*1 Tennessee, Appellee, STATE SHEPHERD, Appellant.
Joseph Arlin Tennessee, Supreme Court at Knoxville. May 1995. Rehearing Aug. Denied *3 Burson, Atty. Report- Gen. &
Charles W. Gen., er, Shevalier, Atty. Asst. Christina S. Nashville, appellee. for Cleveland, Dixon, Corn, Reed M. Charles Mehler, Sweetwater, Capital Re- Brock Case Center, Nashville, appellant. for source
OPINION
O’BRIEN, Justice. charged in an 11 Joseph Shepherd was County Monroe count indictment in this case he was Jury. As relevant Grand year of sixteen old charged with the murder commission of Roxanne Woodson premeditated murder felony; charged with Woodson, charged with of Roxanne County of two Monroe aggravated assault found officers. He was law enforcement felony in the commission guilty of murder to death. He rape in 1 and sentenced Count guilty aggravated assault was found than two sentenced to not less Count 9 and years in the State nor more than five penitentiary. appellant has raised appeal
On this majority pertain of which issues proceeding. Due to error guilt phase of the necessary sentencing process it is in the sentencing. As a this Court to remand its the evidence to establish result we review sufficiency, respond only According to those issues rebuff him. to Charles Bovard seat, might leaped we conclude have then into the back affected Frankie, guilt proceedings. sitting outcome of the where Roxanne was everyone got until out wrestled with her April, The trial in this case occurred down, ear. Frankie calmed Roxanne who At the trial Frankie Harris and his hysterical. crying cousin, Bovard, Charles testified up pistol walked to Roxanne with a and told February events had occurred on 27 her, you “if up, going don’t shut I’m to blow before, years when Roxanne Wood- your boys out.”2 brains After the convinced Harris, disappeared. years son who was 15 get back into the car drove Roxanne age boy- had been Roxanne’s up stopped further the mountain and Roxanne, day, friend. About dusk on that *4 second time an area that had been clear Frankie, Charles, 16-year- then and his during logging operations. cut brother, Bovard, gathered old in Wilbur were yard the Bovard’s on Old Federal Road in Harris that it at Frankie testified was this defendant, County stop, place, Monroe when the a 25- second not the first year-old acquaintance pulled of Harris and his defendant assaulted Roxanne and cousins, up gun. drove his car and asked the This witness also testified that teenagers they if wanted to ride around. sex from while defendant demanded Roxanne permis- gun again After Roxanne received her father’s was drawn but that she re- go, group sion to drove the home of fused. Both Frankie and Charles testified grandfather they parked of the Bovards in Mt. Ver- after on the roadside the time, telephone girl- non so that gotten Wilbur could his second of them had out two friend, McDaniel, Judy join and ask her to of the car to use the bathroom. Defendant Charles, According boys them. while Frankie also left the car and asked the to walk phone and Wilbur went inside to make the down the road “a little bit” while he talked call, large hunting a defendant took knife with Roxanne to calm her down so she would and, playing from under the car seat after not “call the law” on him. Frankie and while, with it for a brushed Roxanne across Charles walked a short distance down the road, weapon. the breast with the About that time themselves and returned in relieved During Frankie and Wilbur returned to the car with about five time minutes. pills1 party proceeded some and the to Telli- Charles heard the sounds of a scuffle and co, they picked up Judy say, “you of a where McDaniel. Roxanne son bitch.” car, group bridge boys
The to a then drove steel When the two returned to they sat nor Roxanne was in over the Tellico River where neither the defendant later, p.m., sight. talked for a few minutes. About 8:00 About a minute defendant came Judy began quarrel running and Wilbur and decid- out of the woods and told them that They him ed to walk back to town. told the Roxanne had thrown a comb at and “run pick up defendant to them later. The re- off.” three Roxanne and The. .for. .called the, her,,along maining group members of to' searched road in the di- decided |orj ^ they drive back to Tellico. When reached rection which Frankie and Charles had Beach, however, up gone getting to use After Tellico defendant turned the bathroom. car, they driving Furnace Road. After about a back into the continued their search Old ap- by calling stopped mile defendant the car and drove down the mountain having stopping occasionally. proached Roxanne about sex with Roxanne’s name and refused, persisted They at him. she defendant also asked a man house on When by. girl if a walk He Roxanne continued to the road he had seen for several minutes. testimony testimony It was never determined in the 1. There was also that members drinking pistol toy. parly or moonshine. whether the was real or a alcohol into the help and defendant was taken not.3 The three contin- for replied that had County De- custody of the Sheriff’s picked up Wil- Monroe ued back toward Tellico day partment.4 Deputy Graves Judy. dropping Judy next After off bur to the location where boys four returned to the moun- took the town the Roxanne, partici- tain, last seen. Defendant for but no Roxanne was called received day, day pated boys home in the search that but response. Defendant took He not