In specifically wished. tape of the in booking defendant’s Michi- pre- that it relied on proof announced showing gan making guilt phase. sented at the played jury. statement was Final- only mitigation proof The offered ly, Salyers, Angela girl- the defendant’s report by psycholo- defense a school was friend, testified that could defendant gist dating from when the defendant write, read and had defendant early teens. re- report was his The owned a lock-blade knife four-inch with a parents flected that the defendant’s were murder, blade at time of the victim’s that the with divorced and defendant lived and that the defendant had attacked and mother, grandmother. His had a who Salyers killed the victim. admitted that education, third-grade physi- was not well she had bеen tried for first murder degree cally mentally. or No information was with connection the victim’s murder and regarding convicted available the defendant’s father. been of facilitation of rob- bery. The defendant’s older brother in the was Army. According to report, the defen- jury guilty found the speech therapy, dant had received en- was murder, premeditated degree felony first training body rolled in vocational auto murder, degree especially aggra- first work, repeating and was the seventh robbery. vated mostly grade. grades school were Ds His Sentencing B. Phase comments Fs. Teacher indicated “basically a could he was non-reader” and sentencing hearing, At the State in- spell or write. When tested in March copies troduced certified of the defendant’s I.Q. the defendant’s fell within aggravated two assault convictions range, slightly above borderline defective County, Hawkins Tennessee. The State mentally report retarded. The also noted presented also photographs of some that the defendant had the academic skills inflicted on the wounds victim. Dr. Gretel re-evaluation, per- grader. A a second sentencing phase Stevens testified at the later, six injuries fatal, formed about months confirmed none these had been injuries I.Q. that some these inflicted that the defendant’s was borderline were viсtim standing while the alive and defective. *11 deliberations, jury apply capital the found that in cases. We
Following concerns proved disagree. that the prosecution follow- ing aggravating beyond five circumstances (Tenn. In Godsey, (1) a reasonable doubt: the defendant was 2001), rejected argument this Court convicted of one or felo- previously more electronically that record interro failing nies, charge, the present other than whose of gations requires suppression any state elements the use of vio- statutory involve resulting interrogations. from the ments (2) person; lence was murder acknowledged We that courts in Alaska heinous, atrocious, in especially or cruel interrogations to require be Minnesota it physical that involved torture or serious recorded, electronically at we id. but necessary that beyond produce abuse in pointed out that courts fifteen other death; (3) the was committed for murder impose a re states had refused to such with, purpose avoiding, interfering of quirement, important id. at 772 n. 7. More preventing prosecu- or a lawful arrest or ly, “neither state emphasized that we (4) another; tion of defendant or requires elec nor federal constitution committed, solic- knowingly murder was recording interrogations.” of Id. tronic ited, directed, or aided while the defendant had a substantial role commit, committing attempting in or or or no constitutional Although we found having after a substantial role fleeing mandating was that inter statutory authority commit, committing attempting recorded, electronically we rogations be (5) of any robbery and the victim the mur- rule Godsey that such a recognized seventy years age der of or older. spent of time would reduce amount 13—204(i)(2),(5), §Ann. See Tenn.Code over oc resolving disputes what court 39— (14) (1999). (6), (7), Upon that finding during interrogations and relieve curred resolving these out- circumstances judiciary the burden weighed mitigating beyond circumstances at 772. We further disputes. such Id. doubt, jury imposed a slight opined given reasonable “the inconvenience appeal- electronically of death. The defendant sentence associated with expense ed, challenging interrogations, his conviction and sen- sound recording custodial Appeals adoption af- support tence. The Court Criminal its policy considerations firmed, case in this and the was docketed Id. Ulti practice.” as a law enforcement judgment however, affirm Court. held that “the issue mately, We we Court of Criminal custodial interro Appeals. electronically recording directed gations properly ‘is one more ” (quoting Id. Assembly.’ the General
II. ANALYSIS
Odom,
18, 23-24
928 S.W.2d
State v.
