State v. Van Tran

Tennessee, Appellee, STATE of TRAN, Defendant-Appellant.

Heck VAN

Supreme Court Tennessee.

Sept. 1993.

Rehearing Nov. Denied 1993.

ed: a taken statement from the Defendant in which he admitted his involvement in the crimes; fingerprint on Defendant’s one of the jewelry during robbery; cases taken eyewitness identification the Defen- robbery. dant survivor Burson, Atty. Report- Charles W. Gen. & The victims were all related worked er, Milam, Gen., Atty. James W. Asst. Nash- restaurant, owned had been ville, Stanton, Gen., Hugh Atty. W. Dist. operated years. family the Lee for Kitchen, Jerry Harris, Phillip R. Gerald Asst. family emigrated had from China. Arthur Gen., Attys. Memphis, appellee. Lee, 24, managed the restaurant for his fa- ther, Watson, Lee, Quinn, Amy Arthur the owner. was married E. Arnoult & brother, Quinn, to Searmoutsos, Arthur’s Chester Lee. Kai Yin Memphis, Manuel P. for Chuey, grand- maternal was Arthur’s defendant-appellant. Lee, 75, Ging pater- mother. Sam Arthur’s grandmother, robbery. nal survived the She OPINION unconscious; had been and beaten knocked DROWOTA, Justice. rings, and two diamond a necklace and a watch taken from were her. Defendant, Tran, The appeals Heck Van felony his in Defendant, Tran, convictions murder the deaths The Heck Van was born Chuey, of Kai Yin Amy Lee and Arthur Lee 1966. November His mother was Viet- namese; father, and the imposed sentences each and his an American service- by jury. man, appeal case On he challenges, died in The Vietnam 1968. Defen- alia, sufficiency inter years of the evidence dant when was six used started school he him, Saigon to old stopped convict the failure of trial but when fell. 1988 a court to suppress statements, agency certain the use Catholic relief resettled the Defen- of a dant and mother in The De- interpreter eye- Memphis. relative to act as an for an Ms witness, briefly drop- fendant before attended school tape the introduction of a video and ping out 1984. photographs, change color the refusal of dire, alleged venue and voir individual errors Houston, Texas, by After arrest his judge’s jury instructions, in the and the con- police, gave a statement which Defendant stitutionality penalty. the death We have robbery he acknowledged his role in the and carefully all considered of the issues raised stated murders. He that he had worked by and, the Defendant for the reasons that briefly at the Jade East a month Restaurant follow, felony we affirm his conviction mur- or two that Mr. before the crimes and Lee der and his sentence of death as to Kai Yin had him because like fired “he didn’t me” Chuey. felony We affirm his convictions of many egg and “said I too rolls.” cooked The Amy Lee, murder as to Lee and Arthur but implicated Hung Chung, Defendant Van reverse his sentences as to them and remand Kong Chung Bounnam Phuoe and Due Doan resentencing for for the set out reasons later robbery. in the He stated that the four men opinion. in this entered the door of the restaurant back and

he talked Arthur Lee ten min- “for about The Facts shooting.” utes before there was revolver, .44, .22 Defendant had a Bounnam a 20, 1987, On the afternoon of October Ar- Chung a .22 and Doan a .25. Lee, Lee, Amy Chuey thur and Kai Yin were happened The Defendant described what found dead in the Jade East Restaurant pulled guns: group after the out their Memphis. yet had not restaurant opened day, for and the business victims grabbed Mr. Lee Nam’s [Bounnam’s] apparently making prepara- had been gun inside hand and him in the with the elbowed evening. Jewelry lady. with a back the old tions whole- chest. Nam fell and hit $25,000 fell when lady sale value of had been taken from the The old on me and she hit proof gun off. I go restaurant. The State’s critical includ- me it caused don’t warning required the Tex- Miranda utory then I hit time. Mr. Lee know what Hung statement was taken I Code. His written Hung [Chung]. kicked heard 2,1988, then of his Chung May one or two times and after he had been advised shoot Hung grab gun and On his return to Mem- rights Mr. Lee tried a third time. Chung him. Mr. Lee was fingerprinted. shoot While the Defendant phis Hung [Chung’s] gun, I told trying get ring finger matched latent print of left I to hurt him. him not to or would have jewelry one cases. fingerprint found on my I get gun and He turned and tried to two TBI examiner testified that A firearms moving fell around shot him. He and was bullets, from Mrs. lead one recovered .22 I him face in the somewhere. shot head, Chuey’s from Mr. Lee’s other they thr[ough] I door Then where walk brain, fired from the revolv- could have been kept money gold. up I looked robbery. in the used the Defendant er lady thought I saw old roll over. she dam- were so mutilated and The two bullets I something had hand. her her shot however, could not aged, examiner the back of head. they from positively state that had been fired weapon. col- While the Defendant was office lecting jewelry, he heard more shots. Lee, Jerry Arthur Lee’s brother he not know He stated that did “who Lee, Chuey Mrs. ar- grandson of Mrs. shooting “the what” or who had shot or robbery the the and rived at restaurant after girl,” Amy Upon leaving the young Lee. a He testified that he ran triple murders. office, holding Defendant saw Bounnam the restaurant. On jewelry business out the Ging Boun- Sam Lee. Defendant told robbery jewelry day of uninsured the the hurt her. Lee nam to Bounnam hit Mrs. $25,000.00 a value of about with wholesale head, the the all on back of and the assailants At the office. was stolen from restaurant left. trial, Jerry jewelry certain Lee identified restaurant, Outside the the Defendant dis- robbery, in the one of which had cases taken covered that Bounnam had been shot fingerprint it. He identified Defendant’s leg groin. left the Bounnam claimed near a former cook who had the Defendant as group the had him. The fled Defendant shot week, approxi- restaurant for a worked the acquaintance’s in Bounnam’s Camaro to an robbery. He mately one month before the Defendant, there, apartment. From the go no occasion to stated that Defendant had Chung Chung’s Bounnam ear to and drove jewelry and touch inside the vault Washington, was D.C. Bounnam’s Camaro employed at the restaurant. cases while in Memphis. left Doan remained in Tennes- at time Ging years Lee was 77 old the Sam see. States for trial and had lived the United Washington, Hous- From the trio drove to only surviving thirty year’s. was the She ton, Houston, Once the Defendant Texas. robbery-murders. tes- eyewitness to the She Saigon went to the Pool Hall and talked with translator, tified, three four a or through gold. selling man a Vietnamese about some and restaurant men had robbed the oriental gold man the in about took and returned Tran as one the robbers. Heck Van identified $4,000.00. The ten with Defendant minutes Chung an- Hung also identified Van She the the three paid man and divided rest $200 men involved. She stated other of the Later, ways. to Car- Bounnam flew North helped had employee, Chung, while not Chung Dallas with a friend. olina and went to and was beaten at the restaurant. She out 28, 1988, April six after On almost months gunfire did not see heard but robbed. She robbery, the was arrested the Defendant knocked uncon- anyone being shot. She was time, of his Houston. At this he was advised and, awoke, body scious; saw a she she when knew Miranda rights. When asked if he lying in the restaurant. arrested, why being replied, he he “For was testified Memphis.” to of the State’s witnesses shooting in He was taken One a 20, 1987, driving he his auto- facility later a munici- on October police the main the East parking into lot of Jade the stat- mobile pal judge court who read Defendant Restaurant when he saw a going through blue Camaro of the head after the brain. leaving parking lot. The Camaro was being qualified expert After as an in firearms him, four away feet five from identification, he gave firearms Dr. Smith identified Bounnam as the driver. He also opinion projectile his that the recovered passengers noticed at least two in the ear. a .22 bullet. caliber eight Bounnam’s brother that at testified Dr. Yin Chuey Smith testified that Kai had morning o’clock on robbery his collarbone, right bruises under the over the brother Defendant drove him to right region, chest and breast on the left work in his brother’s blue He fur- Camaro. arm, elbow, upper at left and over the ther testified he had not seen his brother knees, all of which were made while she was since that time. alive. being She died as a result of shot Another State witness testified that he through jawbone twice: once and neck Defendant, Bounnam, knew Doan and (this thereby severing her windpipe wound Chung. He stated that Bounnam owned a was six inches less from the muzzle of the blue Camaro and further that on testified gun) through and once the back of the head day of robbery, the Jade East he saw jewelry (this wound). through the brain was a contact boxes like those taken from the restaurant Dr. Lee Smith stated that Arthur died as a dumpster apartment. outside his Anoth- multiple gunshot result of wounds. There er at a witness testified he was friend’s eight body: were wound tracks on to the apartment saw trying the Defendant hand, right chest, right back of the to the get a leg. bullet out of Chung Bounnam’s right jaw, grazing side of the a wound to present apart- and Doan also were neck, the left side of the to the wound back ment. neck, left shoulder at wound to near During investigation police their dis- back, right upper a wound back pieces jewelry covered small scattered on right gunshot arm a contact and wound to the floor in of the restaurant and the rear right temple. the He one identified parking They spent lot. also six collected .22 projectiles recovered a .22 being as caliber cartridges caliber from the restaurant floor. bullet. He testified there also that was no One of the videotaped officers the entire way sequence to determine the in which inside and outside of the East Jade Restau- these had been wounds inflicted. rant. photographs Another officer took showing bodies, the location of the three and felony for Defendant was indicted restaurant, the park- exterior of the and the (robbery) premeditated and murder murders ing lot. Chuey, Amy of Kai Yin Lee Arthur and Lee robbery deadly weapon and also for with a The State’s final Dr. witness was O.C. Ging Smith, upon Sam Lee. Based the above-de- an in expert pa- the field of forensic evidence, jury scribed the found Heck Van thology. performed autopsies He had on the guilty felony Tran three three counts of murder Amy victims. He testified that Lee and punishment fixed at death for each died as a of a gunshot result contact wound his aggravating offense.1 same circum- to the He two head. described a contact wound (1) as stances in all cases: weapon one in were found three the muzzle of is up against especially skin in- surface at the time it murder was cruel in it mind; depravity fired. Amy right The bullet entered Lee’s volved and Defen- a top forehead about half inch below the of dant “mass committed murder.” T.C.A. (12) (1982).2 2—203(i)(5) her head and was recovered in the left back 39— Judgment upon persons 1. entered verdict on risk of death two or more other than was to murder], (i)(6) governed during June 1989. This case is therefore the victim his act of [the by prior the statutes effect November purpose murder was committed for the of avoid- 1989, the effective date of the Sentenc- ing, interfering preventing Criminal with or a lawful arrest ing another], Reform Act 1989. prosecution or (i)(7) Defendant or was while the De- [the murder committed engaged committing robbery]. 2. The State relied on fendant was circumstances (i)(6) great knowingly inap- [the Defendant created a The trial as court struck Defendant, ill a child had been as of rob-