seen go disappeared. for later he was told them he would back to look two until 29 March 1978 keep again He authorities Roxanne. admonished them to fugitive warrant happened. he was arrested on quiet about what had when Gastonia, He found North Carolina. day, next Roxanne’s came after father his hiding quilts at the home of some looking the homes Frankie and Charles parents. He declined to waive former wife’s daughter, began massive search North Carolina. extradition remained girl. missing During the a blood- search parents sum- spot April taken to the the de- 1978 defendant’s hound was where On their home Rox- stopped the car the time. moned authorities to where fendant second body in a taking an of Rox- was discovered After a scent from article anne Woodson’s junúk clothing, dog path grave area anne’s tracked a shallow an where scattered, approximately 100 feet from their *5 parked the area where the car had been to a Early spring vegetation growing pile yards away. about 100 No trail home. was brush away any grave had been with pile found from the brush from the covered was hands, Her other direction. noticed an inden- a car seat. which were described Searchers weathered, pile and her half-eaten gnarled tation in the and evidence that the brush protruding ground. from had been toes were disturbed. exhumation, body Upon putrescent her was February 1978, depu- evening On the of 28 jacket lying on a found its back with denim ty Bill Bevins and Officer Marshall Hen- wrapped upper around her head. torso par- to of Shepherd’s dricks went the home Except in a for socks was clad shirt and bra. Tellico, lived, ents where the defendant to feet, body on the was nude from disappear- with him talk about Roxanne’s pair pants A waist down. of rust colored During agreed ance. their visit he to show lay body pink panties or next to the the officers he had last her and where seen placed had beside each knee. her shoes been put into his to shoes went bedroom on his body matched garments found with Deputy and coat. Bevins could hear defen- night Roxanne had worn those cursing talking to he dant himself while February. Harris that she Frankie testified bedroom, saying, getting “I’m was fully saw the last time he had been clothed being aggravated by tired goddamn these Elliott, pathologist a who her. Dr. William of bitches these damn sons about whores.” body, performed autopsy on the testified then came out of the bedroom ground that it had been in the several weeks single-shot shotgun. holding gauge a .12 it was found. when kitchen, pushed into Hendricks Bevins defendant, agent Wayne Deputy Atkins and Joe his and shot at the TBI drew revolver County immediately Sheriff’s De- disarmed and re- Graves Monroe who talk with parents. partment his The officers called went to North Carolina to strained Mobley, matching 10-years-old were found had been those of Roxanne Woodson 3. Jeff who had house Furnace belonging 1978 and lived at the on Old a friend the trunk of red Nova Road, testified at the time of Roxanne’s driving had been of the defendant. Defendant days disappearance, 2 or 3 around before top on the Camero with a black metal white organized began, three in a red search men night February. of 27 stopped while white car him around dusk or had cutting asked he was wood outside house and leading aggravated was the incident 4. This walking girl he had seen the road. if down against conviction defendant. assault testimony potentially at trial that hairs There defendant, who at first claimed someone he had pants. said that removed her Her put body where it was found to make blouse was unbuttoned decid- because he had however, him “look Eventually, bad.” defen- ed to burn her clothes but changed then burying Agent dant admitted to In the Roxanne but not to mind. statement taken Adkins, killing her. He night confessed that on the commented that “he was not sure but victim have gone Roxanne’s death he had back to the Woodson could when to see if alive he buried her.” “get car he could him some” He told while jean jacket that the Frankie officers blue he had used and Charles went bathroom. to cover Roxanne should still on the He said that be Roxanne had relented and mountain and that he mat- had thrown the agreed to have sex him with and had started rag wipe tock and the used to Roxanne’s face pull pants down her but that he had slapping into Tellico River. He admitted nothing he wanted decided to do with her her two three or times while “all through.” after the hassle he had been car playing but said he was her. gotten He claimed to have out of the car to He also told the officers he that after re- call Frankie and Charles when Roxanne treatment, psychiatric ceived tell would and, the car running left after about 8 or 10 really them “how Roxanne died.” feet, fell and hit her “on a rock head something.” He said that he checked for a Shepherd waived extradition and was re- (At pulse. point the two accounts of turned Tennessee. escaped He from disagree. Deputy the defendant’s statement Bradley County July Jail on 17 1978. Ten Graves testified that defendant said he found London, years recaptured he was later pulse in Agent Wayne no the victim. Adkins Ontario, Canada, brought and was back pulse related defendant said he felt a in January Tennessee her.) get but could no response other body Defendant also claimed covered Rox- Woodson’s he had Roxanne was identified *6 through body jean jacket anne’s face and