(Tenn.1996)).
holding,
empha
Recording
In so
wе
A. Electronic
“
public
determination of
Interrogations
‘[t]he
sized
legisla
primarily
a function
policy
trial
argues
The defendant
”
v. Shelter
(quoting
ture.’
Id.
Griffin
have
all of his
suppressed
court should
Co.,
195, 200-01
Ins.
Mut.
County
the Sullivan
statements because
(Tenn.2000)).
Department
policy against
has a
Sheriffs
any
present
failed to
The defendant has
recording
interrogations.
electronically
upon the sound-
argument that casts doubt
policy
that such a
The defendant maintains
Rather,
Godsey.
holding
of our
due
ness
heightened
process
contravenes
I,
Illinois
defen-
section 9 of
Texas and
statutes5 the
Constitution7
Article
support
dant cites
further
for our
lend
the Tennessee Constitution8 attached on
conclusion that this issue is
properly
more
County
when
October
the Sullivan
*12
Indeed,
by legislative
addressed
action.
as
Jury
presentment charg-
Grand
returned a
out,
the
deci-
points
since our
ing
degree
espe-
him
first
murder and
with
Godsey,
sion in
the
As-
Tennessee General
cially
robbery. The defendant
aggravated
joint
sembly passed
directing
a
resolution
12,
that on
9
further contends
October
Advisory
the
Law
Tennessee
Enforcement
2001,
County
officers of the
Sher-
Sullivan
study
Counsel to
and to
issues
evaluate
Department
iffs
violated his
Amend-
Sixth
relating to electronic
of custodial
recording
right
by
ment
to counsel9
him
questioning
interrogations
report
and to
back
Thus,
attorney
without
being present.
Judiciary
House and Senate
Committees.6
according to the
the trial court
Thus,
whether,
we remain convinced that
failing
by
suppress
erred
to
the statements
public
as a
policy,
matter of
Tennessee
that resulted
these unconstitutional
recording
should mandate electronic
interrogations.
interrogations
custodial
question
is a
responds
The State
that the defendant
the
Assembly,
General
not
A
this Court.
waived
his Fifth and
Amend-
both
Sixth
defendant’s statement
sup-
need not be
to
right
ment
counsel
the officers
before
pressed
agency
a law
because
enforcement
12,
questioned him on October 9 and
2001.
adopted
against recording
has
a
in-
policy
State,
to
terrogations.
According
subsequent
a
the
policy
Such
does not vio-
late the heightened
process
interrogations
due
were lawful and the result-
concerns
Thus,
apply
capital cases.
trial
ing
properly
by
statements were
admitted
by
court
refusing
did not err
suppress
to
agree.
the trial court. We
statements
defendant’s
on this basis.
right
by
The
to
guaranteed
counsel
Suppress
B. Failure to
Post-
I,
Amendment
by
Sixth
Article
Arrest Statements
section
attaches at
9
the time
State
judicial proceedings
initiates
The defendant
adversarial
contends that
right
guaranteed
by
against
Michigan
to counsel
defendant.
v.
him
Jack
son,
625, 629,
1404,
Sixth
to
Amendment
the United Stаtes
475 U.S.
106 S.Ct.
89
(West
5.
Comp.
upon
20 Ill.
Stat.
obligatory
Ann.
See Gideon v.
sel
states.
3930/7.2
2005);
335, 342,
792,
Texas Code Crim. Proc.
art. Wainwright,
Ann.
372 U.S.
83 S.Ct.
(Vernon 2005).
(1963).
38.22
L.Ed.2d
S.W.3d
we
780;
Huddleston,
666,
924
State v.
S.W.2d
stantial difference between
useful-
(Tenn.1996).
Tennessee,
In
the ad-
669
lawyer
suspect during
to a
ness of
judicial process is initiated when
versarial
interrogation, and his value to
custodial
i.e.,
are
an arrest
charges
formal
postindictment quеstion-
an accused at
filed —
issues,
preliminary hearing
warrant
is
ing.
