*1 STATE Tennessee THOMAS,
Andrew et al. Tennessee,
Supreme Court of
at Jackson.
Nov. 2004 Session.
March 2005. J., Birch, Jr.,
Adolpho opinion A. filed concurring in part dissenting part. *11 excusing pro- trial court did not err in *12 (2) cause; juror for court spective the trial refusing jury on erred in instruct the felony offenses of murder lesser included a rea- beyond but the error was harmless (3) doubt; sonable and the death sentence Brooks, E. Michael Scholl and Robert C. excessive, arbitrary, or dispropor- was Tennessee, Memphis, Appellant, for the agree also tionate. with the Court We Thomas. Andrew respect Appeals’ Criminal conclusions with Summei’s, Paul and Attorney G. General issues, remaining por- the relevant Moore, Michael Reporter; E. Solicitor appendix tions of which are included in the General; Lustre, Alice B. Attor- Assistant opinion. Accordingly, to this the Court General; Gibbons, ney L. District William Appeals’ judgment Criminal is affirmed. General; Attorney Amy and and Weirich defendant, Thomas, The Andrew his and Nichols, Jennifer Assistant District Attor- co-defendant, Bond, Anthony were indicted General, neys for Appellee, the State of felony victim, for the murder of the James Tennessee. Day. following presented The evidence was joint trial of and the defendant
OPINION Bond.1 ANDERSON, J., E. RILEY delivered Guilt Phase court, opinion of the in which FRANK DROWOTA, III, C.J.,
F. and JANICE M. Shortly p.m. after 12:30 on April BARKER, HOLDER and WILLIAM M. co-defendant, and the defendant his JJ., BIRCH, JR., joined. ADOLPHO A. Bond, armored truck with a guard saw an J., concurring and dissenting. bag money deposit leaving Walgreens a drug store on Summer Avenue in Mem- defendant, Thomas, The Andrew was phis, up, The ran Tennessee. defendant felony convicted of imposing murder. a head, guard shot the the back of the sentence, jury death found evi- grabbed deposit bag, and into jumped circumstance, dence of one aggravating being by a driven The white car Bond. i.e., the defendant previously was convicted defendant and Bond abandoned white statutory one or more felonies whose Walgreens, car on behind into got a street involved elements the use of violence a red car that the defendant had borrowed person, outweighed the evidence girlfriend, away. from his and drove mitigating beyond circumstances reason- The Ap- Betty Gay, Walgreens’ able doubt. Court of employee, Criminal peals affirmed conviction the death ar- gunshot heard the then saw the sentence, and the automatically guard, Day, lying case was mored truck James running docketed this Court. an the lot. She a man parking We entered saw identifying gun deposit order three issues for oral ar- from the scene with a and the (1) gument and now hold man- bag.2 Young, as follows: Charles assistant felony permission appeal application 1. Bond convicted of murder State’s however, August Accordingly, imprisonment; on 2004. sentenced life his was denied appeal Bond's is not before this Court. was reversed of Crim- conviction the Court Appeals inal based on failure the trial court’s charge bag of- Gay deposit the lesser included 2. that the testified contained cash, checks, $18,843.01 stamps. felony fense of facilitation of and food murder. ager Walgreens, getting May, couple ran outside and After married in saw Day lying pool face of blood. down.in two later. The defen- separated months conscious, Day, Young, who was told “Call police dant told Jackson not to tell about Day my wife.” conscious and remained robbery. ar- continued to talk until an ambulance victim, Day, did not immedi- James rived. ately gunshot die from the wound to the the cars Several witnesses described Instead, gunshot of his head. back gave used the defendant and Bond *13 spinal in damaged his cord and resulted descriptions occupants police. of the to the (a profound in one’s paraparesis weakness witness, Fisher, Richard testified that One legs) neurogenic and and bladder abdomen “speed” he saw a white car around the (a control due to loss of bladder and bowel in armored truck the front of the store and Cain, Day the vic- damage). Faye nerve that the car was four feet him. within widow, that her husband tim’s testified as Fisher later identified the defendant the surgeries, needed underwent numerous passenger in the car. white attention, and care and medical constant 21st, April Later on the afternoon of the to He was confined to was unable work. apart- defendant and Bond arrived at the bathroom, room, the was unable to use one Jackson, Angela then
ment of who was the September depressed. In late and became to girlfriend. According defendant’s Jack- hospital the for Day was rushed to son, and the two men “excited” “out were rup- surgery his emergency after bladder get After Bond to telling of breath.” rid infection; The caused an tured. condition gun, began of the the taking defendant worsen, to and Day’s condition continued checks, money, stamps and food from 2,1999. on finally he died October white that had been in envelopes small Shelby for Coun- The medical examiner jacket. Bond’s The defendant and Bond Smith, Tennessee, Dr. testified ty, O.C. money. the divided sepsis, was Day’s the cause of death that that Jackson testified that later same of his bladder “secondary rupture day, bought the defendant a customized by injury caused resulting spinal from cord plates gold spoke car with wheels for Dr. his head.” to gunshot wound $3,975 in cash. car titled Jack- wás homicide, a death Day’s considered Smith Afterward, name. defendant son’s told from the “infection and he stated a they get hotel Jackson needed “directly relat- could be ruptured bladder” report that watching room. While a news Dr. wound.” gunshot ed back to [the] shooting, evening at the hotel about the from Day suffered conceded that Smith told that the victim the defendant Jackson disease, diabe- high pressure, heart blood struggle “did not for his life” and he that these tes, obesity, but he stated by the throat “grabbed nigger had Dr. death. not cause the conditions did shot him.” Gardner, assistant, Cynthia Dr. Smith’s day shooting, Jackson On the after the Day’s death resulted testified that likewise a in her name and opened bank account injuries gunshot caused from $2,401.48 days in cash. Two deposited wound. later, bought shotgun a because the she shooting captured videotape A protec- it “for they defendant said needed cameras Jackson, surveillance Walgreens’ According tion.” the defen- made videotape A jury. for the bought played for him- gold dant later necklace for the original played wedding from the was also rings self and for both them. $1,000 Massey, at a and he used jury speed. Angela slower Jackson from Onie $1,000 taking gunman the defendant firearm in between identified as $500 guard McCoy. the head Dewayne who shot the back of from On June had photograph taking jewelry from still been pistol he used a valued $1,000 $10,000 from the videotape. Gary made from Smallwood. evidence, considering After also introduced the tes- prosecution felony convicted the defendant of murder Cain, Day timony Faye the widow of the killing “during based of the victim victim, Day. She testified that her James attempt robbery an as perpetrate jobs support husband worked two had charged the indictment.” The trial he was shot and that she family his before hearing then held a sentencing court work due to a medical was unable to condi- jury to punishment. determine the thrombophlebitis. tion She tes- known death, tified that her husband’s since she Penalty Phase minor couple’s and the son lived on disabil- *14 support prior felony ag- To violent ity security and social payments benefits. circumstance, in- gravating prosecution that Ms. Cain testified the victim had been evidence that troduced the defendant had confidant, lover, husband, her and best for prior felony convictions offenses whose however, the shooting, friend. After she statutory elements involved the use of vio- longer and her could no have husband to See Tenn.Code person. lence Ann. intimacy. physical contact The victim 13—204(i)(2) (2003). § proof 39— “couldn’t stand be touched” and “the September showed that in least little noise would turn him into defendant was convicted of seven counts of frenzy.” testified that she had suf- She aggravated robbery and one count of rob- great pain, fered emotional that she was bery. January of the defendant longer happy person, no and that she aggravated convicted of was one count of cried often. robbery. Cain, son, to Ms. According couple’s The indictments the defen- underlying Cedric, twelve when his father was prior aggravated dant’s convictions for enjoyed motorcy- They riding shot. had robbery revealed in- that the offenses cles, breakfast, and having doing “father volved the defendant’s and use of a firearm 'things. shooting, and son” After the how- January involved different victims. On ever, angry.” became “hurt and Cedric taking he used a firearm in between $1,000 $10,000 rested, and prosecution from Michael Osborne. After the the defen- 1, 1993, February On firearm in presented mitigating he used a dant evidence of cir- $1,000 $10,000 mother, taking between from The defendant’s Lu- and cumstances. Sanders, Barber, in handgun Booker and he used a ella testified that the defendant taking money totaling February stamps food was born in of 1973. She said Thomas, $1,000 $10,000 father, from Lee Harris. On the defendant’s Andrew 8, 1993, Sr., taking family he regularly; March he used a firearm did not visit $1,000 money totaling and checks abused her in drugs, abused the defen- $500 12, 1993, Kirby. jail. presence, from Amos On March he dant’s was often Ms. Thomas, Sr., a firearm in taking used checks valued Barber divorced Andrew from later Bar- under Carl Hutchinson. On and she married William $500 15, 1993, stepfa- he in tak- that the defendant’s March used a firearm ber. She said ther, Barber, money to’ also her in front ing totaling and checks abused $500 penalty. regarding involved with on his views the death the children and became the trial court The State maintains that drugs. his excused Pannell based on properly Barber, According to the defendant Ms. imposing statements views about getting stealing started into trouble sentence. death Although the when he was fourteen. de- school, dropped he received fendant out context, we will place To this issue into and a as a residential his GED certificate portions of the voir dire include helper jail. Barber plumber’s Ms. while First, juror. to this respect prospective that and that her said she loved her son exchange district between the assistant him. life would be the same without juror: general attorney prospective and the other members also testi- family Several Pannell, Q. question you, Mr. same on behalf of the defendant. Alacia fied proves if the State of Tennessee Bolden, of the defendant’s mother circumstances, beyond aggravating son, their son testified that eight-year-old doubt, proves a reasonable father to have a loved his and continued miti- they weigh more than the relationship him. Andre Bar- close -with again, gators, beyond a reasonable ber, brother, the defendant’s testified doubt, you can sentence one or both defendant, always up he had looked of the defendants to death? they relationship, had a and that close really don’t A. I think so. losing they talked often. He said *15 would their mother. defendant “devastate” it dealing I had a time A. hard
Similarly, Stephanie and Tamara Williams every- cousins, night, searching last soul Weeks, the testified defendant’s thing. they relationships had with the that close Williams did that she defendant. said All Q. right. die, to see the and Weeks want defendant articles in the A. And there have been impor- that the was an believed defendant evi- recently planted about paper figure despite life his tant male in his son’s that, it that dence and like stuff incarceration. I say that makes it for me hard jury imposed penalty death af- sentence on agree a death would finding supporting evidence ter myself. I something witness didn’t out- aggravating the sole circumstance fine. Q. That’s mitigating circum- weighed the evidence of charged with person A. to hear the Or On beyond a reasonable doubt. stances to it crime to admit personally Appeals af- the Court of Criminal appeal, himself. death sen- and the firmed conviction twenty-two is- concluding tence after follow Q. right. you All couldn’t So without raised defendant were sues if of Tennessee the law the State merit. I have would be you told what to follow you have
law would ANALYSIS Dailey’s in- according [Judge] structions? Prospective Juror Excused Well, to listen you you A. know have argu- first the defendant’s We review witnesses. excusing that the trial court erred ment Yes, Pannell, Q. sir. juror, based Gary prospective Okay. A. And that’s I proof my eyes where would A. Sufficient would be problem, they
have a is taking myself what what I witnessed or what the saying, are saying, “Okay, what person charged with the crime—if true,” they saying it, are I they they which said that yes, did I don’t know— go along could with it. Q. you you Let me ask this: If felt that
Q. right. All proven aggrava- the state had me, A. And to death perma- is—it’s a ting they allege— circumstance that thing. nent you’re they prov- satisfied that have Yes, Q. you. sir. Thank en outweighed that and that it A. You don’t come it. back with mitigation mitigating circum- —the Q. you. Thank stances —but neither of these crite- you existed, ria that set forth are After prosecution moved to excuse the then, you saying, though that even prospective juror cause, for counsel for the you felt that proven the state had defendant asked the following questions: circumstances, their aggravating Sir, Q. you let me ask this: Are there you still could not follow the law you circumstances where you feel impose the death penalty? could give the death penalty? You (No A. response) audible you mentioned wouldn’t feel com- Q. youDo saying? follow what I’m doing fortable you actually it unless (No A. response) audible it you saw or unless heard someone Q. up You set two you say criteria that admit to it. Are there circum- only are the you two which could you stances where give could voting consider penal- the death punishment? ty, if, I’m saying what happens A. only That’s the two that I can mind, your if you determine that of right thin[k] now. proven, the state beyond has a rea- *16 Q. So there are some circumstances doubt, sonable the existence of the you where could give punish- that aggravating circumstance they al- showed; ment if it actually is that lege, you find, further in your correct? mind, that that aggravating circum- A. right. That’s does, indeed, stance outweigh, be- yond doubt, any a reasonable miti- Q. I have no questions, further Your gating that circumstances have been Honor. presented you find that the law —if Finally, the trial court had following the had been in that regard satisfied as exchange with the prospective juror: up by it’s set legislature, the but Q. you’re So not foreclosing possi- you find that these two circum- bility giving penalty. the death you stances that set forth aren’t correct, Is that Mr. Pannell? part process of this exist in —don’t A. That’s correct. process, you are saying that that, you because of Q. go could not just You’re stating you that would impose forward the death pen- an[d] have to see proof sufficient to satis- alty? fy you that aggravating circum- outweigh
stances mitigating cir- IA. would have a hard taking time cumstances. I coming what would hear from wit- jus- everything proven clarity”
nesses’ accounts and be- with “unmistakable cause, tify a cause. just said, just challenge I Id. like last week about paper some incidents A must have the “defi trial court down in Florida— juror impression prospective nite that a Well, Q. get we wouldn’t want to into Hutchison, could not the law.” follow what in the paper was because we 167; Wainwright, at see 469 U.S. S.W.2d try paper don’t cases or on 425-26, at 844. A trial court’s 105 S.Ct.
TV.
findings
presumption
“are accorded
correctness,
must es
and the [defendant]
Okay.
planted
A.