the use of dental El- with a records. Dr. blue liott, keep pathologist, no her the testified he found to warm. He told the officers he sign of obvious cause death. There was no of up then run hill had and down the so he body object the foreign trauma to and no appear would he breathless when returned to He inside it. noted that a to the head blow the car where Frankie and Charles were. enough serious to cause have death should boys He related how he told that the Rox- autopsy signs been detected the but that off, upset had anne become and run how blow, only of a severe ren- less sufficient to girl, searched for the how he took and unconscious, possibly der a victim not could and Charles Frankie home. during have seen the examination. The informed and Adkins Graves phys- cause of death most consistent with the he that had returned to mountain and asphyxiation ical was findings or suffocation. more if once checked Roxanne to see she was hemorrhage sup- of larynx Evidence At alive. that time he amount of saw a small ported theory. Strangulation also a was face; and, right blood side of her possible although cause of death had he heartbeat, although he could hear he still no cartilage found no fractures in the or of bone by putting tried revive her some water on strangulation the neck to indicate that had car, placed face. He then her in the her if possible occurred. When asked it was that again tried drove Tellico River and alive, had the victim been buried Elliott Dr. by washing her with water. revive her face replied really that he did not know. looking next drove around for the He Tellico cavity lungs dirt in the absence of oral or Finally but, of Police. Chief he carried Roxanne happened this had not if indicated that by her jacket house and tried to revive wash- placed the denim had been over her ing put face with alcohol. there was dirt body, When face before was on the it would response, bury dug no her. He unlikely decided to be that dirt would oral enter the grave cavity. a with a mattock and his hands. He during spent in Cana- the decade found no nonviolent Elliott also testified that he
Dr. autopsy da. sperm but evidence period of time since that over the
indicated sufficiency of the protesting the In any sperm degenerated could have and death evidence, that the contends no defendant unrecognizable. was evi- There become and alcohol, the cause death failed to establish ingestion drugs or al- dence delicti; corpus failed to establish though low or ethanol were levels acetone to establish that State failed pu- probably products These found. rape opportu or had the raped, attempted changes. On cross-examination
trefactive victim; nity rape and the State’s might be a Dr. Elliott admitted acetone contradictory. proof was unbelievable alcohol, ingesting rubbing which is product lethal, but affirmed on redirect potentially corpus homicide delicti Roxanne had
that he saw no evidence that proven beyond a case reasonable must be drinking rubbing alcohol. died may be convicted. a defendant doubt before Roger psychologist Myer, Dr. the clinical (1) two the death It consists of elements: defendant, testified about the who tested agency in being criminal of human (88 IQ in areas scholastic like defendant’s low corpus de- producing that death. While math, reading performance 82 on the solely by the de licti cannot be established test, average portion of the with an score of statements, any other statements fendant’s 88). placed him at tests Achievement may along with other evi be considered grade reading spelling third level dence, both direct and circumstantial grade at the fifth level math. Defendant Shep prove corpus delicti. See State v. grade. had attended school to the third herd, (Tenn.Cr.App. 862 S.W.2d defendant, Myer Dr. testified 1992). prosecutions it must be In homicide impoverished youngest of 11 children in an by not occasioned proved that death was guarded personality family, exhibited causes, accident, de natural syndrome, child typical of burned State, Davis v. 1 Tenn.Cr. person. ceased by being “emotionally put caused down as (1969). App. child,” poor and uneducated. Defendant Rox- in this case that There is evidence dependent very person also a and tested healthy at the time of her anne Woodson dominance; i.e., not he would be a low *7 indicates that she was death. The also sociopathic He not have a or leader. did Elliott depressed neither or suicidal. Dr. personality antisocial disorder and was basi- asphyxiation was “the most that testified cally The had nonviolent. been likely” death and he found no indica- cause of during cooperative disruptive and not his There any natural cause of death. tion of stay at the Middle Tennessee Mental Health to nothing during autopsy the was found prior In Institute to trial. he accidentally had Miss indicate that Woodson depression anxiety. for had been treated nothing discov- head. There was struck her several affi- The defendant also introduced theory that the acetone support ered to him people from known dur- davits who had body victim’s could raise found in the ten-year stay in in- ing his Canada. These in- her death resulted inference that Dage- the affidavits of: Leona Marian cluded Elliott he gestion alcohol. Dr. testified of nais, theory. of nothing his common-law wife and mother support to that discovered children; Hannon; June Deveron died his two that Miss Woodson There was evidence (recorded including de- George; statement