(if
issued), or an
held
no arrest warrant is
298-99,
2389;
at
also
Id.
108 S.Ct.
see
presentment
indictment or
returned.
Tovar,
Iowa
U.S.
S.Ct.
v.
Huddleston,
780;
at
Blye,
(discussing
158 L.Ed.2d
Mitchell,
(citing
*13
reaffirming
ap-
“pragmatic
and
Patterson’s
(Tenn.1980)).
280,
286
The
the
proach
question”).
to
waiver
right
Amendment
to
defendant’s Sixth
warnings
explained
Court
that Miranda
3,
on
counsel attached therefore
October
effectively convey
right
to a
his
defendant
2001,
County
when the Sullivan
Grand
during questioning
present
to have counsel
Jury
presentment
charging
a
returned
adequately
inform a defendant of
also
espe-
degree
him
first
murder and
with
of
consequence”
“the ultimate adverse
Nonetheless,
cially aggravated robbery.
admissions, i.e., that
making uncounseled
Amendment
that
defendant’s Sixth
him in
may
against
his
be used
statements
with
right to counsel came into existence
any
proceeding. Patter-
ensuing criminal
he
such
presentment
that
a
son,
293,
at
2389. The
487 U.S.
S.Ct.
of
questioning
at the time
his
does
right
Miranda
explained
Court
further
that
police
necessarily
ques-
mean that the
not
...
to let
defen-
warnings
[the
“suffice[ ]
his
tioning violated
Sixth Amendment
lawyer
could ‘do
dant] know what
right.
question-
during
postindictment
him’
Illinois,
285,
In
Patterson
U.S.
namely,
him refrain from
ing”
advise
to
2389,
(1988),
counsel to accused Patterson, no hesi- adopted in we have at- limited that an expand purpose the defendant’s concluding tation in ques- torney serves when the accused ob- were not post-presentment statements by respect authorities. With tioned tamed violation of his Sixth writing, Amendment reduced the oral statement to read right to counsel. arresting After the de- defendant, it to the and allowed the defen- in Michigan 9, 2001, fendant on October dant to read it. After the defendant ini- Bobby only Detective Russell not informed statement, page tialed each him, charges against agreed provide sample a blood but he the defendant Mi- provided also signed a form for purpose. consent randa warnings. only The defendant not Patterson, Here, as in the defendant was agreed Russell, to speak with Detective meticulously informed the authorities of signed but he also an advice and waiver of right to counsel and of the conse- Furthermore, rights form. after Detective quences failing exercise that Russell reduced the defendant’s oral state- before he confessed to the murder of John writing ment to and read the statement to separate Bussell.10 On two occasions the the defendant reviewed the forgo defendant elected to the assistance statement signed and initialed and the be- speak counsel and instead chose to di- ginning and end of page, including each rectly to law enforcement officials concern- sentence, the last which states: “This ais ing his role in the murder. The defendant *14 true and correct statement. I’ve not been actually requested a second interview with threatened, promised anything, or clarify the detectives to his October 9th Following coerced.” an hour and a half therefore, statement. We conclude consis- interview, spent the defendant night at Patterson, tent with that the defendant jail, the local appeared Marquette before a waived right his Sixth Amendment to County, Michigan, magistrate the next counsel and hold that the trial court did morning, and waived extradition to Ten- not err refusing suppress to the state- nessee. At the request, defendant’s ments that resulted from the post-present- Salyers were allowed to travel back to interrogations.11 ment Tennessee the same car. During the two-day drive, the defendant never once C. In-Court Assertion of Fifth
requested an attorney.
Privilege
Amendment
Instead, shortly
arriving
after
in Sulli-
stated,
previously
during pre
As
County
van
on
evening
of October
interrogations,
trial custodial
the defen
defendant asked to speak with the
dant admitted
detectives to “clear
his involvement
the vic
up”
previous
his
state-
provided
tim’s murder and
ment. Detectives met
detailed factual
with the defendant
afternoon,
the next
information
October
about how the murder oc
again
However,
Miranda
provided him
curred.
at trial
warnings.
