STATE of Tennessee v. Vincent SIMS.
Supreme Court of Tennessee.
April 17, 2001.
OPINION
JANICE M. HOLDER, J., delivered the opinion of the court, in which E. RILEY ANDERSON, C.J., and FRANK F. DROWOTA, III and WILLIAM M. BARKER, JJ., joined.
Vincent Sims was convicted of especially aggravated burglary and first degree premeditated murder in the shooting death of Forrest Smith. Sims was sentenced to twenty years on the especially aggravated burglary conviction and was sentenced to death for the first degree murder conviction. The sentences were ordered to run consecutively. On direct appeal, the Court of Criminal Appeals affirmed Sims‘s convictions and sentences. We entered an order designating the following issues for oral argument:1 1) whether the evidence is sufficient to support the verdict of first degree premeditated murder; 2) whether the trial court erred in refusing to charge the law of self-defense; 3) whether the record supports the aggravating circumstance that the defendant had been previously convicted of a felony whose statutory elements involve violence to the person; 4) whether the trial court erred in allowing the State to cross-examine defense witnesses at the sentencing hearing about the defendant‘s prior criminal convictions; 5) whether the trial court erred in refusing to allow the defendant to present hearsay evidence at the sentencing hearing; 6) whether prosecutorial misconduct during closing argument at the sentencing phase of the trial denied the defendant his constitutional rights; 7) whether the evidence is sufficient to support aggravating circumstance (i)(5), that the murder is especially heinous, atrocious, or cruel in that it involved torture or serious physical abuse beyond that necessary to produce death; 8) whether the jury instruction on aggravating circumstance (i)(5) denied the defendant his constitutional right to a unanimous jury finding; and 9) whether the sentence should be upheld under the Court‘s mandatory review under
FACTUAL BACKGROUND
On April 5, 1996, Forrest Smith arrived home from work around 10:00 p.m. He found the appellant, Vincent Sims, and Sims‘s cousin, Brian Mitchell, in the process of burglarizing his home. Mitchell testified that Sims had called him earlier in the evening asking for help in moving a big screen television from a house Sims had burglarized. Sims picked up Mitchell in a borrowed Toyota Camry belonging to Sims‘s girlfriend. They drove to Smith‘s house, parked the car under the carport, and loaded the big screen television in the trunk. Sims and Mitchell were in the house disconnecting a computer when Smith arrived. Smith parked his Jeep in
Mitchell testified that he heard Sims yelling at Smith to give Sims the keys to the Jeep. Mitchell then heard eight or nine gunshots fired inside the house. Sims returned carrying Smith‘s .380 caliber chrome pistol and the keys to the Jeep. Sims was holding his side and told Mitchell that he had been shot. Sims threw Mitchell the keys to move the Jeep, and the two fled the scene in the Camry. Mitchell testified that Sims told him that Sims and Smith had fought over the .380 caliber pistol and that Sims had shot Smith. Sims told Mitchell that Sims had to kill Smith because Smith had seen Sims‘s face. Sims instructed Mitchell not to talk to anyone about what had happened and later threatened Mitchell‘s life after they were in custody.
Smith‘s girlfriend, Patricia Henson, arrived at the home shortly after the shooting, sometime between 10:00 and 10:30 p.m. Smith was lying on the kitchen floor in a pool of blood, but he was conscious and asked Henson to call 911. When asked what had happened, Smith was able to tell Henson and Officer Donald Crowe that there had been a robbery and that Smith had been shot in the head. Officer Crowe testified that Smith was bleeding from several parts of his body, appeared to have been shot more than once, and was in severe pain. After receiving treatment by paramedics on the scene, Smith was transported to the hospital. He died approximately four and a half hours later.
In the meantime, Sims took Mitchell home and picked up Sims‘s girlfriend, Tiffany Maxwell, from work after she clocked out at 11:05 p.m. Maxwell testified that Sims was visibly upset and had blood on his shirt. Upon inquiry, Sims told her that someone had attempted to rob him. Maxwell also noticed that he had a “deep scar” injury on his side, which she treated herself after Sims refused to go to the hospital. The following morning, Sims and Maxwell took Maxwell‘s car to be washed and detailed. Maxwell then noticed that the license plate frame on her car was broken. Sims and Maxwell attended an Easter Sunday church service the next morning. According to Maxwell, Sims behaved normally with nothing unusual occurring until the following Tuesday when Sims was arrested at Maxwell‘s place of employment.
After Sims and Mitchell were in custody, Sims gave Mitchell a letter to deliver to Mitchell‘s attorney. In that letter, Sims recalled the events surrounding the burglary and murder. Sims alleged that Smith had fired at Sims and Mitchell as they fled the house. Mitchell testified that this portion of the letter was untrue. Mitchell maintained that no shots were fired until Sims went back inside the house to get Smith‘s keys to the Jeep. Sims also contended in the letter that Smith was accidentally shot in the head while the two struggled over the .380 caliber pistol.