It’s
evidence—
that
convincing
tablish
evidence
Q. Well—
trial court’s determination was erroneous
—people
say anything—
A.
can
will overturn
appellate
before an
court
that
Q. Okay.
you,
Thank
Mr. Pannell....
Austin,
decision.”
v.
87 S.W.3d
State
challenge
After the
renewed
State
its
(Tenn.2002);
Alley,
also
v.
see
State
cause,
prospective juror for
trial
(Tenn.1989);
arguments
parties.
court
heard
from
Duncan,
63, 71
698 S.W.2d
trial
prospec-
court then excused the
applied
A review these
principles
juror
concluding:
tive
for cause after
afforded to
illustrates the broad discretion
responses,
I think that
in their totali-
his
for in-
Wainwright,
In
the trial court.
best,
ty-—he,
given
sort of
at
has
some
stance,
that
Court concluded
Supreme
could,
qualified
under
statement
he
excused
prospective juror
properly
was
his own perceived limited circumstances
“thought”
where she was “afraid”
law;
law,
follow
and under the
that’s
may
penalty
her views
the death
against
He
good enough.
not
conceded
if
ability
interfere with
to determine
her
they
the state
what
were re-
proved
426, 105
guilt.
defendant’s
U.S.
quired
prove under the statute but it
Austin,
agreed
844.
In
this Court
S.Ct.
criteria,
self-appointed
didn’t meet his
had
excused
properly
that the trial court
go
then he
couldn’t
forward
follow
jurors
indicated
prospective
several
who
I don’t
that’s
the law. And
think
what
they
or did not
would
consider
system
juror.
of a
And I—
requires
our
penalty.
the death
imposing
“believe”
feels,
just
way he
that’s
and that’s
Duncan,
very
a case
at 473.
fine;
your exception.
but
note
I’m
case,
I’ll
held
this Court
present
similar to the
him.
going
go ahead
excuse
ex-
juror
properly
that a prospective
that she could
believed
cused where she
*17
principles governing a trial
“unless she
penalty
impose
not
the death
prospective
to
a
court’s decision
excuse
committed,”
where she
and
saw the crime
juror
out
challenged for cause are set
“judge
not
to
that
did
want
stated
she
Witt,
Wainwright
follows. Under
v.
469
of what
being on the basis
another human
412, 424,
844,
105
U.S.
S.Ct.
83 L.Ed.2d
person
says
another
against
one
what
(1985),
jurors may be ex
prospective
841
71;
Alley,
also
698
at
see
says.”
S.W.2d
only
if
cused
cause
their views about
juror
(prospective
379 excusing juror jury to instruct the prospective failing Pannell for versible error extensively cause. prosecutor ques- felony on the included offenses of lesser ap- tioned Pannell as to whether he could murder, i.e., murder, degree reck- second ply the law to the and consider all evidence homicide, criminally negligent less in this punishment forms case. Pannell concedes that homicide.3 The State it consistently indicated would be failing trial court to instruct erred say” “hard for to he would [him] offenses, jury on but these lesser included impose penalty the death for a crime he it asserts that the trial court’s error was did not witness or for crime to which the beyond harmless a reasonable doubt.4 Duncan, defendant had not confessed. Cf. response 698 In to S.W.2d 71. addition- An on a lesser includ instruction counsel, al questioning by defense Pannell court, if given ed offense must be the trial impose reiterated that he could the death viewing favorably the evidence most penalty only those circumstances where offense, existence of the included lesser he had witnessed the crime or heard a (a) concludes that “evidence exists that Finally, defendant’s confession. Pannell accept reasonable minds could as to the questions by answered the trial court’s (b) offense,” and lesser included saying that he could follow the law as evidence “is legally support sufficient to aggravating mitigating circum- conviction for the lesser-included offense.” stances unless his own criteria were satis- (Tenn. Burns, State v. S.W.3d fied. 1999). jury The failure to instruct the sum, juror prospective ques- requires lesser included offenses a reversal extensively parties tioned both and the for a a reviewing new trial unless court trial court. gave The trial court defense determines that the error was harmless counsel ample opportunity to rehabilitate beyond a v. Ely, reasonable doubt. State the prospective juror gave full consid- (Tenn.2001). In mak S.W.3d eration to arguments parties. of the ing determination, the reviewing court The trial questions court its own asked thorough must “conduct a examination of explore prospective juror’s further record, present evidence including the views. we Accordingly, conclude that the trial, theory ed at the defendant’s of de trial in excusing court did not prospec- err fense, and the verdict returned juror tive Pannell. Allen, jury.” State v. Lesser Included Offenses previously This Court has held that sec-
We next argu- address the defendant’s murder, homicide, ment degree the trial court committed ond re- reckless Felony requires, part, 3. 4. The trial murder relevant State asserts that the court did not killing evidence of "a another committed in failing err in on the of- instruct perpetration attempt perpetrate felony fense of facilitation of murder because any robbery_” § ... Tenn.Code Ann. 39- support there was no evidence such an 13-202(a)(2) (2003). degree Second murder Ely, instruction. See State v. *18 requires knowing killing "[a] evidence of of (Tenn.2001) (evidence did not warrant an 39-13-210(a) § another.” Tenn.Code Ann. instruction on included offense the lesser of (2003). requires Reckless homicide evidence facilitation). in this The defendant case has killing of "a another.” reckless of Tenn.Code not raised an as as a lesser issue to facilitation (2003). 39-13-215(a) Criminally neg- §Ann. included offense in his brief. ligent requires homicide evidence that crimi- nally negligent conduct "results in death.” 39-13-212(a) (2003). § Tenn.Code Ann.
criminally
the
negligent
played
jury.
homicide are lesser
crime was
for the
ex-wife,
Jackson,
felony
Ely,
Angela
included offenses of
murder.
iden-
defendant’s
explained:
murder under
of the Burns test.
(2)
robbery,
in the
involved
and
Id. at 721-22.
gunshot
not cause the
wound did
victim’s
(re-
Allen,
We analyze defen- viewing court should cedes, that the record in this case demon defense). theory dant’s of The defendant in failing strates that the trial court erred did not concede that he was involved jury degree mur instruct the second crime, argue he that he der, homicide, did was neg criminally reckless or at- guilty of a lesser included offense ligent homicide. There was evidence guilty he of tempt to establish that was a accept minds these reasonable could id. at offenses, Compare lesser included offense. lesser included evidence defense, in (theory was that part, a 191-92 legally support guilty was sufficient to required mental verdict on these lesser included offenses. defendant lacked offense). sum, agree id. trial we (holding at 724-25 state for the failing con- Appeals’ court erred to instruct on the with the Court of Criminal murder); felony reasonably lesser included offenses to could not that the clusion Bums, also at 467. see S.W.Bd the defendant was have concluded that killing a anything other than guilty of conclude, however, further We i.e., robbery, felony a perpetration the trial failure to instruct on these court’s murder. lesser included offenses was harmless be trial court Accordingly, hold that the we yond a The evidence at reasonable doubt. jury on failing instruct the erred trial revealed that defendant shot the murder felony included offenses lesser victim, guard, an armored truck in the beyond harmless but that the error was back the head and stole victim’s doubt. reasonable deposit Walgreens money bag. The defen dant identified as one two men Proportionality fleeing the scene in a white car. The from sen has been criminal was filmed defendant defendant’s conduct Where camera, death, compara apply must we videotape a surveillance and the tenced
381 particularly proportionality analysis pursuant inappropri- tive and it be would in conducting comparative Tennessee Code Annotated section 39-13- so ate to do (2003). 206(c)(1)(D) review, is in func- analysis where our proportionality identify aberrant, arbitrary, or tended identifying tion limited to aberrant is sentencing determining sentences, capricious by poten- identifying death “ the death ‘dispropor whether sentence is capital tial cases. punishment to the imposed tionate oth omitted). (citations Id. at 784 ” ers convicted of the same crime.’ Accordingly, our comparative Bland, (Tenn.1997) v. 958 S.W.2d 662 of proportionality applicable review Harris, Pulley v. 42- (quoting 465 U.S. pool considers factors of cases numerous (1984)). 43, 104 S.Ct. L.Ed.2d (1) of regarding the offense: the means In conducting analysis, this (2) (3) death; death; the manner of employs precedent-seeking Court (4) killing; for the of place motivation comparative of proportionality method re (5) death; victim’s condi age, physical view, in which we case compare a with (6) tion, condition; psychological and involving other cases similar defendants (7) presence premeditation; absence or of Bland, and similar crimes. See presence or provocation; the absence at 665-67. or S.W.2d While no defendants (8) presence justification; or absence alike, crimes are a death is sentence dis (9) injury and to and non- upon effect if a proportionate “plainly lacking case is Bland, decedent victims. in circumstances those in consistent with 667. consider factors We also numerous penalty cases where death has been (1) defendant: prior about the criminal imposed.” Id. at 668. (2) record, race, any; age, gender; if and repeatedly pool haveWe held that the (3) emotional, mental, physical condi cases considered in its pro- this Court (4) (5) tion; murder; coopera in the role portionality review includes first de- those (6) authorities; remorse; tion with level of gree murder cases in which the State (7) knowledge of the helplessness; victim’s penalty, seeks the death sentenc- capital (8) Id.; for potential rehabilitation. hearing held, ing sentencing and the Bane, see also State 428- jury determines whether the sentence (Tenn.2001). imprisonment, life imprison- should be life possibility parole, ment without the or case, In this the evidence showed death. See State v. Godsey, 60 S.W.3d that shot the in the the defendant victim explained We have back head and of his stole the victim’s pool degree that the does not include first Walgreens money deposit bag. defen cases in plea bargain murder which a is dant was identified as one of men two respect punishment reached scene, fleeing shooting from and the in which the State does the death not seek filmed surveillance camera penalty: jury. Angela shown to the Jackson identi of cases in from a
[Consideration which fied the defendant the shooter State, reasons, videotape. whatever not seek made photograph did still from the necessarily penalty the death would re- later The defendant divided the contents co-defendant, quire ultimately bag us to scrutinize with his deposit what is discretionary guard. prosecutorial decision. he told Jackson he killed the victim previously We have declined review The established that evidence discretion, prosecutorial injuries the exercise suffered extensive and suffered *20 382 mitigating in- The defendant offered evi- disability and from these pain
extreme family background regarding dence his juries years two his death. for over before brother, mother, and cousins. from his de- also that the The evidence showed rarely saw his father as a The defendant twenty-four old at years fendant was the child, and his father had been involved in eight prior offense. had time of this He father drugs. The defendant’s and his robbery and aggravated for a convictions abused the defendant’s mother. stepfather robbery. for As discussed conviction the defendant The evidence showed above, robbery of- prior aggravated the members, family his support had the January to June of place fenses took from son, including his and he had minor use of a 1993 and involved defendant’s in prison. while earned his GED earlier victims. On firearm and several different however, evidence, no that the There was 1993, instance, 4, defen- January for mental, had or any physical, defendant taking a firearm in between dant used impaired difficulties that his emotional $10,000 $1,000 from Michael Osborne. and offense or he com- judgment mitigated 1993, 1, a firearm in February On he used any way. in mitted other $10,000 $1,000 from and taking between record, we conclude reviewing After Sanders, handgun and a in Booker he used clearly sup- case that the evidence in this money stamps totaling taking food jury’s aggrava- that the finding ported $10,000 $1,000 from Lee Harris. On to i.e., circumstance, that the defendant ting 1993, 8, taking in he a firearm March used felonies whose prior had convictions $1,000 to money totaling and checks $500 person, to involved violence elements Kirby. he from Amos On March beyond reasonable doubt. proven in taking a firearm checks valued used supported the Similarly, the evidence On from Carl Hutchinson. under $500 finding the evidence of this jury’s 15, 1993, in tak- he a firearm March used outweighed the aggravating circumstance totaling ing money and checks $500 circumstances be- mitigating evidence $1,000 used Massey, Onie and he from Ann. Tenn.Code yond a reasonable doubt. $1,000 taking from De- firearm $500 (2003). 13—206(c)(1)(B) § 39— 25, 1993, McCoy. Finally, on June wayne the death sen- also conclude We jewelry valued at pistol taking he used a defendant applied tence as $10,000 $1,000 Gary from Smallwood. arbitrary, not excessive dis- case was compared defen- when proportionate major role in played the The defendant Ann. Tenn.Code in other cases. See dants by shooting the victim present case (D) (2003). (C), 39-13-206(c)(l)(A), § deposit bag. The stealing the victim’s get rid told co-defendant defendant the death sen- upheld This Court has he had to shoot the victim. gun used the defendant where tence in similar cases absolutely no re- showed v. range. The defendant See State a victim close shot (Tenn. indeed, offense; he divided for the 312 McKinney, morse Henderson, and im- money 2002); with his co-defendant S.W.3d v. State Cribbs, buy- shopping spree, (Tenn.2000); on a v. mediately went State rings. Similarly, car, jewelry, wedding He ing a penalty death that “the victim did has Angela upheld Jackson this Court told victim was for his and that “he numerous cases in which struggle life” robbery or other and shot in the course of grabbed nigger by the throat shot Reid, felony offense. him.” *21 247, (Tenn.2002), instance, (Tenn.2004); 600, Pike, 260 S.W.3d for 621 v. State 978 penalty 904, (Tenn.1998); Bland, the defendant received the death S.W.2d 922 958 shooting for in two victims the course of a Likewise, at 674. S.W.2d numerous defen- Stout, robbery. 689, In State v. 46 S.W.3d presented mitigating dants have evidence (Tenn.2001), 693-94 the defendant was backgrounds, poor of their childhood envi- sentenced to death for kidnapping the vic- ronments, parents drugs, who used shooting tim and in her the head. Similar- Davis, similar circumstances. 141 S.W.3d Sims, ly, 1, in v. State 45 5-6 S.W.3d 621; Stout, 708; at 46 at S.W.3d (Tenn.2001), the defendant was sentenced Henderson, 318; Bland, 24 at S.W.3d 958 to death shooting for the victim in the S.W.2d at 670. burglary. course of a See also v. State require finding Our task does not
Smith,
(Tenn.1999) (vic-
6,
993 S.W.2d
18
exactly
prior
this case is
like a
in
case
Howell,
tim
during robbery);
shot
v.
