*1 STATE of Tennessee Ray
Steven THACKER. Tennessee,
Supreme Court of
at Jackson.
Feb. 2005 Session at Nashville.
April *5 defendant,
juryA convicted Steven Thacker, Fol- Ray degree of first murder. sentencing hearing, lowing capital circumstances: jury aggravating found two (1) pur- the murder was committed for with, interfering pre- pose avoiding, prosecution of venting a arrest or lawful (2) defendant; murder knowingly committed role while the had substantial fleeing having after committing, or was first committing, a substantial role murder, rape, robbery, burglary, degree Ann. kidnapping. theft or Tenn.Code (7) (1997). 39-13-204(i)(6), § circum- aggravating also found that these outweighed mitigating circum- stances beyond Ac- stances a reasonable doubt. cordingly, jury imposed a sentence Appeals death. The of Criminal Court affirmed both the conviction and sentence. Upon appeal pursuant automatic to Ten- *6 nessee Code Annotated section 39-13-206 (2003) specify- this an Court entered order argument,1 includ- ing five issues for oral Sr., Kelly, Kelly, Charles (1) S. Charles S. ing whether the evidence is sufficient
Jr., Emmons, and Wayne Dyersburg, (2) Ten- conviction; support whether nessee, appellant, Ray for the Steven limiting testimony trial court erred Thacker. Caruso, psychia- Dr. Keith forensic (3) trist, sentencing hearing; at the wheth- Summers,
Paul Attorney G. General and trial er- er the court committed reversible Moore, Reporter; Michael E. Solicitor it on the ror when refused instruct General; Angele Gregory M. and Gill Rob- neglect” “history defendant’s of abuse and Geldreich, Attorneys ert Assistant Gener- non-statutory circum- mitigating as a al, for appellee, State of Tennessee. (4) stance; improperly whether (i)(6) OPINION upon relied circumstance aggravating (5) support penalty; the death BARKER, J., WILLIAM M. delivered compara- whether the death sentence is court, opinion in which FRANK C.J, tively proportionate and under the DROWOTA, III, valid F. E. RILEY mandatory provisions of Tennessee HOLDER, review ANDERSON and JANICE M. Jr., JJ., BIRCH, section 39-13- joined. J. Code Annotated ADOLPHO A. 206(c)(l)(A)-(D) (2003). a careful concurring dissenting opinion. filed a After setting argument, designating an issues it 1. "Prior enter order those to the oral argument.” Tenn. at oral Court shall review the record and briefs and wishes addressed assigned. may Sup.Ct. R. consider all errors The Court 12.2. legal review of the record and relevant another man the victim’s wrecker authority, judgment traveling affirm the of the morning. we As Mr. Hinson was on Appeals.. Road, passed Court Criminal Lake the victim’s wrecker by, traveling opposite direction. Background I. Hinson observed that the victim was driv- ing, riding passen- another man was as a A. Guilt Phase ger, towing and the wrecker was a vehicle. defendant, Thacker, Ray Steven morning, Also that a maintenance worker degree premeditated was convicted of first center, Dyersburg at the welcome Thomas felony murder and murder for death Burns, an- accompanied by saw the victim Ray proof Patterson.2 The State’s trial other man at the welcome center. Later 2, 2000, January established that on afternoon, Burns learned that Mr. being automobile driven killed, had Patterson been he saw the just Mississippi broke down east of the picture newspaper. defendant’s traveling Springfield, River as he was recognized Burns the defendant as the Dyersburg, Missouri towards Tennessee. man he had with Mr. Patterson same seen The defendant received a ride from an morning. at the welcome center that unidentified male to the Northside Truck Stop Dyersburg. The defendant asked Brasfield, Wyman wrecker driver stop, the cashier at the truck Melissa At- Body passed by Shop, Brasfield Patterson keson, if she knew of a wrecker service during Brothers’ Service Station the morn- open Sundays. pro- that was Atkeson ing January 2000 and noticed the vided the defendant with the name and standing building victim inside the with his Patterson, telephone Ray number of a lo- back to the window. Brasfield also noticed operator. cal wrecker The defendant person, another whom he could not identi- called Patterson and then waited at the fy, building standing inside with stop truck until the wrecker arrived. wrecker, victim. The with a car victim’s it, parked attached to was outside on the Patterson, wife, Elizabeth the victim’s day, lot. Mr. Brasfield station Later receiving remembered her husband a tele- received a call to tow a vehicle at the phone call at morning home on the *7 Tim Capps, residence of a local mechanic. call, January taking 2000. Pat- After the residence, arriving Capps’ at Bras- Upon Cutlass, '85, pull terson wrote “Oldsmobile recognized field the vehicle to be towed as envelope, to Auto Zone store” on an then that had been hooked to the same one told his wife to continue on to church with day. in Patterson wrecker earlier The join their children and he would them later police to that he defendant later admitted possible. if the victim When left home Capps’ repair had traded vehicles at Mr. morning, he carried a .25 caliber semi- shop day. on that which, pistol pocket, automatic his ac- Patterson, cording to Ms. was not unusual Campbell Emily Kenneth and Guinn had answering for her husband to do when way morning been on their to church the calls for a wrecker. He also carried a 2, 2000, January they at stopped when knife, wallet, pocket money, pack his and a buy to Patterson Brothers’ Service Station cigars. Campbell got a Mr. out of drink. Wfiien Hinson, employee Triple-A person walking his he noticed a Curtis an vehicle it. Dyersburg, thought nothing Taxi in victim and towards him but saw the subsequently merged single a The convictions were into conviction. their However, begun a and investi- attempting get he was vice Station had as Dy- machine, Fisher gation. the drink he saw Officer David soda from was the ground gas Police first lying ersburg Department victim on the between im- Fisher dis- Campbell and the office. Mr. on the scene. Officer pumps officer back and left in the first mediately got lying into his vehicle the victim ser- covered He police. a A telephone find and call station. trail bay service vice and, block as he neared pump circled the from fuel island led the first blood again, noticed “someone According service station he directly body. to the Officer body roll-up door of dragging the near the Fisher, in an the victim dressed “ordi- was Campbell Mr. then gas station.” uniform” nary service-station-type and to re- directly to the station police torn, drove jacket shirt and the “his inner port he had seen. area, what shirt, collar and around the backwards, dragged as if he’d been pulled Canada, B B of & manager
Tina found.” to the location that he was Offi- Big Boy Dyersburg, Market Junction Fisher also observed a “substantial” cer Sunday that on that morn- recalled same upper torso. wound to victim’s into ing, purchase a man came the store to elderly gen- The man antifreeze. asked Dyersburg Two EMT’s with the Fire store, Brown, tleman Sam whether Department, Jerry Ronnie Walker outside He there was an water faucet. Collins, shortly arrived at the scene there- Mr. also asked Brown for directions the victim for after. Mr. Walker examined store, heading Auto Zone and then left the signs Upon opening but none. vital found According back toward town. to Ms. Can- shirt, victim’s a wound “in he observed ada, “just man was calm concerned shoulder, down, it coming looked like. getting his car could about fixed.” She No It looked like knife wound.” however, not, identify were Walker. A wounds discovered being the man the store. scene, Tony Douglas, at the also paramedic “a examined victim and discovered day, approximately p.m. At 12:20 right wound side of the puncture on the Zone in the defendant entered the Auto around two three chest somewhere Dyersburg approached a customer in moon-shape.” long and in a Mr. store, inches Mr. Paul Gage. The believed that this wound was fatal Douglas Gage place Mr. if he “a asked knew of that the victim had died “bleed- get car worked on.” referred Gage Mr. because lost a lot of blood.” ing out” “he’d Capps him Timto and told the defendant no on the victim. He found other wounds repair Capps’ shop was located behind however, admitted, that he defendant, Douglas Mr. Cars. Webb’s Used *8 not know for certain cause of did given later police, statement to described death. Capps’ to how he drove Auto Zone he it shop. When was informed Joyner was the Investigator Jim first days take several his vehi- repair
would service station. detective arrive at the cle, the defendant traded his vehicle large a amount of very He observed blood for a red How- Capps Chevrolet Camaro. scene, recalling that “blood was all at ever, prob- the Camaro had mechanical station, front, in the in the over the out lems, in it ex- so defendant returned bay, the office” and victim’s service change for a Pontiac 6000. blood.” Ad- clothing was “saturated with time, large spatter there blood police ditionally, discovered the was a By this had cash to the wall of the body register Brothers’ Ser- from the victim’s Patterson Investigator Joyner exiting building carrying office. stated the male two trail bags walking blood went out the door of the office towards a Wal-Mart bay toward A dumpster. approached the service door. Discover Officer O’Dell man, Boyd credit card in the of Forrest R. questioned name who identified himself “George” was found on the counter next to the credit and stated that he was from arrived, card machine. Neither the a gun victim’s Florida. second officer When found, however, nor his wallet were and the Patter- the man was identified as the defendant, missing son wrecker was from the service Steven Thacker. The officers station. transported then to the County Obion Jail.
Following up on the Discover credit card crime, found at investiga- Investigator Joyner, along the scene of the with Investi- Department gator Monty Essary, tors contacted the Sheriffs searched the defen- County, They Polk Missouri. Super pursuant were able dant’s room at the 8 Motel card, verify that person They who owned the to a recovered warrant. several victim, Boyd, Forrest was a resident of Polk items belonging including County Dyer County, cards, and was not in Ten- credit a .25 caliber semiautomatic Also, Boyd given permis- pistol, dye, nessee. had not hair and numerous other items. bed, anyone possess sion for use card On the the officers discovered two Dyer County. Also, County green Polk Sheriff knives. a coat and a Carhartt Mike Parson advised the inves- Tennessee brown coat were seized from the room and defendant, tigators Ray Investiga- Steven sent to the Tennessee Bureau of (TBI) Thacker, may in possession analysis. have been tion Some of the items Boyd’s the credit card and also Mr. vehi- found in the room were bloodstained. cle, which a Sheriff Parson described as Investigator Essary accompanied the Cutlass, burgundy “1985 Oldsmobile col- body Hospital victim’s to the Methodist bearing plate or” the license number morgue, where he removed the victim’s 540JBJ. clothing, including two bloodstained shirts.