asphyxiation, Jessie Smith of or suffocation affidavit); Bennett; Dorothy might have Tripp; Bev that she no fendant’s own statement Keller; His Margaret he buried her. and Joe Huber. been at the time alive Sister officers, his contradictory statements to general import of these affidavits was The father, finding that the victim good flight support the had also that the defendant been agency. result criminal friend, died neighbor and husband and Mobley’s testimony The that the contention evidence was that three in a men red prove insufficient to victim’s death oc girl car had asked if he had seen a and there perpetration attempt curred or to might was hair evidence that have perpetrate rape also is without merit. Al come from Roxanne Woodson was found in though sperm there was no evidence of or the trunk of a red car owned one his trauma, genital testimony Dr. Elliott’s indi suspi- friends. was This car later sold under sperm cated evidence of could have de cious This circumstances. evidence is not generated unrecognizable and become over fatally contradictory of the proof. State’s period body of time the was buried. It is Mobley that testified the car was red or argued that defendant not did have sufficient white. Frankie Harris and Bovard Charles opportunity rape to victim in the short stopped testified that and the defendant (5) minutes) (approximately time five while at the house to ask if Roxanne had been Frankie Harris and Charles Bovard were seen. Roxanne’s hair could found have been away from the automobile. The offense for in the red ear it could because have been the charged which he was was murder in the brought body one used when defendant perpetration rape attempted rape. of a or down at a the mountain later time. This was adequate There was evidence he endeav proper all evidence to consider persuade to ored par Roxanne Woodson to and was to establish sufficient the conviction ticipate in a sexual act with him and that he offense. attempted engage to use force to in that activity. testimony This included sup evidence sufficient to scuffle, Charles Bovard heard a port aggravated assault In conviction. grunt, or something under strain and heard proscribing aggra 1978 the criminal statute him, indicating struggle her curse between vated provided pertinent part assault Moreover, them. the bloodhound traced the “any person ... attempts who or cause place victim’s scent from the the car was wilfully knowingly bodily injury causes parked pile, depression to the brush with a deadly weapon guilty another with a ... it, approximately yards from the car. aggravated offense assault.” T.C.A. dog followed this trace three or four 39-601(b)(2) § (Supp.1977). The evidence trainer, despite times and efforts of its aggressive defendant’s obvious in his anywhere attitude could not find her scent else within dressing, coupled bedroom a two mile while police radius. Defendant told the pretended officers that he she had run off confrontation of officers with a loaded young boys into woods when the two shotgun, was sufficient establish that of returned the car and found she was not fense. raising alarm,
there. Instead of an he told boys keep quiet one about the presented The issue is whether going incident and that back he was to look the evidence at for a trial sufficient again, bring her and would her home. guilty rational trier of fact find defendant *8 on unpub Defendant also relies a recent beyond guilty doubt. A reasonable verdict Court, Dunn, lished decision of this State v. approved by judge the trial accredits the (Tenn. 9/7/93) to support 1998WL 339919 his testimony of re the State’s witnesses and argument body that that the fact the was testimony solves all conflicts the in favor partially naked was when buried insufficient Hatchett, theory of the State. the State v. during attempt to establish an she was killed (Tenn.1978). 560 appel S.W.2d 630 On rape. distinguishable ed Dunn is from this late is the review the State entitled to by the fact victim in case that the Dunn had strongest legitimate view of and the evidence engaging voluntary been sexual activities legitimate all reasonable or inferences which ingestion drugs and of alcohol and with the may Cabbage, be it. v. 571 drawn from State defendant at the of her death. time (Tenn.1978). S.W.2d 836 A verdict against argues presump Defendant the defendant removes the proof that the State’s tion of presumption contains fatal contradiction because of Jeff innocence and raises a
9Q3
interrogation. He acknowl-
Grace,
beginning
the
appeal.
guilt
(Tenn.1978).
rights, agreed
edged
has
he understood his
476
A defendant
the
that
sign anything. Defen-
overcoming the
talk
refused to
presumption.
but
burden
(Tenn.
Brown,
attorney
he had an
v.
551
331
the officers that
S.W.2d
dant told
1977).
sufficiency of
not need him
Where the
the evidence
but did
North Carolina
question
mentally
appeared
for the
alert
challenged,
present.
is
relevant
Defendant
whether,
reviewing
appellate court
after
and
not under the
physically
is
and
sound
was
light
most favorable
drugs.
evidence
Adkins asked
of alcohol or
influence
any
prosecution,
rational trier of fact could
took
General
questions
notes.
while Graves
of the
have
the essential elements
during
found
in and out
the cell
Fisher was
beyond
crime
doubt.
Jackson
reasonable
approximately
until
which lasted
interview
307, 322-25,
Virginia, 443
99
U.S.
S.Ct.
noon,
for breakfast
11:00
with breaks
a.m.