State
every respect,
require
nor does it
a deter-
(Tenn.1993) (victim
238,
868 S.W.2d
262
mination that this case is “more or less”
shot in
during robbery);
the head
State v.
like
penalty
other similar death
cases. See
Boyd,
589,
(Tenn.1990)
797 S.W.2d
595
Instead,
McKinney,
was the sole aggravating circumstance (3) doubt; and the death sentence was not by jury. found McKinney, 74 excessive, arbitrary, disproportionate. 312; Chalmers, S.W.3d at State v. agree We also with the Court Criminal (Tenn.2000); S.W.3d State v. Appeals’ respect conclusions with Keough, 18 S.W.3d issues, remaining portions the relevant Finally, we note that numerous death appendix. which are included Ac- penalty cases involved defendants who cordingly, Appeals’ the Court of Criminal presented mitigating evidence of circum- judgment is affirmed. substantially stances similar to that pre- The defendant’s sentence of death sented the defendant in shall this case. For example, day be carried out on the 10th August, several cases have involved de- fendants who were a age similar as the unless otherwise ordered Davis, defendant. See v. authority. State Court or proper ap- S.W.3d other It (Tenn.2003) (Birch, J., pearing indigent, v. dissenting); the defendant (Tenn. Carter, of the are appeal costs taxed to the State. 910-11 2003) (Birch, Reid, J., dissenting); State v. BIRCH, J., JR., ADOLPHO A. (Tenn.2002) (Birch, 288-89 concurring dissenting. J., concurring dissenting); State *22 (Tenn.2002) Austin, 447, 87 467-68 S.W.3d BIRCH, JR., J., ADOLPHO A. J., Stevens, (Birch, dissenting); State 78 v. concurring dissenting. and (Tenn.2002) 817, (Birch, J., S.W.3d 852 majori I concur in the conclusion of the concurring dissenting); v. and State ty that conviction af Thomas’s should be (Tenn. 291, McKinney, 74 320-22 S.W.3d death, firmed. As to the sentence of how 2002) (Birch, J., concurring and dissent- ever, I I have respectfully dissent. As Bane, 411, ing); v. 57 State S.W.3d 431-32 in a previously expressed long line of dis (Tenn.2001) J., (Birch, concurring and dis- sents, pro I that the comparative believe Stout, 689, senting); 46 State v. S.W.3d portionality protocol currently em review (Tenn.2001) (Birch, J., concurring 720 and majority inadequate braced the is State, 147, dissenting); Terry v. 46 S.W.3d arbitrary shield from the and defendants (Tenn.2001) (Birch, J., dissenting); 167 disproportionate imposition of the death (Tenn. 1, Sims, v. 45 S.W.3d 23-24 State § penalty. See Tenn.Code Ann. 39-13- 2001) (Birch, J., concurring and dissent- 206(c)(1)(D) (1995 Supp.). I have consis Keen, 196, ing); State v. 31 S.W.3d 233-34 tently expressed my displeasure with the (Tenn.2000) J., (Birch, dissenting). As protocol adop current the its since time of discussed, I the previously believe Bland, tion in 651 State v. 958 S.W.2d problem proportionality with the current (Tenn.1997). Robinson, v. 146 See State (1) the analysis proportionali- is threefold: (Tenn.2004) (Birch, J., 469, S.W.3d 529 (2) overbroad,1 ty pool is the of cases test Leach, concurring dissenting); and v. State (3) and (Tenn.2004) comparison inadequate,2 used for is S.W.3d, (Birch, J., 42, 148 68 ser- Davis, subjective.3 review is too These flaws concurring dissenting); and v. State cur- (Tenn.2004) J., iously reliability the of the (Birch, undermine 141 S.W.3d 632 State v. proportionality protocol. rent concurring Berry, dissenting); and v. (Birch, J., (Tenn.2004) (Birch, J., Godsey, 60 at 793-800 S.W.3d S.W.3d view, concurring dissenting). my concurring dissenting); Hol and and State v. (Tenn.2004) ton, proportionality current comparative the S.W.3d (Birch, J., inadequate protect concurring dissenting); protocol woefully is Davidson, arbitrary dispro- the or State v. 629-36 defendants from made, made, 29, 1997, April eight which be days 1. On after Defen- and all treaties shall States, Day, dant Thomas shot Mr. this statute authority the United shall under the provide "shall not land; amended to Court supreme law of be aside ... on the set a sentence death thereby, judges every shall be state bound specifically ground court that the trial did not any any thing in the Constitution or laws of requested mitigating instruct the as to a contrary notwithstanding.” U.S. state factor that is not ennumerated in subsection Art. Const. 6[2.]. 39-13-204(e)(l) § (j)." Ann. Tenn.Code Hall, (1997); see also State note, however, that did 3.The Seventh Circuit 694-95 practice allowing prosecutor to "[t]he grand jury the trial choose hence States of [of "This Constitution United 2. America], unsightly” judge certainly "lack[s] States and the laws of the United thereof; at 442. pursuance appearance impartiality.” 50 F.3d which shall be made in portionate imposition penalty.4 of the death
Accordingly, I respectfully dissent from imposed stances and of life sentence portion majority opinion of the affirm- without possibility parole. The trial ing imposition penalty of death. court approved sentencing verdicts. appeal right, In this as of Defendant
APPENDIX following Thomas raises the issues for this (1) sufficiency Court’s review: of the (Excerpts from the Court of Criminal (2) evidence; whether trial court erred Decision) Appeals’ (3) motions; by denying pre-trial various IN THE COURT OF CRIMINAL whether the trial court by failing erred APPEALS OF TENNESSEE Sep- continue the case after the events of (4) 11, 2001; tember whether the trial *23 AT JACKSON by excusing juror court prospective erred November 2003 Session (5) cause; Pannell for trial whether the by court admitting photographs erred STATE OF TENNESSEE v. ANDREW (6) victim; the whether the trial court THOMAS AND ANTHONY BOND by admitting erred from items Defen- Appeal Direct from the Criminal Court prior dant’s trial arising federal out of the Shelby County, 00-03095; for No. (7) robbery; whether the trial court erred Joseph B. Dailey, Judge in restricting the impeach- Defendant’s (8) Jackson; Angela ment of whether the No. W2001-02701-CCA-R3-DD- trial court erred in faffing to voir dire a February Filed prospective regarding witness her rela- Defendants Andrew Thomas and Antho- tionship with defense witness Russell Car- ny Bond appeal right as of their convic- (9) penter; whether the trial court erred tions degree for the first felony murder of objection in sustaining testimony an Loomis Fargo employee, Day, James dur- (10) Hibbler; of John whether the trial ing perpetration the robbery. of a Follow- court erred in permitting testimony re- ing separate sentencing hearing, the garding fingerprints despite stipulation; found, jury defendant, as to each that the (11) whether trial court erred the proof supported one aggravating circum- (12) expert testimony; admission of beyond stance doubt, is, a reasonable whether by faffing the trial court erred the defendant had been previously convict- charge felony lesser-included offenses of ed of one or more violent felonies. See murder; (13) whether the trial court erred 13—204(i)(2). § Tenn.Code Ann. With 39— by faffing charge jury with an ac- respect Thomas, to Defendant jury (14) instruction; complice it whether was further determined that aggravating plain error for the State to refer to Thom- outweighed circumstance any mitigating as and Bond as “Greed and Evil” in open- beyond doubt, circumstances a reasonable (15) ing closing argument; statement and and sentenced Defendant Thomas to whether the trial court erred in permitting Bond, death. jury As to Defendant job argue State to that the had a found aggravating (16) circumstance guilty; to find the Defendants wheth- outweigh did not mitigating circum- trial by instructing er the court erred brief, reply 4. port proposition, According- In his Defendant Thomas makes of this however. vague equal protection rights references to his ly, this "issue” is waived. See Tenn. Ct.Crim. having upon been violated his case’s MVU 10(b). App. R. designation. sup- He cites us to no cases in factors; (17) life specific mitigating possibility parole. wheth- without trial permitting Bond, er the court erred respect With to Defendant this mat- State to cross-examine the Defendant’s ter is to the trial court for a remanded tak- regarding disciplinary mother actions new trial. against
en the Defendant while in prison; Appeal Right; Tenn. P. R.App. (18) the jury whether the verdict of Af- of the Criminal Court (19) Judgment evidence; against weight of the Thomas; as to Defendant Re- firmed to charge whether the indictment failed (20) offense; versed and Remanded as Defen- capital whether the death dant Bond penalty violates international treaties rati- (21) States; fied the United whether J., opin- Welles, David H. delivered the penalty the Tennessee scheme is un- death court, in ion of which John Eveeett constitutional; (22) whether the sen- J., J., joined. Joe G. filed Riley, Williams, proportionate. tence is Bond Defendant opinion concurring an and dissent- part (1) following raises the it issues: whether ing part. judge was error trial fail to Manis, McClusky Loma S. and Howard himself recuse for failure to follow Local (at ap- Memphis, Tennessee trial and on *24 (2) 4.01; the Rule whether trial court Anthony Bond. peal), appellant, for the objection by erred Bond’s to overruling Glatstein, and Jeffery E. Michael Scholl (3) Smith; testimony the of Dr. whether (at trial), ap- the Memphis, Tennessee for by the trial Dr. declaring court erred Thomas. pellant, Andrew identification; expert an in firearms Smith (4) by court erred per- whether the trial (on Brooks, Memphis, Robert Tennessee mitting prosecution engage the to in im- Thom- appeal), appellant, for the Andrew (5) proper argument; whether the trial as. by prosecution court erred the permitting Summers, Attorney and Paul General G. Angela testimony to elicit from Jackson Lustre, At- B. Assistant Reporter; Alice trial; (6) her at regarding attendance and Gibbons, General; Dis- torney L. William by failing whether the court erred to trial General; Amy trict Weirich Attorney and the jury instruct as to lesser-included of- Nichols, District and Jennifer Assistant After felony fenses of murder. review of General, for State Attorneys appellee, the law, record and find applicable the we of Tennessee. requiring no errors of as to law reversal Accordingly, af- Defendant Thomas. we OPINION jury’s finding firm the Defendant verdict Summary [Deleted: Facts of degree guilty Thomas of first murder. Testimony] and Additionally, jury’s imposi- we affirm death as tion of sentence of to Defen- Thomas Raised Defendant Issues However, Thomas. to respect dant Sufficiency I. of the Evidence Bond, are unable con- Defendant we asserts Defendant Thomas that the the trial clude failure of court by failing trial court erred instruct as to the lesser-included for a directed verdict grant a motion felony offenses of murder harmless the conclu judgment acquittal following of beyond Accordingly, a reasonable doubt. proof and at the end for sion the State’s we vacate Defendant Bond’s conviction judge duty murder of the trial felony accompanying sentence trial. reviewing evidence, court on the determination tial or a combination of direct judgment of a motion for a acquittal and circumstantial evidence. State v. (Tenn. the same on a Pendergrass, motion for a directed 13 S.W.3d 392-93 Furthermore, Torrey, verdict. See State v. Crim.App.1999). S.W.2d while 710, 712 (Tenn.Crim.App.1993). guilty may purely This result from cir verdict evidence, Court has observed that “[t]he standard cumstantial in order to sustain which the trial court determines motion the conviction the facts and circumstances judgment acquittal at the end of all of strong the offense “must be so is, proof essence, the same cogent every standard as to exclude other reason which applies appeal determining hypothesis guilt able save the of the defen sufficiency of dant, the evidence beyond after convic- and that a reasonable doubt.” tion.” v. Thompson, Crawford, S.W.3d State v. 225 Tenn. (1971). Moreover,
614-15 (Tenn.Crim.App.2000). motion for a judgment acquittal “[a] To degree obtain a conviction for first made at the proof by conclusion of the murder, felony prove the State must state is waived when the defendant elects “killing perpe- another committed in the present evidence on his own behalf.” attempt perpetrate any tration of or Ball, (Tenn. State v. murder, arson, degree rape, robbery, first Crim.App.1998). Accordingly, we will ad- theft, burglary, kidnapping, aggravated dress the complaints Defendant’s as a abuse, child aggravated neglect child challenge sufficiency of the evi- piracy[.]” § aircraft Ann. Tenn.Code 39- dence. 13-202(a) (1997). case, proof victim, trial established James an
When
accused challenges
*25
Day, was shot in the back of the head
evidence,
the sufficiency of the
the stan
during
robbery.
the
of a
commission
whether,
dard is
after reviewing the evi
proof
injuries
further established that the
dence in
light
the
most favorable to the
by
sustained
the victim as a direct result of
prosecution, any rational trier of fact could
gunshot
ultimately
the
wound
led
the
have found the essential elements of the
Therefore,
victim’s death.
the crime of
beyond
crime
a reasonable doubt. See
degree felony
first
murder was estab-
307, 319,
Jackson v. Virginia, 443 U.S.
99
lished.
2781, 2789,
(1979).