After receiving pointing this information This to the clothing bagged sent to the TBI possible suspect, analysis along defendant as Crime Lab for with a along description sample with a of the vehicle he blood obtained from the defendant. addition, might driving, Investigator Joyner In investigators ad- located red Tim person- Capps’ vised other area law enforcement Pontiac Firebird at business on nel to be the lookout for the vehicle and that was one of the vehicles the defendant Pontiac, day, investiga- the defendant. Later that same had driven. Inside Dyer County Department in- a Buck Sheriffs tors found brand five-and-one-half- Capps suspect formed Tim had ineh knife with blood on it. This knife was TBI possibly driving traded vehicles and was also forwarded to the Crime Lab. The report subsequently cream colored 1984 Pontiac 6000. The Crime Lab revealed City the DNA Department subsequent- Union Police obtained from the blood ly suspect located both the vehicle and the the victim’s shirt the DNA from matched knife, Super City. at the blood found on the the Carhartt Motel Union *9 coat, boots, and the defendant’s which had O’Dell, a patrol Derrick officer with the also from his hotel room been recovered City Department, responded Union Police by investigators. suspect to information that the vehicle was taken from the Super Upon arriving at the at The defendant was 8 Motel. motel, Dyersburg Police County observed a white Obion Jail to the Officer O’Dell Pon- exchange in for the it where, he returned being advised of so upon Department said The defendant tiac 6000. a state- voluntarily provided he rights, his the victim was to stab statement, he had used knife In his to authorities. ment the Oldsmobile either leading up probably his actions defendant detailed murder, Shortly after Camaro. following the victim’s death. to and Wendy’s restau- a local went to defendant he had left related how The defendant to and then drove a sandwich rant for Oklahoma, Chouteau, about on his home into the he checked City where Union 28, 1999, and traveled December defendant stated Motel. The Super 8 Springfield He left Missouri. Springfield, in the go camping plan had been Dy- and traveled toward on December 31 Mountains, to hav- and he admitted Smoky Tennessee, his car broke ersburg, but and the camping gear ing some stolen miles this side down “two-and-a-half along the Olds- Boyd Mr. with knife from man An Mississippi River.” unidentified mobile. Dyersburg a ride into the defendant gave foregoing, upon Based stop. him off at a truck dropped degree of first guilty found the stop, the defendant at this truck While felony murder murder and premeditated him to tow his the victim and asked called a theft. perpetration of they into the service station. Once vehicle station, arrived at the victim’s service back Penalty B. Phase pay the victim attempted the defendant trial, card, phase credit the card During penalty with the stolen but defendant, Parson rejected. According County to the Mike Polk Missouri Sheriff 2, 2000, there my my January card gonna give “he wasn’t that on testified credit — outstanding I And for the arrest pay back ‘cause couldn’t the bill.... warrants were Porter, states, so I a criminal I knew I was wanted defendant. Jim Police De- just Dyersburg him and took off.” He ex- with the investigator stabbed facing the the defendant plained that the victim had been recounted how partment, that he during questioning card machine when the defendant credit had stated states, in other so immediately him but turned was wanted stabbed “knew [he] and took off.” attempted pull gun. out his just [the victim] around and stabbed [he] However, managed to elude the defendant widow, Patterson, the victim’s Elizabeth truck inside by hiding parked him behind a had and the victim been that she stated ran into The victim then out garage. years at the time thirty-five married lot towards tow truck and parking couple had three and that the his death point, At that collapsed ground. on the explained Patterson children. Mrs. adult off the drove the wrecker her sole source that her husband was nearby so and into some woods property prior to his death. Since support financial from the back he could remove his vehicle income, and was had no his death she had The defendant then re- of the wrecker. money pay burial ex- to borrow forced station, dragged the turned to the service had also needed to borrow penses. She building and body back into the victim’s until she re- herself money support gun. wallet and took the victim’s stated, “I proceeds. She insurance ceived IAnd my companion. friend and best how he later lost explained The defendant my sleep I night bed. sleep he was can’t traded the Oldsmobile Cutlass husband as Camaro, described her my couch.” She a red but driving for originally man,” good ... a good man Christian “a problems had mechanical that the Camaro *10 stated that the medication and related how her husband would some- Ms. Bowen recalled, however, appeared times tow for Patter- to work. She vehicles free. Mrs. by the de- episode also one of manic behavior son stated that her husband earned forgot to take $15,000 occurring fendant after he approximately per year at the ser- trip while on a out of town. his medication vice station and that she had received Bowen, According to Ms. the defendant $250,000from her husband’s life insurance Columbus, back, up trying get “ended policy. missing turnoff on the kept and he mitigation, In the defendant offered the loop kept going ... and he fast- Columbus Bowen, testimony Kimberly a resident Every er and faster. time he missed Huntington, Virginia, West who lived turnoff, they going Finally, he was faster. with the defendant from until 1997. at an hour.” stopped him 140 miles Ms. She described the defendant as follows: adamantly Bowen denied that the defen- drugs or that illegal dant used alcohol or a lot. laugh Steve made me He was he ever exhibited violent behavior. very, very my tender with me and kids. in Tennes- When asked about murder Probably example the best would be see, Ms. stated that it was not the Bowen when he went into construction and act Thacker she knew and of the Steve gone would be for week or two opposite. it as It’s polar “[s]o described time, plant throughout he would notes frightening.” house, go ‘cause he knew that I’d pay day into the bill one drawer bills cross-examination, Ms. Bowen admit- On letting and there’d be a little note me telling investigator ted that the defen- me, or, know, you know that he missed swings. dant suffered severe mood She laundry really in the room. It didn’t periods explained that the defendant had know, matter, just you spots little depression during “get which he would he have little me *11 that he could live a basically got along added that “he a controlled situation She life, I anyone” semi-productive that the defendant and believe with most and “try God could use his talents. keep would trouble down rather somehow I be- extremely gifted artist. than create trouble.” Mrs. St. Clair He’s talents thought highly enough of defendant to lieve that God could use his somewhere, maybe trust him with her children. acknowl- to touch someone She in a edged prison. that when the defendant left even if it is West him, Virginia in she contact with lost Dr. Keith presented The defense then although they “periodically would touch Caruso, psychiatrist. Dr. Allen forensic base with each other.” Mrs. also St. Clair Caruso had interviewed the defendant admitted that she was aware the defen- docu- July 2001 and had also reviewed disorder, bipolar dant’s as well as his deci- relating to the defendant’s case. ments stop taking sion to his medication. gathered, information he Dr. Based on the Evans, Roxanne pater- defendant’s diagnosed Caruso the defendant with aunt, nal also testified for the defendant. including bipolar of conditions” “number She testified that disorder, defendant’s father manic de- commonly known as had been in the Air Force and was trans- pression. Dr. Caruso described this condi- to Spain ferred when the defendant was “a mood disorder where tion as someone’s years two old. When the defendant was may cycle depression, emotional state old, years four parents separated and very ... tired ... where someone’s sad divorced, eventually gained and his father sleep may unable to and think about sui- custody of the defendant and his two sis- explained Dr. that “from a cide.” Caruso ters. The defendant’s father later remar- they may cycle to a depressive episode, up ried, difficulty but his new wife had deal- they’re hypomanic episode manic or where ing with the children. Ms. Evans said that excitable, irritable, ... very impulsive ... on one occasion step- the children’s new through consequences not think and clothes, “literally mother packed their sat person their actions.” A in this state porch, them on the my and when brother would, Caruso, according to Dr. “have tre- work, came home from told him that either very energy mendous amounts of feel left, the children or she left.” The defen- agitated.” Their mind would race and dant and his siblings next, were taken their “jump thought from one to the to the grandparents’ father to them home. From next, the next.” Dr. added that Caruso on, point developed cycle epi- may “someone between these maintained a close relationship sodes, also, with his may periods, and there grandfather, but he had little contact with they may between that return to normal his mother. functioning.”
Ms. Evans recalled as a child the Dr. Caruso related that quiet defendant was and introverted. She history dependence but had a alcohol very added the defendant was “affec- had been in remission while confine- tionate” and that “hungry he seemed history of ment. The defendant also had a acceptance, hungry for attention.” When abuse, in remis- drag again, but had been asked if she had ever seen the defendant going through drug sion since rehabilita- behavior, exhibit violent Ms. Evans teenager. Dr. further tion as a Caruso answered, “no.” stating: She concluded “personali- stated that the defendant had very loving caring person. ty
He’s a disorder with borderline antisocial persons I described problem, He has a and believe that traits.” The doctor *12 having “problems with this condition as Dr. Caruso affirmed that the defendant controlling their behaving voluntarily stopped taking behavior and had his medi- maladaptive ways.” opined He that cation because he did not like the effect it “particularly thoughts defendant’s around had on him. offense, the time of the more affected were opinion, In Dr. Caruso’s defendant bipolar disorder.” Dr. Caruso stat- trial, competent to stand and a de- ed, “I think convergence this crime was a insanity supported fense of could many factors. I think that there are Further, case. Dr. Caruso stated that this some things dating back to Mr. Thacker’s anything that there was he “didn’t feel put path childhood that him on the that he prevented here that Mr. Thacker from up today.”
wound here alleged the mens rea for the of- forming Dr. Caruso testified the defendant’s fenses.” mental condition could be with a treated inmate records from The defendant’s “mood-stabilizing medication like lithium.” Security Maximum Institution Riverbend He was also aware that the had in Nashville were also introduced. These previously prescribed been lithium for his records revealed that the defendant had bipolar voluntarily disorder but had disciplinary reports during his incurred no stopped taking According the medication. years facility awaiting at that trial. two Caruso, stopped to Dr. once the defendant deliberation, jury found Following ill taking the medication he would become circumstances: following aggravating again, cycling and the of the mood disorder (1) committed for the the murder was
would continue. He concluded
with,
purpose
avoiding, interfering
or
hypomanic
defendant had
a
suffering
been
preventing
prosecution
a lawful arrest or
episode at the time of the crime and ex-
(2)
defendant;
of the
the murder was
plained:
knowingly committed
Well,
bipolar
I think that
disorder is the
a
while the defendant had
substantial role
think, in
severe mental disease. I
addi-
committing,
fleeing
having
after
tion, there was extreme mental or emo-
committing,
role in
a first
substantial
fact,
tional disturbance.
In
there were a
robbery, burglary,
degree murder, rape,
stressors,
based on Mr.
number
See Tenn.Code
Ann.
kidnapping.
theft or
history of abandonment and
Thacker’s
(7) (1997).
13—204(i)(6),
jury
§
39—
him
rejection,
again provoke
would
into
aggravating
that these
circum-
also found
a state of extreme emotional distur-
cir-
outweighed
mitigating
stances
bance,
underlying
in addition to the
beyond
cumstances
a reasonable doubt.
has,
that he
in addition
mental disorder
the de-
Accordingly, the
sentenced
bipolar
to the
disorder.
fendant to death.
approx-
Dr.
further testified that
Caruso
imately
percent
two
of the United States’
Analysis
II.
population
bipolar
suffers from
disorder.
Sufficiency
Evidence
A.
three-quar-
Approximately “two-thirds to
challenges
sufficiency
ters” of these
who take mood-
The defendant
persons
evidence,
convicting
arguing
function
stabilizing medication are able to
However, Dr.
insufficient evidence as to the
normally
society.
Caruso
there is
death, insufficient evi-
major
treating
with
cause of the victim’s
problem
stated that
and insufficient ev-
patients
premeditation,
are
dence of
bipolar disorder is
murder was committed
regimen.
medication
idence that
noncompliant with the
Bland,
(citing
958 S.W.2d
felony.3
at 236
of a
We S.W.3d
during
perpetration
659).
substitute its
may this Court
Nor
disagree.
circumstantial
drawn from
own inferences
appellate
for an
The standard
by the trier
for those drawn
sufficiency challenge
reviewing
court
Evans,
at 236-37.
fact.
“whether,
in a
considering the evidence
prosecution,
most favorable to the
light
*13
(1)
as to cause
death
Evidence
of fact could have found
any rational trier
that there
contends
The defendant
beyond
of the crime
the essential elements
lay
testimony, either
no credible
Reid, 91
a
doubt.” State v.
reasonable
that the victim died as
establishing
expert,
247,
(Tenn.2002); see also
276
S.W.3d
stabbing.
a result of the
13(e);
Virgi
v.
R.App.
Tenn.
P.
Jackson
trial,
testimony
nia,
319,
2781,
presented
307,
61
At
State
443
99 S.Ct.
U.S.
Hall,
(1979);
emergency medical technicians
of the two
L.Ed.2d 560
State v.
8
(EMTs)
(Tenn.1999).
who were
593,
paramedic
and the
599
Because a
S.W.3d
crime. One
to the scene of the
presumption
called
guilt
verdict of
removes
Walker,
EMT,
he
Jerry
testified
when
imposes presumption
of innocence
station, the victim
arrived at the service
guilt,
burden
to the defendant
shifts
signs
appeared
to have
why
had no vital
upon conviction to show
the evidence
right
a wound to his
shoulder.
support
verdict. See
suffered
is insufficient
(Tenn.
Evans,
from a
231,
opined that the victim had died
237
He
State v.
108 S.W.3d
2003);
Carruthers,
516,
that he did not
knife wound but admitted
State v.
35 S.W.3d
The
(Tenn.2000);
for certain the cause of death.
Tuggle,
557-58
v.
639 know
State
(Tenn.1982).
EMT,
Collins, described
913,
second
Ronnie
appeal,
914
On
S.W.2d
pretty deep gash”
wound as “a
strongest legiti
is entitled to the
the knife
State
that the victim was “soaked
mate view of the evidence and to all rea
and stated
Tony Douglas,
paramedic,
legitimate
may
sonable and
inferences that
his blood.”
Smith,
body
that he examined the
be drawn therefrom.
v.
24 testified
wound,
274,
(Tenn.2000);
moon-shaped puncture
two
279
see also Car
found
S.W.3d
ruthers,
558; Hall,
right side of
long,
to three inches
on the
apparent, suggestion and there is accused died from to determine whether the record that the deceased order upon by than that relied excitement sufficiently cause other free from State, 690-91; Bryant v. 503 capable premedi- State. Id. passion be 955, (Tenn.Crim.App.1973); 958 S.W.2d tation. 41, State, Tenn. Franklin v. long recognized premedi Id. We have (1943). A af- non-expert, may proven by circumstantial tation wound, describing may express ter See; Bush, v. e.g., State evidence. that it opinion caused death. See Owens (Tenn.1997); State v.