Significantly, however, the bullet removed from Smith‘s brain was a .22 caliber bullet. The police also recovered fragments from three or four .22 caliber bullets at the scene. Mitchell testified that he had seen Sims with a long barrel .22 caliber revolver with a brown handle earlier in the evening. Although Mitchell did not see Sims with the revolver during the burglary, he did see something protruding under Sims‘s shirt. In addition to the .22 caliber bullets, the police found a bullet fragment from a probable .380 caliber bullet and five fired .380 caliber cartridge cases at the scene. Officers also recovered
Forensic pathologist Wendy Gunther performed the autopsy on Smith. She testified that Smith suffered a gunshot entry and exit wound to his head. Part of the bullet entered Smith‘s brain and lodged in his skull above his right eye, and the other piece exited in front of his right ear. Smith also suffered multiple blows to his head, neck, shoulders, arms, sides, back, and buttocks. The bruising indicated that Smith had been struck with a long, narrow, rod-shaped object at least a quarter inch wide. Dr. Gunther estimated that Smith had been struck at least ten times but probably many more. She stated that the blows were very hard as evidenced by the immediate bruising on Smith‘s body. Smith suffered at least six blows to his head, one of which fractured his skull at the back of his head. Dr. Steven Symes, a forensic anthropologist, opined that this head injury was inflicted after the gunshot wound to Smith‘s head. Although the gunshot wound to the head was the worst injury and would by itself have caused death, Dr. Gunther testified that the cause of death was a combination of all of the injuries.
Based upon the above evidence, the jury convicted Sims of especially aggravated burglary and first degree premeditated murder. Trial then proceeded to the penalty stage. The State presented evidence through Jennifer Gadd, an employee with the Criminal Court Clerk‘s Office, that Sims had two prior convictions for aggravated assault. The State also submitted all evidence from the guilt phase in support of its position in the penalty phase.
The defense presented five mitigation witnesses, Sims‘s mother, father, brother, and two aunts. These family members testified that Sims was a good child who never got into trouble until sometime in his teens. They also testified that Sims had close relationships with his family. One of his aunts, Mary Gardner, worked at the Shelby County Correctional Facility and testified that Sims was a model prisoner while incarcerated there. On cross-examination the State was allowed to question the mitigation witnesses regarding Sims‘s prior convictions for theft in 1990, aggravated assault in 1991, and aggravated burglary in 1993.
The jury returned its verdict finding the following aggravating circumstances: 1) the defendant was previously convicted of one or more felonies involving the use of violence against a person; 2) the murder was especially heinous, atrocious, or cruel; 3) the murder was committed for the purpose of avoiding, interfering with, or preventing the arrest or prosecution of the defendant; and 4) the murder was committed during the commission of a burglary or theft.
SUFFICIENCY OF EVIDENCE OF PREMEDITATION
Sims was convicted of first degree murder under
As used in subdivision (a)(1) “premeditation” is an act done after the exercise of reflection and judgment. “Premeditation” means that the intent to kill must have been formed prior to the act itself. It is not necessary that the purpose to kill pre-exist in the mind of the accused for any definite period of time. The mental state of the accused at the time the accused allegedly decided to kill must be carefully considered in order to determine whether the accused was sufficiently free from excitement and passion as to be capable of premeditation.
Tenn.Code Ann. § 39-13-202(d) .
Sims‘s contention is that there is no evidence that he had a preconceived plan to kill during the course of the burglary. Particularly, he asserts that the State‘s evidence was insufficient to justify a finding that Sims acted free from passion and excitement because Smith was shot during a struggle. We find, however, that taking the evidence in the light most favorable to the State, the evidence is sufficient to establish premeditation. “Evidence of procurement of a weapon is probative to prove premeditation.” State v. Bush, 942 S.W.2d 489, 501 (Tenn.1997). We have also held that establishment of a motive for the killing is another factor from which the jury may infer premeditation. State v. Nesbit, 978 S.W.2d 872, 898 (Tenn.1998). A rational trier of fact could find from Mitchell‘s testimony that Sims‘s motive in shooting Smith was to prevent Smith from identifying Sims as the perpetrator of the crime. Moreover, the repeated blows to Smith‘s body, evidencing the particularly brutal nature of the killing, are supportive of the jury‘s finding of premeditation. See State v. Banks, 564 S.W.2d 947, 950 (Tenn.1978) (evidence of repeated blows inflicted upon the victim is relevant to establish premeditation). But see State v. Brown, 836 S.W.2d 530, 541-43 (Tenn.1992) (the infliction of repeated blows to the victim is not alone sufficient to establish premeditation).
Mitchell indicated that he and Sims sat quietly listening to music in the car when they left Smith‘s house. Maxwell‘s testimony revealed that Sims picked her up from work following the shooting, went home, and went to sleep that night. “Calmness immediately following a killing is evidence of a cool, dispassionate, premeditated murder.” State v. Bland, 958 S.W.2d 651, 660 (Tenn.1997). Moreover, the fact that Sims appeared agitated to both Mitchell and Maxwell on the night following the murder does not preclude a finding of premeditation. See State v. Gentry, 881 S.W.2d 1, 4 (Tenn.Crim.App.1993).