S.Ct.
was his identification changed fendants vehicle, clothing, and jewelry, shotgun, a Thomas Defendant Thomas. Defendant forty- account within opened savings on cross-ex the identification challenged Loomis robbery of the eight hours of the during present jury was amination. The Angela Jackson identified Fargo carrier. the re-identifi and then identification taken from the in stills position her ex-husband in the best jury cation. The shooting. Ms. credibility of the of this witness. tape surveillance to determine ver that, watching Moreover, identity of the shooter while related Jackson irrelevant, considering the driver is robbery, Defendant sus on the report news theory responsibility, pur- of criminal catheterization.” Defendant Thomas con- poses determining guilt “discrepancy” of the offense of tends raises suffi- cient doubt as to the cause of death of the felony § murder. See Ann. Tenn.Code 39- disagree. identification, victim. We Irregardless 11-402. of this ample any there was evidence from which Both doctors testified conclude, rational trier of fact could be- injuries by the victim when he sustained doubt, yond a reasonable that Defendant impact injuries was shot and the of the guilty degree felony Thomas was of first upon during intervening pe the victim during perpetration murder committed Any alleged riod until his death. “conflict” robbery. of a This issue has no merit. insignifi as to the source of the bacteria is testimony cant. From the of both medical B. Cause victim’s death examiners, it appears to this Court that Defendant Thomas that discrep- claims the infection would not have occurred but testimony ancies between the of Drs. directly for the victim’s medical condition Smith Gardner mandate a reversal of shooting caused of the victim on felony his conviction for 21,1997. murder. Both is, April That the uncontradicted Drs. Smith and Gardner concluded that testimony medical established that the vic the victim sepsis died from to a tim rup- eventually gun due died as result of the during robbery. ture of the shot wound inflicted resulting gun- bladder from a Accordingly, the evidence of causation is shot wound to the head. The alleged dis- support guilt sufficient to the verdict of crepancy testimony their arises their this issue without merit. disparate opinions as to how the bacteria in sepsis resulted was introduced to II. Pretrial Motions body. the victim’s A. charge jury Motion to Dr. O.C. Smith testified that he had no presumption sentencing opinion as to where the bacteria came from and that potential there were several Defendant Thomas asserts that the trial refusing sources for the court to charge bacteria. Dr. Smith sur- erred presume that it must that a life sentence mised that the bacteria leading to the in- penalty would be served or that the death fection prior could have rup- existed argues would be carried out. He bladder, ture of the could have been a absent such an instruction there is a “sub- catheterization, result or could have probability” jurors stantial would im- been the result of an uri- infection properly speculate consequences on the nary tract near the skin opening. Howev- their verdict. er, Dr. Smith concluded that the “neuro- genic and ... bladder the fact that he has This is not a novel issue. Our
problems with bladder control
...
com-
supreme court has held that
the after
requirement
bined with the
for catheteri-
of a
is not a proper
effect
verdict
consider
zation ...
...
predispose[d]
[the victim]
jury.
Payne,
ation for the
See State v.
791
high
have a
risk of colonization and an
10,
(Tenn.1990), aff'd,
21
501 U.S.
S.W.2d
Cynthia
increased risk of infection.” Dr.
808,
2597,
111 S.Ct.
390
526,
(Tenn.),
juror in
with their instruc-
as a
accordance
Caughron, 855 S.W.2d
543
v.
issue,
denied,
475,
similarly,
oath. This
979,
tions and their
114
cert.
510 U.S.
S.Ct.
adversely to the Defen-
has been decided
(1993); Payne,
426
791
126 L.Ed.2d
Dellinger,
app.
79
at 479
dant. See
S.W.3d
Accordingly,
at 21.
Defendant
S.W.2d
Hutchison,
2;
898 S.W.2d
n.
State v.
this
Thomas is entitled to no relief on
(Tenn.1994),
cert. den. 516 U.S.
167
ground.
(cit-
(1995),
137,
391 that, argues abrogation. in stitution and for its tions. Defendant Thomas claims However, specifical- court has supreme our trial court erred. doing, so to adhere to this ly upheld and determined The trial court committed no reasoning as sovereignty, doctrine dual in re denying error Defendant Thomas’ follows: great A trial court quest. is vested a question that such There is no but in voir dire determining discretion how subject the defen does not procedure conducted, examination will be as the jeopardy to double insofar dant on a voir court’s decision how extensive in 14th guaranty process due not required dire examination is will be constitution is amendment the federal dis except overturned for an abuse of the Illinois, concerned. Bartkus v. 359 U.S. Howell, v. cretion. See State 868 S.W.2d (1959). 121, 676, 3 684 79 S.Ct. L.Ed.2d 238, (Tenn.1993), 247 cert. 510 den. U.S. the rationale of this case—that While 1215, 1339, S.Ct. L.Ed.2d 687 are governments the state and federal (1994); Harris, v. pun thus the sovereignties, distinct (Tenn.1992), cert. den. 507 U.S. a ach is not single ishment of act (1993). 1368, 122 S.Ct. L.Ed.2d 746 We criticized, jeopardy been double —has find no in abuse of discretion the method provided has the basis approach similar of voir employed dire this case. case, for a more recent which would analysis that Barikus’ of the issue imply
F. Motion to dismiss on double
still
States v.
valid. See United
jeopardy grounds
Wheeler,
1079, 55
435 U.S.
98 S.Ct.
(1978). This court is bound
L.Ed.2d 303
Defendant Thomas
trial
asserts
his
by the decisions of the United States
jeopardy
state court violates the double
Supreme
concerning
proper
Court
provisions of the Fifth Amendment to the
constitution.
interpretation of
federal
Constitution,
United States
Article 1 sec-
Hospital
Townsend v. Clover Bottom
Constitution,
tion 10 of the Tennessee
(Tenn.1978).
School,
jeopardy.’ United States Lavon court further ex- 313, 317, 1079, 1082-83, 55 U.S. 98 S.Ct. any modification or abandon- plained that (1978). L.Ed.2d 303 Defendant Thomas sovereignty doctrine must ment of the dual however, action. argues, sovereignty accomplished through legislative that the dual be action has legislative con- id. at 115. Such doctrine is violative the Tennessee *29 392 thus, of
yet
place;
the doctrine
to take
in effect.
sovereignty
dual
remains
Al-
day
11 for a second
of
selection.
Additionally,
record,
Thomas asserts
Defendant
by
Sep-
though not evidenced
2001,
violates the
prosecution
11,
the State’s
date of the terrorist
tember
is the
City
Washing-
on Civil and Politi-
York
International Covenant
attacks on New
2001,
ton,
11,
(ICCPR),
eighteen
Rights
September
cal
which is an interna-
D.C. On
tentatively selected. At some
jurors were
treaty
governing
tional
of
nations. This
moved
point
day,
on that
defense counsel
rejected
this identical
Court addressed
trial court contin-
for a continuance. The
568,
in
Carpenter,
claim State v.
17. While
September
ued the trial until
cert. den.
(Tenn.Crim.App.2001),
578-579
11, 2001,
were
September
the events of
1557,
995,
535
122
152 L.Ed.2d
U.S.
S.Ct.
importance, De-
unquestionable national
(2002).
Thomas has not
Defendant
how those
explain
Thomas fails to
fendant
sway from this
convinced this Court to
Nothing
his trial.
events affected
decision. This claim is without merit.
those
us indicates
record before
proceedings
any
had
effect on the
events
Due to
III.Continuance
Case
week.
delay them for one
other than to
11,
September
Events of
Thus,
has failed to
Thomas
Defendant
12, 2001,
September
the trial court
On
by the trial
prejudiced
how he was
show
until
continued the trial
this matter
for a
grant
a continuance
court’s refusal
17,
September
2001. Defendant Thomas
find neither
time. We
longer period of
maintains that
the trial court erred
This issue
error nor abuse of discretion.
longer
matter for a
failing to continue the
is without merit.
Sep-
period
following
of time
the events
11, 2001.
tember
Excused
IV.[Deleted:
Juror]
Prospective
granting
of a continuance
of the
rests within the sound discretion
V.Photographs
of Victim
Russell, 10
trial court. See State v.
Alive
While
Photograph
A.
Victim
(Tenn.Crim.App.1999).
S.W.3d
that it was
Thomas submits
Defendant
We will reverse the denial of continuance
introduc-
permit
trial court to
error for the
discretion
only if
trial court abused its
while
the victim
photograph
tion of a
prejudiced
was
and the defendant
objected to
trial,
counsel
At
defense
alive.
“An
of discretion is
denial.
id.
abuse
pho-
photograph.
of the
introduction
that the failure
by showing
demonstrated
April
taken after
tograph was
defendant a
grant
a continuance denied
the victim’s death
shooting
prior to
but
reasonably
or that
it could be
fair trial
overruled
The trial court
1999.
October
concluded that a different result would
stating:
objection
continuance been
have followed had the
all,
in that
it’s,
relevant
I
first of
think
Hines,
granted.” State v.
course,
state,
has the burden of
living,
individual—a
that an
proving
case,
present
the trial
being
killed
human
breathing,
it-
photograph,
of a continuance was
court’s denial
And the
these events.
It’s
begin
self,
very
neutral one.
again,
error. The trial was scheduled
family
have
September
On
It doesn’t
September
2001.
black and white.
in a choir
He’s not
around.
jurors
tentatively select
members
eleven
were
uni-
military
uniform or
September
robe or a scout
and the matter continued to
ed
*30
”
added).
(emphasis
....
anything of that sort. This is a
have been killed
form or
Thus,
and we
photograph
was relevant
very
photograph
neutral
sort of
—no
in its admission
find no reversible error
nothing that would be de-
wheelchair —
of
trial.
during
guilt phase
signed
sympathy....
to elicit
I’ll
it
allow
to be used.
of
Post-Mortem
Photographs
B.
Victim
trial,
During
guilt phase
of the
examination
During the re-direct
photograph of the victim was introduced
widow, the
Faye Day,
of
the victim’s
State
through
testimony
Betty Gay,
of
an
photographs
post-mortem
introduced two
De-
employee Walgreens.
appeal,
On
depicting the victim’s face and back re
fendant Thomas contends
admission
spectively. The State asserted
photograph
of an 8
10 black and white
light
relevant in
of Mrs.
photographs were
during
of the victim taken
his lifetime was
hus
Day’s testimony describing how her
purpose
invoking
introduced for the sole
shortly
his death
up”
band “blew
before
sympathy
of the
and was error.
defense coun
light
questions
responds
photograph
The State
that the
obesity.
the victim’s
regarding
sel
was relevant to rebut Defendant Thomas’
court, reflecting upon
Day’s
trial
Mrs.
tes
Day’s
defense that
it was Mr.
physical
timony, permitted
pho
introduction of the
health, including obesity, that caused his
tographs, finding:
death,
gunshot.
rather than the
light
testimony
I think in
of her
re-
photographs
The admission of
garding
couple
his condition those last
generally discretionary
trial
with the
at
days,
they’re
I think
relevant
this
court and absent an abuse of that discre
clearly
point
probative value
out-
—the
tion,
grant
will not result
of a new
prejudicial
there
weighs whatever
effect
Banks,
trial. See State v.
564 S.W.2d
nothing graphic
would be. There’s
Nesbit,
State
bloody[.]
(Tenn.
at
n. 2
app.
S.W.2d 872
901-02 &
Thomas now contends that ad-
Defendant
1998),
cert. den. 526 U.S.
119 S.Ct.
photographs
mission of these
was error.
1359,143
(1999), capital
L.Ed.2d 520
case
specific photo-
reference to the
Without
issue,
involving almost the identical
our graphs complained
argu-
of and without
supreme court adopted this Court’s conclu
actually intro-
photographs
ment to those
that, although
sion
requirement
of a duced,
complains
Defendant Thomas
being
creature in
has
reasonable
been re
“gruesome photographs
of the victim
code,
moved from the current criminal
ad
rights
violates the Defendant’s
under the
”
family
portrait
mission of
of the victim
federal and state constitutions....
was not error because it was relevant to
argues that Defendant
properly
delicti,
for failure to
corpus
including
establish the
the Thomas has waived this issue
offer citation to the record. See Tenn.
identity
person alleged
of the
to have been
10(b). Notwithstanding
R.
Ct.Crim.App.
State,
killed.
In Bolden v.
140 Tenn.
issue for noncom-
procedural waiver
(Tenn.1918),
949.
an emotional one. See
at 951.
of the
tographs lies within the discretion
*31
ruling
trial court whose
will not be over-
The Defendant asserts
that
appeal except upon
turned on
a clear
of the
post-mortem photographs
victim
id.;
showing of an abuse of discretion. See
admitted
should not have been
because
Hall,
593,
see also State v.
8 S.W.3d
602 they
especially gruesome
were
and inflam
cert,
837,
(Tenn.1999),
denied, 531
121
U.S.
matory.
for
purpose
introducing pho
The
(2000).
98,
However,
L.Ed.2d 57
S.Ct.
148
into
is to assist
trier
tographs
evidence
photograph
must be relevant to an issue
rule,
general
of fact. “As a
the introduc
jury
may
that the
must decide before it
be
helps
the trier of fact
photographs
tion
admitted into evidence. See
v.
State
in
depicted
photo
what is
see
itself
Vann,
93,
(Tenn.1998),
102
S.W.2d
graph.”
Griffis,
State v.
S.W.2d
cert, denied,
526 U.S.
119 S.Ct.
trial court
(Tenn.Crim.App.1997).