State, 423, 424 202 Tenn. 308 S.W.2d (Tenn.1992). Brown, 530, 541 (1957). may be considered circumstances Several that he stabbed The defendant admitted including: use premeditation, indicative of testimony of *14 the There is exten- victim. weapon on an unarmed individ deadly of a deep of a stab bleeding sive as the result ual; cruelty killing; particular just before the wound that was inflicted threats or declarations the defendant’s died, victim and no evidence the vic- kill; procurement intent to the defendant’s injuries. tim had EMT sustained to con weapon; making preparations of a paramedic Douglas both Walker is commit ceal the crime before the crime that the stab wound had been fatal. opined ted; of evidence destruction or secretion testimony to lay This is sufficient sufficient and a defendant’s calmness killing; vic- support jury’s to verdict that the killing. State v. immediately after the tim died as the of the stab wound result (Tenn. Davidson, 600, 615 121 S.W.3d inflicted the defendant. Also, 2003); Bland, at 660. 958 S.W.2d may premeditation based jury infer
(2) Premeditated murder of a motive for the upon the establishment argues also The defendant Sims, killing. 45 8 State v. S.W.3d prove degree pre evidence fails to first (Tenn.2001). meditated murder. He contends that case, In there sufficient present premedita there was insufficient time for jury from which the could infer stabbing tion occurred imme because First, the stated premeditation. defendant refused to return diately after the victim for attempted pay that when he the defendant. the stolen credit card to card was wrecker service and the credit
The defendant was convicted left rejected, he the victim and stabbed murder, de degree premeditated of first in other because he “knew was wanted [he] intentional premeditated as “[a] fined jury could From these facts the states.” §Ann. killing of another.” Tenn.Code 39- mo- easily reasonably infer 13-202(a)(l) (1997). premeditat An act is rejected the de- the credit card was ment if after the exercise of ed the act is “done long that it would not be fendant realized (d). at judgment.” Id. reflection and were law enforcement authorities before for apprehended he would be the intent notified and “Premeditation” means mo- This establishes a prior to his earlier crimes. kill must have been formed killing. jury The could infer necessary that tive for the act itself. It is not motive was to further mind that the defendant’s pre-exist to kill purpose by eliminating the victim capture elude period for definite of the accused (es- Sims, at of the accused witness. See time. The mental state for in- ground of a motive as allegedly decid- tablishment at the time the accused Further, ferring premeditation). ny because the theft occurred after the reasonably could conclude that the defen- an “after- murder and was therefore dant reflection and judgment exercised thought,” killing. collateral kill forming an intent to the victim as soon Felony killing murder is of another “[a] rejected, as the credit card prior but at- perpetration committed act killing. the actual See TenmCode tempt perpetrate any ... theft.” Tenn. 39-13-202(d) (1997) (act §Ann. premed- is 39-13-202(a)(2) (1997). § Ann. Code No itated if “done after the exercise of reflec- culpable required mental state is tion judgment”). felony except murder conviction the intent Additionally, the af- defendant’s actions underlying felony. commit the See Id. stabbing ter the victim that the de- show (b). calculating fendant acted with a cool and felony applies murder rule Bland, demeanor. See at 660 killing when the pursuance “done (“[c]almness immediately kill- following a act, the unlawful and not collateral to it.” cool, ing is evidence of a dispassionate, State, Farmer v. 201 Tenn. murder”). premeditated Immediately af- (1956). killing “The must victim, ter his attack on the a witness have had intimate relation and close observed the walking in a nor- felony connection with the ... and not be mal fashion across the lot at parking *15 distinct, separate, independent from scene of the murder. Other witnesses who Homicide, (quoting it.” Id. on Wharton observed the killing defendant after the (3rd ed.)). § killing “may pre The described him behaving normally as cede, with, felony coincide or follow the calmly. Following stabbing, the the defen- and still be considered ‘in occurring as the dant drove the wrecker to a loca- secluded offense, perpetration felony long of the so tion in order to remove his vehicle from time, as there is a connection in place, and the back of the wrecker. The defendant continuity action.” Buggs, State v. station, then returned to the service (Tenn.1999). 102, 106 Neverthe dragged body sight the victim’s out of less, underlying the “intent to commit the removed the gun, victim’s cash and credit felony prior must exist to or concurrent Afterward, cards. the defendant ate a with the causing commission of the act the restaurant, hamburger nearby at a con- jury death the victim.” Id. at 107. “[A]
versed with several persons at an Auto may reasonably infer from a defendant’s store, Zone then to a repair shop where he immediately killing actions after a vehicles, traded and finally checked in to a defendant had the intent to commit the motel room in City. Union to, with, felony prior or concurrent the sum, In there is sufficient evidence of killing.” Id. at 108. killing defendant’s motive for the the defendant’s conduct and demeanor af- case, In this there is sufficient support jury’s ter the murder to find- jury for a to infer that the defen ing premeditation. commit dant had the intent to theft at First, jury the time of the murder.
(3) Felony murder rationally could have inferred when card, rejected The argues defendant next that there is the victim the stolen credit insufficient evidence to mur- only show that the the defendant formed an intent not of, victim, der was committed in the kill perpetration but also to take the victim’s Second, or during attempt perpetrate, property. immediately a felo- after the murder, However, vic- confer- jection. the defendant removed the short bench hearing held tim’s wrecker from the crime scene ence was then out of location, conference, court jury. another After the the trial removed his vehicle wrecker, and then returned to could not quickly explained to the witness that she body the crime scene to testify somebody’s you.” hide the victim’s what told “about personal belongings. and take his Each of al- questioning Defense counsel’s was then resume, time, to the intimately these actions was related in the lowed to which killing, and this could episode jury, entire be Evans was presence of Ms. as one transac- viewed continuous criminal asked: reasonable are suffi- tion. Such inferences you’ve Go Q: From what observed. justify a finding cient to that the defendant ahead. felony guilty murder. They have here. A: chosen not Thus, sought the answer defense counsel Mitigation B. Exclusion of ultimately to elicit from witness was Hearsay Evidence ap- argues The admitted. defendant trial defendant contends however, the time the peal, in ruling testimony sought court erred original question, heard the answer during from two defense witnesses interruptions prosecu- caused sentencing portion the trial was inad- trial its negated tion and the court had hearsay. in- missible The first instance Further, claims that value. Bowen, Kim prepared volved who was trial court’s to the witness instructions testify regarding statements why unable to the defen- left her state had made to her about childhood. De- his parents dant’s had not to attend chosen if fense counsel asked Bowen the de- Ms. the trial. spoken fendant had ever to her about *16 Code 39- Tennessee Annotated section way childhood and “the he was raised.” 13-204(c) (1997) that, provides capital at a objected, prosecution arguing The that sentencing hearing, any “which evidence would be response question Bowen’s probative court deems to have value that hearsay. argued Defense counsel may be received punishment the issue of hearsay may during penal- admitted under the admissibility of its regardless ty phase capital being of a trial if it is evidence; provided, that the de- rules of trial, mitigation offered as The evidence. opportunity is accorded fair fendant court asked defense counsel whether any hearsay so admit- rebut statements information elicited same could not be Therefore, any relevant to ted.” from another witness had first-hand who murder, ag- the circumstances Defense knowledge. agreed counsel by the upon relied gravating circumstances responded, it The trial then could. court State, mitigating or the circumstances objection is do that. [The State’s] “Diet’s probative if such evidence has admissible sustained.” of punishment. value the determination objected next when de- prosecution The 248, 250 Teague, v. S.W.2d See State 897 aunt, counsel asked the defendant’s
fense (Tenn.1995). Evans, the defendant’s Roxanne whether Testimony the de by concerning their absent from the trial parents were estranged relationship with his objected The on the fendant’s own choice. State evi any response mitigating hear- relevant as ground parents would be was mitigating evi- the trial the ob- Exclusion such say, and court sustained dence.
225
“potentially
prejudice
dence
the reliabili
to the
undermines
“affected the verdict
Chalmers,
determination,
ty of
the defendant.”
v.
sentencing
and is
State
28
913,
(Tenn.2000); Harrington
917
magnitude.”
error of constitutional
S.W.3d
State,
338,
758,
Cauthern,
726,
v.
215 Tenn.
385
State v.
967
739
(1965).
(Tenn.1998)
759
Factors to be considered in-
(citing Skipper v. South Car
(1)
olina,
clude:
the conduct
1, 4,
1669,
complained of
476 U.S.
106 S.Ct.
(1986)).
light
viewed
facts
the case
L.Ed.2d
The burden thus falls
(2)
circumstances;
any
surrounding
cura-
on the
to prove
any
error in
tive measures undertaken
the trial
excluding mitigation
not af
evidence did
(3)
(4)
court;
prosecutor;
intent of the
beyond
fect the verdict and was harmless
the cumulative effect of the conduct and
(citing
reasonable doubt.
Id.
Satterwhite
(5)
record;
any other errors in the
Texas,
249, 258,
1792,
486 U.S.
108 S.Ct.
strength
relative
and weakness of the case.
(1988);
100 L.Ed.2d
Chapman
v. Cali
Chalmers,
L.Ed.2d alleges The defendant two instances of prosecution. misconduct The first A review of the record reveals during occurred guilt phase of the trial essence the excluded evidence was ulti- when, examination, on direct prosecu- mately presented to the jury. Defense City tion asked Union Police Officer Der- agreed counsel that the testimony sought rick followingquestion: O’Dellthe Kim Bowen could be obtained Q: you question And did [the defen- through and, fact, other witnesses it was dant] manner after he under brought forth through the testimony of arrest? Also, Roxanne Evans. despite the defen- Only A: after he made the statement dant’s contentions that its value was less- that we did better than Springfield interruptions ened due to by the trial Department. Police court, was allowed to hear Ms.
Evans’ statement that the par- defendant’s pursue State did not the issue fur- ents were not at the trial by their own quickly ther and concluded the direct ex- Furthermore, choice. the reason for the However, amination of the officer. during parents’ absence only would have served conference, a brief bench defense counsel as evidence of the relationship strained objected, arguing prosecution *17 between the defendant parents, and his improperly eliciting testimony concerning and this fact was already jury. before the the defendant’s prior bad acts. The trial Accordingly, any we conclude that error in prosecutor court warned the that such excluding such mitigation evidence did not statements potentially could result in a jury’s affect the verdict and was harmless mistrial being declared.
beyond a reasonable doubt. We conclude that the prosecutor’s pos- ing question of this to the officer did not
C. Prosecutorial Misconduct prosecutorial constitute misconduct. The The argues defendant next simply responsive officer’s answer was not prosecution engaged question. Although miscon to the the officer’s by improperly duct attempting possibly to elicit answer alerted the to the testimony from regarding prior activity ju- witnesses criminal defendant’s another risdiction, prevail bad acts of the defendant. To prosecutor’s question on did claim, such a any the defendant must show not call for the officer to make such that there was an impropriety and that it reference. The record also shows objected point at this on the prosecutor genuinely surprised The defense was Furthermore, violating was ground prosecution the defen- officer’s remark. 404(b) by Rule at- confession, to Tennessee of Evidence dant’s in which he admitted prior states, tempting to introduce evidence of being later wanted bad acts which reflected on defendant’s admitted into evidence and read In response, argued character. the State Therefore, jury. any prejudice resulting testimony on direct exami- that Ms. Evans’ from Officer remark was harm- O’Dell’s already placed had the defendant’s nation less. character issue and therefore it was alleged The second instance of Evi- permissible under Tennessee Rule during took prosecutorial place misconduct her regarding dence 405 cross-examine trial as the sentencing phase act of prior this the defendant. aunt, Evans, defendant’s Roxanne testified Despite argument, the trial State’s During for the examina defense. direct objec- initially court the defense sustained testimony tion Ms. had offered re Evans prepared give limiting tion and in- garding childhood and the defendant’s However, jury. prose- to the struction family life a child and had stated that as interjected and called the quickly cutor quiet and introverted. court’s attention to Tennessee Code Anno- also that she seen She testified had never 39-13-204(c), capi- which in a tated section any the defendant exhibit violent behavior. sentencing intro- hearing permits tal the prosecution On cross-examination court duction of evidence “which the if asked Ms. she remembered an Evans probative to have value on deems the issue incident which had occurred while the de punishment regardless ... admis- its detailing fendant worked at an automobile sibility under the rules evidence.” shop. remem replied Evans she did (1997). 39-13-204(c) § Tenn.Code Ann. incident, following and the ex ber testimony re- prosecution argued took change place: taking car to garding Q(by the prosecution): happened? What it probative had value because Florida Evans): A(by my Ms. I if apologize prior testimony by defense served rebut I memory fuzzy.... a little do seems char- concerning the defendant’s witnesses took remember an incident that Steve consideration, the tri- acter. After further Florida, a car a car and drove agreed argument, al court with the State’s at. shop my brother worked objection, counsel’s overruled defense give limiting instruction to the your car; did Q: Not is that cor- brother’s jury. rect? No, above,
A:
sir.
testimony, quoted
Evans’
Ms.
cross-examination
came
related
car;
Q:
that cor-
Some customer’s
*18
in which
had taken
instance
rect?
years
permission
pri-
a car without
several
it
A:
I don’t know if was a customer’s
he
to the crime for which was now
or
car,
it
a lot car.
I don’t
or if was
It is also
to note that this
important
trial.
know.
given during
sentencing
testimony Florida;
it to
it that
Q: And drove
is not exclud-
phase of
trial. Evidence
correct?
merely
capital sentencing hearing
at a
ed
A:
I believe so.
under
it is otherwise inadmissible
because
Rules of Evidence. See Tenn.Code
Q: And
it?
wrecked
39-13-204(c);
Stout,
analyzed
§
In
Ann.
State v.
State v. Sims this Court
(Tenn.2001).
relationship between Rule 405 and Tennes-
capital
In a
S.W.3d
39-13-204(c),
see Code Annotated section
any
sentencing hearing,
evidence relevant
issue of whether
focusing
precise
on the
or
to the circumstances of the murder
39-13-204(c) precluded application
section
aggravating
mitigating
or
circum
sentencing
during
capital
of Rule 405
determining pun
stances is admissible in
hearing. 45
at 13.
concluded
We
if it
probative
ishment
has
value. See
39-13-204(c) provides
that section
trial
Further,
Teague,
897 S.W.2d
due
judges
normally
wider discretion than
with
to the
requirement
cap
constitutional
permitted under
the Rules of Evidence
sentencing
ital
be conducted in an individ
judges
trial
required
and that
are not
manner,
ualized
regarding
evidence
strictly
determining
follow Rule 405 in
background
defendant’s character and
is
whether the State should
allowed to
be
regardless
admissible
of its relevance to
question
regarding
a defendant’s witness
any aggravating
mitigating
or
circum
Sims,
prior
the defendant’s
convictions.