Sims acted with determination to burglarize Smith‘s home and to avoid being identified as the perpetrator. Sims intentionally killed Smith to eliminate Smith as a witness to the crime. We find that the evidence, examined in the light most favorable to the State, shows that Sims acted with premeditation.
SELF-DEFENSE INSTRUCTIONS
Sims contends that the trial court‘s instructions to the jury on self-defense were inadequate. The trial court denied Sims‘s request that the jury be charged on the general law of self-defense. The trial court found that no version of the facts supported a finding of lawful self-defense. The trial court instead instructed the jury under
Any person using force intended or likely to cause death or serious bodily injury within their own residence is presumed to have held a reasonable fear of immi-
nent peril of death or serious bodily injury to self, family or a member of the household when that force is used against another person, not a member of the family or household, who unlawfully and forcibly enters or has unlawfully and forcibly entered the residence, and the person using the force knew or had reason to believe that an unlawful and forcible entry occurred.
Sims maintains that the trial court‘s instructions distorted the law and prevented the jury from considering his theory of defense.
“The general principle in criminal cases is that there is a duty upon the trial judge to give a complete charge of the law applicable to the facts of the case and the defendant has a right to have every issue of fact raised by the evidence and material to his defense submitted to the jury upon proper instructions by the judge.” State v. Thompson, 519 S.W.2d 789, 792 (Tenn.1975). In determining whether a defense instruction is raised by the evidence, the court must examine the evidence in the light most favorable to the defendant to determine whether there is evidence that reasonable minds could accept as to that defense. Johnson v. State, 531 S.W.2d 558, 559 (Tenn.1975); State v. Bult, 989 S.W.2d 730, 733 (Tenn.Crim.App.1998). When the entire charge, read as a whole, fully and fairly sets out the applicable law, the trial judge does not err in denying a special instruction requested by a party or in denying an inaccurate instruction or one inapplicable to the case at hand. State v. Bohanan, 745 S.W.2d 892, 897 (Tenn.Crim.App.1987).
Sims argues that there was sufficient evidence presented to give rise to an inference that he was attempting to abandon the burglary and that he killed Smith in self-defense.
The threat or use of force against another is not justified if the person provoked the other individual‘s use or attempted use of unlawful force, unless:
(1) The person abandons the encounter or clearly communicates to the other the intent to do so; and
(2) The other nevertheless continues or attempts to use unlawful force against the person.
In Sims‘s version of the events, set forth in his letter, Smith began shooting at Sims and Mitchell as they ran out of the house, and Smith was accidentally shot in a struggle over Smith‘s gun. Reasonable minds could not accept this version of events. The bullet retrieved from Smith‘s brain was not fired from Smith‘s gun, and Smith was shot in the back of the head.
Even accepting Sims‘s letter as true, there simply is no basis for finding that Sims attempted to abandon the encounter in this case. Sims‘s recitation that he engaged in a struggle with Smith over Smith‘s gun, rather than retreating, negates Sims‘s theory of any attempt to abandon the burglary. We hold that the trial court was correct in finding that the evidence did not support the requested instruction on self-defense.
We find, however, that the trial court erred in giving an instruction addressing the presumption that a resident employs self-defense. The Court of Criminal Appeals addressed this issue in State v. Belser, 945 S.W.2d 776, 782 (Tenn.Crim.App.1996). The court held that the
We agree with the reasoning of the Court of Criminal Appeals in Belser. Tennessee‘s self-defense statute falls under Title 39, Chapter 11, Part 6 of the Tennessee Code, addressing “Justification Excluding Criminal Responsibility.” The first statute under Part 6 states, “It is a defense to prosecution that the conduct of the person is justified under this part.”
We recognize that the trial court granted the instruction based upon the defendant‘s opening statement that the shooting was an accident caused by the victim‘s error in judgment. Although we understand the intent of the State and of the trial court in using the instruction, the facts in this case did not warrant use of an instruction concerning the use of self-defense by Smith. We agree, however, with the Court of Criminal Appeals that the error was harmless. The State carries the burden of proving that the defendant did not act in self-defense. Belser, 945 S.W.2d at 782. The court in Belser noted that the danger created by improper use of the resident self-defense instruction was that the burden of proof was improperly shifted to the defendant. Id. Sims was not entitled to an instruction on self-defense. The error of granting the
SUFFICIENCY OF EVIDENCE ESTABLISHING “PRIOR VIOLENT FELONY” AGGRAVATING CIRCUMSTANCE
The State presented evidence during the penalty phase of Sims‘s trial to establish that he was convicted in 1991 of two counts of aggravated assault. Based upon this evidence, the jury found that “[t]he defendant was previously convicted of one (1) or more felonies, other than the present charge, whose statutory elements involve the use of violence to the person.”
Sims previously pleaded guilty and was convicted of aggravated assault under
(a) A person commits aggravated assault who:
(1) Intentionally or knowingly commits an assault as defined in
§ 39-13-101 and:....
(B) Uses or displays a deadly weapon....