Braden,
(1999);
v.
respect, photographs we note that of a Federal Evidence from VI. very their prejudicial
murder victim are Proceedings However, prejudicial nature. evidence is indeed, excluded; if per not se this were Thomas raises several Defendant true, all evidence of a crime would be the admis- arising from claims of error Rather, excluded at trial. what is exclud also used his that was sion evidence unfairly prejudi First, ed is evidence which is Defendant trial. prior federal cial, words, in other evidence which has an trial court complains Thomas objection concern- tendency suggest overruling undue a decision on his erred exhibits basis, placed on frequently, though ing the exhibit stickers improper an a trial appears it of discretion when prior used in Defendant Thomas’ federal standard, legal incorrect applied court an by not providing trial and further erred against logic a decision which Next, or reached he jury a curative instruction. injustice an reasoning that caused trial erred asserts as error that the court Shuck, complaining.” State party of the video of by permitting introduction 662, 669 though prosecution the crime even provide proper had failed to foundation stickers from A. Evidence custody or chain of for the admission proceeding. federal *32 Third, Thomas videotape. Defendant Initially, we note that Defendant contends that the trial court erred the record re Thomas fails to reference jury transcript to read a permitting introduc objections made to the garding Day’s previous testimony of Mr. as Assis- previously that had been tion of exhibits Attorney Tony tant United States Arvin State, during his federal trial. The used Next, transcript read the aloud. Defen- omission, to cite to the noting this also fails dant Thomas contends that the date of objections, any, Despite if made. the ref guilty plea Defendant Bond’s and the la- at the motion for new trial erence made Day’s testimony provided date of Mr. ter thoroughly ad hearing that this issue was proceeding the inference that the federal trial, un this has been dressed at Court against forward Defendant Thomas went any objections to these ex able to locate Finally, without Bond. Defen- Defendant hibits, trial although examples of the trial complains dant Thomas Irre court’s curative measures are found. objections overruling court erred his Defendant Thomas claims gardless, asking ques- to Defendant Bond’s counsel they prejudicial the exhibits were because regarding guilty plea tions Bond’s in fed- previ contained exhibit stickers from the claims, eral court. As on argument these contain ous trial. Numerous exhibits general Defendant Thomas makes the as- they previous had indicating stickers sertion that not rele- evidence was No information is ly been exhibits. other vant. The asserts that Defendant tags. on the exhibit Assistant provided Thomas has fail- waived these claims for Attorney Arvin testified that United States ing proper argument. to make See Tenn. in federal court. proceedings there were 10(b). Ct.CrimA.pp. Additionally, R. Thomas, regard to Defendant With State contends that Defendant Thomas not know where or how the exhib did has failed to demonstrate that the trial any of previously, its used the name were respect court abused its discretion with defendant, any or the outcome other any the admission of of this evidence. short, if hearing. any prejudice even None- position The State’s is well-taken. exhibits, from the use of these resulted theless, the admission we elect review not sub prejudice slight such did evidence on its merits. the contested stantially outweigh probative value Rulings admissibility on Tenn. R. Evid. 403. this evidence. See on are en evidence based its relevance of the crime Videotape B. trial trusted to the sound discretion of the court and will not be overturned absent an videotape A of the incident was security Du- camera by Walgreens’ abuse of that discretion. See State v. recorded Bose, through at trial and was introduced Young. Defendant testimony of Charles appellate court should find an abuse “[A]n is, essence, objected, asserting Thomas lack of founda- a written document which testimony nothing nothing more less.” custody. and lack of chain tion — trial court found: of discretion in We find no abuse ruling trial on this matter. This court’s Well, custody chain of is not relevant. issue is without merit. just if photograph;
It’s like with a witness can state that he’s viewed this guilty plea D.Date of Bond’s later film, it it accurately reflects what Day’s testimony, and date of purports to show there no chain the[n] E.Questioning by Bond’s counsel if custody problem like there would be regarding guilty plea you you drugs something had guilty in federal pled Defendant Bond preserve integ- needed to maintain — 4, 1998, robbery court on November rity of the item. As far as foundation is Day subsequently Day. of James Mr. testi- concerned, Young] is the assis- [Charles robbery November fied about manager tant of the store. He said he trial, At Defendant Thomas was 1998. *33 was familiar with the cameras how the evidence of the two concerned that they pointed they operat- were and how that, lead to the inference as dates would ed, your I’ll exception. so note 9, 1998, pro- “the [federal] of November agree We with the trial court. This issue ceeding against [Defendant] forward went has no merit. Bond.” Fol- Thomas [Defendant] without counsel, by defense the lowing argument jurors C.Providing transcript found, you long as long trial court “So —as jury; up to the that as is indicated [it] case-in-chief, During the State’s was, indeed, until [Bond] November the Attorney Tony Assistant United States Ar- At party proceeding. a to the [federal] jury vin transcript read to the Mr. plea to these guilty that time he entered a Day’s testimony given on November 9th Day that Mr. events. And so at the time during proceedings. the federal Simulta 9th, light testified on November the jurors neously, provided were each guilty plea the fact that entered [Bond] copy of transcript Although to read. earlier, days he very to these events five Thomas that Defendant conceded time, not, party to an actual was at that testimony reading Day’s prior of Mr. was to an proceedings.” With reference objected permissible, handing he to the Thomas objection lodged by Defendant jury. transcript to the The trial court that the indication ruling “gives that this responded, Day testifying; “this is not Mr. proceeding in that they together were think, I jurors, it’s a bit harder for to plead that was able [Defendant Bond] follow because it’s some sort of neutral possi- and that guilty [Defendant Thomas] of what is otherwise testimo presentation trial court bly disputed something,” the ny; my I think it aid—in and so will further found: opinion, jury following it will aid the all, transcript fact that the First of Thus, trial court being what is read.” jury and even contains references objection. overruled Defendant Thomas’ court, we made only say I can that However, the trial court further deter referring to the an effort ... to avoid jury that not to have a mined was a trial or what proceeding as previous been, copy jury might with them the room have who written the outcome were, the sentence parties what give weight “because that would undue actual not entitled to relief re- fendant Thomas is been that these men might have to these claims. ceived. and court The references Impeachment Restriction on VII. ... could have been ad- transcript Angela Jackson deleted. dressed and could have been it was complains Thomas that Defendant as no entry testimony of this comes to refuse to allow Rus- error for the court anyone in this courtroom. surprise to Carpenter Upchurch sell William course, had, all have the tran-
You had told them testify Angela Jackson now, script years for and we addressed to make sure going that she was to enter the issue of the state’s desire jail. The State Thomas went to Defendant Day’s testimony.... there’s Mr. So allegation unsupport- responds you time for all to review and been record. ed refer- request that those matters —those it you had felt ... A of the direct examination ences be deleted review in. that counsel for unduly prejudicial Carpenter to leave them Russell reveals questioned Mr. Car- Defendant Thomas prejudicial I think it’s as don’t of the Thom- penter as to the status been in because we’re still them to have relationship. Specifically, as/Jackson pro- referring precisely what the posed of Mr. Car- following questions were [were], were, ceedings what the results penter: anything of that sort.... [Angela Q: Carpenter, ... Did Mr. regard to [Defendant With what *34 say threaten ... she was Jackson] ask, asking to be allowed to it’s Bond] pay Thomas back? going to Andrew in already point.... the record at this Yes, A: sir. already to Mr. Arvin has testified Q: angry she about their break- Was date on which Mr. Bond entered his up? events, guilty to not to a plea these Yes,
specific begin.... trial was about to A: sir. ... 4th guilty plea He’s entered on the that if she Q: Did she make a comment Day’s ... of November and that Mr. him, no one else couldn’t have testimony ... occurred on the 9th would?
November. Yes, A: sir.
Likewise, testimony of a review of the so, asking ... to ... re-ask And he’s that counsel for Upchurch reveals William already already in the record and what’s Up- Mr. questioned Defendant Thomas jury ... and I don’t know before the Thom- status of the church as to the any prejudice your to that there is real relationship. Specifically, as/Jackson client. occurred: following colloquy Q: you ever hear Ms. Jackson Did court then limited the manner The trial An- any regarding statements make inquiry Bond could make which Defendant Thomas? pro- drew Bond’s status as to Defendant Day’s at the time of Mr. testimo- ceeding A: Yes.
ny. Q: statements? What him gonna pay were Saying A: she we see no abuse of discretion
Again, ruling on this matter. De- back. the trial court’s only objection Carpenter. judge noted in the Russell The trial re- objection open- sponded to he
record is the State’s questions ended asked defense counsel think that the defense wit- [did not] is, Carpenter, you to “Did ... Russell during mentioned voir nesses were dire any Angela have to talk jurors occasion to Jack asking in terms of whether say you?” son?” and “What did she to To they potential knew witnesses. stated, objection, the latter the trial court you
I’m if going going certainly to let lead he’s And so that can’t be held say juror. to I thing, basically, against the same mean she didn’t said; any knowledge refuse to reveal of a going others that she said she’s to relationship any your to witnesses pay just open- him back. But to ask an because those witnesses were never question, say?”— ended did she “What ... during voir dire [flor might [identified] we be here for three hours listen just And if it’s respond them to to. ing to all ... things sorts of about a having matter of worked with her relationship that relevant. wouldn’t be witness, actually a fact wit- who wasn’t But regard to that one narrow and minimal. very ness. His role was specific comment that pur rebuts —or is to, ported to rebut what she testified I’ll following colloquy then occurred: you get right allow lead that. just Everybody stop MR. SCHOLL: client, my juror question posed by No defense counsel a second. Not and one of the witnesses know each regarding alleged Jackson’s threats through my me other. That came to jail send Defendant Thomas client—the information. Any trial limit court did not the same. only
testimony briefly of this nature was you talked to Mr. MS. NICHOLS: Have touched on defense counsel on recross- out or he found Carpenter —how Angela examination of Jackson. Called that— something rebuttal, Angela Jackson denied ever Evidently Mr. Bond MR. SCHOLL: threatening get Thomas. Andrew On talked to Mr. and Mr. Thomas both *35 recross-examination, spe defense counsel Carpenter and Mr. said Carpenter, cifically regarding asked Ms. Jackson that’s person. that knew this And he that she would see threats Ms. Jackson of it. the extent jail. that Defendant Thomas went to Okay. THE for the rec- COURT: Just clearly ord, I misun- though, because support The record does not Defendant first— you you when derstood improp- Thomas’ claim that the trial court erly attempt sorry. restricted his to elicit im- I’m MR. SCHOLL: against Ms. peachment evidence Jackson. your client thought THE I COURT: This claim is without merit. thought your I client’s him. knew them, I thought knew there relatives Dire
VIII. Refusal to Voir Juror But relationship actual there. was an Regarding Relationship with that’s true. The sole state- none of Witness witness, Russell your ment is that final witness was the Carpenter, who its verdicts but After the returned this defense ... with [w]orked for the Defendant prior penalty phase, juror time. at one Thomas alerted the trial court one her. Right, and knows jurors witness MR. SCHOLL: worked with defense Thomas, stating propo- general while her and dant And THE COURT: knows dire, fails to voir regarding of law sitions along well with particularly get didn’t trial court’s why the to this Court relate her. juror is voir this individually dire failure to Right. MR. SCHOLL: 27(a)(7). Not- RApp. P. Tenn. error. See waiver, nothing withstanding there is Anthony Bond MS. MCCLUSKEY: juror with- the record indicate phone Carpenter to Mr. on talked regarding the court held information from night, Carpenter Mr. said last relationship with witness Car- alleged an apparently seen that woman be- he’s Moreover, relationship re- penter. Mr. day Car- fore because one when that, allegation. Defendant just an mains off work being dropped was penter of proof make an offer Thomas failed to work, from Mr. Bond dropped or off This issue is allegation. his supporting Carpenter Mr. was there. And without merit. me, like saying, “That woman doesn’t Testimony of John Hibbler IX. you me and she saw before.” Well, no case-in-chief, THE COURT: that’s —there’s the State called During its mention, again, there of the witnesses Mr. Hibbler Hibbler as a witness. John car lot where Defendant during nothing voir dire. There’s the owner Chevy im- pink his box be, purchased Thomas juror that this cannot has suggest robbery and shoot- mediately following the totally impartial been fair cross-examination, On ing Day. of James case, I’ll your this and so note state- sought to elicit infor- Thomas Defendant record, I don’t ments but think Angela he and regarding problems mation effect, any bearing it has whatsoev- having marriage. in their were Jackson er, this case. objected Thomas and Defendant Thomas now claims that the Defendant testimony was relevant responded that the in failing tidal court erred to conduct a voir anticipated testimony to rebut juror. Specifically, dire of this Thomas The trial court found Angela Jackson. juror should have been alleges that, Defendant Mr. Hibbler recall should individually regarding voir dired her mentioning marital difficulties Thomas knowledge of the defense witness and her Jackson, testimony would be with Ms. responds: ability to be The State impartial. then following questioning hearsay. first, the issue is waived because Defen- occurred: ju- requested Thomas that the dant never Hibbler, before, asking I Q: Mr. as was *36 dired, individually ror voir see Tenn. be with Mr. you had conversations 36(a); second, is RApp. P. issue of car. Thomas after sale preserve to the issue in failing waived for right? Is that trial, R.App. for new see Tenn. motion him. I conversations with A: Yes. had 3(e); third, P. the issue is waived for with Mr. And conversations Q: through proof to make an offer of failing Thomas, if he you asked could he testimony Carpenter, see of Russell for car because get a new title that Powers, 36(a); RApp. P. Tenn. State with the having problems he was 101 416 n. 5 S.W.3d Is that correct? title. Honor, Object, to position regarding Your The State’s WEIRICH: MS. hearsay. Additionally, Defen- waiver is well-taken.