Sims,
stances.
wise, State prior evidence theft, aggravated burglary, convictions for Next, argues the defendant robbery endangerment was reckless during erred the sentencing the trial court mitigation evidence that allowed to rebut Caruso, Dr. Keith hearing by preventing a “fíne, the defendant was active Chris- psychiatrist, fully explaining forensic tian.” at 703. 46 S.W.3d the defen diagnosis of his details mental condition. dant’s case,
In evidence present already character been ad- defendant’s had testimony jury- to Dr. Prior Caruso’s prosecution mitted when the cross-exam- held, which hearing during out was examination, ined Ms. Evans. On direct Dr. expressed concern that Caruso’s State Ms. testified that she had never Evans based, part, on two opinion any seen of violent behavior exhibitions murders the defendant had commit- prior the defendant. She further described in Missouri Under ted and Oklahoma. “always very quiet” expert Rule of 705 an Tennessee Evidence “very was also testi- affectionate.” There testify “in or infer- may opinion terms of witness, mitigation another mony from disclosing “underlying ence” without Clair, Crystal “was St. upon opinion or data” which facts person.... caring, giving [H]e However, cross-examination, based. try keep type person would may required disclose expert trouble.” rather than create trouble down Tenn. R. underlying facts or data. those prosecu- This facts are similar to Sims rule allows Evid. These expert’s diagnosis by impeach tion to Stout in that evidence of the defendant’s prior into defendant’s inquiring crime was prior property non-violent on by contained in relied reports acts sought to be introduced to rebut bad the defendant. per- expert evaluating that the defendant was not a violent Hall, 679, 712 See Accordingly, son. we conclude that (Tenn.1997). Any specific act of mention of testimony regarding the defendant’s *20 rambling. of the defendant’s other crimes non-responsive nature Follow- conference, committed Missouri and Oklahoma had ing the bench Dr. Caruso’s scrupulously during trial. been avoided topic. examination resumed on a new However, during it became evident record, reviewing the we conclude Upon sentencing hearing that the State could that the trial court’s actions did not reflect rely upon inquire Rule 705 to about these negatively testimony. on Dr. Caruso’s if they other crimes were a for Dr. basis T-here is no indication that the court acted diagnosis opinion. Caruso’s To avoid intentionally to weaken doctor’s testi- “opening thus the door” to introduction of Rather, mony. the trial court was exercis- crimes, these the trial court limited Dr. ing its to curtail non-responsive discretion Caruso’s examination to evidence obtained actually protecting answers and was Bowen, from Kim from the defendant’s defendant from Dr. possible Caruso’s inad- employer, former from medical rec- vertent disclosure of the defendant’s other history. ords and childhood crimes. While Tennessee Code Annotated “History Neglect” E. of Abuse and 39-13-204(e) (1997)
section permits great Mitigating Circumstance latitude the introduction of evidence Instruction during sentencing phase capital of a trial, admissibility of evidence is ulti The defendant complains that the mately entrusted to the sound discretion of in failing trial court erred to instruct Reid, the trial court. jury non-statutory on the cir mitigating discretion, Absent an abuse we will a “history cumstance of of abuse and ne not reverse such rulings appeal. on Id. glect.” argued The defendant at trial that The trial court allowed Dr. Caruso to testi rejection by and abandonment par his fy about the bipolar defendant’s disorder neglect ents amounted to abuse and and substance abuse without being sub requested jury be instructed on jected to cross-examination regarding the non-statutory this mitigating circumstance. prior defendant’s commission of murders Concluding that there was no evidence the so, Missouri and By doing Oklahoma. neglect defendant had suffered abuse and trial any court potential preju avoided childhood, during his the trial court re dice that would have resulted from reveal give specific jury fused to instruction as ing the prior defendant’s crimes. Accord mitigating to this circumstance. The trial ingly, we conclude that the trial court did did, however, court allow the defense to not abuse its in limiting discretion Dr. argue history neglect abuse and as a testimony. Caruso’s mitigating circumstance under the catch provision all of Tennessee Code Annotated The argues defendant also that the trial (1997). 13—204(j)(9) section The trial court erred 39— interrupting Dr. Caruso’s that, jury court instructed the in addition testimony and thus distracting circumstances, specific mitigating other concentrating testimony. it should consider interruption came Dr. while Caruso was giving long explanation any of the mitigating various factor which is factors that he believed led the defendant produced by raised the evidence ei- to commit the crime in this case. The trial ther prosecution or defense at either judge stopped testimony is, guilt sentencing hearing, and called for or conference, a bench where you any aspect defense counsel shall consider record, testimony was warned that Dr. Caruso’s defendant’s character or *21 prejudicially the of- considered aspect charge of the circumstances of should be fairly the which is if it the fense favorable to defendant fails to submit erroneous supported by jury the evidence. the or if it misleads as legal issues Id. applicable the law. has begin by noting that this Court We jury that on previously held instructions presented The defendant evidence non-statutory circum specific mitigating did interact with him and his father not are mandated. constitutionally stances not to live siblings him and with their sent (Tenn. Odom, v. 928 S.W.2d However, there no evi- grandparents. Hutchison, 1996); State v. 898 S.W.2d sexual, physical, or abuse dence of mental (Tenn.1994). Therefore, right the fact, In neglect. aunt or defendant’s instructions, and as well as the form such good a the defendant had testified instructions, solely content derives relationship grandfather. with his The tri- statute, provides: which al court determined that fact that the trial also in the judge shall include [T]he from a of abuse history defendant suffered jury and weigh for the instructions fairly by not neglect raised any mitigating consider circumstances Furthermore, any agree. We evidence. by guilt raised the evidence either the respect error in this was ren- potential both, hearing, or which sentencing or by harmless the catchall instruction. dered to, include, those shall but not be limited (j). forth in circumstances set subsection Mandatory F. Review Factors 39-13-204(e)(l) (1997). § TenmCode Ann. a reviewing sentence When that: provides This statute further death, by required we are statute to deter a reviewing a court shall not set aside mine whether: imprisonment for sentence of death or (A) imposed The of death was sentence parole on possibility life without the fashion; any arbitrary trial ground court did (B) supports jury’s The evidence jury as to a re- specifically instruct finding statutory aggravating circum- factor is not quested mitigating circumstances; or stance (j). enumerated in subsection (C) jury’s supports The Odom, In this statute interpreted Id. we circum- finding aggravating jury any on circum- require instructions outweigh stance or circumstances by prof- the evidence and stances raised circumstances;. and mitigating having mitigating fered (D) The of death is excessive sentence at 30. instructions value. 928 S.W.2d The im- penalty disproportionate or mitigating circumstances non-statutory cases, considering both in similar posed fact-specific not be but must instead must defen- nature of the crime they consid- “drafted so that when are dant. statutory mitigating the jury, ered indistinguishable from are
circumstances (2003). 39-13-206(c)(l) § Tenn.Code Ann. non-statutory mitigating circum- Aggravating Mitigating stances.” Id. at 32. Circumstances determining whether Generally, two the existence of found erroneous, instructions are this Court (1) mur- aggravating “[t]he circumstances: entirety charge must review the its the purpose was committed for Hodges, it der read as whole. See State (Tenn.1997). with, preventing or avoiding, interfering A that could lead to the lawful arrest any investigation of the defen- prosecution (2) unrelated arrest these dant or another” and murder was defendant’s “[t]he *22 jurisdictions. ... from other knowingly charges committed the defen- dant, had a substantial while the defendant that the State previously have held We in to com- committing attempting role or prosecution that avoidance of prove must mit, fleeing having or after a substan- purposes one of the motivat- or arrest was attempting tial in or committing role (i)(6) killing apply in order to ing the commit, murder, arson, any degree first Terry v. aggravating circumstance. See rape, robbery, burglary, theft....” [or] State, 147, (Tenn.2001); 46 S.W.3d 162 (7) 39-13-204(i)(6), § Ann. Tenn.Code Bush, However, appli- 942 at 504. S.W.2d (1997). aggravating cation of this circumstance is appeal challenges the defendant not limited to those situations where the
On
(i)(6) aggravating
sought
directly
State’s reliance on the
crime
avoided was
regarding
Terry,
circumstance
murder committed related to the murder.
46 S.W.3d
Hall,
162;
121,
for the
of
at
v.
133
purpose
avoiding arrest. He
State
(i)(6)
(Tenn.1998).
a
aggravating
looking
contends
cir-
Rather than
for
con-
crimes,
apply only
cumstance should
if
“the focus
the evi- nection between
dence showed that he killed Mr. Patterson must remain on the defendant’s motives
robbery
Terry,
in order to avoid
for
arrest
for the murder.”
We reasoned State v. (Tenn.1999)). that “because of desire to [the defendant’s] After theft, prosecution for his he arrest or testimony avoid careful review of and evi- decided, murder part, at least to commit hearing, at the presented sentencing dence beyond a body, and leave behind charred fully sup- that the we conclude prevent any investiga- recognition, all (i)(6) jury’s findings ports the *23 inevitably tion that would have occurred (i)(7) circumstances had aggravating been ” ‘disappeared.’ at 163. merely had he Id. beyond a doubt. established reasonable in Terry, Like the defendant the defendant also that the evi We conclude present pre- in the case in order to killed jury’s finding the supports dence ulti- investigation could have vent that aggravating outweighed two circumstances mately prior, resulted in for his arrest mitigating circumstances be the various unrelated crimes. yond primary a reasonable The doubt. the evi We further conclude that mitigation evidence was that the defendant (i)(7) supports application dence the bipolar from and that his suffered disorder circumstance, aggravating requires which parents dysfunc relationship with knowingly murder commit “[t]he However, to extent that his tional. the defendant, ... the the defen ted while played killing, Alness a role in the mental committing dant had a substantial role testimony Dr. expert the Caruso to attempting commit, fleeing or or was not prevent showed that it did the defen having after a substantial role commit doing, knowing dant from what he was commit, any first ting attempting or rea, requisite the or under forming mens murder, arson, robbery, bur degree rape, wrongfulness his actions. standing the theft....” Ann. glary, Tenn.Code [or] jury’s supports The evidence determi 13—204(i)(7),(1997). § discussed As 39— nation. killing dur previously, the was committed The evi ing perpetration of a theft. Proportionality Review Comparative victim, upon stabbing dence shows In cases a defendant where gun, stole cash the victim’s death, re we are has been sentenced also took and credit cards. The defendant propor quired comparative to conduct anoth the victim’s wrecker drove it to Tennessee tionality pursuant review so that remove his er location he could 39-13-206(c)(l)(D) Annotated section Code vehicle from the back of the wrecker. (1997). re Comparative proportionality support is This evidence sufficient penal to ensure that the death view seeks (i)(7) jury’s finding aggravating consistently and not arbitrari ty applied is proven beyond factor was reasonable at Terry, 46 ly capriciously. or S.W.3d doubt. to deter analysis is intended 163. Our determining In whether the defendant’s sentence mine whether supports application aggravating of an the sentences disproportionate “is death circumstance, the to con- proper standard similar de imposed for similar crimes and whether, the evi- reviewing sider is after Bland, 958 at 664. fendants.” S.W.2d light in the favorable to the dence most analysis, State, undertaking In this rational fact could have trier of precedent-seeking cir- method aggravating apply the existence of we found characteristics, review, in- the defendant’s comparative proportionality paring (1) prior criminal cluding: the defendant’s compare present which we case with (2) the prior activity; criminal record involving other cases similar defendants (3) race, Bland, age, gender; defendant’s and similar crimes. See mental, physical defendant’s emotional or at 664. examine the facts and circum- We (4) condition; involvement the defendant’s crime, stances of the the defendant’s char- (5) murder; or role the defendant’s acteristics, and miti- aggravating (6) authorities; defen- cooperation with gating factors involved. Id. Because no two (7) remorse; dant’s the defendant’s knowl- identical, or crimes can- defendants are we (8) victim(s); edge helplessness not limit comparison our to those cases capacity defendant’s rehabilitation. where a defendant’s death sentence is 164; Terry, 46 Henderson 24 “perfectly symmetrical.” Id. at 665. at 316. Rather, only “identify we seek and in- validate the aberrant death sentence.” Id. proof this case showed A sentence of death disproportionate the defendant’s vehicle broke down and *24 plainly when “the case taken as a whole is a was towed to service station the lacking in circumstances consistent with attempted victim. The defendant then penalty those in cases where the death has a pay for the wrecker service with stolen imposed.” been Id. at 668. rejected, credit card. When the card was the defendant stabbed the victim because The of pool eases we consider wanted in [he] defendant “knew was in a comparative proportionality review in pro states.” defendant then degree cludes those first murder cases in the proper ceeded drive the wrecker off which sought penalty, the State the death ty so that remove car. He he could held, capital sentencing hearing was and then returned the service station where determined whether the sentence body attempted he to conceal the victim’s should imprisonment, imprison be life life gun, and the victim’s cash and credit stole ment possibility parole, without of or cards. death. Godsey, State v. mitigation, proof presented In (Tenn.2001); Bland, 783 958 S.W.2d at testimony Dr. through Caruso that 666. Several nonexclusive factors are rele bipolar the defendant suffered from disor- vant to identifying comparing and similar persons may der and that with this illness (1) (2) death; cases: the means of excitable, irritable, very very impulsive, death, manner of such as whether may energy, have tremendous amounts of (3) torturous; death was violent or Dr. may very agitated. and feel Caruso (4) motivation killing; place for the per- that has a also testified (5) death; similarity of the victims’ sonality disorder borderline anti- with and including age, physical circumstances and social traits and that the defendant was conditions, mental and the victims’ treat suffering from extreme mental or emotion- (6) during the killing; ment the absence or al disturbance at the time of this crime. (7) presence premeditation; the absence presented regarding Proof was also (8) presence provocation; the ab childhood. His di- parents defendant’s (9) justification; presence sence or and young, he was and he and his vorced when injury to and effects on non-decedent grand- were sent to live with their sisters 164; Terry, victims. 46 S.W.3d see also parents. Henderson, v. 24 State S.W.3d 316 (Tenn.2000). Also, have identified sev that the defendant’s sen- we We conclude eral not applied nonexclusive factors relevant to com- tence of death this case was 234 (Tenn.1982) (defendant
arbitrarily
or dis
and was not excessive
S.W.2d
hammer
proportionate
compared
when
to similar
to death with
because
beat victim
im
had committed
penalty
cases which
same
discovered
he
she
upheld
penalty
theft;
posed. We have
the death
sentenced to death based
defendant
similar
where the defen
aggravating
several
cases
circumstances
on
heinous,
committed
dant stole from
victims and
atrocious or cruel and
murder was
prosecution.
murder
to avoid arrest or
for the
the murder was committed
Powers,
(Tenn.