The Defendant was also convicted spoken until was six. deadly trial he had not he bery by weapon. use a and that years English studied the Defendant to 30 The Defendant had not court sentenced offender, Vietnam, Range attended until imprisonment where he had school standard I, concurrently above grade. After his arrival from Viet- served with the third high American sentences. he attended nam year. made There he school one Convicting Sufficiency I. Evidence compre- mostly indicated his D’s. Tests grade. level was below fourth hension that, argues initially while The Defendant may at trial be suffi the evidence admitted court- through testified The Defendant guilty verdicts when support cient En- interpreter he learned no appointed against the standard enunciated tested Vietnam, child of glish in that he was sole 13(e), T.R.A.P., and Rule Jackson Tran and an American soldier killed Mia Virginia, L.Ed.2d 443 U.S. Cong, that he never knew the Viet (1979), evi if the Court holds certain he He testified that when father. further inadmissible, such as Defendant’s dence it first April was arrested was the eyewitness’s confession or the identification offense; arrested for time he had been Lee, by Ging proof of the Defendant Sam Yarbrough Sergeant began to in- that when may longer treat no be sufficient. shall We twice; him, requested attorney he terview evidentiary questions II these in Sections although speaks he understands and and that VI. English, speak very well. some he does it The Defendant also that the evi- contends cross-examination, Heck Tran During Van support dence is insufficient to the sentence judge in that when he went before a stated of death it does not the two because Texas, judge what the he not sure jury. aggravating circumstances found saying everything nodded at but he XI, shall address these issues in We Sections judge said. XII, and XV.

The trial court made detailed and exten- II. Suppress Motion to findings of and conclusions of law in sive fact Confession denying suppress motion the Defendant’s The Defendant avers that the trial portions cite the confession. We denying suppress erred court his motion to findings court’s of fact. given his written oral statements filed a authorities Texas. Defendant April on The Defendant was arrested pretrial suppress confession motion his p.m. by approximately 5:00 offi- at given police May to the Houston on Piel, Poale, Chen, Sergeant cers John B.A. motion, days his arrest. In his four after Babcock, FBI. Special Agent Barbara and that, born Defendant asserts because he was photo of the Defendant. The officers had a Vietnam, knowledge, understanding his upon gave a false name The Defendant comprehension English language of the and spoke to the inquiry. Officer Chen John limited, legal understanding and his the English after Defendant Defendant so he make poor terms is that was unable to by Sergeant BA. Piel of had been advised knowing intelligent his con and waiver of rights. According Miranda to Ser- the rights stitutional to remain and to have silent Piel, right he each to the geant would read the assistance of counsel. an- upon the Defendant Defendant and yes, proceed to the evidentiary hearing swering motion he would At the on the opin- presented right. Sergeant Piel was six next witnesses while responsive moth- that the Defendant was defense offered four. Defendant’s ion er, un- Tran, questions responded as if he Mia testified that Defendant was his and responded presently years age. explained The Defendant derstood. She (i)(3) jury only charged plicable to court the facts. The did not list the trial especially cruel in that it involved and verdict form. murder was on its As to cruel], (i)(5) [heinous, depravity of mind. atrocious English why that he was aware of he was ford asked the Defendant about the warn- shooting arrested —“For the in Memphis.” ings top at page of the and the Defen- ‘Tes, The Defendant responded: told Officer Chen that one dant don’t have to talk if Dallas, Texas, companion was in Sergeant and not in don’t want to.” Gafford ex- plained Houston. Officer Chen asked right the Defen- Defendant each indi- if vidually dant he English understood and Defen- had the Defendant initial each said, “Yes, one. dant I do.” Officer Chen was opinion that the Defendant under- law, In its conclusions of began the court spoke English stood and well. At the by stating: reading rights of his the Defendant did not analyzing admissibility In of the writ