The
de-
again
fendant
contradicted
pre-trial
executed a waiver of his
his
statements and
rights
giving
police
before
Gregory
a second maintained that
Fleenor had mur
victim,
incriminating oral statement
consistent
dered the
that he had been un
with the first.
again
Detective Russell
plan
aware of Fleenor’s
to rob and to kill
only
post-presentment
Not
did the defendant
post-indictment ques-
receive Mi-
warnings,
suppres-
randa
he admitted at the
tioning
challenged
will fail whenever the
hearing
sion
that he was aware of his
practice
pass
would
constitutional muster un-
prior experience
counsel from his
with the
Patterson,
der Miranda. See
at
487 U.S.
justice system.
criminal
(discussing
n.
569
Bowles,
(internal
any
entitled to drаw
inferences from
at 541-42
cita
439 F.2d
omitted)
(cited
approval
the decision of a
tions
with
witness
exercise his
Dicks,
129);
Gag
615
see also
privilege against
constitutional
self-in
non,
(“[Cjalling
571 court in refusing grant disproportionate penalty did not err cessive or cases, request. imposed considering in similar both the nature of the crime and the defendant. Alleged Apprendi D. Error 1. Arbitrariness upon Apprendi v. New Jer Relying sey, 530 U.S. 466, 2348, 120 S.Ct. 147 does not assert that his The defendant (2000), L.Ed.2d 435 the defendant next arbitrarily imposed, death sentence was contends the trial court should have thorough and a review of the record fails dismissed the State’s notice intent any basis to an support reveal such penalty seek the death aggra because the conclude that assertion. We the death vating alleged circumstances were not arbitrarily imposed. sentence was not presentment by grand returned jury. repeatedly rejected This Court has Sufficiency 2. the Evidence See, e.g., State argument. the defendant’s We must next determine whether Reid, (Tenn. 286, 164 S.W.3d 311-12 support the evidence is sufficient Leach, 2005); State v. 42, 148 S.W.3d aggravating five circumstances found (Tenn.2004); State v. Berry, S.W.3d See TenmCode Ann. jury. § 39-13- Holton, (Tenn.2004); State v. (14) (1999). 204(i)(2), (5), (6), (7), In deter (Tenn.2004); State v. Del mining whether the evidence supрorts linger, (Tenn.2002). 466-67 jury’s findings statutory aggravating Furthermore, the defendant has failed to circumstances, we view the evidence provide any persuasive reason to overrule light most favorable to the State and ask prior Therefore, these decisions. we reaf whether a rational trier of fact could have decisions, firm prior above, cited aggravating found the existence of the cir Apprendi again once hold that neither nor beyond cumstances a reasonable doubt. progeny its requires allege State to Reid, aggravating circumstances in the charging instrument. The trial court properly re (i)(14) begin -with aggrava We fused to dismiss the State’s notice of intent ting circumstance: murder victim “[t]he to seek penalty the death on this basis. seventy years was age or older.” 39—13—204(i)(14). § Ann. Tenn.Code Pros Mandatory E. Review ecution witnesses testified that the victim Tennessee Code Annotated section 39- eighty-one years was old at the time of his 13—206(c)(1) (2003) requires appellate proof clearly murder. This uncontested is courts to review a sentence death to support jury’s finding sufficient to determine whether the sentence im- (i)(14) aggravating circumstance. posed fashion; any arbitrary whether (i)(7) supports jury’s the evidence findings of aggra Next we consider the statutory circumstances; vating circumstance: “the murder was whether suрports jury’s knowingly evidence committed while the defendant finding that the aggravating circumstances had a substantial role the commission of any circumstances; outweigh mitigating § a robbery.” Tenn.Code Ann. 39-13- 204(i)(7). and whether the sentence of death ex- prosecution’s proof showed *18 issue in his Appeals motion for new trial and has of Criminal or in this Court. appeal failed to raise the issue on to the Court produce the and Fleenor v. Sut planned necessary