2781, 2791-92,
(1979);
not asserts that statement his instead, intimidation, threats, but or coercion Graves and Adkins should have Officers voluntarily made freely, knowingly were suppressed involuntary been because it was fully after advised of his defendant had been rights. and he not his did waive Miranda pre- rights. The evidence does not Miranda began interrogation He testified against finding. ponderate the trial court’s p.m. a.m. and lasted 3:00 around 3:30 until finding in that and hold We concur day. rights that same His Miranda were admissible. defendant’s statements only read him the end of the toward interrogation p.m. says at 1:30 or 2:30 He con find no merit in defendant’s We Attorney that Adkins and District General joining court tention that trial erred put parents Fisher had threatened to his counts) (first degree 1 2 murder Counts jail, parents bum and to take down house assault) for trial. (aggravated 9 Count away his children. He also claimed that in an 11 count indict Defendant was indicted punched him in Fisher Adkins had and/or sep alleging several ment the commission of stomach, throat, grabbed him during years 1976-1978. arate offenses pushed against wall. It him to sever the offenses under Defendant moved noon, after taken around 8,13 and The trial court Tenn.R.Crim.P. holding nearby cell a small into office case, part, concluded in relevant “got down a that Fisher and Adkins calmed 8(a) join- mandated the that Tenn.R.Crim.P. little.” Counts 1 and because der of Count with an the offense Count occurred Fisher, Attorney Richard
District General pertaining to investigation Counts Adkins, Agent Wayne Deputy Joe TBI *9 9 pertaining to Count would and evidence County De- of the Monroe Sheriffs’ Graves to proof pertaining necessarily require traveling partment testified that after all Despite trial 1 and the court’s Tennessee, Counts night spoke with the 8(a), ar Rule defendant jail specific reference to in holding in a cell at the defendant 14(b)(1) Gastonia, Carolina, gues issue under Tenn.R.Crim.P. beginning around North the joined applies to of offenses Sunday, April severance 4:00 a.m. on 9 1978. Defen- 14(b)(1) 8(b). pro- at under Rule Rule given rights his Miranda the trial dant was 904 (2) Canada,
vides that two in being where offenses have been the latter a source of evi- joined or trial mitigating consolidated for under Rule dence circumstances. 8(b), “the right defendant shall have a to a Oklahoma, 84, supra, Ake v. 470 U.S. at severance of offenses unless offenses 1097, specifically 105 S.Ct. at held that when part are plan of a common scheme and the indigent preliminary an defendant makes a evidence of one would upon be admissible showing sanity that his at time of the trial of Clearly, judge the others.” the trial trial, significant offense is to be a factor at correct decision Term. must, minimum, the State at a assure him 8(a) applied R.Crim.P. in that the evidence of competent psychiatrist access to a who will was inextricably one offense connected with appropriate conduct an examination and as- evidence the other and there was no evaluation, preparation sist in presenta- error. holding tion of the defense. The Ake is poses grounded
Defendant error in denial of a in the mo- Fourteenth Amendment’s tion jury questionnaire process guarantee to submit a written due to fundamental fair- ness, jurors. prospective rejected assuring a criminal defendant a We a simi- fair Smith, 1, opportunity present lar to issue in his defense. 857 S.W.2d 20 (Tenn.1993), finding it to be without merit. prejudice
Defendant has failed to show re- indigent Under Ake the defen sulting from the denial of this motion. He dant must demonstrate before trial that ex had opportunity to did prospec- ask pert upon necessary assistance is an issue jurors questions tive ques- trial, some likely significant be at the bur tionnaire. upon den is the defendant to show that the
expert be of would material assistance in the theory. establishment of his defense State v. complains of Defendant denial of a Edwards, (Tenn.Cr.App. 682 S.W.2d investigative pursuant motion for services 1993). Something general more 40-14-207(b) than the Oklahoma, § T.C.A. and Ake v. desire this expert shown case to have an 470 U.S. S.Ct. L.Ed.2d 53 vague (1985). assist some is necessary manner particular investigative No need particularized establish the need that must services was shown at the time the motion exist before a reversal is warranted. It must was heard the trial court. The motion granted be observed that the trial court public was denied because the defender’s of psychologist motion services of represented fice which testimony who testified. Dr. Elliott’s re already funding general received from the garding the cause of death was that of a assembly an investigator. public to hire competent, objective expert, reliable and see explained defender he had used these funds Evans, (Tenn. lawyer to hire a instead and there was no Cr.App.1985). copy had a defense way attorney give this up could be asked to autopsy report; and funds later autho investigate his other duties the case. rized for counsel travel to Ontario. The argues Defendant in was entitled an facts of do not this case show violation of vestigator charged he was because other process ruling due in the trial court’s this offenses, including similar and interrelated issue. and, rapes, kidnapping particular several Cathy Clowers,
the murder of
which could be
protests
used
aggravating
to establish an
circum
admission of the
argues
tracking by
stance in
ease. He
the fact
evidence of the
bloodhounds
that all
searching
of these offenses had occurred sever
for Roxanne Woodson. Evidence
years
trailing
al
difficult
earlier made this a
case to
bloodhounds
admissible
(5)
(1)
investigate
expert
and that he needed
assis where five
factors are established:
investigate
pure
tance
dog;
dog’s proper
the cause
death and
blood of the
years
training;
dog’s history
reliability;
of his
circumstances
residence
*10
Attorney
improp-
(4)
made
point;
the
the District
dog’s placement at a
trial
the
reliable
(5)
inflammatory
not based on
efficiency.