request explanation rights. of his ten statement in this cause the State has a speak The Defendant can and communi- heavy burden to show that a waiver of the English language cate in most ev- rights freely, Miranda voluntarily eryday ability situations. The knowingly Defendant’s exercised. Courts should in to read is limited dulge every and he does have difficul- presumption reasonable ty in understanding meaning against of certain waiver of fundamental constitution State, words in warnings rights. rights, al Lee v. (Tenn.Crim.App.1977). In order for the police The Defendant was taken to head- State to presumption, overcome the quarters and later evening the Defen- only prove by preponderance State need dant was taken Judge before a Dodier of the evidence that the constitutional stan pursuant procedure to Texas for advice of State, dards were met. McPherson v. rights Judge his under Texas law. Dodier (Tenn.Crim.App.1977); Lego S.W.2d 210 inquired spoke if the Defendant and under- (30 Twoney, 404 U.S. 92 S.Ct. 619 English, stood to which the Defendant an- 618), (1972); L.Ed.2d and State v. yes. request by swered There was no Stearnes, 620 (Tenn.Crim.App. S.W.2d 92 interpreter. Defendant for an 1981). 2, 1988, May On approximately 11:40 denying suppress the motion to a.m., Sergeant Yarbrough J. interviewed holding knowingly the Defendant had the Defendant. opinion He was of the intelligently rights, waived his Miranda speak English Defendant could well aspects the trial court found three enough for him to understand and had no (1) proof particularly telling: the Defendant’s problem communicating. Sergeant Yar- response Sergeant Gafford that he did not brough advised the Defendant of the Mi- (2) to; have to talk if he did want his rights. orally randa The Defendant ex- reply speaking Sergeant that he was with plained involvement the Jade East Yarbrough because his mother him told robbery map and drew a of the restaurant. truth; logical tell the narrative of The Defendant had talked to his mother the events of the offense contained phone and she advised him to tell the written statement itself. The court also not- truth. agreed give The Defendant a that, during ed the Defendant’s cross-exami- Sergeant written statement which Yar- nation, questions he understood some of the brough typed. going After over the writ- ready English asked and was to answer Defendant, ten statement with the Ser- questions before the had been translated. geant Yarbrough Sergeant and Ken Wil- The court concluded that the Defendant had liamson and Dennis Gafford talked to the knowledge English sufficient to under- Defendant. standably, knowingly intelligently waive Sergeant The Defendant told Williamson rights. his English that he could not read but he speak valid, English. could and understand Ser- To be a waiver of Miranda geant rights voluntarily, knowingly, Williamson read the written state- must be Arizona, ment so the intelligently Defendant would be sure that made. Miranda v. 384 436, 479, 1602, 1630, 16 the given Sergeant statement Yar- U.S. 86 L.Ed.2d S.Ct. (1966). brough determined, Sergeant was what he said. Gaf- 694 Once it is under the

473 564, 573-576, 107 surrounding Spring, a 479 U.S. rado v. totality of circumstances the (1987); waiver, rely 851, 857-858, 93 L.Ed.2d 954 suspect’s that decision not a S.Ct. uncoerced, Yunis, 953, all he at F.2d 964- rights that v. 859 on States United request (D.C.Cir.1988). knew he could stand mute times 966 lawyer he was aware of the State’s a and that secure a intention to use his statements to Change III. Venue and conviction, may that Mi a court conclude Dire Voir Individual v. rights have Moran randa been waived. next two issues are The Defendant’s

Burbine, 412, 421-422, 106 S.Ct. 475 U.S. they allegation from the in that stem related 1141, (1986); 1135, 410 see also L.Ed.2d 89 present case received extensive C., 707, 725-726, 442 99 Fare v. Michael U.S. had pretrial publicity. The ease prejudicial 2560, 2572, 61 L.Ed.2d 197 program the television been featured on difficulties a de Language encountered Wanted, locally Most which aired America’s if determining considered fendant are County. pre Shelby The Defendant filed See, e.g., has valid there been a waiver. change of and for Hernandez, motions for venue trial F.2d v. 913 United States hearing (10th voir A was held Cir.1990); individual dire. v. United States 1509-1510 at time change for of venue which the motion Chong, F.2d 1574-1575 Boon San 829 (11th Director, concerning a Cir.1987); researcher testified Depart v. a market Perri Corrections, Illinois, County Shelby poll he had conducted of ment State (7th Cir.1987); April percent Almost 90 F.2d United residents 1989. 452-453 S., surveyed something v. States Bernard F.2d those had heard about (9th Short, Cir.1986); ease, percent having United States with 29.5 seen Cir.1986). (6th Findings featuring F.2d episode Most America’s Wanted fact made a trial court on surround surveyed issues who heard of the crime. Those had are ing giving of a custodial statement likely to that an crime were twice as feel binding upon appellate review if there employee had crime. committed O’Guinn, evidence to them. State v. change motion trial court denied the (Tenn.1986); that, State if the proviso venue with difficulties Chandler, (Tenn.1977). finding jury, untainted it would arose its reconsider decision.

Having sup- transcript studied the pression hearing, opinion are of we motion for individual The court took the sup- presented hearing evidence After under advisement. voir dire ports judge the conclusion of trial process began, the Defendant re- selection voluntarily, knowingly, Defendant dire. his motion for individual voir newed intelligently rights. De- waived his Miranda it continued to take under advise- The court argues that the fact the court fendant jurors prospective it ment until saw how necessary interpret- it found to afford him an questions. Forty-eight pro- responded to holding of er contradicts the the trial court. jurors Approxi- dired. spective voir were translator, however, provision is not something mately had about half heard finding, inconsistent with such see United incident; restau- a few familiar with the were (1st Abour-Saada, F.2d to set what Almost all were able aside rant. Cir.1986); and the record shows they had they had and stated little heard English sufficiently to Defendant understood guilt opinion to Defendant’s no formed Likewise, rights. waive his the fact that they had seen read. based on what may Defendant not have all the understood Ingram, exception Peggy most notable consequences unfamil- of his waiver and was had prospective juror said she only who legal system iar with the American is insuffi- episode America’s Most Wanted seen the long as the cient invalidate waiver so featuring the crime. was excused She here, shows, requisite level proof as it did cause. talk, (i.e., comprehension that he need not prospec- asked a lawyer, any the Defendant he have a and that Whenever could heard, him). had juror or she against used Colo- tive what he statements can be 474

prospective juror professionals, exercised, was called to the bench tain if could remove questioned juror where defense counsel large college-educated numbers of individuals thoroughly healing more out of the juries Shelby from County. panel. The record does not reveal that indi A right defendant has a constitutional required vidual voir dire was this case or jury to a representing drawn from a venire that the trial court abused its discretion. See community.” “a fair cross-section of the Simon, (Tenn. State v. 635 S.W.2d 506 Louisiana, Taylor 419 U.S. 1982). 692, 42 proof L.Ed.2d 690 pre change With reference to the motion for by sented the Defendant fails to establish venue, showing majori- there was no that the prima facie violation of the Sixth Amendment ty jurors prospective extensively had been ground jury on the fails to reflect a exposed prejudicial pretrial publicity. fair community. cross-section of the Du See fact, the record itself contains little evidence Missouri, 357, 363-364, ren 439 U.S. pretrial publicity. The Defendant has not 664, 668, (1979); 58 L.Ed.2d 579 showing carried his burden of the clear abuse (Tenn. Thompson, 768 S.W.2d required of discretion to reverse the trial 1989); Bell, State v. 745 S.W.2d 860-861 Bates, e.g., court’s actions. See State v. (Tenn.1988); Blunt, State v. (Tenn.1991); Simon, S.W.2d State v. (Tenn.Crim.App.1985); State v. Nel 505; Hoover, S.W.2d son, (Tenn.Crim.App. (Tenn.Crim.App.1979).