The trial judge found that aggravated assault under this subsection does not necessarily involve the use of violence to another person. The offense may be committed by intentionally or knowingly causing the victim to reasonably fear imminent bodily
Sims maintains that the trial judge erred in reviewing evidence of the underlying facts of Sims‘s prior convictions to determine that the felonies involved the use of violence to the person. Sims asserts that the statutory definition of the prior violent felony aggravator only permits an examination of the statutory elements of the felony without regard for the facts in a particular case. This is an issue of first impression in Tennessee.
“A basic principle of statutory construction is to ascertain and give effect to the legislative intent without unduly restricting or expanding a statute‘s coverage beyond its intended scope.” State v. Fitz, 19 S.W.3d 213, 216 (Tenn.2000). “[P]rovisions of [the criminal code] shall be construed according to the fair import of their terms, including reference to judicial decisions and common law interpretations, to promote justice, and effect the objectives of the criminal code.”
In State v. Moore, 614 S.W.2d 348, 351 (Tenn.1981), this Court was faced with a similar question regarding whether burglary in the second degree and arson constituted felonies involving the use or threat of violence to the person. The language of the prior violent felony aggravator at the time Moore was decided read, “The defendant was previously convicted of one or more felonies, other than the present charge, which involves the use or threat of violence to the person.”
In determining whether the statutory elements of a prior felony conviction involve the use of violence against the person for purposes of
we hold that the trial judge must necessarily examine the facts underlying the prior felony if the statutory elements of that felony may be satisfied either with or without proof of violence. To hold otherwise would yield an absurd result, the particular facts of this case being an ideal example. A plain reading of the statute indicates that the legislature intended to allow juries to consider a defendant‘s prior violent crimes in reaching a decision during the sentencing phase of a first degree murder trial. The underlying facts of Sims‘s prior felony convictions involve his shooting two people sitting in a car. To hold that these prior convictions do not involve use of violence against a person would be an absurd result contrary to the objectives of the criminal code. We cannot adhere to a result so clearly opposing legislative intent.
The approach to this issue taken by the trial judge was carefully contemplated and achieved a fair result. The evidence was sufficient to support the jury‘s finding of the prior violent felony aggravator. We therefore find no error in its application in this case.
IMPEACHMENT OF MITIGATION WITNESSES
During the penalty phase, Sims presented mitigation testimony from five family members. His mother testified that Sims worked continually, was married with two children, and enjoyed spending time with his family. She also testified that Sims never got into trouble until he was a teenager. Mrs. Sims then related what she had heard about the shooting incident at the high school leading to Sims‘s convictions for aggravated assault. In her version, another passenger in the vehicle tossed the gun to Sims and it then fired accidentally. The State questioned her
Sims‘s father testified that Sims was a good child, was not disrespectful of his parents, was not involved in many fights growing up, and was not an aggressive person. Sims was teased because he was small, so Sims‘s father tried to teach him to fight back instead of running to his older brother. Sims‘s father testified that Sims started defending himself when he was released from jail. He then described an incident in which Sims intervened in an altercation on behalf of his brother and was shot. Sims‘s father also corroborated Sims‘s mother‘s testimony that Sims was always working or spending time with family.
Before the State‘s cross-examination of Sims‘s father, the trial court conducted a bench conference. The trial court consequently allowed the State to impeach the character evidence offered during the father‘s testimony by asking if he knew about Sims‘s prior convictions for theft, aggravated assault, and aggravated burglary. The State also cross-examined Sims‘s brother and two aunts using the prior convictions to impeach their mitigating testimony. The prior convictions were a theme of the prosecutor‘s closing argument. The prosecutor pointed out the progression of Sims‘s crimes, telling the jury that it was Sims‘s “graduation day.”
Sims argues that the testimony presented by his mitigation witnesses was not character evidence subject to the impeachment allowed by the trial court in this case. Alternatively, Sims maintains that the evidence was limited to his childhood character so that the prior convictions were not relevant impeachment. He further argues that the trial court erred by failing to weigh the probative value of the evidence against its prejudicial effect.
The admissibility of evidence during a first degree murder sentencing phase is governed primarily by
In the sentencing proceeding, evidence may be presented as to any matter that the court deems relevant to the punishment and may include, but not be limited to, the nature and circumstances of the crime; the defendant‘s character, background history, and physical condition; any evidence tending to establish or rebut the aggravating circumstances enumerated in subsection (i); and any evidence tending to establish or rebut any mitigating factors. Any such evidence which the court deems to have probative value on the issue of punishment may be received regardless of its admissibility under the rules of evidence; provided, that the defendant is afforded a fair opportunity to rebut any hearsay statements so admitted. However, this subsection shall not be construed to authorize the introduction of any evidence secured in violation of the constitution of the United States or the constitution of Tennessee.