that defendant to death. State tles, (Tenn.2000). of robbery money the the victim to obtain 30 S.W.3d The that the purchase drugs to prosecution proof offered that the defen cash, personal property, pre- stole twenty dant inflicted more than non-fatal scription drugs shop the victim’s bait body. stab to the wounds victim’s This camper. evidence is than The more proof finding to that support is sufficient jury’s finding to the of support sufficient physical the involved murder serious (i)(7) aggravating the circumstance. beyond necessary produce abuse that to Furthermore, testimo death. the medical (i)(6) the aggra We next consider ny multiple that non-fatal confirmed vating “[t]he circumstance: murder was inflicted upon stab the victim wounds purpose avoiding committed for of painful. would have been Defensive arrest or of prosecution lawful the defen victim’s on body, wounds to the blood 13—204(i)(6). § dant.” Tenn.Code Ann. 39— socks, victim’s and other bottom of the to prosecution proof The offered show that struggle of a physical evidence the defendant and Fleenor discussed rob scene, alive, indicated that the victim was no bing leaving the victim and witnesses. attacker, conscious, away moving from his They purchased gloves and used in com against to himself attempting defend mitting proof The is robbery. sufficient This the defendant’s brutal assault. evi (i)(6) support jury’s finding of to finding support dence to of is sufficient aggravating circumstance. sum, clearly torture. In evidence also is to proof sufficient support jury’s finding to of sufficient (i)(5) support jury’s finding ag (i)(5) circumstance. aggravating gravating circumstance: murder “[t]he atrocious, heinous, especially cruel or Lastly, sufficiency we consider the in that it torture or physi involved serious (i)(2) support aggra to evidence beyond necessary pro cal abuse vating circumstance: defendant was “[t]he previously death.” has duce This Court or previously convicted one more defined “torture” as “the infliction of se felonies, charge, than present other physical pain upon or the vic vere mental statutory involve the use whose elements tim while he or she remains alive and person.” violence TenmCode Pike, v. conscious.” State 39-13-204(i)(2). §Ann. To establish this Williams, (Tenn.1998); circumstance, the State relied (Tenn.1985). re With upon copies certified defendant’s beyond spect physical to “serious abuse February 1996 assault aggravated two death,” necessary produce we have County, out of Hawkins Ten convictions explained that “serious” alludes previously attorney ap prosecuting nessee. The that physical, a matter degree, peared and identified the defendant as the mental, must than abuse be “be rather assault in person aggravated convicted what yond that” more than is “neces County in The State of Hawkins Nes sary produce death.” See State v. support of this fered no further evidence (Tenn.1998); bit, 872, 887 aggravating circumstance. (i)(5) Odom, aggra 26. The 928 S.W.2d at may applied be if the vating circumstance recognized that This Court has support tor is sufficient either
evidence
as-
beyond
statutory
aggravated
elements of
abuse
physical
ture or serious
*19
necessarily
a
trial
guilty plea,
sault15 do not
involve the use
conviction
resulted
Sims,
person.
of violence the
State v.
may
courts
examine “the statement of fac
(Tenn.2001).
1,
result,
S.W.3d
11-12
As a
tual
charge
by
basis for the
... shown
a
prior
aggravated
convictions for
assault
transcript
plea colloquy
of
or
written
may
jury’s finding
serve as the basis for a
court,
plea agreement presented to the
or
(i)(2) aggravating
only
circumstance
by а
comparable findings
record of
of fact
if the trial court
a legal
makes
determina
adopted by
entering
upon
the defendant
jury-out hearing
tion in a
that the statuto
1259-60;
plea.”
Id. at
see also State v.
ry
of
prior
elements
convictions in
(Tenn.2006) (discuss
Rice, 184
S.W.3d
volved the
of
person.
use
violence to the
ing Shepard
stating
that to determine
Id.;
Cole,
885,
see also State v.