S.W.2d 743 1980). Right Jury

IV. Trial Opening V. Statement Defendant next avers concerning Tennessee statutes exemptions The Defendant next contends that the jury duty from policies Shelby and the denying trial court erred in his counsel’s County Jury Commission denied him his request opening to reserve statement until right jury to a trial. The Defendant raised beginning proof. of the defense After pretrial these issues motion. After an prosecutor given opening had the State’s evidentiary hearing, the motion was denied guilt phase, statement at the the Defendant by the trial court. opening asked to reserve his statement until proof. the close of the State’s The trial court The Defendant first contends that ground refused that Tennessee law Shelby County jury method used com- requires opening prior statements made jurors missioner prospective to choose de- any to the introduction of evidence. The prived him right jury composed of his to a opening Defendant then waived his state community a fair cross section of the because ment. college it excluded students and was more likely procure jurors prospective per- The Defendant avers that such action sons who telephones, owned assets like cars right the trial court not violates his and houses. The commissioner testified self-incrimination, against requires but also jurors: he used five property sources for tax actively him to defend himself before the rolls, rolls, registration voter motor vehicle proof. State has carried its burden of T.C.A. rolls, telephone directory city and the § grants parties right pri- 20-9-301 “the directory. randomly Names were chosen presentation any or to the evidence in the from these sources. The names were then opening case to make an statement to the “processed” persons to assure that the cho- jury setting respective court and forth their jurors. eligible sen were to serve as contentions, views of the facts and theories of argument Strange, Defendant’s second is that the lawsuit.” In State v. statutory exemptions § (Tenn.Crim.App.1989), 22-1- T.C.A. the Court of. 103, 63-5-123, 63-8-117, § § Appeals 63-3-118 Criminal held that this re- statute infringe right jury composed quires opening prior on his to a of a statements to be made community. fair presentation cross section of the He evidence. We points exemptions granted agree. out that the cer-

475 anything it.” When asked See not add to not evidence. will Opening statements are in impartial Hospital, 574 could be fair and Baptist again if he Harris v. Memorial (Tenn.1978). say translation, not 730, They responded: are “I would 732 he S.W.2d my grandmother con- setting forth the than anything counsel more what statements tentions, of of the facts and theories say.” views will by each presented that will be lawsuit argued the Defen- at trial that The State holding in party. The trial court did not err ample “to find opportunity had dant had has no the statute a defendant that under the transla- somebody dispute to come until right his opening to reserve statement argues appeal the that there tion.” On State close of State’s evidence. opportunity for mistranslation little was earlier, since, Jerry- three than months less Interpreter Appointment an VI. Ging Lee’s testimo- had translated Sam Lee objected The Defendant at trial same trial ny in a related case before the Jerry interpreter using an Lee as testi- points out that the judge. The State paternal grandmother, Ging for Sam Lee. his limited, estab- mony Ging Sam Lee that the erred avers trial court Defendant only presence lishing her at the scene Lee, victims allowing who was related to the murders, eyewitness identification of the her (brother), (sister-in- Amy Arthur Lee Lee co-defendant, and the and one Defendant law) Chuey (grandmother), Yin and Kai person. jewelry from her items of stolen testimony of interpreter during act Ging matters which These were same Lee, only Ging of the rob Sam survivor trial Sam Lee had testified about bery. Counsel for Defendant contended employee of the Huynh, a former Jade Hien Jerry allowing interpreter Lee to act as charged as an who had been East Restaurant highly prejudicial to his client. would accessory before the to the murders. fact argued that Defen- The State counsel for guilty. Huynh was that trial found prior advised dant had been to trial court, Jerry allowing Lee to The trial State was forced to use because another Lee interpreter language a serve as Chinese Ging could not be Sam translator found. record grandmother, noted for the his speak English Lee does not and understands neutral, “in a performed duties Lee had very language. speaks a little She way” prior trial of Hien detached rural of Chinese “Hoi dialect called San” translating, Lee swore that Huynh. Before (phonetically). judge trial a conducted English translate he would from Chinese hearing

jury-out during on the issue ability He then of his and skill. best Jerry people Lee testified that in this the few gave the oath Mrs. Lee. speak state who dialect do not rare speak English well. impres This is an issue of first of an inter Appointment cross-examination coun- in Tennessee.

On Defendant’s sion asked, sel, you clearly, testimony faith- in a criminal preter Lee was “Can of witness’s your discre fully, appropriately from a matter for the trial court’s translate case is grandmother?” Jerry subject only “I for abuse of that responded: to reversal Lee tion recorded, I it sometimes understand that this will be discretion.3 We realize selection); Kley growing interpreter among jurisdictions competent 3. trend has of its own 625, Abell, (Mo.Ct.App.1972) trial been to allow courts wide discretion 628 interpreters. appointing v. Ad See United States "generally (Appointments interpreters rest donizio, (3rd Cir.1971), F.2d 68 cert. 451 ”); ... the discretion the trial court within denied, L.Ed.2d 405 U.S. State, (Tex.Ct.App. Minor v. (1972) (Use interpreter witness's wife as 1983) (”[T]he interpreter appointment of an exercise discre found to be sound of trial court’s ...”); the trial State v. Thien matter left to court 199, selecting interpreter an accordance tion in Le, (Tenn.Crim.App. Due State, 28(b)); with Fed.R.Civ.P. Kitchens v. 1987) interpreter (Appointment held to be (1991) (It Ga.App. 401 S.E.2d court; discretionary trial matter for trial court’s appoint inter within trial court’s discretion to deprive appoint interpreter did not failure to preter the witness some where understood rights). also Peo See defendant of constitutional Pham, English); State v. Van 234 Kan. Broth ples Bank v. Manos National Greenville (1984) (A may appoint a P.2d court 476