remarks
trailing
period
of
er and
within
State,
guilt phase
as the
Copley
Attorney Heinous, General the especially made concession that The murder Cruel, 2404(i)(5) § the should receive a life sentence. Atrocious or T.C.A. 39— 39-13-204(i)(5) terminology employed by (Supp.1977) § The exact the At- [T.C.A. ]. torney General is unclear because tape the (C) Murder committed the commis- recording argument intelligible of the is not 2404(i)(7) felony, § sion of T.CA 39— phase argument. at that plain It is 39-13-204(i)(7) § (Supp.1977) [T.C.A. ]. that he did not the Court inform reason for the State’s concession and there is previous In to the reference convic apparent no error record that would involving tion of felony violence to ineligible make the defendant for the death person, depended State the conviction penalty as a matter of law. Under legis- degree Cathy the second murder of Clow- provided lative penalty framework for death ers. This conviction reversed in October review, 13—206(d)(2) § T.C.A. vests 39— 1992 Appeals the Court Criminal authority in modify this Court to a sentence remanded for a trial. new See State v. Joe however, of death to imprisonment, life no Shepherd, (Tenn.Cr.App. 862 557 S.W.2d placed authority restrictions are on this un- 1992). This denied applica Court the State’s der the statute than the presumption other permission tion for appeal 22 on March jurisdiction that the within court will act its upon principles valid law. We find no acknowledges The State that this Court’s legal basis in outright this record for modifi- Middlebrooks, decision in State v. 840 S.W.2d cation of the to life. authority sentence (Tenn.1992), 317 felony has eliminated the in the vests Court under statute and is murder enhancement factor as a facet of prerogative Attorney not the General. sentencing procedure. If the upon State’s reason was based some legal authority, authority should have argues that the evidence presented Court argu- at oral heinous, is insufficient to establish the atro ment. If some factual matter outside the cious, or un aggravating cruel circumstances record lies at request, the root the State’s der the definitions set forth in v. any action part on the of the Court would be Williams, (Tenn.1985). 690 517 S.W.2d Re dictated ap- the fact that this Court has Johnson, lying on State v. 743 154 S.W.2d jurisdiction pellate and it inap- would be (Tenn.1987), argued the State that a murder propriate for it to decide matters outside the perpetrated by suffocation the victim over presented record that have not been to an period of four minutes is sufficient to VI, inferior court. Article Sec. 2 of See support aggravating this evi factor. The § Tennessee Constitution T.C.A. 16-3- dence of much suffocation Johnson was 201(a) (Supp.1993). any rate, At it is not a more we definite than find It case. attorney general’s decision, matter for the was clear that victim in that case was purely province such action is within conscious as she suffocated after her husband State, Court. See Pace v. 861 S.W.2d large bag plastic forced a down her throat. (Tenn.1978); Hodges, However, there is this case (Tenn.1991); State, Williams being victim suffocated after buried alive. (Tenn.1972). S.W.2d Such would circumstances warrant making a finding depravity. of torture and
We now
issues
move to the
raised at the
sentencing phase
proceeding.
of this
Mississippi,
In Johnson v.
486 U.S.
(3) aggravating
State submitted
cir-
three
(1988),
108 S.Ct.
2404(i)(2)
prohibition
§
(Supp.1977)
against
[T.C.A.
punish-
39-13-
cruel
unusual
204(i)(2)
Supreme
].
ment.
has
The Tennessee
Court
*12
pursuant to
as
foregoing statutes
codified
felony
aggravating cir-
held that the
murder
jury
Criminal Code Revision.
some
the 1989
cannot stand. While under
cumstance
hearing appears to
sentencing
charge at the
might
to
this error
be found
circumstances
reeord,
point
Howell,
from the
we
have been omitted
harmless, see State v.
868 S.W.2d
be
been
should have
sen
out that defendant
238,
(Tenn.1993), we conclude we
259-262
sentencing
capital
structure
under the
tenced
remanding
no
in
case to
have
alternative
this
time of
offense in 1978.
codified at the
as
course,
resentencing.
aggravating
Of
Brimmer, supra.
v.
See State
previous
of a
of a
conviction
circumstance
felony involving
may be reinstated
violence
fails
complaint that the statute
Defendant’s
defen-
the event of retrial and conviction of
meaningfully narrow
of death
the class
to
Kathy
homicide of
dant
Clowers.5
v.
rejected
was
State
eligible defendants
Potentially,
mitigating
substantial
Black,
repeated
held
supra. This Court has
circumstances relative to defendant’s charac-
ly
sentence under
Tennes
that
death
following
years
10
this offense
ter
imposed capri
Statutory
is not
see
scheme
presented at trial.
error
was
The cumulative
Black,
ciously
arbitrarily.
v.
su
and
State
finding
aggravators in the
invalid
two
(Tenn.
Teel,
236
pra.
793
State v.