155 S.W.3d
if
statutory
prior
elements of a
convic
(Tenn.2005);
Powers,
901-02
State v.
101 tion involve the use of violence to the
383,
(Tenn.2003);
400-01
v.
person,
may
trial courts
“charg
consider
(Tenn.
McKinney,
291,
74 S.W.3d
documents,
instructions,
ing
jury
plea
2002).
determining
In
whether the statu
agreements
transcripts
or
colloquy
tory
prior aggravated
elements of
assault
judge
between
which
convictions involve the
use
violence to
defendant confirms the factual basis for
person,
trial courts are limited to ex
plea,
judges’
or bench-trial
findings of
amining
statutory definition,
“the
charging
law”). However,
fact
rulings
an
document,
plea agreement,
written
tran
complaint may
affidavit of
a
serve as
script
plea
colloquy,
any explicit
for a trial
basis
court to determine wheth
finding by
factual
judge
the trial
to which
er
statutory
prior aggra
elements of a
Shepard
assented.”
vated assault conviction involved the use of
States,
13,
1254,
United
544 U.S.
125 S.Ct.
person.
Ivy,
violence to the
State v. David
(2005).
15. At the time the defendant provided ag- committed these Section also offenses, Tennessee Code Annotated gravated par- section assault was committed where a 39-13~102(a) provided person that a commits ent or custodian of a child an adult inten- or aggravated assault who: tionally knowingly or failed or refused protect aggravated the child or adult from an (1) Intentionally knowingly or commits an (a)(1) aggravat- assault under subdivision or § assault as defined in 39-13-101 and: (c) provid- ed child abuse. Subdivision also (A) bodily injury causes serious to anoth- aggravated ed that er; assault occurs when a or person against any (B) under a court order displays deadly weapon; Uses or or way causing bodily attempting or to cause Recklessly commits an as de- assault 13—101(a)(1), injury against § or an assault another inten- fined in 39— (A) tionally knowingly attempts bodily injury or to cause or Causes serious to anoth- er; bodily injury attempts causes or commits or (B) displays deadly weapon. against Uses or to commit an assault such individual. *20 case, copies no prosecution In this the failed “leave witnesses.” Certified trial proper offer the court a basis from of aggravated the 1996 assault convictions that the statutory which to determine ele- only proof was the offered to establish the prior (i)(2) circumstance, of the con- aggravated ments assault aggravating invalid use of to the victions involved the violence prosecution emphasize the did not this in- Thus, the evidence is person. insufficient aggravating during valid circumstance its (i)(2) finding the support jury’s the closing argument. Although the defendant Rice, circumstance. aggravating testify chose at the guilt phase the at 677. trial to cast for the murder blame Fleenor, upon the elected not to defendant Nonetheless, jury’s a reliance mitigation call at the sentenc- witnesses upon inapplicable aggravating an invalid or Rather, ing hearing. miti- the defendant’s impose penalty circumstance the death gation proof psycholog- consisted of a 1978 be harmless error if the will considered indicating ical report that the defendant’s “beyond reviewing court concludes a rea divorced, parents were that the defendant doubt the sonable sentence would a grandmother had lived with his as child jury have been the had the no given same well, physical- mother because his ... weight to invalid factor.” v. ly mentally, the defendant had Howell, (Tenn.1993). student, average “basically been a below a reviewing “completely must ex court I.Q. with an above the slightly non-reader” presence amine the record for the of fac range, mentally retarded and that de- potentially tors which the sen influence[d] fendant had enrolled vocational school to including “the ultimately imposed,” tence body do automobile work. strength remaining number valid circumstances, four Considering strength re- aggravating prosecu circumstances, sentencing, maining aggravating valid argument tor’s the evidence evidence to establish invalid minimal offered aggrava admitted to establish the circumstance, tor, nature, aggravating and the invalid quality strength closing argument, prosecutorial innocuous mitigating Id. at evidence.” 