may case, necessary, appoint be as in this speculate accuracy to toas of the transla- an interpreter interested compe where no A party contending prejudice tion. must tent interpreter disinterested is available. prejudice. show However, practice ap the better is to avoid Jerry The voir dire examination of Lee pointing a friend or party relative of a expertise understanding established his interpreter. witness as an The court should spoken by grand- the Chinese dialect his neutral, attempt appoint a unbiased inter expertise English mother. His own with the preter, one who has no interest in the out language during had been demonstrated his State, come of the trial. Almon v. 21 Ala. testimony. earlier He also took an oath to (1926) (Disinter 466, 371, App. 109 So. 372 render a true translation to the best of his interpreter ested possi should be used when ability. Nothing skill and sug- the record ble); Deitch, A.R. Western & Co. v. 136 Ga. gests Jerry Lee failed abide 46, (1911) (Where 70 possible, S.E. 798 Although oath. Tenn.R.Evid. 604 was not in interpreter used); disinterested should be (effective effect at the time of trial Janu- Abell, (“[The] Kley supra at 628 most 1, 1990), ary requirements of the rule competent person and least biased should be were met and trial ruling court’s appointed interpreter]”); [as State In Inter on this issue. R.R., supra est (Interpret 398 A.2d at 86 ers should be disinterested because interest (cid:127) VII. Admission Revolver translations). parties may ed distort In this judge case the trial was satisfied that no The Defendant avers the trial court person disinterested was available who could in allowing erred a .22 caliber revolver into adequately testimony, translate the witness’ weapon evidence at trial. The had been and he was also convinced that Lee would Huynh during seized at the residence of Hien give an accurate and unbiased translation. apartment. the search of his The Defendant objected to the admission of the revolver Because the Defendant has not demon- ground proper predicate had not inaccurate, strated that the translation was argues been laid. The Defendant that “the showing there has Jerry been no Lee’s weapon way was in no linked to the Defen interpreter any service as an preju- caused dant nor to of the co-defendants.” The dice to the Defendant’s case. Ms. Lee’s tes- however, proof, clearly timony Jerry shows that the Defen Lee’s translation were re- dant stated he had shot recording corded. This audio two victims of the trial revolver, proceedings belonged with a .22 caliber par- and is available to both Huynh recording Huynh. ties. The audio and which he returned to could have been interpreter may Spent casings verified .22 who not have caliber were found at the restaurant, State, Kay been available at trial. TBI See 260 and a firearms examiner tes 681, (1976). However, Ark. fragments 543 479 tified that two of the bullet found this has not been done and we are left to inside the bodies of Arthur Lee Kai Yin ers, 257, 857, (1954) discretion, judgment 226 S.C. 84 S.E.2d such will not be disturbed ("The State, qualifications interpreter depend upon appeal”); of an Brown v. 59 S.W. 1118 circumstances, (Trial much (Tex.Crim.App.1900) on the and should be left court’s discretion court”). for the determination of the trial would not be revised where no abuse of discre shown). prejudice appellant tion to could be This discretion will not be reversed unless evi appoint This discretion often extends to the States, Lujan dence of abuse exists. See v. United interpreters ment of interested as well. See Fair (10th Cir.1953) (Trial 209 F.2d court Cowan, (6th Cir.1977) banks v. 551 F.2d selecting held to have much discretion in inter ("The trial court in broad can its discretion select

preter, and its decision would not be disturbed a close relative of a witness to serve as an inter inferred); prejudice unless evidence of could be Bell, trial”); Allen, preter Wash.App. at the State v. People Ill.App.3d 317 N.E.2d (1990) (Trial (1974) (Trial 788 P.2d court held court abused its discretion interpreter person to have discretion as to whether is too interpret to determine fitness of used as er); interested, serve; Burns, (Iowa 1899) only decision disturbed if 78 N.W. 681 ("In matters, exists). evidence of abuse State In Interest such the trial court has a discretion Cf. with, R.R., (When that is not to be interfered 79 N.J. 398 A.2d unless there is State, it”); supra party an abuse of ("[Ajbsent Minor v. at 164 trial court is satisfied that interested used). showing interpreter, may of abuse of [trial court’s] choice as such jury hear have from should have allowed the to Chuey could been fired this re- not Chuey two Lee and were the victims Officer narration. Officer Garner volver. Garner’s shooting. conclusory A whom Defendant admitted We made statements. numerous admitting the sampling dining area] find no error trial court’s room “[the includes: any- revolver into evidence. appear doesn’t or that be disturbed area”; “ring laying on one has in this been Tape Video VIII.Admission appears dropped of there floor to have been during robbery”; possi- “two black .boxes the The Defendant also contends that bly large jewelry, this of contained amounts admitting videotape the trial court erred appears room ... to be the victims where by crime of the scene made Officer Garner of killed”; “rear might prior being division, have been Memphis the homicide Police De apparently came in employees door where recording, partment. The video taken dur during practice daylight hours.” The better early stages investigation ing the of the be disturbed, have would been for the trial court to depicts the scene have fore was turned off the volume and had Officer Garner interior exterior the Jade East Res they tape and shows as narrate from the We taurant the victims were witness stand. however, videotape allowing At trial the was opinion, found. introduced are of the through played jury Officer Garner and with narration harmless er- hear the was jury, objectionable per- sound for the over the Defendant’s ror narration because the objections the tape included mainly inadmissible minor es- tained matters or facts inflammatory. was narration and While the by proper tablished evidence elsewhere agreed trial court with the Defendant that evidence record and because the clear the narration Officer Garner in included guilt by the as Defendant’s established conclusions, admissible because narration other evidence. seen, being also told the viewer what was off, turning rather than the volume the trial Photographs IX.Admission Victim jurors court instructed the the narra The Defendant that the trial avers weight tor’s conclusions or had no value and admitting color disregarded. court erred in into evidence tape were to be After the the deceased taken at played, photographs of victims Officer Garner was cross-examined of the incident. The Defendant the Defendant. scene immediately points prior to admit out that authentic, admissibility rele ting photographs, court had admit these videotapes vant or the crime scene victim showing videotape ted extensive color is within the discretion of sound the trial they victim’s found. The bodies as were judge, ruling admissibility and his on photographs were argues Defendant such evidence will overturned not be without cumulative, unfairly prejudi gruesome showing of a clear of discretion. abuse cial, probative and contends that their value (Tenn.1983); Teague, 645 S.W.2d outweighed by prejudicial their effect. also, Bates, see State v. 804 S.W.2d 878- excessively photographs We do find the not (Tenn.1991); Payne, State v. unnecessarily gruesome cumulative. (Tenn.1990); Thompson, trial not abuse court did its discretion (Tenn.1989) (death pen admitting photographs. See State alty videotapes eases in which of the crime Banks, (Tenn.1978). used). generally scene and victim were See (1985); 877, § Annot. A.L.R.4th Annot. X.Jury During Instructions 60 A.L.R.3d 333 Penalty Phase In this trial court case the did admitting abuse its discretion visual The Defendant that the trial avers portion videotape. tape instructing jury during court neither erred in inflammatory gruesome highly penalty phase nor and is because instructions varied appearance probative language § condition and from the At T.C.A. 39-2-203. court, however, of the crime scene. The trial the time provided of trial Section 203 given aggrava- death sentence could be if the XI. Mass Murder ting beyond proved circumstances a reason- The Defendant next avers that the outweighed by any able doubt were not miti- by instructing trial court erred gating 39-2-203(g) § circumstances. T.C.A. the mass murder (1982) 39-13-204(g) § [now Alter- ]. 39-2-203(i)(12) (1982) found in T.C.A. natively, appropriate life was the sentence 39-13-204(i)(12) (1991) statutory That [§ ]. aggravating where circumstances were out- provision reads as follows: weighed by mitigating one or more circum- Defendant committed “mass murder” 2—203(f) § § stances. [now T.C.A. 39-13- 39— which is defined as the murder of three or 204(f) (1991)]. persons more within the of Tennes- State months, period forty-eight see within a of The Defendant contends that the court perpetrated and in a similar fashion in a charging language erred plan. common scheme or charge given by statute. The court was (Tenn. Bobo, In State v. 727 S.W.2d 945 charge consistent with the recommended 1987), majority upheld a of this Court Jury contained the Tennessee Pattern In- constitutionality aggra of the mass murder (Criminal). Jury structions The Pattern In- vating urges circumstance. The Defendant provide aggravating structions that circum- adopt this Court to the dissent in Bobo. This outweigh any mitigating stances must cir- Black, recently we refused to v. do State cumstances before a sentence of can death (Tenn.1991), in 815 S.W.2d 166 which a ma (Crim.) imposed. T.P.I. 20.03.4 jority of this Court held the mass murder applicable circumstance a to similar set of following pattern Instructions instruc Black, In facts. the defendant murdered previously approved by tion have been this persons period three a of In within minutes. despite patterns’ Court variance from the present killings case the were committed See, statutory language. e.g., Boyd, v. State n within by accomplices the Defendant (Tenn.1990); 797 S.W.2d State minutes, engaged while in the commission of (Tenn.1988); Porterfield, 746 S.W.2d robbery. guilt phase, a the Defendant Irick, see also State v. guilty was found of the murders of Arthur (Tenn.1988) denied, cert. U.S. Lee, Amy Chuey. Lee and Kai Yin findWe (encourag 103 L.Ed.2d 825 the trial court was not in error when it ing pattern trial courts to use the instruc charged aggravating the mass murder cir tions). We find no error this case. sentencing phase. cumstance at the The Defendant also avers the trial Depravity XII. Mind failing jury