S.W.2d
face of what could be considered substantial
1990).
finding
mitigating proof
against
militates
in this
harmless error
case.
prosecutorial dis
This Court has held that
determining
cases
seek
cretion
jury
report-
note that the
form
We
verdict
Eighth
penalty does not violate the
the death
jury
ed that the
found that “the murder was
allowing arbitrary
capri
Amendment
engaged
committed
while
defendant
imposition
penalty.
cious
death
State
commit,
committing,
attempting
or was
Cazes,
Brimmer, supra,
supra.
v.
v.
State
attempt-
fleeing
committing
or was
after
or
subject
Although
prosecute
the decision
murder,
commit, any
ing
degree
rape
first
as
restraints such
to certain constitutional
kidnapping.” This
or
was an erroneous find-
equal protection,
process
Cooper v.
due
ing.
no
in this
There is
evidence
record
State,
521,
(Tenn.Cr.App.
847 S.W.2d
536-538
establish that the victim’s murder occurred
1992),
charges
neither
nor has
degree
first
mur-
connection with another
constitutional violations
shown
such
Pritchett,
127,
der. See State v.
621 S.W.2d
showing
has
no
this case. There
(Tenn.1981).
140
penalty in his
decision to seek the death
arbitrary
capricious. McCleskey
case
generalized
Defendant makes a
attack on
279, 293, 107
Kemp, 481
S.Ct.
v.
U.S.
penalty
the death
and on Tennessee’s statu
(1987).
1767,
R.Crim.P. ANDERSON, C.J., DROWOTA, J., and by jury. Mag- The issue is trial Since the concur. by na King England Carta was sealed of 1215, dependency democracy of and BIRCH, JJ., REID and dissent. See upon by jury freedom the trial has been separate opinions. statesmen, recognized by poets, judges, and passionate in eloquent others and terms. BIRCH, Justice, dissenting. Perhaps simple Judge words of Alexan- join I separately write the dissent inso- der Maryland Hanson of state the truth as far it by as condemns the method which the any. well as venire practice was assembled. Such a as by jury institution of the trial has employed through invites here abuse experience by ages. been sanctified subjective and obscure upon often criteria by It recognized has been the constitution may depend. which such a I method would every Union. It state is deemed judgment grant reverse a new trial Americans; birthright and it is on this issue alone. deemed, liberty cannot subsist without it....
REID, Justice, dissenting. Few, 1 by J. Kendall In Trial Defense of I majority’s dissent from both affir- Jury, (quote Judge 210 Alexan- mance of the and its conviction remand for Proposed der Hanson Address Plan re-senteneing. I would reverse the convic- Government, quoted by a Federal 1788 as alternative, tion. In the I would hold that Bernard Schwartz in 3 The Roots the Bill penalty punish- the death is foreclosed as Rights: An Illustrated Source Book ment in this case. (Chelsea Freedom, American 540-542 House 1980)). Publishers
First, my the reasons stated dissent Nichols, 722, by right 877 If the should S.W.2d 740 to trial ever be — (Tenn.1994), denied, U.S. —, lost, may, tragically cert. it will not 115 it be accom- 909, (1995), plished directly by S.Ct. 791 I 130 L.Ed.2d would constitutional convention occur, people; hold that the conviction must be vote of the it will not reversed by secretly procedure silently, public because of the used the trial but without notice or response Judges, court in the defendant’s motion debate. the best of intentions with Nichols, change purpose, for a As in and with will of venue. rather laudable allow this granting liberty piece- than in accord bedrock of be dismantled the motion with the
909 (1995). denying capital defen meal, In passing inglorious note its judg petition certiorari from dant’s of trial “harmless error.” Preservation denying post-conviction ment of Court profoundness jury, simplicity, in all its relief,1 stated: Justice Stevens duty essential of this Court. appropriate occasion it is to restate On case, duty, In this has failed that the Court proposition that this Court’s the settled allowing unnecessary part of seemingly does not constitute of certiorari denial by jury to for the sake of trial be sacrificed v. ruling on the merits. United States economy and convenience. This case will 181, Carver, 490 [43 U.S. S.Ct. precedent become next encroach- (1923). Single 361] 67 L.Ed. See also ment has been made easier. Commissioner, 942- ton U.S. reason, 337-339, For this I would reverse the defen- 335] S.Ct. L.Ed.2d [99 *14 Stevens, for trial. (1978) J., dant’s conviction and remand a new (opinion respecting of petition of of certio- the denial writ Second, that, my opinion I at least reaffirm rari). case, example, In there are this in part, aggravating in circumstance valid reasons for the Court’s decision 2404(i)(5)(Supp.1977), § Tenn.Code Ann. 39— peti deny does mean review. But this not 1989, in Tenn. prior to amendment see sentence, challenge to his death tioner’s 13—204(i)(5), § Ann. “murder Code 39— part judge’s in trial defini upon the based heinous, atrocious, especially cruel or circumstance, lacks aggravating of an tion mind,” depravity that it involved torture or of instruction, merit. Under the trial court’s unconstitutionally vague this is defined aggravating circum a could find an juries and as instructed to in this Court impose penal stance sufficient to the death See, Cazes, e.g., state. 