Sims‘s arguments are taken from
Our initial inquiry is whether
When addressing the admissibility of victim impact evidence, this Court has applied
These cases lead us to conclude that, in general,
In the current case, we hold that the trial judge was not required to strictly follow the Tennessee Rules of Evidence in determining whether the State should be allowed to question the defense‘s mitigation witnesses regarding Sims‘s prior convictions. The issue is not whether the testimony of Sims‘s father was character evidence under
First, however, the trial judge should have determined whether the probative value of the prior convictions outweighed any prejudicial effect. See Nichols, 877 S.W.2d at 732. This weighing process is imperative when evidence proffered by the State has the potential to inflame the jury or interject arbitrary, non-statutory aggravating circumstances into the sentencing process. Based upon our independent review, we hold that any error on the part of the trial judge in failing to follow this procedure was harmless. Evidence of Sims‘s two 1991 aggravated assault convictions was already in evidence, properly argued by the State, and appropriately considered by the jury under the prior violent felony aggravating circumstance. The State did not ask specific questions regarding the underlying facts of the theft and aggravated burglary convictions. Any prejudicial effect in the
Finally, a proper limiting instruction should normally be given before allowing the jury to consider evidence of prior convictions. See Nichols, 877 S.W.2d at 732. The limiting instruction in this case would have informed the jury that the prior convictions could be considered solely for the purpose of rebutting the mitigating testimony related to Sims‘s character as a non-aggressive person. Such an instruction would have decreased the danger of inserting a non-statutory aggravating circumstance into the jury‘s deliberations. Sims did not, however, request a limiting instruction. We conclude that the failure to grant sua sponte a limiting instruction in this case did not amount to fundamental or prejudicial error. See State v. Howell, 868 S.W.2d 238, 255 (Tenn.1993) (reversal should be “limited to those exceptional cases in which the impeaching testimony is extremely damaging, the need for a limiting instruction is apparent, and the failure to give it results in substantial prejudice to the rights of the accused.“).
EXCLUSION OF MITIGATING HEARSAY EVIDENCE
During the penalty phase, the defense asked Sims‘s mother if she had spoken with Sims regarding this incident. When she answered in the affirmative, the defense began to ask her, “Has he expressed—” to which the trial judge sustained the State‘s objection on grounds that her statement was hearsay and self-serving. Sims argues on appeal that this limitation on mitigating evidence of remorse was improper. We agree that otherwise admissible evidence should not be excluded during a capital sentencing hearing based upon the fact that it is hearsay. Odom, 928 S.W.2d at 28. However, we
We also decline Sims‘s request to follow the procedure outlined in State v. Goad, 707 S.W.2d 846 (Tenn.1986). In Goad, the trial court inappropriately limited the defendant‘s offer of proof, and we remanded the case for further development of the record. Id. at 853. Here, the defendant made no proffer. The issue is therefore waived.
PROSECUTORIAL MISCONDUCT
During closing argument, the prosecutor made the following statement:
The only verdict that is proper in this case and again, I do not say this to demean your job, but the only proper verdict that this defendant has earned, that he deserves, that all his life he‘s been crying out for, sentence me to death, because if you don‘t stop me, if you don‘t stop me, I‘m going to take somebody else away from you. I‘m going to take away a valued member of this community if you don‘t stop me.
Sims contends that this specific deterrence argument inserted a non-statutory aggravating circumstance into the jury‘s deliberations on sentencing in violation of
Our review of the record, moreover, convinces us that any error in permitting these comments was harmless. We agree with the Court of Criminal Appeals that these limited comments by the prosecutor did not affect the jury‘s sentencing decision in light of the facts and circumstances of this case. See State v. Irick, 762 S.W.2d 121, 130-31 (Tenn.1988) (to meet Eighth Amendment standard of reliability, review of improper specific deterrence argument requires determination of whether the comments affected the sentencing decision). In making this determination, we have considered the following: (1) the conduct complained of viewed in the light of the facts and circumstances of the case; (2) the curative measures undertaken by the court and the prosecution; (3) the intent of the prosecutor in making the improper arguments; (4) the cumulative effect of the improper conduct and any other errors in the record; and (5) the relative strength and weakness of the case. State v. Chalmers, 28 S.W.3d 913, 917 (Tenn.2000). Although the comment about which Sims complains was an attempt to improperly sway the jury, it was brief and isolated. No objection was raised, and thus no curative action was taken. The cumulative effect of the improper conduct of the prosecutor was far outweighed by the strength of the evidence that supported the jury‘s finding that the aggravating circumstances outweighed proof of
SUFFICIENCY OF EVIDENCE OF “HEINOUS, ATROCIOUS, OR CRUEL” AGGRAVATOR
The jury found that the murder in this case was “especially heinous, atrocious, or cruel in that it involved torture or serious physical abuse beyond that necessary to produce death.”
“In determining whether the evidence supports a jury‘s finding of a statutory aggravating circumstance, the proper inquiry for an appellate court is whether, after reviewing the evidence in the light most favorable to the State, a rational trier of fact could have found the existence of the aggravating circumstance beyond a reasonable doubt.” State v. Suttles, 30 S.W.3d 252, 262 (Tenn.2000). We have held that the (i)(5) aggravating circumstance may be appropriately applied when the evidence supports a finding of either “torture” or “serious physical abuse beyond that necessary to produce death.” Id. “Torture” is defined as “the infliction of severe physical or mental pain upon the victim while he or she remains alive and conscious.” State v. Pike, 978 S.W.2d 904, 917 (Tenn.1998). Regarding the “serious physical abuse” prong in the language of the aggravating circumstance, we have stated:
The word “serious” alludes to a matter of degree. The abuse must be physical, as opposed to mental, and it must be “beyond that” or more than what is “necessary to produce death.” “Abuse” is defined as an act that is “excessive” or which makes “improper use of a thing,”
or which uses a thing “in a manner contrary to the natural or legal rules for its use.”