THE Isn’t it showing COURT: Sustained. abused its discretion. See just id.
what we discussed? ensued, A during bench conference which Testimony regarding possible bias ruling trial prior court sustained its pursuant is to of a witness admissible Ten knowledge of marital difficulties be- of which pro nessee Rule Evidence 616 Angela tween Defendant Thomas and may by party vides that “A offer evidence during Jackson obtained Mr. Hibbler’s dis- cross-examination, evidence, or extrinsic hearsay. cussion Thomas constituted both, that a biased in favor of witness is prejudiced .against party or another wit appeal, complains Defendant Thomas On However, ness.” Tenn. R. Evid. 616. al that the trial court erroneously concluded though extrinsic is to evidence admissible testimony that Mr. Hibbler’s about Thom- prove prejudice, bias or Defendant Thom marital problems as’ with Ms. was Jackson any jurisdiction, as cites no cases from hearsay. Thomas asserts that such state- none, holding we have found that witness not truth ments were offered of the by hearsay. may proven If the bias be merely matter show asserted but to testimony Mr. to Hibbler was offered subject of the conversation. The State prejudice against establish Ms. Jackson’s that, if responds testimony offered Thus, Thomas, hearsay. it was Defendant conversation, subject of to show the the trial court did not abuse its discretion any such statement was not relevant by permit refusing to introduction hear regarding robbery issue murder testimony regarding marital say difficul Day. James Ange ties between Defendant Thomas and provide Our Rules Evidence la Jackson. “[h]earsay except is not admissible by provided these rules or otherwise Testimony Fingerprint X. R. Hearsay law.” Tenn. Evid. 802. is error, As his next claim Defendant statement, defined as than “a other one Thomas asserts that the trial court erred testifying made the declarant while testify Officer Sims de- permitting hearing, the trial or offered in evidence stipulation that the spite fingerprint found prove the truth of the matter asserted.” car getaway on the stolen matched Defen- 801(c). R. If Tenn. Evid. an out-of-court that, dant Bond. Thomas asserts after the prove statement is offered truth any testimony by the stipulation, finger- asserted, of the such as a matter state print expert was cumulative. State it impeachment purposes, ment offered for Thomas has responds that Defendant Howell, hearsay. is not See State v. by failing this issue to enter waived (Tenn.1993), cert. den. contemporaneous objection Officer 127 L.Ed.2d U.S. S.Ct. testimony. R.App. Tenn. P. Sims’ (1994). “The determination wheth 36(a). that, further contends hearsay er a statement is and whether it object to although Bond did Defendant through exception admissible an offering any testimony in lieu Officer Sims hearsay rule is left to the sound discretion stipulation, objec- agreed upon of the *37 Stout, of the trial court.” State v. by preserve tion a co-defendant fails to the (Tenn.2001). Accordingly, S.W.3d Thomas. appeal on for Defendant issue Bradford, this Court will not reverse a trial court’s No. See State v. Steve 03C01- 9607-CR-00278, *6 ruling or exclu WL regarding the admission 1998). Knoxville, hearsay (Tenn.Crim.App., a Jan. sion evidence absent clear complains that well-taken, Thomas Defendant position the is Although State’s cumulative testimony was Officer Sims’ on merits. to the issue its we elect review as to Defen stipulation the regard to with court, in to the ex- response The trial To the extent fingerprints. Bond’s dant Bond, objections of Defendant pressed cumulative, if at testimony was that Sims’ found: testimony that all, conclude the we cannot a I the has definite think that state Defendant unfairly prejudicial to was jury the not demonstrating in to interest court the trial did Accordingly, Thomas. specific involved here— only the facts permitting in intro discretion not abuse its client, belong your to print that the does testimony. the duction of the larger but also the fact that —who on the police officers were that worked Accomplice Charge to XI. Failure case, police the fact that the were work- Angela Jackson case, all this the the fact that ing on Next, that complains Thomas Defendant by police offi- a coordinated effort was by failing to instruct trial court erred the made, in cers, suggestion be lest some concerning an instruction jury with the police dropped that argument, final the Ange- to testimony regard with accomplice an I think the state has the ball.... proof, At close of defense la the Jackson. satisfy in to the putting proof interest in- accomplice an that requested counsel done jury things that were done and Ange- provided regard with struction be by personnel. the And so right proper court denied the trial la Jackson. extent, I is inter- to that think there an Angela failed request, finding that Jackson putting ... in a est at least face with accomplice, the definition an legal to fit By having name. Mr. Sims take that she united proof in that there was no stand, Sergeant can see in Thomas the commission with Defendant it she Hulley was accurate when stated recog- court Although the crime. prints, and forwarded on to latent was participate Jackson did nized that Ms. identify he the exhibit as the can fact, state — money spending of the after stipula- examined. And then the one he enough was not court noted that this in, and tion can kick he doesn’t have accomplice status. Ms. Jackson elevate go any than that. further one accomplice “An is who introduced, stipulation After was Offi- voluntarily, and common knowingly, explain the briefly cer testified Sims principal offender intent unites with the print process nature of latent v. Al of a crime.” State the commission prints He which he receives for review. len, (Tenn.Crim.App. are prints that not all further related 1997). generally applied deter The test they in the can have value sense lifted accomplice is an mining whether witness be matched. be accomplice could alleged is whether indicated, admissi- previously “[t]he As charged for the same offense indicted bility generally within of evidence See id. this against the defendant. court; of the trial absent broad discretion state, question if the offense discretion, conduct, an the trial court’s abuse own person’s committed will not be reversed.” nonetheless, criminally may, be person decision Edison, if to the offense 9 principal We as a responsible directs, aids, solicits, or at issue, therefore, person an under review to commit person tempts to aid another standard. of discretion abuse *38 (5) § the offense. See Tenn.Code Ann. Any difficulty parents’ 39- divorce with 11-402(2). separation in or of proof parents. this case fails to solicited, (6) that Angela establish Jackson di- Any relationship may active that he aided, rected, attempted or although jail. to aid the De- have with his child in committing (7) fendant ag- murder proof Any that shows that he has and/or gravated robbery. family Her allowing provide actions members that will him prison. with love and the Defendant her after while support into home committed, (8) crimes were going shopping that, Any proof although jail, he is money provides with the stolen he receiving part support love and to other herself, family. of his proceeds of members for not do make (9) her principal a to the of Any offense murder or he positive relationship that had robbery Thus, of adults and the victim. the Defen- other children. argument (10) dant’s that it for was error Any other which mitigating factor trial by court not to submit is accomplice produced by an raised the evidence prosecution either the or at ei- jury merit, instruction to the is defense without guilt ther or sentencing hearing; because facts do demonstrate that is, you any shall consider of aspect Angela an Jackson was accomplice. record, the defendant’s character or or XII. on any aspect Failure Instruct of of the circumstances
Specific Mitigators offense favorable to the defendant which is supported the evidence. Next, Defendant complains Thomas charge reveals that five out of the the trial court declined to jury instruct the eight requested instructions provided were non-statutory as to the following mitigat- jury. specifically to the The factors not (1) ing circumstances: residual doubt as to (1) charge included in the are: residual (2) guilt; defendant’s the defendant (2) doubt, family’s inability to feed product a dysfunctional was the family (3) itself, and the Defendant’s for regret (3) abuse; subject to the defendant had a past acts. (4) history family instability; the defen- With respect the first dant had fundamental lack aof stable factors, Eighth these Amendment of relationship parent step-parent; with his or the United States Constitution does not (5)his (6) parents divorced; any were require lingering or residual in doubt (7) acts; regret for past family his his struction. See v. Lynaugh, Franklin own; (8) could not feed itself its 164, 173-74, 2320, 2326-28, U.S. 108 S.Ct. any positive may influence he have had on (1988). Franklin, L.Ed.2d others. A the charge review of submitted Supreme United States Court stated: jury to the reveals the trial court mandating jury Our decisions consid- as following instructed mitigating pro- eration of circumstances mitigating circumstances: support petitioner’s vide no claim (1) product Whether he was the of a guilt because “residual doubt” about family dysfunctional subject abuse. mitigating not a circumstance. haveWe (2) Any history family instability. mitigating defined circumstances (3) Any proof sig- of abandonment facts about defendant’s character or family nificant member. background, the circumstances (4) Any offense, evidence show that one particular may [of] call for a parents penalty his an less than drugs. abuser death. “Residual
403 “may 18, Such evidence that the de- proof ... indicates consist of not a fact about the defendant doubt” is offense, not- not commit the fendant did crime. It is or circumstances the the following jury’s withstanding the verdict uncertainty a about lingering instead 74 S.W.3d at guilt McKinney, phase.” the facts, mind some- a state of that exists case, Defendant Thomas tes- 307. In this “beyond a where between reasonable commit the murder tified that he did not certainty.” doubt” and “absolute Therefore, the trial court Day. James the in our cases mandates im- Nothing jury the an instruc- provided have should heightened position burden tion on residual doubt. proof capital sentencing. at has court con supreme Our (O’Connor, 188, J., Id. at 108 S.Ct. right a convicted defendant’s cluded (citations omitted). concurring) See also jury to instructed on nonstatuto- have the (Tenn. Bigbee, State v. 885 S.W.2d statutory is ry mitigating circumstances 1994). Accordingly, the trial court did not in nature and than constitutional rather commit a federal constitutional error thus, on jury to instruct the the failure request Defendant Thomas’ for an denying nonstatutory mitigating circumstances lingering on or residual doubt. instruction subject to by is when raised the evidence argues Defendant Thomas analysis. State v. error See harmless required grant court to his the trial (Tenn.), Hodges, 944 351-52 S.W.2d under state request for this instruction 567, 139 cert. den. 522 U.S. 118 S.Ct. supreme law. Our court has determined (1997). “A be charge should L.Ed.2d nonstatutory doubt is a miti residual if it prejudicially erroneous considered See v. McKin gating circumstance. State or if it fairly legal fails issues submit (Tenn.2002); ney, 74 S.W.3d State law.” jury applicable misleads (Tenn. v.Hartman, 42 S.W.3d 55-56 breadth, However, if “by their Id. at 352. 2001). provides, Our criminal code rele mitigating nonstatutory instructions vant part, encompassed all evi circumstances defense,” the omis by the presented dence judge trial also include shall specific mitigat on a sion of an instruction jury weigh
instructions Id. at ing is harmless. 356. circumstance any mitigating consider circumstances guilt the evidence either raised Here, trial instructed court both, sentencing hearing, or or which “any aspect of the jury to consider to, include, shall but not be limited those favorable to of the offense circumstances (j). forth in circumstances set subsection by the supported is defendant which 39-13-204(e)(l).1 Thus, §Ann. instruction encom This broad Tenn.Code evidence.” of guilt is Thomas’ denial passed the issue of residual doubt raised Defendant where jury opportunity evidence, give is ap- a instruction served Odom, any residual doubts duty to consider v. 928 S.W.2d propriate. finding proportionality if the case urged protocol adopting I in which col allows 1. have existing penalty compared factually is death cases. similar case would be each words, disproportionate only if case cases in either a life sentence or other similar which lacking in plainly "is imposed the case under review capital punishment was to determine in similar consistent with those circumstances the case is more consistent whether has penalty death been in which the See State cases "life” cases "death” cases. (em- Bland, J., (Birch, at 665 imposed.” McKinney, 74 at 321 con- added). phasis proto- dissenting). curring and The current *40 Improper about his XIII. culpability. Accordingly, we are Cross-Examination of Defendant’s Mother confident that trial the court’s failure to give specific a instruction on residual trial, the During penalty phase of the verdict, doubt had no on jury’s effect the sought the to Defen- State cross-examine and Defendant Thomas is therefore enti- Barber, mother, dant'Thomas’ Luella re- no tled to relief on this claim. garding disciplinary write-up a he received jail. permitted
while The trial court the regard finding, appro- With to Defendant “I think questioning, that’s priate bearing that a direct on regret because has past family Thomas’ for acts and his regard what she’s testified to with to him alleged inability members’ to feed them being good person a I’ll or whatever.... selves, trial court found that the testi you jail to allow ask about the incident.” mony regret past did not demonstrate for proceeded following with Rather, acts. Defendant Thomas’ mother questioning Luella Barber: testified that he had for apologized bring Q: you Are Okay. aware of an incident ing family Additionally, his down. when jail that occurred in the on back spoken asked whether Thomas had ever 7th of year? June 2001 this family, down bringing Faye Day’s Ms. A: An incident— responded, only thing Barber “The —he Q: Involving told me that Andrew Thomas? charged he was with this No, armored driver that a died man from A: I’m not. concluded,
it.” The trial “I judge don’t Q: he of a search part strip Where was really any any inmates, even remember state they that do to — by any they ments the mother that he’s found shown a six-and-a-half-inch past real I shank on him. regret any for acts.... didn’t any inkling here, hear any of remorse about A: I don’t work so I don’t know. aggravated robbery those [prior convic Q: didn’t anything You know about Regarding family tions].” fact that his that? themselves, are to
members unable feed A: No one notified about ever me proof the trial court there no found was that[.] support Accordingly, this instruction. knowledge Mrs. Barber testified that these circumstances were not raised change opinion this would incident not her proof and the trial court did not err com- as to her son. Defendant Thomas so failing assuming instruct. Even er plains of, questioning that line ror, such any given error was harmless prejudicial it more than error because was that trial did provide jury probative. court mitigat
with the catch-all instruction as to
provides
Our criminal code
ing
It
is
circumstances.
clear
the ad
rules of evidence do
limit
jury
trial court’s refusal to instruct the
as
capital
missibility of evidence in
sentenc
alleged regret
Defendant Thomas’
ing
Ann.
proceeding.
See TenmCode
past
family
alleged
acts and his
members’
39-13-204(c).
Stout,
§
46 S.W.3d
See also
inability
feed
did not result
themselves
interpret
supreme
at 702. The
has
court
fairly
in an instruction that failed to
sub
39-13-204(e)
permitting
ed section
as
trial
legal
jury
mit
issues misled the
nor
judges wider discretion than would
applicable
law. Defendant Thomas mally be allowed
the Tennessee
under
on
ruling
not entitled to relief
this claim.
Rules of Evidence
the admissi-
33(f)
trial court
“[t]he
bility
capital sentencing
provides
of evidence
cedure
may
following
a verdict
Sims,
grant
new trial
hearing. See State v.
if it
about
guilty
disagrees
(Tenn.),
cert. den. 534 U.S.
supreme
weight
of the evidence.” Our
(2001).
357, 151
As the
S.Ct.
L.Ed.2d
33(f) impos
explained
“Rule
court has
stated,
Sims court
*41
mandatory
the
judge
a
court
upon
es
trial
not
The Rules of Evidence should
be
juror
the
duty to
as
thirteenth
serve
to
introduction of oth-
applied
preclude
”
Carter,
v.
every criminal case....
State
relevant
erwise reliable evidence that is
(Tenn.1995).
119, 122
it
punishment,
to the issue of
as
relates
over
judge simply
the trial
When
or
circum-
mitigating
aggravating
to
trial,
Court
for new
this
rules a motion
stances,
nature
of
the
and circumstances
judge
trial
has
may
the
presume
crime,
particular
the
or the character
juror
ap
thirteenth
and
served
the
background
and
the individual defen-
proved
jury’s
verdict. See id.
reveals,
history
As
case
dant.
our
how-
ever,
judges
allowed
and
discretion
case,
instant
trial court
attorneys during sentencing in first de-
the Defendant’s motion
simply overruled
gree
not
making
murder cases is
unfettered.
any
without
com
new trial
require
regarding
Our constitutional
in-
a dissatisfaction with the
standards
ments
Thus,
evidence.
this Court
relevance,
weight
quiry
reliability,
into the
val-
thir
presumes that the trial court acted as
ue,
prejudicial
of sentencing
effect
juror
approved the verdicts of
teenth
preserve
evidence to
fundamental fair-
jury.
contains no
Because the record
and protect
rights
ness
of both the
expressing
the trial court
statements
family.
defendant and the victim’s
with the
disagreement
dissatisfaction or
rules of
evidence can
some instances
jury’s
weight of the evidence or
ver
helpful guides
be
these
reaching
de-
dict,
indicating that the trial court mis
admissibility.
terminations
Trial
juror,
role as thirteenth
this
understood its
not, however,
judges are
to
required
ad-
grant
a new
Court will not
the defendant
strictly to
here
the rules of evidence.