875 S.W.2d merely by concluding ty that a murderer’s (Tenn.1994) 253, (Reid, C.J., concurring 272 morally cor state of mind was “wicked or Tran, dissenting); v. 864 State Van is a rupt.” such a state of mind Because (Tenn.1993) 465, (Daughtrey, 487-489 S.W.2d murder, every the instruc characteristic of — denied, —, J., dissenting), cert. U.S. this plainly impermissible under tion 1577, 128 (1994); 220 114 S.Ct. L.Ed.2d State Godfrey Georgia, 446 holdings v. Court’s Harris, (Tenn.1992) 54, 839 83-84 v. S.W.2d 420, 1759,1764-65, [100 428-429 S.Ct. U.S. C.J., denied, (Reid, dissenting), cert. in (striking down 398] 64 L.Ed.2d (1993); — U.S. —, 1368, 122 113 S.Ct. L.Ed.2d 746 allowing jury aggravating struction find “ Black, 166, v. 815 195-196 State S.W.2d ‘outrageously circumstance if murder was (Tenn.1991) (Reid, C.J., dissenting). ”), wantonly vile, horrible inhuman’ or 356, Maynard Cartwright, v. 486 U.S. dissents, prior As stated the words “hei 1853, 1858, 100L.Ed.2d [108 363-364 S.Ct. nous, atrocious or cruel” are so bereft (“ atrocious, heinous, ‘especially 372] particular meaning aggravating that this cir cruel’”). or accomplish cumstance does not the constitu limiting directing mandate tional Id. risk
jury’s discretion “so as to minimize the
aggravating
hold
circumstance
I would
this
wholly arbitrary
capricious action.”
to be invalid.
153, 189,
Gregg Georgia,
96 S.Ct.
v.
428 U.S.
(1976);
stances which it death, relies before a defen- The circumstances of the victim’s such may dant be sentenced to death. See Tenn. as whether she was conscious when buried willfully § and whether 39-2404(g) placed Code Ann. the defendant [now Tenn.Code grave, her alive in the § are unknown. Fur- 39-13-204(g)(l)(A) Ann. prove ]. To thermore, inquiry determining critical aggravating 39-2404(i)(5), § circumstance in depravity is the murderer’s state of mind at present State must evidence that Tran, State v. Van killing, the time of the depravity murder involved torture or 479; yet S.W.2d at there is not one scintilla this, proof mind. To do there must be regarding evidence this record the de- willful infliction physical of severe or mental fendant’s mental state at the time the victim pain upon the victim while he or she was result, was killed. As a falls far Williams, conscious, see alive and necessary short of that beyond to establish (Tenn.1985), or of the reasonable doubt that the murder involved gratuitous infliction of and senseless violence depravity torture or of mind. Tran, helpless victim. See State v. Van this, S.W.2d at Failing 479-480. the With the invalidation of aggravating proof is support insufficient to aggrava- § circumstance Tenn.Code Ann. 39- ting circumstance. 2404(i)(5), aggravating no circumstance re- upon mains which a may sentence of death that, record this case shows almost case, be based. Under the facts of this I *15 immediately after the attempted modify would therefore the sentence to life having coerce the victim into sexual rela- imprisonment pursuant to Tenn.Code Ann. him, tions with disappeared. Ap- the victim 13—206(d)(2), § suggested by the At- 39— proximately a month and a half later the torney argument. General in oral body victim’s was found buried in a shallow regard, In this I while concur with the grave near the house where the defendant majority that the State’s concession that the sign lived. There was no of trauma to the defendant should be sentenced to life is not body physical and no strangula- evidence of binding Court, on this I emphasize would pathologist tion. The who had examined the Attorney General has concluded that body admitted that he had found no obvious imprisonment life proportionate pun- is the Nonetheless, cause of death. he theorized ishment for this defendant. This recommen- asphyxiation that suffocation or was the and, dation extraordinary my is knowl- cause of death phys- most consistent with the edge, unprecedented capital in a case. Such findings, ical which included evidence of he- concession, dispositive while not morrhaging larynx. pathologist issue, carry great should weight with this admitted that he did not know whether the Court. victim had been buried alive and testified absence of dirt her mouth and light cause, In of the entire record in I lungs indicated that she had not been alive that, would find even were the defendant opined when buried. might He also that dirt properly degree convicted of the first murder cavity not have entered the oral if a denim Woodson, only permissible Roxanne jacket, victim, like that found with the punishment imprison- under the law is life placed over her face before was ment. she buried. this, majority
From finds the evidence heinous, support sufficient to atrocious or aggravating cruel circumstance because there is that the victim suffocated after being However, buried alive. this conclusion speculation. based actual nothing
evidence establishes more than that the cause of death cannot be determined.