The evidence showed that Smith sustained a gunshot wound to the back of his head. Smith also suffered multiple blows to the head, neck, shoulders, arms, sides, back, and buttocks. The bruising indicated that Smith had been struck with a long, narrow, rod-shaped object at least a quarter of an inch wide, presumably the barrel of Sims‘s gun. Dr. Gunther estimated that Smith had been struck at least ten times, with at least six blows to his head. In her opinion, however, Smith was probably hit many more times. One of the head blows fractured Smith‘s skull at the back of his head, and some of the blows to the head caused bleeding on his brain. Dr. Gunther also stated that the blows were very hard as evidenced by the immediate bruising on Smith‘s body.
No opinion was offered as to whether Smith was conscious during the beating, but he was conscious when his girlfriend returned home shortly thereafter. Officer Crowe testified that Smith was conscious and in a lot of pain when the officer arrived on the scene. Based upon Dr. Gunther‘s testimony regarding the nature of the bruising on Smith‘s upper arms, back, and head, the jury could have concluded that Smith was conscious and using his arms in an attempt to defend himself. While the gunshot wound to the back of his head was the most serious injury and alone would have caused death, Dr. Gunther opined that Smith died from a combination of all of his injuries, the multiple blows to his head and upper body contributing to his death.
Considering the evidence in the light most favorable to the State, we conclude that the evidence was sufficient to support a finding of both torture and seri-
Moreover, the multiple blows to Smith‘s body in addition to the gunshot wound to his head amount to excessive, gratuitous violence upon the victim. We therefore hold that the evidence also supported a finding that Smith was subjected to serious physical abuse beyond that necessary to produce death. See Hall, 8 S.W.3d at 601; State v. Bivens, 967 S.W.2d 821, 825 (Tenn.Crim.App.1996) (“multiplicity of the wounds beyond that necessary to cause death and the wanton infliction of gratuitous violence” supported application of (i)(5) aggravator). After careful review, we hold that the evidence supported application of the (i)(5) aggravator in the current case.
“HEINOUS, ATROCIOUS, OR CRUEL” AGGRAVATOR JURY INSTRUCTION
Sims argues that the jury instruction on the (i)(5) aggravator denied him his
PROPORTIONALITY REVIEW
We are bound by statute to review the application of the death penalty to determine whether:
(A) The sentence of death was imposed in any arbitrary fashion;
(B) The evidence supports the jury‘s finding of statutory aggravating circumstance or circumstances;
(C) The evidence supports the jury‘s finding that the aggravating circumstance or circumstances outweigh any mitigating circumstances; and
(D) The sentence of death is excessive or disproportionate to the penalty imposed in similar cases, considering both the nature of the crime and the defendant.
We next are compelled to consider whether the sentence of death in this case is disproportionate to the penalty imposed in similar cases, considering the nature of the crime and the defendant.
In conducting a comparative proportionality review, we begin with the presumption that the sentence of death is proportional with the crime of first degree murder. A sentence of death may be found disproportionate if the case being reviewed is “plainly lacking in circumstances consistent with those in similar cases in which the death penalty has previously been imposed.” A sentence of death is not disproportionate merely because the circumstances of the offense are similar to those of another offense for which a defendant has received a life sentence. Our inquiry, therefore, does not require a finding that a sentence “less than death was never imposed in a case with similar characteristics.” Our duty “is to assure that no aberrant death sentence is affirmed.” State v. Hall, 976 S.W.2d 121, 135 (Tenn.1998) (citations omitted). We have found the following factors helpful in choosing and comparing cases: 1) the means and
In the current case, the victim was shot in the back of the head. He was severely beaten, presumably with the defendant‘s gun, causing both extensive bruising and a skull fracture with bleeding on his brain. The murder was committed during the burglary of the victim‘s home. The motive for the killing was to prevent the victim from identifying the defendant. The murder was premeditated, and no evidence was presented to show either provocation or justification.
Sims, an African-American male, was twenty-four-years old at the time of the murder and had a prior criminal history including two convictions for aggravated assault. The record does not reveal that Sims had any mental, emotional, or physical disabilities at the time of the crime. He was the sole perpetrator in the killing. No evidence was presented to show that Sims cooperated with the authorities or showed any remorse for the killing. Sims‘s aunt testified that he had been a model prisoner and participated in courses and programs in the correctional facility. His family also testified that Sims had maintained a record of employment. However, the evidence showed that Sims continued in a pattern of criminal conduct rather than becoming rehabilitated. Considering the nature of the crime and the defendant, we conclude that this murder places Sims into the class of defendants for whom the death penalty is an appropriate punishment.