Moats,
v.
trial
this
basis.
These
are
and un-
rules
too restrictive
435-36
wieldy
capital
the arena
sentencing.
14.
questioning
S.W.3d at
was
Charge
Failed to
XV.
Indictment
testimony
relevant
rebut
Defen-
about
Capital Offense
traits,
positive
dant
in-
Thomas’
character
that, pursu-
Thomas asserts
Defendant
cluding
Mrs.
allegations by
Barber
ant
530 U.S.
Apprendi
Jersey,
New
attempted
improve
Defendant Thomas
death. from ad- prohibited are E. Defendants matters misconceptions (i)(6) about (i)(5), dressing note that factors We sentencing. relevant to (i)(7) they case as pertain to this do Thus, any jury. not found were rejected. has been argument This fac respect claim with these individual id. See, Hall, e.g.,
tors is without merit.
agree unani
F.
Requiring
Brimmer,
715;
app.
S.W.2d
McKoy
verdict
mously to a life
violates
(Tenn.),
denied, 513
cert.
Carolina,
433, 110
v. North
494 U.S.
*43
1020,
585,
115
133, 136L.Ed.2d 82 to make jury is not required H. The (2) imposed in a penalty The death is is death determination that ultimate race, upon discriminatory manner based penalty. appropriate gender. and geography, rejected. has been See argument This rejected. argument This has been See id. (Tenn. Cazes, 253,
State v.
closing
final
I.
is denied
The defendant
1086,
1994), cert. den. 513 U.S.
115 S.Ct.
of the
penalty phase
in the
argument
(1995).
743,
udicial
matter.
mandatory intro-
impact
and
evidence
upon the
crime evidence
rejected.
of other
argument has been
See
duction
This
separation
request violates
Cazes,
prosecutor’s
269.
875 S.W.2d at
powers
injects
designate any
and
arbitrariness
tion to
defendant with multi-
ple felony
case,
an
capricionsness
convictions MVU
after
capital sentencing.
into
which one
is
prosecutor
designated to re-
rejected
argument
This
has been
main with
through
disposi-
the case
final
panel
this Court.
State v.
See
Robert
tion.
dividing
Rather than
the manage-
Faulkner, No. W2001-02614-CCA-R3-
among
ment
responsibility
for a case
DD,
(Tenn.
at
WL
*36-37
through
numerous
as it
prosecutors
moves
2003).
Jackson,
Crim.App.,
Sept.
trial,
pre-trial and
this vertical
method
K. The appellate
process
review
in prosecution
delay
avoids excessive
cases,
penalty
including compara-
death
promotes the
efficient
prosecution
more
review,
proportionality
tive
is constitu-
LEAA(Law
repeat
Under
En-
offenders.
tionally inadequate.
Agency) grants
forcement Assistance
argument
rejected.
This
1970s,
has been
one
was
courtroom
established
Reid,
Moreover,
app.
313.
S.W.3d
to handle
MVU eases. One court was
that,
supreme
expediency
our
court has held
handle the
cases for
while
MVU
purposes
judicial economy.
important
as an
safeguard
additional
against arbitrary
capricious
or
sentencing,
Defendants Thomas and Bond raise sev-
comparative proportionality review not
arising
eral
from
complaints
designa-
their
constitutionally required.
See State v.
tion
Specifically,
as an MVU case.
Defen-
Bland,
(Tenn.1997),
that,
dant Thomas asserts
because his case
denied,
cert.
523 U.S.
118 S.Ct.
classified
the office of the District
(1998).
Defendant Practice and in Procedure the Criminal County. Courts of Shelby Defendant I. Unconstitutional Selective Bond claims that trial court’s to failure Prosecution require 4.01, assignment under Rule Local unit, MVU, major violators was cre- Court, Shelby County Rules of Criminal by grant ated federal in the 1970s in re- violated rights. his constitutional At the to a sponse Shelby County need in to Defendant(s) level, trial sought in relief repeat target judges offenders. The of the (1) the form of dismissal of the indictment Shelby County agreed Court Criminal that due to prosecu- unconstitutional selective by specific cases should handled MVU be (2) tion, recusal the trial court to of due in judge specific courtroom. Once an acquiescence in prosecution’s disregard designated by is (3) offender MVU the Dis- 4.01, of removal of Rule and the Dis- General, Attorney trict the case is auto- for Attorney trict the 30th Judicial General matically assigned court, Division of V in ruling District. The trial on the Shelby County motions, found, Court. This pro- Criminal Defendants’ in relevant gram gives part: Attorney the District discre- assigned types of cases will be truly taking lowing that all just
I believe even numerical of court in the ten divisions as factual assertions of the defendant’s through Division I beginning order with true, completely motions being them in X as the indictments are filed merit, they’re without not well-tak- are This Court Clerk’s Office. Criminal en, no to be purpose there’s following shall be used procedure by taking proof in case. I’ll served First Murder in the types cases: they say being trae accept everything in the First Degree, Attempt Murder regard procedures that are with First Conspiracy to Commit Degree, designating cases followed—in terms Murder, Murder, Degree Degree Second having grand for MVU terms Ag- Especially Aggravated Kidnapping, jury funnel the cases to Division MVU Rape, Robbery, Aggravated gravated being But even all of facts V. with those Arson, Aggravated Rob- Aggravated case, very I think the law still well Battery, bery, Rape, Aggravated Sexual not vio- procedure settled does Voluntary Manslaughter, Vehicular protection or equal process late due Homicide, Robbery, Spous- Kidnapping, any regard. All will other cases Rape al and Incest. among ten divi- equally be divided principle you But the same don’t —so AH salary petitions of the sions Court. prosecutors running ten or have by Court filed the Criminal Clerk courts, prosecutors that twelve different heard the Admin- the Sheriff will be go types [certain handled can cases] Judge. istrative judges one or can two courts. Those 4.05, County Shelby Rule Rules of sentencing familiarize themselves with Court, provides: Criminal that type prin- alternatives. And it’s among judges may transfer cases think, I that has been in ciple, existence mutual It is themselves consent. regard major since its violators necessary parties their coun- that the 70s; I inception the mid to late A party sel consent to such transfer. it, there think are sound reasons one transfer of case from requesting a reasons, public-policy legal sound sound obtain division to another division shall reasons; any showing spe- absent the Court to which an order from *45 process equal pro- cific denial of due or case to transferring is assigned, case tection, any prejudice resulting specific another division. from the fact that these are individuals contend that the MVU Defendants trial, in this of court set division for Rule con violates 4.01. We classification itself, think, process I don’t can be as- specifically Rule clude otherwise. 4.05 it given sailed the case law that allows County judges Shelby of the permits supports it and states that there among Court to transfer cases Criminal deprivation no constitutional with by appears consent. It themselves mutual system. type of of the trial court that findings from the 4.01, Shelby Rule Local Rules of the County mutual con judges Shelby by of Court, County provides: Criminal more system a for place have had sent method em- following will be defen twenty which MVU years than by Clerk’s ployed the Criminal Court in one divi particular would be tried dants con assignment right, for initial of cases the court. There is no Office sion of otherwise, a upon fol- or bestowed to the ten divisions of Court. The stitutional 410 by Indeed,
criminal defendant
Rule 4.01.
finding
tional
interests
in accurate
of
law,
a
right
application
defendant
not
and in pre-
does
have the
to
facts and
of
process
a fair
serving
open
have his
for deci-
particular judge,
case heard
sion,
States,
512,
degree implicat-
are
to the same
see Sinito v. United
750 F.2d
(6th
ed. See id.
Cir.1984),
515
neither does he have
the right
any particular procedure
to
prosecutors
In
light
play
the role that
hearing judge,
selection of a
Cruz
see
advocates,
at
two state courts
least
have
(9th
Abbate,
571,
Cir.1987),
v.
812 F.2d
574
judicial assignment systems
concluded
nor
enjoy
right
judge
does he
to
have
allowing prosecutors
select the judge
Sinito,
draw,
selected
a random
see
750
particular
to a
assigned
case violate due
Rather,
F.2d at 515.
appears
the rule
process.
Simpson,
State v.
551 So.2d
be an
rule
administrative
created to ensure
(La.1989)
curiam),
(per
1303
the defen-
an
among
even
distribution
cases
filed an
for a
application
supervisory
dant
Shelby County
various
of the
divisions
seeking
writ
reassignment
his case to
Criminal Court.
judge. Noting
prosecutor
another
that the
attorney
stipulated
and the defense
had
Practical realities dictate the allo
issue,
that in the
Louisiana district
cation
public
of limited
Accord
resources.
prosecution
judge
was allowed to select the
ingly, “our
must
public
courts
afford
offi
cases,
presided
who
over
the Lou-
criminal
regard
cials substantial discretion
with
Supreme
granted
isiana
Court
the writ.
law
v.
enforcement decisions.” State Har
The court reasoned:
ton,
253, 261 (Tenn.Crim.App.
process requirements, capi-
To meet due
2002) (citing
Hayes,
Bordenkircher v.
434
felony
tal and other
must be allot-
cases
357, 364,
U.S.
S.Ct.
411 against decision, prejudiced was assigned judge In an a New York state earlier Instead, that allow him. he asserted approach. In Mc court took a similar judge greatly the so pick prosecutor the Goldstein, 863, Donald 191 Misc. 83 v. the defendant as against stacks the deck (N.Y.Sup.Ct.1948), the court N.Y.S.2d 620 deny unfair as to the unfair —so make trial rejected attorney’s challenge to a district Id. at 439. process due of law. long- his office of its divesting an order for accepted authority judges rejected argu- to select that The Seventh Circuit First, precedent a lack of (noting at 622 that it noted criminal cases. See id. ment.3 steering could holding prosecutorial some Attorney past time “[t]he District violation warrant- process constitute due judge by in each case has selected the a conviction. Addition- ing the reversal of moving directly for trial indictments the fact that the it ally, concluded court”). the court parts several The advantage a certain might gain prosecutor ruling general principles based its being the in allowed over defendant noting judicial independence, judges not render the trial judge select the did control, espe should free from outside be id. at 440-41. fundamentally unfair. See cially by litigants. at any of the id. system American It reasoned that the (“It people’s prerogative, 625 the not the procedure equally criminal is not balanced Attorney’s say preside District who will the and defense prosecution between the County.”). County Kings over the Court of represents an every at but rather stage, McDonald, In and Simpson contrast to Id. 440. aggregate of imbalances. most that have federal courts addressed Thus, prosecutors advantages certain have in of prosecutorial issue involvement in stage impeach- in investigative judicial assignments have not due found witnesses, rules on burdens ing while the process Tyson Trigg, v. 50 violations. See id. Absent proof favor defendants. (7th 436, Cir.1995), F.3d 439-42 cert. den. judge by any allegation that the selected 697, 516 116 L.Ed.2d U.S. S.Ct. 133 actually against biased prosecutor was II), (1996), (Tyson recent most defendant, the imbalance caused decisions, thorough of these federal so system egregious the Indiana was not rejected an argument Seventh Circuit trial. affect fairness of the as to corpus raised in proceeding a habeas federal courts have held Several other assignment system the case Indiana an that, process due to establish a order state due court violated defendant’s judge-shopping, prosecutorial violation for system in process rights. question prej demonstrate actual defendant must allowed to select six prosecutor one of particular assignment of udice juries grand proposed to which a indict- example, to his For United judge case. grand presented. ment would be Each (6th Gallo, F.2d States specific judge, to a assigned Cir.1985), den. U.S. cert. thus, jury, by selecting grand prosecu- (1986), L.Ed.2d 798 the Sixth S.Ct. implicitly judge tors chose the to which the rejected argument the defendant’s Circuit trial assigned. peti- case would habeas he to a new because be that was entitled in a engaged pattern had argue prosecutors II that the Tyson tioner in did shifting analysis ing, contracting, as the my concurring/dissenting 3. As I stated to case.” 60 S.W.3d opinion Godsey, scope moves from case "[t]he in State v. *47 J., (Tenn.2001)(Birch, concurring and analysis by majority appears 797 employed to dissenting). amorphous expand- be rather undefined — 412 steering significant Rather, assigned.
of
criminal cases to the will
that
appears
be
it
Shelby
of
of the
choice. See id.
judges
judges
County
their
Criminal
court
specifically designated
Court
V to
Division
earlier decision in Sinito v.
on its
relied
if
Notwithstanding,
hear such cases.
even
States, supra,
United
in
it had
which
held
process judge-
we were to consider this
process
due
impli
that
concerns were not
cognizant
are
shopping, we
also
that
by a
in
resulting
cated
clerical error
to
judge assigned MVU cases
been
has
different
assignment
judge
case to a
uphold
sworn to
the law and
defend
See
than would have sat
error.
absent the
Constitution, and his or her
be
conduct can
Gallo, 763
F.2d at 1532. The Sinito
panel
through appellate
scrutinized
We
review.
had concluded that “a defendant does not
presume honesty
integrity
in those
right
to
by
have
have his
heard
case
See
adjudicators.