260-61.16 relatively mitigating evi- and the weak analysis, we hesi- Applying this have no dence, in concluding we have no hesitation jury’s concluding tation errone- that the sen- beyond a reasonable doubt (i)(2) upon aggra- ous reliance the invalid tence hаve been the same would vating beyond circumstance is harmless a (i)(2) jury weight invalid given no case. previ- reasonable doubt As Howell, aggravating factor. 868 S.W.2d at ously explained, supporting the evidence 262. jury’s remaining the four finding sum, to sup- In the evidence is sufficient aggravating valid circumstances was over- port jury’s finding of four of five whelming. The defendant robbed and circumstances, jury’s year-old eighty-one murdered the victim to (i)(2) aggra- money drugs. The erroneous consideration of obtain beyond harmless viciously vating the victim and stabbed circumstance assaulted twenty doubt. victim than times in order reasonable more 884, 889, -, recently 163 L.Ed.2d Supreme 126 S.Ct. The United States Court U.S. 16. determining (2006). whether alter refined' test for new does not our This test Rice, when the death sentence is unconstitutional analysis See or the result in this case. jury applied aggravating factor later deter- an at 678 n. 4. - Sanders, to be v. mined invalid. Brown and mental condi- Aggravating Mitigating cluding age, physical tions, during treatment Circumstances and the victim’s killing; presence the absence or *21 Reviewing the in the evidence (7) provocation; presence the absence or State, light most favorable to the we con (8) justification; to and injury of and the clude the evidence is sufficient to effects on non-decedent victims. See State support jury’s finding aggra the that the (Tenn.1998) Vann, 93, 976 107 S.W.2d vating outweighed сircumstances the miti 667). Bland, (citing 958 S.W.2d at When gating beyond circumstances a reasonable reviewing of the characteristics the defen- 570; 141 Berry, doubt. See at S.W.3d (1) dant, pri- we consider: the defendant’s Carter, (Tenn. 895, State v. 114 S.W.3d 908 (2) activity; or criminal the prior or record 2003); Henderson, 24 State v. S.W.3d (3) race, age, gender; defendant’s and Bland, (Tenn.2000); 313 State v. 958 mental, physical defendant’s emotional or (Tenn.1997). S.W.2d 661 (4)
condition;
the defendant’s involvement
Comparative Proportionality
(5)
Review
murder;
í
or
in
role
defendant’s
(6)
authorities;
cooperation with
defen-
Finally,
must
we
determine
(7)
remorse;
dant’s
the defendant’s knowl-
whether
in
the sentence of death
this case
victim;
edge of
of
helplessness
disproportionate
is
to the penalty imposed
(8)
capacity
the defendant’s
for rehabilita-
cases,
in
considering
similar
of
nature
Moreover,
conducting
tion. Id.
in
this re-
crime
the defendant. TenmCode
view,
pool
“we select from the
of cases in
39-13-206(c)(l)(D).
§Ann.
A death sen
capital sentencing hearing
which a
was
case,
disproportionate only
tence is
if “the
actually conducted to determine whether
whole,
taken as a
plainly lacking
is
in
should
life imprisonment,
sentence
be
circumstances consistent with
those
sim
imprisonment
possibility
life
without the
ilar
penalty
cases which the death
has
”
Carruthers,
parole, or death.” State v.
35
Bland,
imposed....
been
958 S.W.2d at
(Tenn.2000)
Bland,
(citing
S.W.3d
665;
Holton,
see also
While there is no mathematical he needed. The defendant in comparing robbery premeditated scientific formula involved the murder cases, generally robbery. similar this Court consid to conceal the The defendant (1) (2) death; elderly ers: the means of man an chose as his victim who widower (3) death; ner of failing. motivation for the lived alone and whose health was (4) death; killing; place reputation He knew the victim had similarity circumstances, carrying large person. of the victim’s in- sums of cash on his only prior
Not
did the defendant
admitted having
and Fleenor
an extensive
record
need to leave
discuss the
no witnesses to
activity,
of criminal
which
attributed to
the robbery,
purchased
fifteen-year
cocaine addiction.