court erred in instruct Cruel — of aggravating outweigh circumstances must judge The Defendant avers that the trial mitigating “beyond circumstances a reason charging jury erred in that the murders “substantially” outweigh able doubt” or must they especially were cruel in that involved mitigating circumstances. The Defendant depravity Aggravating circum- of mind. arguing seems to be that the court’s instruc 39-2-203(i)(5) (1982) § stance 39- [§ T.C.A. jury any guidance tion left the without as to 13-204(i)(5) (1991) provides: murder ] “The aggravating the standard circum atrocious, heinous, especially or cruel in outweigh mitigating stances must circum depravity of mind.” that it involved torture or challenge previously stances. This has been prosecutor The trial court and the concluded See, 595; rejected. e.g., Boyd, 797 S.W.2d at not involve torture. the murders did (Tenn. See, Williams, Payne, State 791 S.W.2d e.g., State v. 690 S.W.2d 517 1990); Pritchett, (Tenn.1985); Thompson, (Tenn.1989).5 (Tenn.1981) (instantaneous present provides aggravating 4. The Code follows the Pattern Instruc- 5. The current statute outweigh mitigating circum- circumstances must respect. tions in this See T.C.A. 39-13- beyond § 39- stances a reasonable doubt. T.C.A. (1991). 204(g)(1)(B) 13-204(f) (g)(1)(B) torture). Court, finding aggrava- gunshot wound not The issue critical a (i)(5) however, present case is charge portion ting decided to a of cir- (5), “depravity murder it that “when one whether the involved cumstance because felt not, head, charge given did as puts somebody’s mind.” pistol a it to takes concludes, Daughtrey’s direct Justice dissent question cruelty depravity there is jurors’ attention from the state of the thereupon charged mind.” The Court (i)(5): kñling Defendant’s mind the time of the jury form “The murder an edited find regarding mislead the what it must cruel especially in that it involved de- finding cir- It pravity gave of mind.” then the Williams cumstance. While of “hei- “cruel” the definitions “depravity.” definition of superficially “atrocious”

nous” and are more concept depravity, consonant with the First, the Defendant contends that nothing this Court said Williams would by tailoring language the court erred only limit “cruel” those circumstances proof circumstance so that it fit the of occurs; torture where and common sense im his case. Defendant asserts that it was makes no such A of mind distinction. state proper the court to “dissect” this circum may be described as find that “cruel.” We by omitting stance “atrocious” “heinous” and there is no reasonable likelihood that previously from its instruction. We have jurors by in this case were so confused charge only held that a trial court should they instruction were misdirected or aspects of an aggravating those circumstance regarding the requirements misled that must supported by the in a evidence case. See (i)(5) Pritchett, 140; aggravating be met before circumstance v. State 621 at S.W.2d cf. California, Boyde could be found. v. 494 383, Laney, 654 State v. S.W.2d Cf. 370, 380-381, 1190, 1198, (Tenn.1983) (trial U.S. S.Ct. charge court should (1990). (In jury L.Ed.2d deliberations aggravating those circumstances the evi understanding “common sense of the instruc- supports). example, dence For the trial light place tions in the of all at that has taken case correctly court this “torture” deleted likely trial to prevail [is] over technical from its instruction since none of the evi hairsplitting.”) supported finding dence a of “torture” as See, that term has been e.g., defined. State agree also do not We with the dissent Williams, 529; v. 690 S.W.2d at State v. record the facts fail to establish “cru- Pritchett, 621 S.W.2d at 139. One, elty” as defined like the Williams. Defendant, brutally who could execute a Less certain is the correctness of the trial elderly helpless, readily woman can be de- court’s deletion “atrocious” “heinous” and person “disposed pain scribed as a to inflict from the instruction. As used in circum- suffering” or on another. (i)(5), “heinous,” adjectives stance the three “atrocious,” complementary. and “cruel” are Defendant next contends Although disjunctively, they listed a charged state the trial court erred when it (i)(5) unitary concept and limited “tor- defined circumstance because the depravity ture or finding mind.” See State v. does not of “de evidence a Williams, 690 pravity “Depravity” S.W.2d at 529. The better of mind.” as used in adjec- corruption; course would be to all three instruct means “moral clarify act”; type perversive tives to further nature of that wicked or it is not limited (i)(5). noted, torture; and, just of murder addressed in circumstance the infliction Any inquiry error in the omission in this case the critical is the murderer’s state of harmless, however, killing. are convinced time v. because we mind at State Williams, beyond a reasonable that the failure to In State v. doubt at 529. Black, (Tenn.1991), “heinous” in- include and “atrocious” majority struction had no effect on the result. See of this Court held that the “brutal Mississippi, style Clemons v. 753- execution murder of U.S. and senseless child, herself, helpless protect 108 L.Ed.2d 725 who could (1990). depravity mind.” In evinces torture (Tenn. against amount weighed to be the substantial Zagorski, 701

State 1985), presented in this ease. mitigating that the infliction of evidence the Court stated mutila gratuitous weight violence and needless of the sole persuasive quality already helpless from fatal tion of victims remaining aggravating circumstance is af depraved mind. See also indicated a wounds by the that the defendant did not fected fact Williams, at supra, 690 S.W.2d Lee, Amy personally commit the murder of Gretzler, Ariz. 659 P.2d citing necessary support a the murders one of gra (depravity involves infliction of § 39- finding murder” under T.C.A. of “mass victim, senselessness tuitous violence 2—203(i)(12) Furthermore, although victim). helplessness of crime and aggravating circumstance most relied not the argu prosecution during final upon determining the evidence whether prosecution penalty phase, the ment at the finding depravity, support a is sufficient to aggravator emphasize the invalid briefly did sepa the three murders we must consider closing argument. See Clemons its eight shot seven to rately. Arthur Lee was 753-754, 110 Mississippi 494 U.S. at during course of his range close times at prosecution also discussed this 1451. The Bounnam, Chung and the De struggle with it supporting circumstance and evidence multiple The cause of death was fendant. during opening statement at great confessed detail gun wounds. The Defendant shot During hearing. reasons inflicting sentencing two of the wounds. For these get Amy Lee tried to the Defen struggle, when as to reverse Defendant’s sentences we Lee, who fell. gun, the Defendant shot dant’s Lee and remand these two cases and Arthur immediately again, Lee The Defendant shot re-sentencing. face, around on the floor. in the as he moved Arthur Lee proof discloses that While the does, Chuey killing of Kai Yin The killed, deliberately intentionally it is was however, “depravity of mind” under evince “depravity of mind” insufficient to establish Black, we have a supra. In her case State v. any first-degree mur beyond found in woman, 74-year-old had al helpless who Pritchett, 127, v. 621 S.W.2d der. See State by the Defendant and was ready been shot (Tenn.1981). 139 protect herself lying on the floor unable Amy only that Lee died The record shows put gun a to the back when the Defendant single gunshot contact the result of a a time. We her head and shot her second It is otherwise silent wound to the head. this brutal and senseless find the evidence of of her death or regarding the circumstances helpless old woman sufficient execution of a state of mind. As ease her killer’s support aggravating circumstance Lee, insufficient to Arthur the evidence is Chuey. Yin also State murder of Kai See “depravity of mind” under circum- establish (Tenn.1992); Harris, State 839 54 v. S.W.2d (i)(5). stance (Tenn.1981); Strouth, 620 467 v. S.W.2d (Tenn. State, 267 v. 593 S.W.2d Houston as we find the evidence Inasmuch 1980). aggra of the two one insufficient jury in the vating found circumstances Lee, Amy proceed Arthur and we murders of Trial Court XIII. Instructions v. analysis. error See Clemons to a harmless giving of contends that the The Defendant 1441, 108 738, 110 Mississippi 494 U.S. anti-sympathy instruction violated principles set 725 Under the L.Ed.2d constitu state and federal rights under the 420, 424- Terry, v. 813 S.W.2d forth State rejected in arguments were tions. Similar (Tenn.1991), jury’s erro we hold that the 425 (Tenn. 589, 598 Boyd, v. 797 S.W.2d State aggravating circum neous consideration 10, 1990); Payne, 20 v. 791 S.W.2d State As in not harmless error. stance was (Tenn.1990); Porterfield, 746 S.W.2d v. State heinous, “especially atro Terry, once the (Tenn.1988) 441, (citing v. cious, aggravating circumstance or cruel” California 837, Brown, 538, determination, 107 S.Ct. 479 U.S. sentencing from the