Withrow
acting as
particular judge,”
the right
does not “have
Larkin,
35,
1456,
421 U.S.
43
95 S.Ct.
judge
to have his
aby
selected
random
(1975). Thus,
to
L.Ed.2d
we refuse
draw,” and “is not
process
denied due
presume
judge assigned
that the
to MVU
process
operated
the selection
not
[when
designees
agent
acts as an
prosecu-
of the
compliance
...
local
unless
rules]
Additionally,
tor.
it does not
appear
point
prejudice.”
he can
resulting
some
designation
this Court
of Division
Sinito,
413 appeal on dant is not to relief trial court’s discre- entitled jury, and the broad “plain unless the remarks constitute er arguments controlling tion in their will be 36(b); P. Tenn. R.App. ror.” See Tenn. only upon an abuse of reversed discretion. Smith, 52(b); P. v. 24 R.Crim. State However, at 156. Terry, See 46 S.W.3d (Tenn.2000). In determin S.W.3d 282 must be closing argument temperate, trial error consti ing alleged whether an predicated must on evidence intro- be error,” five fac “plain tutes we consider the during the trial of case and duced 1) clearly the must establish tors: record being must pertinent be issues 2) trial; a clear and what at occurred State, v. tried. Russell 532 S.W.2d See have of law must been unequivocal rule (Tenn.1976). The State is more 3) breached; right a substantial to prerogative prose- in its due limited adversely been af defendant must have justice, a seeker of rather cutor’s role as 4) fected; not waive defendant did State, than a mere advocate. See Coker v. 5) reasons; and issue tactical consider (Tenn.Crim.App. S.W.2d “necessary do ation of the is to sub error 1995), grounds, on other State overruled Adkisson, justice.” v. stantial See State (Tenn.2000). West, v. 19 S.W.3d (Tenn.Crim.App. 899 S.W.2d 641-42 “Thus, argu- the state must refrain from 1994). error must have Ultimately, ment inflame and designed to impact which prejudicial “had an unfair commentary its matters should restrict fairness undermined the fundamental at trial.” Prose- evidence or issues Id. trial.” Id. at 642. during argument cutorial misconduct does error it constitute reversible unless A. and Evil Greed appears that the outcome was affected prosecutor for the who made prejudice. defendant’s See State began, in this case “You opening statement Bane, 411, 425 evil. greed can’t hide from and James 21st, Day April lesson on learned that Both Defendants contend Day 1997....” continued: “James She the prosecutor’s opening and statement greed you learned can’t hide from and closing arguments were so marred mis evil,” path and into the “He walked require conduct a new as trial. We note greed Throughout opening and evil.” first, however, that Defendant and Thomas statement, referred collec- prosecutor object open Bond’s failure to Defendant tively to Thomas and Defendant Defendant ing closing argument and trial waives “greed as and evil.” This theme was Bond our of this issue appeal. consideration closing argument, repeated during 36(a) R.App. (providing P. Tenn. both made references prosecutors which party for a required relief is not who failed greed from Day that “James couldn’t hide reasonably pre available action to take evil,” hiding from and was no or “there Little, error); an nullify vent or State v. evil,” escaping greed circle of (Tenn.Crim.App.1992) really day didn’t care “greed evil that the defendant’s failure to ob (holding prosecu- he whether lived died.” ject alleged misconduct dur to the State’s “greed tors referred to the Defendants issue). ing argument waives that closing twenty-one times dur- and evil” total of Thus, prosecuting attorney makes where closing ar- ing opening statement allegedly objectionable during remarks of the trial. guilt phase guments Bond, contemporaneous but no closing argument, and Defendant Defendant Thomas contemporane- made, entered a objection complaining defen neither whom *49 414 objection statements, ed,
ous to these ask this get “[Defendant] Thomas will never out there, plain jail. earliest, Court to find in in error the He’ll be at the State’s 52(b). until eighty.” response he’s In to conduct. See Tenn. R.Crim. P. statement, prosecutor the began her clos- It improper prose for the with, ing argument cutor to use epithets characterize a I’m going to start morning by off this defendant. prosecutors’ repeated ref apologizing wasting your ... time erences to Defendant Thomas and Defen it, you this week because they’re heard “greed dant Bond improp and evil” was doing already. “Why both a lot of time See, Cauthern, e.g., er. 967 at S.W.2d in the world are we down here? Let’s (evil one); Bates, State 804 S.W.2d just forget sorry, this murder. I’m Ms. (Tenn.1991) (rabid dog); v. La Day, Day’s James death should be a Smith, donte Montez No. M1997-00087- mean, they’re freebie. I already doing a CCA-R3-CD, 1999 WL at *12 lot of time.” 1999) Nashville, (Tenn.Crim.App., Dec. Defendants contend that it was improper Guilds, (guilty dog); State v. Joel No. argue that a defendant should be sen- 01C01-9804-CC-00182, 1999 WL tenced to death as additional punishment * Nashville, at 5 (Tenn.Crim.App., May previous for a conviction. The State con- 1999) (this clown). prosecutor aWhen tends that this proper response was a engages improper argument, we must Defendant attempt Thomas’ to minimize also consider the curative measures taken by emphasizing pen- the current crime by the prosecution; court and/or already alties he faced. prosecutor’s in making improper intent community While conscience ar remarks; the cumulative effect of the erro guments generally are improper, prose any neous statements and other errors in closing argument cutor’s must be evaluat record; and the relative strength or light argument ed of the defense weakness of the Bigbee, case. See preceded Wainwright, it. See Darden v. 809; Buck, State v. 168, 179, 2464, 2470, 477 U.S. 106 S.Ct. 600, 609 (1986). Here, L.Ed.2d both Defen Here, ignore dants that it prosecutors’ we find the was defense counsel community who first invoked conscience unseemly comments but harmless telling jurors that Defendant Thomas argument. context of the entire No cura already lengthy had been to a sentenced provided tive instruction primarily was period Obviously of confinement. because neither Defendant Thomas nor prosecutor’s response comment was a objected Defendant Bond to the charac that statement. Moreover, terization. the State’s case strong was and the effect of the error was Darden, In supra, Supreme short, insignificant. im the State’s following Court considered the factors proper argument did not undermine the determining prosecutors’ closing that the trial, fundamental fairness and we argument deprive did not the defendant of gains therefore conclude that this issue a fair trial: the Defendants no relief. prosecutors’ argument did not ma- evidence, nipulate or misstate the nor
B. Don’t Give Defendants a Freebie it implicate specific rights did other During opening penalty statement of the right the accused such as the to counsel phase, counsel for Defendant Thomas right stat- or the to remain silent. Much of imme- hospital in the testify events invited about objectionable content was Defen- was shot. diately after victim opening sum- responsive *50 Thomas’ com- joins Defendant dant Bond of idea [T]he
mation of the defense.... (1) testimony Dr. Smith’s plaints regarding response” is used not to excuse “invited of diagnosis and treatment regarding comments, improper but to determine (2) Dr. living and patient as a the victim effect on the trial as a whole. their in bal- expert as an being qualified Smith jurors instructed the several trial court listics. was to be made times that their decision alone, and of on the basis the evidence as an ex qualified A witness of counsel were arguments that the skill, train knowledge, experience, by pert weight of the evidence may testify evidence. in the form or education ing, otherwise, sci heavy; provided the “over- against petitioner opinion was an or technical, entific, specialized or other whelming eyewitness and circumstantial tri substantially assist the knowledge will guilt on support finding evidence or to the evidence of fact to understand er likelihood that charges,” all reduced the R. a fact in issue. See Tenn. determine by influenced jury’s decision was his or her expert may base Evid. 702. An trial was not argument.... “Darden’s to or imparted data upon facts or opinion neither was it perfect are —but —few at a to or expert prior perceived by fundamentally unfair.” not be the facts or data need hearing; (citations 181-83, 106 Id. 2464 S.Ct. or they type are the of facts if admissible omitted). present factors are Similar upon by experts. reasonably relied data testimony of the nu- here. Doubtless the underlying If the See Tenn. R. Evid. 703. merous and the admission witnesses trustworthiness, data lack facts or Bond did far more to seal their Defendant testimony based expert disallow court shall single fate than a abbreviated comment them. See id. Evidence expert and upon during closing argument. prosecutor theory must scientific testimony regarding Darden, may in the trial not have been As may it relevant and reliable before be both perfect, but it fair and no reversible was v. CSX See McDaniel admitted. be predicated prosecu- can be on the error (Tenn. Inc., Transp., S.W.2d closing argument. tor’s 1997). has broad discretion The trial court concerning qual resolving questions Testimony Expert III. Admission of relevance, ifications, admissibility, complains Defendant Thomas testimony. expert competency trial court committed several errors (Tenn. Stevens, v. expert testimo- regard to the admission 2002). not over appellate An court should Thomas com- ny. Specifically, Defendant admitting a trial court’s decision turn (1) not have Dr. Gardner should plains testimony excluding proposed expert’s com- testify and make permitted been trial court abused its it finds the unless (2) Ballard, therapy, regarding ments victim’s See State discretion. permitted not have been Dr. Smith should opinions as to the treatment provide Cynthia Gardner A. Dr. shooting, immediately after the the victim
(3) quali- that Dr. complains Dr. should not have been Thomas Smith Defendant (4) concerning the vic- testimony Dr. expert, fied as a ballistics Gardner’s allowed not have been therapy tim’s should permitted to should not have been Smith (2) as it expertise. was outside her field of opinions living person, as to a Dr. During Dr. Gardner’s direct Smith should not have an testimony, qualified she been questioned expert was as to ballistics. daily regimen care for Day by objec- James his wife. An (1) Living person tion was made on the basis that Dr. Gard- ner is “not provider, a health-care Smith asked to she’s render Dr. physical opinion not a an as to the cause of death of the therapist, she’s not—doesn’t it any gun victim whether related to the expertise any have of these areas.” *51 by shot fired Defendant Thomas two and trial objection, court sustained the years Determining one-half earlier. prosecutor instructed the rephrase to type opinion cause of death is the of questioning. objections line No other upon medical examiner called to is make. questioning. were made to this line of Dr. Smith’s review of the treatment rec has, submits Defendant Thomas ords, including assessments of James therefore, any challenge waived Dr. to Day’s injuries, necessary was to the forma Gardner’s testimony on this issue. opinion. tion of that regard, this Dr. Dr. Gardner is a licensed medical is a medical in Smith licensed doctor in currently doctor Tennessee and is em State of Tennessee in and board certified ployed as an assistant medical examiner pathology, forensic anatomical pathology, Shelby County. Dr. Gardner is an also and clinical pathology. upon Based his instructor in pathology for the medical doctor, training as a medical Dr. Smith completed school. Dr. Gardner her resi qualified testify regarding gun was dency in anatomic and clinical pathology victim, shot upon wound inflicted school, following medical completed then likely injury, results of an such and the fellowship in pathology. forensic Based course of treatment victim. The upon doctor, training her as a medical Dr. trial court did not its abuse discretion qualified Gardner was testify regarding admitting testimony. claim This is catheterization. The trial court did not without merit. in admitting abuse its discretion this testi
mony. This claim is without merit. (2) expert Ballistics Smith, During voir dire of Dr. Dr. Smith B. Dr. Smith previously stated that he has testified as a Defendant Thomas claims that object- expert. ballistics Defendant Bond trial “the court further erred allowing ed, stating testimony that the of a ballis- Dr. give opinions O.C. Smith to several expert tics was not relevant to the victim’s areas of medicine of which he was not an objection cause of death. The was over- to, expert [,][i]including, but not limited ruled. The trial court determined that a giving opinion his as to whether treatment expert light on ballistics could “shed some proper was after the victim was shot.” To wound,” gunshot recognizing that “the the extent that Defendant Thomas fails attempting ... to demonstrate state error, specific grounds delineate those gunshot that the is the cause—the initial R.App. claims are waived. See Tenn P. death; to that event that caused his 27(a); 10(b). Ct.Crim.App. Spe Tenn. R. end, I think if qualified this witness can be cifically, Defendants Thomas and Bond as expert, opinion may as a ballistics his be challenges sert two to Dr. Smith’s testimo very helpful shedding light some on the (1) ny: Dr. qualified Smith is not to render facts of the Dr. Smith then con- ease[.]” the entire rec- Court, have considered we explain the role of ballistics tinued to find, regard cause and necessary to be- ord in this training and the expert Thomas, sentence of that the He Defendant examiner. a forensic firearms come arbitrary any imposed training in forensic death was that he received stated pre- as fashion, supports, that the evidence by R.A. Stindler. firearms examination finding of the discussed, jury’s viously Defen- Objection again made both circumstance, and Thomas, statutory aggravating Bond and Defendant dant cir- finding aggravating that the jury’s testimony was not relevant. that such basis circum- mitigating outweighed that the cumstance complain Defendants appeal, On Fur- doubt. beyond a reasonable stances of Dr. as a ballistics qualifications Smith thermore, proportionality comparative our in that no knowl- irrelevant expert were nature of the review, considering both the analysis identification and edge of firearms defendant, us that convinces to the crime and the opinion with his was introduced excessive of death is neither the sentence manner of death. cause and im- penalty disproportionate nor *52 correct Defendants are id. § in similar cases. 39-13- posed to the fact challenge no direct there was 206(c)(1)(D). Accordingly, also affirm we by a bullet. that the victim was wounded imposed on Defen- of death the sentence However, crucial the effect of the shot was Thomas. dant and the had the bur to the defense doubt beyond a reasonable proving den of Bond] Defendant [Deleted: of a victim’s death was the result
that the during inflicted the rob gunshot wound Riley, J., concurring part Joe G. training in forensic fire bery. Dr. Smith’s dissenting part. identification, military specifically his arm in all majority opinion injuries, per agree I with the training involving traumatic majority exception. one respects as mitted him to make the determination the trial the failure of likely opinion fatal. concludes to whether the shot was be offense charge the lesser-included the trial court court to cannot conclude We to De- felony murder as Dr. of facilitation permitting its discretion in abused I not harmless error. expert. fendant Bond was qualified to be firearms Smith this conclusion. disagree with respectfully merit. This claim is without [Deleted: Lesser-included Offenses IV. [Deleted] Felony Murder]
Conclusion Thomas
Defendant record, fully
Having reviewed authority, we af- applicable and the
briefs conviction for
firm Thomas’ Defendant Additionally, degree felony murder.
first mandate of Tennes-
in accordance with the Annotated section 39-13-
see Code
206(c)(1), adopted in principles Supreme of the Tennessee
prior decisions