Based upon an exhaustive review of the record and Rule 12 reports from trial judges in trials for first degree murder in which either life imprisonment or a sentence of death has been imposed, we conclude that the following cases in which the death penalty was imposed bear similarities with the current case. See King v. State, 992 S.W.2d 946 (Tenn.1999) (defendant shot victim in the neck during robbery of a tavern); State v. Cribbs, 967 S.W.2d 773 (Tenn.1998) (victim shot once in the head by twenty-three-year-old defendant when she and her husband returned home to find defendant and second assailant burglarizing their home); State v. Howell, 868 S.W.2d 238 (Tenn.1993) (twenty-seven-year-old defendant shot victim in the head during robbery of a convenience store); State v. McCormick, 778 S.W.2d 48 (Tenn.1989) (defendant killed victim by shooting her in the head to prevent her from disclosing evidence regarding defendant‘s participation in a prior burglary); State v. Barber, 753 S.W.2d 659 (Tenn.1988) (victim struck at least five times in the head with a wrench during a home burglary); State v. McNish, 727 S.W.2d 490 (Tenn.1987) (defendant went to victim‘s apartment to take money from her and beat her about the head and face with a flower vase causing multiple skull fractures); State v. King, 718 S.W.2d 241 (Tenn.1986) (death sentence based upon same four aggravating circumstances found in this case), superseded by statute on other grounds as stated in State v. Hutchison, 898 S.W.2d 161, 173 n. 11 (Tenn.1994); State v. Harbison, 704 S.W.2d 314 (Tenn.1986) (defendant engaged in burglary struck victim with marble vase at least three times causing multi-
CONCLUSION
In accordance with
We have reviewed all of the issues raised by the defendant and conclude that they do not warrant relief. With respect to issues not addressed in this opinion, we affirm the decision of the Court of Criminal Appeals. Relevant portions of that opinion are attached as an appendix. The defendant‘s sentence of death is affirmed and shall be carried out on the 31st day of August, 2001, unless otherwise ordered by this Court or proper authority. Finding no plain error related to Sims‘s conviction and sentence for especially aggravated burglary, we also affirm that conviction and sentence. It appearing that the defendant Vincent Sims is indigent, costs of this appeal are taxed to the State.
ADOLPHO A. BIRCH, Jr., J., dissenting.
APPENDIX
(Excerpts from the Court of Criminal Appeals’ Decision)
WOODALL, J. delivered the opinion of the court, in which HAYES, J. and RILEY, J. joined.
OPINION
(Deleted Summary of Testimony)
(Deleted Discussion of Sufficiency of Evidence of Premeditation)
(Deleted Discussion of Jury Instructions on Self-Defense)
JURY INSTRUCTIONS ON LESSER-INCLUDED OFFENSES
The defendant contends that the trial court erred by failing to instruct the jury on voluntary manslaughter and criminally negligent homicide as lesser-included or lesser grade offenses. Moreover, the defendant submits that failure to so instruct was not harmless error.
Under State v. Trusty, 919 S.W.2d 305 (Tenn.1996), a defendant was entitled to jury instructions on lesser-included offenses and lesser grades or classes of the offense charged if the evidence would support a conviction for the offense. Id. at 311. Recently, our Supreme Court overruled Trusty to the extent that it recognized “lesser grade” offenses as distinct from lesser-included offenses and permitted convictions of “lesser grade” offenses that were not lesser-included offenses embraced by the indictment. State v. Dominy, 6 S.W.3d 472, 472, 473 (Tenn.1999). See also, State v. Burns, 6 S.W.3d 453 (Tenn. 1999). Under the new case law, a defendant is only entitled to instructions on lesser-included offenses. The definition of
An offense is a lesser-included offense if:
(a) all of its statutory elements are included within the statutory elements of the offense charged; or
(b) it fails to meet the definition in part (a) only in the respect that it contains a statutory element or elements establishing
(1) a different mental state indicating a lesser kind of culpability; and/or
(2) a less serious harm or risk of harm to the same person, property or public interest; or
(c) it consists of
(1) facilitation of the offense charged or of an offense that otherwise meets the definition of lesser-included offense in part (a) or (b); or
(2) an attempt to commit the offense charged or an offense that otherwise meets the definition of lesser-included offense in part (a) or (b); or
(3) solicitation to commit the offense charged or an offense that otherwise meets the definition of lesser-included offense in part (a) or (b).
Voluntary manslaughter is defined as the intentional or knowing killing of another in a state of passion produced by adequate provocation sufficient to lead a reasonable person to act in an irrational manner.
Criminally negligent homicide, defined as criminally negligent conduct which results in death, Tennessee Code Annotated section
Having determined that voluntary manslaughter and criminally negligent homicide are both lesser-included offenses, the next inquiry is whether the evidence justified a jury instruction on such lesser offenses. Burns, 6 S.W.3d at 467. The Supreme Court has set forth a two-part test. First, the trial court must determine whether “any evidence exists that reasonable minds could accept as to the lesser-included offense.” In making this determination, the trial court must “view the evidence liberally in the light most favorable to the existence of the lesser-included offense without making any judgments on the credibility of such evidence.” Id. at 469. Second, the trial court must determine if the evidence, viewed in this light, is legally sufficient to support a conviction for the lesser-included offense. Id.