removed [1987]). L.Ed.2d 934 aggravating remains only one Black, 188-91, majori- at and a that the Defendant next avers no violation of either ty of this found Court sentencing trial court’s instructions or federal constitution. the state jury to unanimity of the verdict led the be unanimously agree on miti they lieve must § 39-2- Defendant avers that T.C.A. in violation of Mills gating circumstances proof on the Defen- burden of places 1860, Maryland, 486 U.S. prove mitigating circumstances dant to (1988), I, and Tenn. Const. Art. L.Ed.2d 384 outweigh aggravating circumstances. This argument §§ 16 and 19. This previously considered proposition has been rejected Thompson, in State v. raised rejected Thompson, (Tenn.1989). 250-251 (Tenn.1989), S.W.2d and State v. 251-252 S.W.2d (Tenn.1990). Boyd, 797 595-596 S.W.2d alleges that the The Defendant also alleges the stat Defendant sentencing that “the sentence instruction at jury’s impermissibly interferes with the ute federal shall be death” violates the state and by creating “presumption discretion inadequately it in constitutions because specifically requires death.” The statute jury of its discretion and can be formed the impris jury of life return a sentence creating mandatory death interpreted as statutory if it that no onment determines rejected penalty. argument This proved have been aggravating circumstances Boyd, State doubt, beyond or that a statuto a reasonable (Tenn.1990). or circum ry aggravating circumstance by alleging that The Defendant concludes beyond proved been a reason stances have by failing trial court erred to instruct the said circumstance or circum able doubt but jury they presume Defendant should outweighed by one or more miti stances are actually would serve a life sentence if sen- 39-2-203(f). gating circumstances. T.C.A. imprisonment. tenced to life We held such jury to return a The statute authorizes the improper an instruction to be if finds that sentence of death Melson, (Tenn.1982). circumstance or circum Payne, See also State v. 791 21 S.W.2d proved beyond a stances which have been (Tenn.1990). outweighed by any are not reasonable doubt § 39-2- mitigating circumstances. T.C.A. Constitutionality XIV. Tennessee 203(g). no merit to this issue. See There is Penalty Death Statute Boyd, 797 State v. S.W.2d (Tenn.1990). Out of an abundance of caution the Defen- challenging dant has raised six the issues contention is that The Defendant’s next constitutionality of the Tennessee Death Pen- Penalty un- Death Statute is the Tennessee alty upon grounds, Statute various all of apply it fails to the constitutional because previously which have been determined sentencing reasonable doubt standard this Court. The first contention is that is not This claimed defect determination. language “shall” of the statute T.C.A. Supreme constitutionally mandated. The 39—2—203(f) I, (g) § § 19 and violates Article repeatedly has Court of the United States argu- of the Tennessee Constitution. This “weighing” constitutionality of upheld the Black, recently rejected in ment was State v. adopted as the one Tennes- statutes such (Tenn.1991). 166 Georgia, 96 Gregg v. 428 U.S. see. See (1976); 2909, L.Ed.2d 859 v. 49 S.Ct. Proffitt next contention is that The Defendant’s Florida, 49 428 U.S. Tennessee, penalty, applied in is the death Texas, (1976); and Jurek v. 428 L.Ed.2d 913 punishment” “cruel and unusual under both L.Ed.2d 929 96 49 U.S. Eighth Amendment of United States (1976); Payne, v. see also State I, § Constitution and Article 16 of Ten- (Tenn.1990). 10, 20-21 Defendant asks this nessee Constitution. complains that adopt Brock next Court to the dissent Justice The Defendant Dicks, Penalty not does v. 615 132-142 Tennessee Death Statute State S.W.2d (Tenn.1981). persons eligi- sufficiently the class of argument A made narrow similar personal sentence history