See State v.
was sentenced (i)(7), (i)(5), (i)(6), upon finding the penalty that the murder gravating circumstances (i)(12) de- circumstances aggravating and and prose- committed to avoid arrest that defendant mitigation evidence spite heinous, cution and murder was and hospitalized depression for had been cruel); Carter, 714 or v. atrocious State disorder). personality paranoid (Tenn.1986) (after abducting identical, capital are While no two cases death, victim, shooting and him to his compared the circumstances we have truck, was sen- stealing defen- present case and the present aggravating to death based tenced the cases the circumstances of mur- dant with that he circumstances committed defen- and those individual set out above prosecution arrest der avoid dants, case is committing and conclude that this committed the murder while Melson, consistent lacking circumstances plainly larceny kidnapping); with other similar cases which the death Thus,
penalty imposed. has been the de- COO-54; County No. 01-CR- No. Lake dispro- fendant’s sentence of death is not Moore, Jr., R. Judge. 8238 Lee portionate considering the circumstances of the crime and the defendant. No. W2002-01119-CCA-R3-DD —Filed 18, 2003. December
III. Conclusion considering After record in entire Introductory Paragraph] [Deleted: this case we conclude that all of defen- assignments dant’s of error are without 3; Judgment P. R.App. Tenn. Furthermore, merit. we find the sen- Affirmed. Criminal Court imposed arbitrarily, tence of death was not that the sentence death is not excessive Williams, J., John Everett delivered the or disproportionate, and that the evidence court, Gary R. opinion which jury’s supports finding aggra- Wade, P.J., J., Wedemeyer, and Robert W. vating outweigh mitigat- circumstances joined. ing beyond circumstances a reasonable Sr., Emmons, Kelly, Wayne Charles S. respect specifi- doubt. With to issues not Tennessee, cally addressed within af- opinion, Dyersburg, appellant, this we firm the decision of the Court of Criminal Ray Thacker. Steven Appeals. portions opinion Relevant of that Summers, Attorney Paul G. General and published are appendix. hereafter as an Geldreich, Reporter; Gill R. At- Assistant The defendant’s convictions and sentences General; Bivens, torney Phillip C. District are affirmed. The sentence of death shall General, Burns, Attorney and Karen As- provided by be carried out as law on the General, Attorney sistant District for the day 8th of September, unless other- appellee, State Tennessee. wise ordered this proper Court authority. WILLIAMS, JOHN EVERETT JUDGE. *26 It appearing that the defendant is indi- gent, costs of this appeal are taxed to the OPINION State of Tennessee. Background] [Deleted: Factual BIRCH, Jr., J., A.
ADOLPHO filed a I. CHANGE OF VENUE concurring and dissenting opinion. 9, 2000, August On the defendant filed a APPENDIX change motion for a of venue based on (Excerpts from the of Court Criminal grounds pub- widespread pre-trial Decision) Appeals’ licity Dyer County contiguous in and coun-
IN THE COURT OF CRIMINAL had resulted in undue ties excitement OF
APPEALS TENNESSEE against prejudice the defendant that would hearing a fair trial on the merits. A on AT JACKSON August the motion was conducted on July 2003 Session Jacobs, an hearing, 2000. At the Rachel STATE OF Inc., TENNESSEE STEVEN testified investigator Inquisitor, with
RAY THACKER researched the various sources of that she in packets media the area and obtained Appeal Direct from the Circuit Courts Dyer Dyer County Appeal, Dyers- and Lake Counties from the Commercial News, Gazette, burg you that will—that to something the State need proof at a newspapers, Tennessean well as introduce some additional on from time, you Missouri, later we will allow to do newspapers in Springfield, so.... it’s not Tulsa, Again, something that’s Oklahoma. The collection of arti- point. I’m written concrete at this was cles extensive was submitted as not know convinced—I don’t that we evidence. Ms. Jacobs’s research have that a would indicate Memphis video media from area television jury County pool out Lake would be separate stations that sixty-nine revealed I tainted. don’t know for sure whether subject segments this had been aired having or be trial not we will better from the date of defendant’s arrest County or Lake the trial with a Lake July 18, until day preceding her just County [jury] here.... I’ll have testimony. take that under advisement.... I don’t Ms. stated Jacobs that she another think publicity has been such that investigator Inquisitor from conducted a impartial jury we cannot seat an survey Dyer County random concerning County, County, Lake Lauderdale population’s exposure to the defen- County, Gibson and I’d want talk to Thirty-two persons dant’s case. were down about judges there how we thirty-two, polled, approximate- and of the that, So, if do did it. would we ly knowledge had about two-thirds process that will followed be will be thirty-two forty-two case. Of people, advisement, taken under but will we percent stated that did not they believe have change a venue.... fair that Mr. Thacker could trial receive The trial court then ordered that venue Dyer County. changed County. Lake performed study Ms. a similar Jacobs 15, 2001, May On the trial court revisit- Lake Ms. neighboring County. Jacobs “change ed the issue. The de- venue” discovered residents Lake Anne presented Leigh Hudgings, fendant County basically received information from Inc., investigator Inquisitor, with the same media sources as residents of testify study her regarding as whether Dyer County. Ms. admitted on Jacobs County the Lake tainted. pool cross-examination that she did conduct Hudgings Ms. conducted random sam- poll County of Lake residents. pling ninety-seven County Lake resi- hearing, At the conclusion of the survey dents. results of the reflected *27 the following findings, trial court entered surveyed, people over half 51.1%, in part: prior knowledge relevant of the crime. had 46%, 51.1%, every Of the or out of four [Ujnder one circumstances, where both already persons surveyed, had formed sides like a of venue change ap- feel opinions of the On cross-examina- case. propriate ... it be somewhat would tion, did Hudgings Ms. admitted she amiss grant change for me not not attempt to determine whether or So, I think way venue. we’re deal actually polled quali- those were persons motion, with that is this: Your [sic] jury panel. fied to sit on venue, grant- change far as will be in will Jones, ed that the Court follow Rules publisher editor and Evan first, Banner, of Criminal which on County Procedure would Lake testified behalf of a change County. mean of venue to Lake Mr. stated that the Lake State. Jones weekly County provided if you you I ... feel like Banner news will allow that’s ... that “the refusal of the County. fendant states the residents of Lake He added County that Lake television markets were proper change grant trial court Paducah, Kentucky, generally WPSD of a fair trial deprived [him] venue has Cape Mr. and the station Girardeau. jury peers.” of his impartial explained Dyer County Jones while grant a mo- The decision of whether stations, Memphis followed the television pre- based on change tion for a venue County Padu- Lake and Obion watch the rests the sound dis- publicity trial within Cape cah He add- Girardeau stations. station, of the trial court and will not be KMIS, cretion ed that a Missouri radio County games. broadcasts Lake football clear appeal reversed on absent a abuse Howell, discretion. State v. case, regard to Mr. With the defendant’s (Tenn.1993). Furthermore, 238, 249 the de- County Ban- Jones testified that the Lake jurors were fendant must show only printed ner had two stories about year. him past prejudiced against Steven Thacker calendar biased or before his 5, 2000; story January One ran the other appeal. on conviction will be overturned August 2000. Both ran on stories Melson, 360-61 page. the front (Tenn.1982). The defendant contends that counsel, the trial court failed to determine whether hearing argument After from the trial court following findings: probably made the “a fair trial could not be had” as 21(a), required by
I Rule Tennessee Rules of don’t think ... that there is sufficient proof Procedure, that would indicate that we cannot provides: Criminal which jury seat a that can impartial be fair and In all criminal the venue prosecutions from County Again, Lake residents. may changed upon motion of the be the worse case scenario is that one out defendant, upon or the court’s own mo- of four has either or expressed formed defendant, if tion with the consent of the an opinion. pull enough We can a big that, un- appears it to the court due to think, pool, I where can we seat against due excitement men or twelve women who have not county where the offense was com- expressed any formed or formed or— cause, mitted or a fair trial opinion guilt as to innocence this probably could not be had. case, and can a trial from have which the jury can solely find that issue and alone added); (Emphasis see also Tenn.Code introduced, from the evidence that’s 2(Mr-201(l) § (stating “may Ann. venue charged by the law that’s shown”) ... changed upon good cause So, your Court. motion will be de- added). pro- Rule 21 further (emphasis nied .... vides: complains defendant now judicial In circuit a multi-county grievously trial court “erred in his assess- nearest change of venue shall be to the understanding ment and of the evidence *28 county judicial circuit in which the the by [the introduced at this hear- defendant] prosecution pending is where the same ing.” you He contends that “no matter if change venue not exist. cause for of does pull ‘big still, do enough jury pool,’ ac- venue change If the same cause for of cording survey, to statistical there will still judicial in all in the exists other counties be one out of four Lake Countians who circuit, changed to guilty!” believe the defendant is The de- the venue shall be 238 county
the nearest the same that the defendant where The record reveals four of only peremptory used his sixteen change cause for of does not exist. venue recog It has challenges. generally been 21(c). Tenn. R.Crim. P. a rule in this failure nized as state the not be of totally ignorant Jurors need challenge for or the to use cause failure upon and in a the facts issues involved case any peremptory challenge available to re jurors objectionable they sitting, they precludes are must be move reli which but alleged of upon disqualifications ance lay impres- aside their opinions able State, jurors appeal. 563 See Adams v. upon sions and render a verdict based 804, (Tenn.Crim.App.1978), 807 S.W.2d Bates, presented. v. 804 State (Tenn. 1978) denied, 10, (citing Apr. cert. (Tenn.1991). 868, expo- 877 Mere S.W.2d State, v. Sommerville S.W.2d sure to news accounts of incident does (Tenn.1975)). Moreover, despite argu not, alone, standing preju- bias or establish ment that the extensive and “sensational” Crenshaw, 374, dice. State v. 64 S.W.3d coverage by the him a fair media denied (Tenn.Crim.App.2001). The test is trial, the defendant has failed to direct this jurors actually “whether who sat record, specific portion Court to of the by rendered verdicts prejudiced were particular voir dire examination pretrial publicity.” Kyger, v. State jurors, indicating character the biased (Tenn.Crim.App.1989). 18-19 actually jurors One who of the selected. proof The on the defendant. burden is reasonably suspected of murder cannot Id.; Garland, v. expect anonymous. to remain con With (Tenn.Crim.App.1981). of the failure to ex sideration defendant’s the care peremptory challenges, all haust defendant, citing addition to by the trial supervision ful voir dire televi newspaper numerous articles and court, jurors assertion segments, “extremely sion described they give could and would sensational, attention-grabbing words trial, conclude impartial fair and we cannot amount of pictures,” asserts the short court that the abused its discretion trial jury guilt time the deliberated at both the County. the case to This removing Lake phases penalty was “unconscionable” claim is merit. without jurors and indicative that the were tainted by pretrial publicity, they were “whether II. REDACTED STATEMENT However, it or clearly aware of not.” OF DEFENDANT any authority has not cited testimony Prior to the witness State’s brevity support of his contention that the Porter, prosecution discussed Jim jury’s preju of the deliberations indicated in which defendant’s confes- manner State, 553 caprice. Anglin dice or problems be introduced and the sion would (Tenn.Crim.App.1977), 620-21 portions redacted of the statement. with (Tenn. denied, 6, 1977), cert. June states used, trial transcript and the typed A brevity time of deliberation objection, permitted, court over defense ca passion, prejudice, does not indicate copies transcript passed of the to be price, part or misconduct on the jurors Investigator to read with along reject jury. Anglin, Guided we The trial Porter. court observed contention that the short defendant’s there is a needed to reflect that record amount of time the deliberated is ... written statement “recorded statement have has been redacted proof being by pretrial publicity. [that] tainted that we *29 that the defendant maintains regard, contraven- use these statements are in to any take out reference crime other 404(b), tion Rule Tennessee Rules particular Ray than this Patterson crime.” Evidence. It por- was understood that the redacted initially responds asserting The State tion of the statement would not be read to any objection for that thereto is waived the jury. objec contemporaneous failure to enter a complains In- defendant now tion to the introduction of the statements. vestigator improperly permit- Porter was 36(a). See Tenn. P. The defen R.App. following ted to into read evidence the contemporaneous failure to raise a dant’s portions redacted of Thacker’s statement: objection testimony being prior a this DEFENDANT: And after he ran the See, effectively bad act waives this issue. got card through, credit number —he 102, 108 e.g., Thompson, State v. 36 S.W.3d through and much pretty know what (Tenn.Crim.App.2000), perm. appeal de from happened there. (Tenn. 17, 2000); Mar. v. nied State Adkis Well, you PORTER: I want me. tell son, (Tenn.Crim.App. Well, DEFENDANT: he gonna wasn’t 1994). waiver, Notwithstanding we elect my give my card I back ‘cause credit — to address the issue its merit. pay couldn’t the bill’. general of a proposition, As evidence Okay. PORTER: crimes, prior or wrongs, defendant’s acts is DEFENDANT: I And knew I was not prove admissible to he committed states, just wanted in other so I in question. the crime Tenn. R. Evid. 404. him stabbed and took off. underlying general The rationale rule is that admission of such evidence carries Okay, PORTER: Camping? Okay. with it the inherent risk of the con- you get where did this Oldsmobile victing a crime based Cutlass, Steve? upon his character propensity bad or Boyd. DEFENDANT: From That was crime, commit a than conviction rather his Cutlass. resting upon strength of the evidence. PORTER: anything Rickman, You take from (Tenn.1994).