In the present case, there is no evidence in the record supporting the existence of these lesser-included offenses, and the trial court did not err by refusing to instruct the jury on either. Moreover, even if it was error not to instruct the jury on voluntary manslaughter and negligent homicide, such error was harmless. Our Supreme
JURY INSTRUCTION ON FELONY-MURDER
The defendant contends that the trial court erred by granting the state‘s special request that the jury be instructed that a felony participant is responsible for any death that ensues as a result of the felony. Specifically, he asserts that the trial court took no precautions to ensure the limited applicability of the instruction to the charge of felony-murder, and thus, the jury could have believed that the state did not have to prove mens rea for the charge of premeditated murder. We disagree.
It appears that the trial court instructed the jury first on premeditated murder. The jury was then instructed on murder during the perpetration of a burglary, on murder during the perpetration of a theft, and theft of property. At the end of these instructions, the trial court gave the following charge:
When one enters into a scheme with others to commit a burglary or a theft and a killing ensues, all participants in the burglary or theft may be held responsible for the death, regardless of who actually committed the murder and whether the killing was specifically contemplated by the others.
As long as the defendant intended to commit the burglary or theft and a killing resulted during the attempt to perpetrate the burglary or theft, each defendant is responsible for the murder, regardless of whether he intended for the victim to die or participated in the act of murder.
Thereafter, the trial court instructed the jury on second-degree murder. The trial court also gave a criminal responsibility instruction later in the charge.
The defendant‘s argument that the trial court failed to limit the instruction to the felony-murder charge and thus, eliminated the state‘s responsibility to prove mens rea on the premeditated murder charge is without merit. First, the trial court specifically instructed the jury on the elements of premeditated murder, and the jury is presumed to have followed the trial court‘s instruction. State v. Williams, 977 S.W.2d 101, 106 (Tenn.1998). Moreover, a challenge to a single jury instruction must be judged in context of the entire jury charge. See Cupp v. Naughten, 414 U.S. 141, 146-147 (1973); State v. Bolin, 678 S.W.2d 40, 43 (Tenn.1984). In the present case, the contested instruction, albeit unnecessary, was given in conjunction with the felony-murder instructions, and in the context of the entire jury charge, we find that the special instruction was not error.
(Deleted Discussion of Impeachment of Mitigation Witnesses)
(Deleted Discussion of Hearsay Evidence During Sentencing Hearing)
(Deleted Discussion of Prosecutorial Misconduct)
(Deleted Discussion of Heinous, Atrocious, or Cruel Aggravating Circumstance)
CONSTITUTIONALITY OF THE DEATH PENALTY STATUTES
While acknowledging that our Supreme Court has upheld the constitutionality of the death penalty statutes, the appellant raises several issues regarding the constitutionality of the death penalty in order to preserve them for later review.
All of the issues raised have been rejected repeatedly by our Supreme Court. See e.g., State v. Keen, 926 S.W.2d 727, 741-44 (Tenn.1994); State v. Smith, 893 S.W.2d 908, 926 (Tenn.1994); State v. Brimmer, 876 S.W.2d 75, 86-88 (Tenn.1994); State v. Cazes, 875 S.W.2d 253, 268-70 (Tenn.1994); State v. Smith, 857 S.W.2d 1, 21-24 (Tenn.1993); State v. Black, 815 S.W.2d 166, 178-79 (Tenn.1991); State v. Boyd, 797 S.W.2d 589, 599 (Tenn.1990); State v. Teel, 793 S.W.2d 236, 251 (Tenn.1990); State v. Thompson, 768 S.W.2d 239, 252 (Tenn.1989).
(Deleted Discussion of Proportionality Review)
CONCLUSION
In conclusion, we find that the evidence is sufficient to support the jury‘s finding that the defendant is guilty of premeditated murder. While error occurred during the trial, we have carefully reviewed the record and have concluded that such error did not affect the verdict. We also find the evidence sufficient to support the sentence of death. Again, while error occurred during the sentencing hearing, we find that such error was harmless and did not affect the jury‘s verdict. Moreover, we have conducted a comparative proportionality review and have determined that the sentence of death in this case is neither excessive nor disproportionate to the penalty imposed in similar cases. Finally, although not raised, we have reviewed the record and find that the evidence is sufficient to support the defendant‘s conviction for especially aggravated burglary.
Accordingly, we affirm the defendant‘s convictions of premeditated murder and especially aggravated burglary, and we affirm his sentence of death.
ADOLPHO A. BIRCH, Jr., J., concurring and dissenting.
I concur in the majority‘s decision to uphold Sims‘s conviction, but I dissent from the decision to impose the death penalty in this case because I continue to believe, as I have stated in the past, that the comparative proportionality review protocol currently applied in capital cases is inadequate.
In State v. Chalmers, I discussed three shortcomings of Tennessee‘s comparative proportionality review protocol which, in my view, render the protocol deficient: “the ‘test’ we employ [for comparative proportionality review] is so broad that nearly any sentence could be found proportionate; our review procedures are too subjective; and the ‘pool’ of cases which are reviewed for proportionality is too small.” 28 S.W.3d 913, 923 (Tenn.2000) (Birch, J., concurring and dissenting). Because of these shortcomings, I have concluded that the test embraced by the majority fails to