gloves for himself and his three accom-
previously explained,
As
the evidence
plices.
group
shop
arrived
the bait
overwhelmingly supports four
the five
midnight.
around
The victim
clothed
was
found
circumstances
in pajamas
body
when his
was discovered.
jury,
mitigation
proof
the defendant’s
The defendant lured
victim from his
weak,
relatively
consisting
primarily
camper
pretense
purchasing
under the
report
of a
psychological
indicating
*22
bait and then attacked the victim
while
parents
defendant’s
were di-
position, leaning
victim was in a vulnerable
vorced,
mentally
that his mother was
and
scoop
over to
minnows from a tank. Us-
unwell,
physically
that he had lived with
knife,
ing a lock-blade
the defendant
grandmother,
per-
his
that he had not
victim’s neck
slashed the
and stabbed the
academically,
formed
that he
well
had been
twenty-seven
Al-
victim at least
times.
basically
write,
unable to read or
unprovoked,
though the attаck
I.Q.
slightly
his
been
above
men-
had
proof
elderly
medical
indicated that
tally
in
retarded level
he
fought surprisingly
given
victim
his
well
non-reader,
a
that he
been
and
had en-
health,
eventually
failing
but
victim
trial,
rolled in
At
school.
vocational
to the
at-
succumbed
defendant’s vicious
that he had
defendant also testified
been
tack,
sustaining multiple, painful
after
stab
prior
years
cocaine
for fifteen
addict
Making absolutely
wounds.
certain that
victim’s
and had been
on
high
murder
witnesses,
he had
no
left
night
cocaine on the
of the victim’s mur-
shook
victim
leaving
before
the bait
der.
his
shop and then washed
hands and knife
capital cases
no
Although no two
and
in
minnow tank before
ac-
joining
his
identical,
following
two
are
defendants
searching
stealing
in
complices
and
cases
share
and defendants
several simi-
items
money
personal
and
from the vic-
larities with this case and with
defen-
camper.
and
shop
tim’s bait
(defendant
Reid,
dant.
164
286
S.W.3d
and his accomplices
The defendant
kidnapped
to death
and stabbed
two ice
Knoxville,
they purchased
drove to
where
during
shop employees
robbery;
cream
drugs.
trip
On
and consumed
the return
(i)(2), (i)(5),
aggravating circumstances
and
County,
the defendant and his
Sullivan
(i)(6));
Thomas,
v.
fendants received death
(i)(5)
BIRCH, JR., J.,
A.
filed a
ting circumstances for both were
and
ADOLPHO
(i)(7)).
concurring
dissenting opinion.
held;
only
hearing
one similar case in
defendant stabbed to death
Research revealed
sought
penalty
which
death
eighty-year-old
breaking
the State
victim while
into vic-
proceeded
sentencing hearing.
the case
to a
robbery; jury
commit
found no
tim's home to
Whitmore,
State v. Frank Edward
No. 03C01-
imposed a life
circumstances and
9404-CR-00141,
(Tenn.
ADOLPHO
concurring part dissenting part. majori-
I concur in of the the conclusion
ty that Rollins’ convictions should be af- death,
firmed. As to the how- sentence
ever, I I respectfully dissent. continue to my comparative
adhere to view that protocol currently
proportionality review majority inadequate
embraced arbitrary
shield defendants from the
disproportionate imposition of the death Reid, See
penalty. (Tenn.2005)(Birch, J., 323-325 concur-
ring dissenting), and cases cited there- Accordingly, respectfully
in. I dissent majority portion opinion
from that
affirming imposition pen- of the death
alty in this case.
Henry DENNIS TRUCKWAYS, LTD.,
ERIN et al. Tennessee,
Supreme Court
at Nashville.
Feb. 2006 Session.
April