house—his house? greater The risk is when the prior acts defendant’s bad are similar DEFENDANT: camping Just some the crime for which the defendant is on gear, that’s where the came knife Id.; McCary, trial. see also State v. from that I stabbed Patterson with. (Tenn.1996). 511, 514 such While added.) (Emphasis The defendant sub- usually the form does come in [cjourt mits that “the error of the trial or statements confessions made allowing improperly redacted state- defendant, there exists no valid reason [cjourt jury, ment to read in open be to the to the exception requirements make prosecutorial misconduct of the prior bad act evidence disclosed in defen- Attorney District in presenting General dant’s confession. eliciting testimony harmful Porter, harmful, crimes, Investigator prior constitute re- of a Evidence defendant’s may versible error.” The defendant further where it wrongs acts admissible complains prosecution’s of material issues than probative use during closing argument conforming these statements conduct with a character trait. 404(b). Thus, also constitutes error. In this Tenn. R. Evid. evidence of reversible *30 404(b). DuBose, 953 may be- Rule See criminal defendant’s character of at to logically come when it tends admissible prove fall into one material issues which case, we first acknowl- present In (1) categories:
three
the use of “motive
to
the trial court was unable
edge
common
plan”
and
scheme or
to establish
hearing
a
due to
de-
jury-out
conduct
(2) to
identity,
establish
defendant’s
object.
to
fendant’s failure
Notwithstand-
trial,
committing
intent in
the offense
the trial court
ing,
cognizant
we
are
(3)
or
and
to “rebut a claim mistake
had been redact-
stated that the confession
a
if
as
defense.”
any
accident
asserted
to take out
reference
crime
ed
for
than
instant
McCary,
He is the one who advised them that Boyd’s. that’s Forrest Mr. Thacker —he is the one who ad- MR. KELLY: Unauthorized— vised them that Mr. Thacker awas No, sir, GENERAL BIVENS: there’s suspect when he called about the nothing point. the record on that card, credit Thacker would have That’s what we to establish inbe the car. the car He described him, through he was not author- them gave them the license num- Boyd’s ized to have Forrest credit him, ber. I’ll be to lead glad card, Your only way can and the we estab- Honor, and I him I’m have cautioned lish that— Boyd’s card Forrest car credit THE can he do that? COURT: How unauthorized— actually GENERAL He BIVENS: got MR. KELLY: What’s his car Honor, Your that Forrest knows. *32 identity is not an issue. do— Boyd point, that and he was dead at Still, Hon- GENERAL BIVENS: Your actually about homicide. knows or, goes premeditation it to the the homicide. They were aware of that flight. That’s the car was towed great MR. You how STRAWN: see here. here? danger is you I THE don’t know that COURT: go- But GENERAL I’m not BIVENS: into it. get have to car Honor, ing point, Your but he to that That’s car BIVENS: GENERAL card knowledge had that credit in, that was towed Your Honor. Oth- was stolen. erwise, going have is Honor, Your that he had impression, goes It to his GENERAL BIVENS: here and— this car over premeditation. the credit card that MR. STRAWN: It’s go THE it the issue does COURT:—but saying goes premeditation. he’s right, going All I’m premeditation. stipulating that’s unauthorized. We’re careful, in, you put let it but be No, sir, it’s the GENERAL BIVENS: goes a two- Being careful now. card. He he car and the credit knew —it’s ways. goes sword. It both edged that, Your because of wanted get wrong information You could Honor. it on a
and end mistrial here. question The
GENERAL BIVENS: Honor. premeditation, Your token, THE And the same COURT: knew he was question is Thacker if you solicit information— wanted, that’s knew that he was and Honor, MR. we almost STRAWN: Your in his state- why he did this. That’s him, it’s so can’t even cross because ment, Honor, just the statement Your I it’s too And think dangerous.... his that he wanted is in he knew was pri- in a going get It’s dangerous. what, confession, not but that he for act. prior or—an unconvicted bad wanted, why knew and that’s he was why asking THE That’s I’m COURT: he it. did you you stipulate that he why can’t I’m right, going THE All COURT: of a Forrest possession or was had Now, him testify. allow be careful. card, he unautho- Boyd credit and was testified, during the Mike Parson Sheriff to use it? rized Boyd was a resi- guilt phase, Forrest MR. We can. KELLY: Missouri, January County, on dent of Polk what THE You can? Then COURT: that he advised 2000. He further stated him for? you do need else law that Mr. Dyer County enforcement Honor, County Your Dyer GENERAL BIVENS: Boyd was not the de- that —he told card or vehicle they anyone were told who had credit license unautho- County and the would have been scription Dyer the vehicle thing. description Parson the main rized. Sheriff related plate number. That’s vehicle, including providing Boyd’s he had of Mr. stipulate If they want to the defendant’s argues, Sheriff the defense plate license number. The As Rather, only identity was not issue. person by added that a the name Steven degree issue in this matter was Ray may possession Thacker both homicide, state-of-mind. the defendant’s credit card and vehicle. 404(b) of other provides Rule that evidence again Sheriff testified at the sen- Parson may crimes, wrongs, or acts be admissible tencing phase. Sheriff Parson stated prove other than to the char- purposes January there were outstand- defendant, if certain only acter of condi- ing Ray warrants for arrest of Steven tions are met: County, Thacker Polk Missouri. He *33 (1) must upon request The court hold Ray added that he that believed Steven presence; hearing jury’s outside the Thacker state of left the Missouri For- (2) The court must that a determine Boyd’s rest vehicle. issue exists other than conduct material complains The defendant that the trial conforming trait with a character and by admitting testimony court erred of the upon request on must state the record Sheriff The Parson. defendant asserts issue, ruling, the material the and the (1) that the trial court failed to conduct a evidence; admitting for the and reasons jury hearing out required Rule (8) The court must exclude the evidence (2) 404(b), Evidence; Tennessee Rules of probative outweighed by if value is its the agreed stipulate defense to to the fact danger prejudice. the of unfair that the in possession defendant was First, note that trial court we the was Boyd’s Forrest credit card and was unau- required to hold a on the admissi- hearing it; (8) thorized to use and prejudicial the 404(b) bility only upon of Rule evidence effect of testimony the Sheriffs out- added). request (emphasis The defendant weighed any probative may it effect have 404(b) request Thus, hearing. failed to contentions, In support had. of these the by failing the trial court did not err testimony defendant that states the a hearing. Technically, conduct it is Sheriff Parson was neither nor relevant Jones, waived. State v. necessary, it already because was the (Tenn.Crim.App.1999). record that credit card of Forrest Next, sought the State to introduce evi- Boyd lying was beside the cash register (1) Boyd that was not in dence Forrest this, the Patterson service station. From County, Tennessee, Dyer January contends, jurors he could that the infer (2) 2000; possession that the defendant’s credit card was stolen. The re- Boyd’s of Forrest credit card was unautho- sponds that necessary the evidence was (3) rized; description of the vehicle. therefore, and, show motive relevant to the This evidence was relevant establish premeditation. issue of premeditation. While evidence had al- general The parameters regarding ad- ready Boyd’s introduced Forrest been that missibility of a defendant’s bad acts other scene of credit card was found at the than the trial crime on is found in Tennes- murder, jury no evidence was at before 404(b). see Rule of Evidence stated As possession that time that the defendant’s crimes, previously, prior evidence of the credit card was unauthorized. Simi- wrongs, is generally or acts inadmissible larly, was no evidence estab- there as character evidence defendant lishing fact that the use of defendant’s prove ques- that he committed the Boyd’s crime Mr. vehicle was unauthorized. 404(b). Thus, testimony high- tion. Tenn. R. Evid. Sheriff Parson’s route ly establishing escape relevant in town. He makes defendant’s dyes hair goes. motel where he He his motive for the murder. Now, he look that so won’t the same. is Finally, that the we conclude sorry, somebody who is or is some- probative prejudicial. was more than body planned has who and cold-blooded- State’s examination Sheriff Parson ly, premeditatedly somebody? killed responses Sheriff were Parson’s restricted The defendant moved a mistrial based vague very inquiries presence as to upon prosecutor’s comment Boyd Dyer County Forrest they nothing had heard remorseful of his whether use credit card and/or and that the comment witnesses Dyer County car in were authorized. No improper regarding was an comment regarding information was elicited to testify. defendant’s failure The State Indeed, Boyd. there is murder Forrest responded Kelly argu- made the “Mr. testimony no For- indication from the ment in closing Boyd Additionally, rest deceased. My sorry. comment was remorseful prosecution was careful to elicit *34 that no evidence of remorse or there was “theft,” “steal,” equivalent term or an term the sorrow.” The trial court denied defen- Therefore, from Parson. for the Sheriff now com- dant’s motion. The defendant stated, conclude that the testi- reasons we plains that this was error. invoke mony of Sheriff Parson did not prose a complains a defendant Where error. closing required is to argument, cutor’s he argument so inflamma show that [Deleted: DEATH IV. PROOF OF tory or conduct so that it improper TESTIMONY] BY LAY to
affected the verdict his detriment. V. PROSECUTOR’S COMMENTS State, 338, 340, 215 Harrington v. Tenn.
DURING CLOSING (1965). 758, prosecutor A 385 759 S.W.2d ARGUMENT commenting strictly prohibited is During closing argument, prosecutor testify. not the defendant’s decision (Tenn. following Reid, 247, made the comment: 91 297 v. S.W.3d State 2002); State, 911 v. Coker says sorry. Kelly And Mr. he’s Where’s However, (Tenn.Crim.App.1995). we do sorry? drag- that he’s Is by not conclude that the statements made Ray body ging Patterson’s across comment on prosecutor constitute a into parking lot of that service station testify. During the defendant’s failure bay, showing sorry? is I’m Is that that closing counsel for the defen argument, wallet, taking pistol, this man’s dead remarked: dant cards, showing sorry, I’m sor- I’m credit Mr. Patterson is taking very sorry out and I am ry? Does this wrecker Patterson, I I knew Mr. getting coming his car off and then back deceased. family, very sorry I’m this know his getting into town and means my sorry? happened. By I’m And so is client. we escape sorry, I’m show AutoZone, And you’re in can’t undo that. not he Jim Porter When sees “Officer, you you’re gonna I’m use—the Court’s tell go up say, he does deciding man. what passion, sympathy In fit of I killed a to use sorry. a is that Mr. up He his offense sorry.” appropriate I’m No. tries cover committed. crime. trades cars. He leaves Thacker He prosecution The statements made argument rebuttal directed to the
were (Tenn.Crim.App.1993). argument counsel’s earlier defense using person justified against A force defendant about the sorry murder. reasonably he or person another when she gist prosecutor’s comments was (1) bodily death or believes serious more toward the defendant’s ac directed (2) imminent, and force injury is killing, tions and omissions rather after immediately necessary to protect used is testify. than defendant’s failure to We attempt- against use or person’s the other not think can fairly do the statement be ed use of unlawful force. Tenn.Code Ann. characterized as a comment on the defen 39-ll-611(a). hand, § per- the other On testify. failure to generally dant’s See justified using threatening son is not (Tenn. Miller, if against provoked force another he or she 1989). Thus, no error there was commit person’s attempted the other use or use (1) trial refusing grant ted court in a unlawful unless he or she force “aban- motion for mistrial on basis. dons or clearly this the encounter communi- so,” cates the intent to the other to do VI. FAILURE PERMIT AR- TO (2) using person persists the other still GUMENT & INSTRUCTION § unlawful force. Tenn.Code Ann. 39-11- ON SELF-DEFENSE 611(d)(1) (2). A who seeks —
During jury instruction pri- conference responsibility avoid criminal con- closing arguments guilt phase, or to duct upon theory self-defense must trial court inquired charge bringing as to a free from ne- fault about the cessity of force or should prosecution objected using “self-defense.” The have clear- *35 ly abandoned his initial intent to do harm. stating: No. Fitzgerald, See State v. Dereke Emont proof. has to be the [I]t raised It W2000-01279-CCA-R3-CD, 2000 WL strictly argument. can’t be There Jackson, (Tenn.Crim.App. at Oct. proof self-defense, has to be some 2000). absolutely nothing there is in this testi- mony considering the the proof Even evidence in indicates self-de- fense, light defendant, to the we most favorable Your Honor. cannot a conclude evidence raised Counsel for the responded: defendant factual whether the issue as to defendant There’s a evidence of firearm on the Although acted in self-defense. several victim, Honor, Your and evidence that it that the victim witnesses testified carried just loaded. I think that was raises no weapon, there was evidence that enough argue of an inference for us to it. victim was who his aggressor pulled trial court that there concluded was gun According on the defendant. proof “pulled” no that the victim had ever defendant, gun pull the victim tried to his weapon his on the defendant only out after Thacker had stabbed him. charge provided. was not Moreover, he Thacker admitted that To determine whether self-defense is facing stabbed the victim as the victim was fairly raised and must proof toward the credit card machine with must, “a jury, instructed to the court ob- simply back toward him. There is no effect, light consider the in the jective to find that the basis for us defen- defendant, including most favorable to the reasonably dant that he was believed drawing bodily all flowing reasonable inferences imminent death or danger of serious in- injury. the refusal Shropshire, Accordingly, from evidence.” State I hid in woods.” days four while struct on self-defense was why they looking I for And were ask[sic] error. him, Thacker stated who was and Mr. [Deleted: VII. SUFFICIENCY him. looking Thacker stated for Mr. EVIDENCE]
OF THE why they I were police.” “the asked stated, him. Thacker looking for Mr. SUPPRESSION VIII. car.” I asked it was stolen “Because DEFENDANT’S OF him if of the stolen car was the victim CONFESSION us, meaning with ... was still still she 2000, the defendant filed On March stated, ‘Yeah, she alive. Mr. Thacker the ad- suppress motion to or determine car, out of the jumped made it. She to law missibility of his confession made kid, leaving away.” Then he got hearing A on the enforcement officials.1 stated, I dropped “I hurt the kid. didn’t At August motion held on was off at a rela- grandmother the kid and presented Officer hearing, house, chas- police and the started tive’s Simmons. Tack Officer Simmons related me there.” And ing from immediately preceding the de- the events conversation. end our Super fendant’s arrest 8 Motel that, during the O’Dell testified Officer relating to the de- City. Specifically Union “very jail, the defendant was trip arrest, initial Officer fendant’s Simmons be- any strange not exhibit calm” did defendant, that, detaining after stated that the de- havior. Officer O’Dell verified as to the defen- inquired Officer Simmons fendant had indicated Officer Simmons replied, dant’s name. The defendant rights. The defen- that he understood his Recalling that the vic- “Steve Patterson.” during this did not ask counsel dant Patterson, Officer Sim- tim’s name was Terry Officer Dyersburg time. Police not the mons surmised Patterson was Ledbetter, Dudley, along Captain with time, identity. At defendant’s true this transported the defendant the Obion in handcuffs. placed De- County Dyersburg to the Police Jail *36 being placed defendant was While the to Nothing was said the defen- partment. car, patrol Officer Sim- Officer O’Dell’s Dyersburg than a way to dant on the rights. him The de- mons advised of his defen- as to whether the general inquiry his that he understood fendant indicated defendant had a cold. The dant rights. transported O’Dell then Officer Jim Porter Investigator to turned over county jail. O’Dell to the Department. the Police arriving at upon County distance to the Obion stated the he Porter stated that es- Investigator quar- “a mile and a approximately Jail was interrogation to corted the defendant way jail, the defendant ter.” On the waiver room. No written advisement utterance that we spontaneous made a rather, used; Investigator Port- rights was I police. Springfield did than the better rights the advisement of er recorded both talking asked him what he was about. subsequent statement. defendant’s him, what I have de- quote Investigator He that —To Porter said recalled notes, than he my job to understand what appeared ‘You did better fendant under appear did not be saying me for was They walked Springfield. limits any searches. As the defendant suppress filed defense 1. The motion appeal suppression of his argument to the generic also chal- in nature and counsel confession, we will do the same. lenged any evidence seized the result drugs influence of or alcohol. Porter The defendant asserts that the trial proceeded to advise the defendant of his court erred when it denied his motion to rights going and that he was charged suppress Specifically, his confession. degree with first “alleged murder. He continued to defendant asserts that his confes- inquire sion, toas whether the given defendant under- soon after his arrest Investi- rights Porter, stood his and whether he gator “wanted to Jim should have sup- been talk ... about it.” pressed, testimony The defendant re- of the view of Dr. sponded that he wished give a state- Keith that he Caruso suffered from a se- Relating specific ment. circumstances mental bipolar vere disorder —and illness— interrogation, Porter recalled that a severe mental disturbance on the date only the defendant was interroga- committed, January the crime was tion room for approximately two argues minutes 2000.” The defendant that “it is prior to the commencing, interview clear from the evidence that he was not defendant was offered accepted a ciga- mentally capable making a decision con- rette, and the approxi- interview lasted cerning giving a statement or not giving mately fifteen to twenty minutes. At no statement and waiving about his constitu- time was the defendant advised that if rights he tional to counsel.” Additionally, the provided statement, “things go would a defendant asserts that he was without lot interview, better for him.” During coercive, oppressive, counsel in an police- killed admitted that he atmosphere Dyersburg dominated at the victim. The defendant also stated Department. how Police He concludes that his and why he killed Investigator disturbance, the victim. mental coupled with the coer- Porter testified that throughout the police atmosphere, defen- cive rendered his con- statement, dant’s the defendant remained involuntary. fession “calm and collected.” We review the trial court’s denial of the
At the conclusion of hearing, suppress by defendant’s motion to the fol- defense advised the court that lowing the defen- well-established standard: dant having would be a mental evaluation Questions credibility witnesses, the following day and that this evaluation evidence, weight and value of the might provide evidence of mental disease and resolution of conflicts the evi- or disturbance. Notwithstanding, the trial dence are matters entrusted to the trial court opted upon to rule the evidence be- judge as the trier of party fact. The fore it and found: prevailing the trial court is entitled to
[W]ith the evidence that’s before the strongest legitimate view of the evi- *37 Court on Suppress, the Motion to the dence at suppression adduced the hear- Court will Sup- overrule the Motion to ing as well as all legiti- reasonable and press, the statement of giv- Mr. Thacker may mate inferences that be drawn Officer, me, en to excuse to Investigator that long greater evidence. So as the just Porter. simply There nothing weight of the supports evidence the trial there to—as a point basis at this findings, findings the court’s those shall be suppress any words, Court to such statement. In upheld. a trial court’s It appears that from the findings evidence before of fact in a suppression hearing present Court at the that upheld time will be unless the pre- evidence Odom, defendant was ponderates otherwise. State v. rights by advised of his (Tenn.1996). Officer by 18, Simmons and Officer Port- 928 23 S.W.2d Howev- er, er.... application the trial court’s of law to 248 facts, law, to be right against of the self-incrimination as a matter of is reviewed constitutional, novo, the accused make
de no correct- held must presumption with Daniel, 420, intelligent, knowing, voluntary ness. v. 12 an State S.W.3d (Tenn.2000). rights of the afforded Miranda. may 423 This court consid- waiver trial, 444, may A at at the Id. at S.Ct. 1602. court proof er the as well as 86 voluntarily suppression considering conclude that hearing, when if, rights totality under the of the trial court’s waived appropriateness circumstances, ruling to the court determines pretrial suppress. on a motion 290, that was uncoerced and that Henning, See State v. 975 waiver S.W.2d (Tenn.1998) (holding 299 that conse because understood Stephenson, “con- State appellate procedure quences the rules of waiver. v. (Tenn.1994). 530, 545 template that of error should 878 S.W.2d allegations light be in rec- evaluated entire Supreme The United States Court has ord[,]” appellate “may an court consider Amendment part Fifth interpreted the proof suppres- at adduced both incriminating require to that an statement trial”). hearing sion at freely voluntarily giv or confession be (Tenn. Levitt, 159, v. 73 169 S.W.3d Bram v. en order to be admissible. Crim.App.2001). States, 532, 542-43, 168 18 U.S. United (1897). 183, 42 L.Ed. This even S.Ct. 568
The Fifth Amendment
the United
applies
statements obtained after
provides
part
States Constitution
(cid:127)
warnings have been is
proper Miranda
any
person
compelled
“no
...
shall
v.
603
726
Kelly,
sued. See State
him
against
criminal case to be a witness
(Tenn.1980).
and confessions
Statements
Similarly,
V.
self.” U.S. Const. amend.
interroga
made
result of custodial
as a
I,
Article
Con
section
Tennessee
voluntary
must
to be admissi
tions
also be
prose
that “in all criminal
stitution states
Fulminante,
See Arizona v.
499 U.S.
ble.
cutions,
...
com
the accused
shall not be
279, 286-88,
1246, 1252-53,
S.Ct.
against himself.”
pelled
give
Const,
(1991).
must not be ex
L.Ed.2d 302
It
I,
However,
§
art.
an
Tenn.
violence,
by “any
of threats or
tracted
sort
may
right against
accused
waive this
self-
by any
implied
or
nor
direct
obtained
Arizona, 384
incrimination. Miranda v.
slight, nor
the exer
promises, however
1602, 1612,
U.S.
86 S.Ct.
Bram,
any improper
tion of
influence.”
(1966).
Miranda,
In
L.Ed.2d 694
(citation
542^43,
at 187
168 at
18 S.Ct.
that a
Supreme Court held
United States
omitted). Moreover,
process requires
due
to any ques
suspect
prior
must be warned
response
tendered
confessions
tioning
right
he
to remain
has
psychological coercion be
physical
either
silent;
says
used
anything
he
can be
Richmond,
suppressed. Rogers
law;
in a
that he has
against him
court
534, 540-41,
739, 5
81 S.Ct.
U.S.
right
presence
attorney;
of an
(1961); Kelly, 603
at
L.Ed.2d 760
attorney,
and that if he cannot afford
“totality
has
into the
728-29. This
evolved
prior
him
appointed for
one will be
test
circumstances”
to determine wheth
questioning if he so desires. 384 U.S.
*38
Fulminante,
voluntary.
is
er
confession
Supreme
86
1602. The
Court
S.Ct.
1251-52;
285-87,
at
111
499 U.S. at
S.Ct.
may knowingly and
suspect
held that a
265, 271
Crump,
834
right against
waive the
self-
intelligently
denied,
(Tenn.),
506 U.S.
cert.
only
being apprised
incrimination
after
(1992).
298, 121
L.Ed.2d
Accordingly,
Id.
for a waiver S.Ct.
rights.
these
Benton,
(Tenn.Crim.
The voluntariness test under the Ten-
759 S.W.2d
App.1988).
presented
The defendant
no
nessee Constitution has been held to be
mental condition at
his
protective
more
rights
individual
than
suppress.
motion to
Dr.
Notwithstanding,
the test under the United States Constitu-
testify at
trial
subsequent
Caruso did
Stephenson,
tion. See
at
544.
regarding the defendant’s mental condi
relinquishment
For the
rights
to be
tion. Dr. Caruso conceded that the defen
effective,
person-
the defendant must have
competent
dant was
to stand trial and that
al awareness of both the nature of the
insanity
sup
defense of
could not be
right and the consequences
abandoning
ported in this case. He further admitted
his rights. See id. at 544-45. Additional-
any
didn’t feel
there was
“[he]
ly, his statements cannot be the result of
thing
prevented
here that
Mr. Thacker
intimidation, coercion
Id. at
deception.
forming
from
alleged
the mens rea for the
544.
In determining whether the state-
words,
offenses.” In other
the defendant
voluntary,
ments were
reviewing
court
expected
“knew what
outcome of a
at
totality
looks
of the circumstances
was;”
murder
was able to form a
“[h]e
surrounding the relinquishment of the
murder,”
motive
and “[h]e was
Id. at 545.
right.
able to understand that that murder was
The trial court found that
the state- wrong
against
Although
the law.”
ments were made voluntarily.
diagnosed
We have
defendant was
suffering
evidence,
disorder,
bipolar
studied the
rationally
we cannot
con
considering the
clude that the
incapable
defendant was
totality
circumstances,
we cannot
understanding
rights
providing
conclude that the
trial court erred
de-
voluntary
Moreover,
statement.
from the
nying the
suppress
defendant’s motion to
proof at the suppression hearing, we would
on
Again,
this issue.
the court’s determi-
be constrained to conclude that coercive
nation that
given
statements were
police tactics were
employed.
not
We
knowingly and voluntarily is binding upon
have reviewed the record and find that the
appellate
courts unless the defendant
preponderate
evidence does not
against
establishes that the evidence in the record
Henning,
See
the trial court’s ruling.
preponderates against the trial court’s rul-
Thus,
the defendant
is
ing. Henning,
tor outweigh to factors have mitigating only that there’s have to find not You beyond a reasonable factors aggravating impose factors to not mitigating of life impose to sentence doubt order find that you’ve got to penalty, death During parole. possibility without the outweigh aggrava- mitigators those sentencing phase, argument is, at the opening beyond a reasonable proof tor. The remarked: prosecutor doubt, they don’t. end, to asked to you’re going [A]t argument, defense counsel At the close of judge going make a decision. from the a curative instruction requested you that if find that there you instruct the erroneous statement relating court circum- aggravating one are at least The trial court by made of law State. mitigating that there are no stance and any error stating that request, denied circumstances, impose you have jury charge, which will cured there you If find penalty. death law. jury applicable as to the advise the and that aggravating circumstances are State, by the As asserted mitigating circumstances there are objec- contemporaneous failed to make circumstances out- aggravating Fail- comments. prosecutor’s tion to the doubt, that weighs, beyond a reasonable alleged mis- object prosecutor’s to a ure to circumstance, you impose the mitigating waives during closing argument conduct find that those you If penalty. death Little, v. State complaint. later outweigh do mitigating circumstances (Tenn.Crim.App.1992). aggrava- is an aggravator, but there object the prosecutor’s The failure doubt, there, beyond a reasonable tor appeal. results waiver statements beyond it outweigh mitigators but these Thornton, 10 doubt, impose life with- you a reasonable (citing R.App. Tenn. (Tenn.Crim.App.1999) that there are no you If find parole. out 36(a)). P. all, you aggravating circumstances waiver, note that Notwithstanding we in prison. of life impose a sentence section 39-13- Annotated Tennessee Code Later, prose- during closing argument, part: in relevant provides, cutor stated: jury unanimously determines If the [Rjemember giver? and the the taker circum- statutory aggravating that no beyond mitigating circumstance Is by the state proven has been stance than those greater doubt
a reasonable doubt, sentence beyond a reasonable only choice No. Your aggravators? for life.... imprisonment shall be case, aggravators, two with those this a miti- mitigator, but you if find unanimously determines If the ag- those outweigh that does gator circum- statutory aggravating that a doubt, is a reasonable beyond gravators prov- have been circumstances stance or penalty. the death impose reasonable beyond a by the state en
And, closing: in rebuttal again, doubt, circumstance that such but proven not been look at are those have you’ve got to circumstances
[W]hat cir- any mitigating outweigh are the state to you and if feel there aggravators beyond a circumstances cumstance or if feel that you mitigators there
251
doubt,
shall,
jury
reasonable
[Deleted:
its
XIII. LIMITATION OF
discretion,
considered
sentence the
DEFENSE TO STATUTORY
de-
MITIGATORS]
fendant either to imprisonment for life
possibility
parole
without
imprison-
or
XIV. VICTIM IMPACT TESTIMONY
ment for
judge
life. The trial
shall in-
At
sentencing hearing,
the State
that,
jury
struct the
in choosing between
presented
testimony
Pat-
Elizabeth
imprisonment
the sentences of
for life
terson, the wife of the victim. Elizabeth
possibility
without
of parole
impris-
Patterson stated that she and the victim
life,
jury
onment for
weigh
shall
thirty-five years
had been married for
at
statutory aggravating
consider the
cir-
couple
time of his death. The
had
by
cumstance or circumstances proven
grown
three
children. Mrs. Patterson re-
beyond
the state
lated that her husband
reasonable doubt and
was her sole source
support prior
of financial
to his murder.
mitigating
circumstance
circum-
death,
Since his
Mrs. Patterson has had no
stances ....
income,
money
and she had to borrow
pay
gravesites.
for their
further
She
ex-
If
jury
unanimously determines
plained that she was forced to borrow
that:
money until she received the insurance
(A)
(1)
At
statutory
least one
aggra-
proceeds. Emotionally, Mrs. Patterson
vating circumstance or several statu-
stated,
my
“I lost
best friend and compan-
tory aggravating circumstances have
ion.
I
sleep
night my
And can’t
bed.
been proven by the
beyond
state
sleep
my
I
on
couch.” Mrs. Patterson
doubt;
reasonable
described
good
her husband as “a
man.
(B) Such circumstance or circum- He
a good
Christian man. He would
proven
stances have been
by the state
help anybody
proceeded
out.” She
to de-
outweigh any
circum-
mitigating
scribe incidents of where her husband
beyond
doubt;
stances
a reasonable
free,
would tow people
specifically
re-
then the sentence shall be death.
calling an incident
involving
elderly cou-
§
13—204(f)(1),(2),
Tenn.Code Ann.
ple
stranded
1-55.
39—
(g)(1). The trial court
jury
instructed the
The
challenges
defendant
admission of
in accordance with the statute.
impact
this victim
grounds
evidence on
presumed
is
to follow the
instructions
(1)
testimony
of Elizabeth Patter-
Walker,
the trial court. State v.
910
(2)
unduly prejudicial
son was
881,
(Tenn.1995),
denied,
397
cert.
Mrs.
testimony
Patterson’s
was admitted
826,
519
117
U.S.
S.Ct.
verdict to the prejudice. defendant’s This 447, (Tenn.2002); Reid, State v. claim (Tenn.2002); is without merit. see also *41 him,
victim,
dependence upon
her financial
impact
upon
the
of his death
emotional
Tennessee,
808, 827, 111
Payne v.
501 U.S.
her,
type
person
and what
of
the victim
(1991)
2597, 2609, 115
720
S.Ct.
L.Ed.2d
the
of
con-
type
testimony
was. This is
(holding
the
Amendment
Eighth
templated by
Accordingly,
Nesbit.
Mrs.
per
against
no
the
erects
se bar
admission
testimony
unduly prej-
Patterson’s
prosecutorial
of victim
impact evidence
udicial.
902
argument);
Shepherd,
S.W.2d
the
supervise
To
the trial court to
(Tenn.1995)
enable
895,
(holding
907
victim
impact testimony,
of victim
our
admission
prosecutorial
impact
argu-
evidence
supreme
pro-
court has established certain
precluded
ment not
the Tennessee Con-
guidelines which must be followed
cedural
stitution).
holding
the
Notwithstanding
impact
may
ad-
before victim
evidence
be
impact
that victim
evidence is admissible
First,
by the trial court.
the State
mitted
penalty
under
death
sentenc-
Tennessee’s
notify
must
the trial court
its intent
scheme,
of such
ing
the introduction
evi-
Nesbit,
produce
evidence.
impact
victim
Nesbit,
dence is not unrestricted.
978
Austin,
891;
at
978
at
87 S.W.3d
S.W.2d
Austin,
891;
at
also
87
see
S.W.3d
S.W.2d
Second, upon receiving
463.
the State’s
at 463.
notification,
the trial court must hold
Although
impact
victim
evidence is ad-
jury to
hearing
presence
outside the
of the
missible,
generally
such evidence
should
admissibility
determine the
the evi-
designed to
be limited to information
Nesbit,
Austin,
891;
at
dence.
978 S.W.2d
unique
show
characteristics
those
which
Finally,
87
at 463.
trial court
S.W.3d
glimpse into the
provide a brief
life
permit
should not
introduction of such evi-
killed,
who
individual
has been
until the court
that evi-
dence
determines
contemporaneous
prospective cir-
aggravators
or
is al-
dence of one more
surrounding
cumstances
individual’s
Nesbit,
978
ready present
the record.
death,
fi-
and how those circumstances
891; Austin,
S.W.2d at
87
at 463.
nancially, emotionally,
or
psychologically
unduly prejudi-
Although
admission
physically impacted upon members
implicate
impact
may
cial victim
evidence
family.
the victim’s immediate
concerns,
estab-
process
procedure
due
Nesbit,
Reid,
891;
at
see also
978 S.W.2d
constitutionally
lished in Nesbit
is not
impact
Victim
evidence
S.W.2d
276
overruled
Brown,
grounds
accept-
statement was within the realm
(Tenn.1992).
argument.
able
Annotated
Tennessee Code
section
Moreover,
jurors
properly
were
in-
39-13-204(c)
permits the introduction
regarding
structed
the trial court
hearsay
stage
proceed-
in the second
impact
function
victim
evidence and that
ings
proof
evidence in the State’s
as
they
provided by
apply
were to
the law
aggravation
mitigation
or rebuttal of
presumed
court. The
follow
Fifth, Eighth,
violates the
thus
the instructions of the court. See State v.
Fourteenth Amendments
United
Walker,
(Tenn.1995),
I,
Article
Sec-
States Constitution
Denied,
cert.
519 U.S.
S.Ct.
16 of
Tennessee
tions 8 and
Consti-
*43
(1996).
136
45
consideration
L.Ed.2d
With
tution.
this
of the function
mischaracterization
supreme
many
As our
has noted
court
impact testimony,
of victim
the curative
times,
in
hearsay
degree
is admissible
first
court,
measure of the trial
and the
Austin,
sentencing hearings. See
murder
strength
aggravating
of the
circumstances
459;
Odom,
v.
87
State
928
S.W.3d
State,
conclude this
proven by the
we
issue
(Tenn.1996).
18,
S.W.2d
28
is
merit.
without
system provided in
sentencing
3. The
Annotated section 39-
Tennessee Code
[Deleted: XV. AGGRAVATING
(i)(6)
broad,
vague,
internally
and
13-204 is so
]
CIRCUMSTANCE
contradictory
in
that it results
the arbi-
XVI. CONSTITUTIONALITY
capricious imposition
trary and
of the
DEATH
OF TENNESSEE
in
penalty
death
Tennessee
violation
PENALTY STATUTES
and
of the United States
Tennessee
The
numerous chal-
raises
Constitutions.
lenges
constitutionality
Tennes-
rejected
This
v.
argument
State
provisions.
penalty
see’s death
Included
110,
(Tenn.1988),
Johnson, 762 S.W.2d
119
challenge that
the Tennessee
within his
denied,
1091,
1559,
109
cert
489 U.S.
S.Ct.
Fifth,
penalty
violate
death
statutes
(1989).
255
(Tenn.1998)
Pike,
v.
904,
rejected by
State
argument
v.
978
925
This
State
S.W.2d
(Tenn.1993);
1,
denied,
1147,
Smith,
21-22
119
S.W.2d
rt.
526 U.S.
S.Ct.
857
ce
(1999);
U.S.
2025,
Lynaugh,
see
Franklin v.
487
143 L.Ed.2d
State v.
also
1036
(Tenn.1998) 178-80,
2320, 2330,
Nesbit,
164,
101
872,
108 S.Ct.
978 S.W.2d
902-03
(1988);
Hurley, 876
denied,
1052,
v.
L.Ed.2d 155
State
rt.
526
119 S.Ct.
U.S.
ce
(Tenn.1993).
57,
(1999);
69
1359,
S.W.2d
5. statute fails to rejected by Ten- specifically ered and the sufficiently narrow of de- population the Smith, 857 Supreme nessee Court. See degree mur- fendants convicted of first 22 (holding that S.W.2d at Tennessee’s der, eligible who are for a sentence of statutes in penalty death “do[] in violation Eighth death of the and constitutionally way deprive the sentencer Fourteenth the Amendments to United by of the mandated the individu- discretion I, Constitution States and Article Sec- requirements alized of the consti- sentence & tions 8 16 of the Constitu- tution”). Tennessee
tion. penalty to 8. The death statutes fail jury to make ultimate require the the Although the to fails assert that death is appropriate determination what aggravating circumstances fail to Four- Eighth in violation of the and the narrow class of defen- death-eligible teenth Amendments to the United (i)(6) (i)(7) dants, respect with and the I, and Article Sec- States Constitution aggravators applicable ju- case sub 16 of the tions 8 & Tennessee Constitu- dice, rejected our supreme court has such tion. Vann, previous a claim on See occasions. (appendix); 976 S.W.2d 117-118 State v. rejected This has likewise been argument (Tenn.1994). Keen, 727, 926 S.W.2d 742 Hall, court. v. supreme See State 679, (Tenn.1997); v. 718 958 S.W.2d State death penalty 6. The statute fails to (Tenn.1994); Brimmer; 75, 876 S.W.2d 87 sufficiently limit of the exercise Smith, at 22. S.W.2d 857 because, jury’s jury discretion once fail to aggravation, penalty finds it can the sen- 9. The death statutes impose jury mitigation ability impose of death no matter inform the of its tence what shown, mercy out Eighth violation of life violation sentence and Fourteenth Amend- Eighth Fourteenth Amendments to United I, the United States Constitution and Article Sec- ments to States Constitution I, 8 & 16 16 of the tions of the Constitu- and Article Sections 8 & Tennessee tion. Constitution. Tennessee 256 526, 5; Caughron, 855 re n. v. S.W.2d appellate consistently courts have
Our
(Tenn.1993).
in
jected
“mercy
542
argument
required
capital
struction” is
at a
sentenc
[Deleted:
PURSUANT
XVII. REVIEW
Cauthern,
ing
967 S.W.2d at
hearing. See
TO TENNESSEE CODE ANNOTAT-
749;
Bigbee,
State v.
S.W.2d
813-
885
39-13-206(c) ]
ED SECTION
Cazes,
(Tenn.1994);
14
State v.
(Tenn.1994),
denied,
n. 6
cert.
Conclusion]
[Deleted:
743,
257 Austin, (Birch, J., Godsey, State v. 447, 60 at 793-800 S.W.3d 467-68 S.W.3d (Tenn.2002) (Birch, J., State I continue to dissenting); concurring dissenting). and Stevens, (Tenn. v. 817, my 78 S.W.3d adhere to view that the current com 2002) (Birch, J., concurring parative proportionality protocol and dissent is woe McKinney, State v. 291, ing); fully inadequate protect defendants (Tenn.2002) (Birch, J., concurring 320-22 arbitrary disproportionate from the Bane, State v. dissenting); and 57 imposition penalty.4 of the death Accord 411, (Tenn.2001) (Birch, 431-32 ingly, respectfully I dissent from that J., concurring v. State dissenting); portion majority opinion affirming Stout, (Tenn.2001) 689, 46 S.W.3d imposition penalty of the death (Birch, J., concurring dissenting); this case. State, (Tenn.
Terry v. 147, 46 S.W.3d
2001) (Birch, J., dissenting); v. State
Sims, (Tenn.2001) 1, 45 S.W.3d 23-24
(Birch, J., concurring dissenting); Keen, v. 233-34 (Tenn.2000) (Birch, J., dissenting). As Christa Gail PIKE discussed, previously I believe problems three basic with the current STATE Tennessee. (1) proportionality analysis are that: (2) proportionality overbroad,1 test Tennessee, Supreme Court of pool of cases comparison used for is ina at Knoxville. (3) dequate,2 subject review is too Feb. 2005 Session at Knoxville. discussed, ive.3 I have previously May 2005. depth, my perception that these flaws reliability undermine the of the current See State v.
proportionality
protocol.
lar,
urged
1.
adopting
protocol
I have
prime example
in which
ais
of the arbitrariness of
compared
each case
factually
protocol.
would be
this
similar cases in which
either
life sentence or
capital punishment
imposed
to determine
my concurring/dissenting
IAs
stated in
*46
whether the case is more consistent with
opinion
Godsey,
scope
in State v.
of the
"[t]he
"life" cases or "death” cases. See State v.
analysis employed by majority appears
(Birch, J.,
McKinney,