ble for the death in the case of as the child of a Vietnamese father, felony recently murder. This Court ad- mother and an American difficult Middlebrooks, v. State childhood, dressed this issue problems. and educational (Tenn.1992), upheld 840 S.W.2d 317 Nevertheless, the time of Kai Yin validity penalty felony of the death under the death, Chuey’s already the Defendant had Court, majority murder statute. A knowingly intentionally killed one victim 2—203(i)(7) however, §§ found that T.C.A. 39— robbery. might effectuate a Whatever 13—204(i)(7) (1991) nar- do not 39— said about the circumstances of the first kill- eligible death row the class of murderers that, ing, the record establishes after sufficiently Eighth under Amendment struggle with Arthur Lee had ended and the I, Constitution, the United States and Article money gold kept search for the § by using the Tennessee Constitution begun, restaurant had the Defendant chose felony aggravating murder as an circum- second, provocation without to shoot a unre- thereby duplicating stance and elements sisting victim in the back of the head. We of the offense. The Court held that “it would imposition penalty find the death neither simply require aggravating that an circum- present disproportionate excessive nor stance other than that 39-13-206(c)(l)(D). § case under T.C.A. felony penalty murder.” In this See, Matson, e.g., S.W.2d aggravating case the found two circum- Johnson, (Tenn.1984); State S.W.2d (i)(7). neither of which stances were Simon, (Tenn.1982); State, (Tenn.1982); Houston Proportionality Review XV. (Tenn.1980). S.W.2d 267 39-13-206(c)(l)(D) § T.C.A. Under 39-2-205(c)(4) ], [formerly § T.C.A. §of Pursuant to the directives 39- charged determining with Court whether 2-205(c)(4) amended now 39-13- [as in each capital the sentence of death case is 206(c)(1) ], find that the we further sentence disproportionate penalty excessive or Yin Chuey of death in of Kai the case cases, imposed considering in similar both fashion; imposed arbitrary in an that the the nature of the crime and the defendant. findings supports jury’s evidence of two necessary it Because we find to remand the circumstances; statutory involving the murders cases of Arthur and supports jury’s finding evidence Amy resentencing, forego propor Lee for we any mitigating circum absence However, tionality review in those cases. we sufficiently outweigh stances substantial killing Chuey Yin have examined of Kai aggravating so circumstances found. We penalty imposed and hold that in that therefore of death in affirm the sentence disproportionate case not excessive or Chuey. case of Yin Kai penalty imposed in comparable cases. summary, In Defendant’s we affirm convic- Chuey, of Kai Yin The murder as de- Amy of felony tions murder as to Lee and opinion, in this scribed earlier involved the Arthur his Lee but reverse sentences in killing helpless, intentional and senseless of a resentencing. those cases and remand robbery. elderly during victim a We are affirm conviction We both Defendant’s of fel- unaware that the nature the Defendant in ony murder of death and his sentence as to initially compares favorably this case with Chuey. Kai Yin capital that of other defendants similar good The Defendant here em- cases. had a will be carried sentence of death out by testimony ployment record as shown provided by day law on the 7th Decem- manager personnel the Defen- ber, 1993, by otherwise ordered unless supervisor dant’s immediate at his former authority. by proper Court or other Costs place employment. cooperated He with adjudged against are the Defendant. expressed F.B.I. and for the remorse young man killings. prior He is a no with JJ., ANDERSON, background. recognize also concur. criminal We O’BRIEN and “thought C.J., lady He she REID, the “old roll over.” concurs and dissents something in and shot her had her hand” separate opinion. room, leaving the the defen- Upon the head. DAUGHTREY, J., separate dissents Ging Lee holding Sam dant saw Bounnam opinion. not to hurt her.” There and “told Bounnam REID, Justice, concurring and killed in the record as to who Chief is no evidence Lee, single of a only that she died dissenting. Amy gunshot wound. holdings majority’s I concur with the ini- the defendant degree murder record shows that the three convictions first rob, intent is tially not kill. This that the sentences of death intended be affirmed and by three incidents that oc- Amy Arthur Lee demonstrated for the murders of Lee and reversed, during the event: when defendant because the evidence is insuffi- curred grab Chung’s gun; finding they told Arthur Lee not to support cient to were atrocious, heinous, lady” only “old because he or cruel. when he shot the especially 39-2-203(0(5) hand; thought something in her § she had T.C.A. Ging hurt he told Bounnam not to Sam when of death I also would reverse the sentence intent to kill is re- Lee. The absence of impose Chuey of Kai Yin for the murder jury’s guilty of not flected in the verdict imprisonment upon of life each sentence murder, charges premeditated the three conviction, for the reasons stated Justice jury’s finding that the evidence Daughtrey’s dissent and for the additional support charge did not the evidence is insufficient to reasons (i)(3), know- that the defendant aggravating circumstance of great to two or ingly created a risk 39-13-204(0(12) mass-murder, § T.C.A. during persons other than the victim more 39-2-203(0(12) (1991) § (formerly T.C.A. his act of murder. (1982)), proof not establish that the does recognizes that these majority opinion death-eligible under the hold- defendant was Middlebrooks, support the sen- ing are not sufficient to of State v. 840 S.W.2d 317 facts Amy (Tenn.1992), Lee. of death as to Lee and the sentence of death is tence Arthur majority to be penalty imposed in The found disproportionate to the evidence 39-13-206(e)(l)(D) cases, justify sentence for § sufficient to the death similar T.C.A. 39-2-205(c)(4) Chuey, Kai Yin the victim (formerly the murder of T.C.A. (1982)). lady,” as the “old identified the defendant lying on the floor unable was that she “was majority The evidence summarized put a protect herself when the defendant opinion shows that the homicides were com- her.” gun of her head and shot to the back during a mitted melee resulted when account is the defendant’s Omitted from this forcibly three four victims resisted the “thought she had some- statement that he would-be robbers turned murderers. The event, these facts thing in her hand.” victim, Lee, began when one Arthur brawl basis for a constitutional do not establish el- grabbed robber Bounnam’s hand and imposing a sentence death. him in the chest. Bounnam fell bowed aggravating cir victim, as an lady,” in That mass-murder against another “the old who may be defendant, unique to Tennessee against “eaus[ing] the cumstance is turn fell the of usefulness of its lack then kicked seen as an indication gun go off.” Arthur Lee determining first-degree murderers in those Chung causing him to “shoot one or robber punishment. deserving of death as Arthur shot who are two times.” Then Lee was Court, essentially re after gun.” majority A of this grab the Chung when he “tried to statute, aggravating found the try writing the told Mr. Lee not to When the defendant constitu murder to be get of mass Chung’s gun, [the Mr. Lee “tried to circumstance for (Tenn. Bobo, in v. 727 S.W.2d gun” the shot tional State defendant’s] and defendant 1987). majority found fell, Again, a of this Court moving Mr. Lee but “was around” him. (Tenn. Black, 166, 184 again. the in v. S.W.2d shot him When and the defendant 1991) aggravating room, murder as an that mass into another he saw defendant walked that, though multiple ing insures even some may applicable to device be in the restricted “committed close time.” Howev defendants who fall within murders er, language manage of the statute nor death-eligible neither the defendants class of how this circum either case demonstrate penalty, those re- the death who avoid has, the dissent in in the words of stance among murder- ceive it will the worst be Bobo, anything of at added particularly whose crimes are ers—those process narrowing “substance” to the serious, penalty which the death is or for its death-eligible murderers. Since class appropriate. peculiarly nothing in added to the consti use this case (citations omitted). Id. at 343 upon tutionally required procedure, reliance aggravating found circumstances justification for the sentence mass murder as fact, not, jury in case do in narrow this of constitutional dimen of death was error defendants, State, death-eligible at class sion. Middlebrooks imposition of death vio- of the sentence 345-46. prohibition against lates the constitutional above and also For the reasons stated punishment. cruel and unusual dissent, Daughtrey’s those stated Justice case do not show that the facts this majority’s com- I hold that the also would death-eligible defendant is a member of the meet parative proportionality review does not of murderers. Middlebrooks class forth in T.C.A. 39-13- the standards set State, the standards of the Court articulated 206(c)(1)(D), requires a consideration which impose a sentence of death. proof required to the crime and of “both the nature of imposition The Court found Harris, defendant.” See State felony upon of death a conviction of sentence (Tenn.1992) (Reid, C.J., dissenting). se, not, per violate the constitu- murder does case is proportionality review prohibition against cruel and unusual tional recites, merely conelusory. entirely It However, in that punishment. Id. at 323. fashion, killing summary the facts found that for a sentence case the Court also justification the sentence of then states valid, circum- of death death, “the defendant chose without in fact narrow the class stances must second, unresisting provocation to shoot a death-eligible persons. The Court stated as here, head.” Even in the back of the victim follows: omits, being majority perhaps as immate- necessary step constitutionally first As a rial, thought the victim the defendant Amendment, Eighth Su- under record falls something in her hand. The had required the states to preme Court has be, in crime to establishing far short narrow the sentencers’ consideration murders, first-degree other comparison with smaller, culpable more penalty to a egregious. of the most one pre- than the class of homicide defendants obviously defendant, person, as a death-eligible murderers. Furman class of He is a of the bad. not one of the worst state, however, only genuinely A must not and, mur- the time the at native of Vietnam eligible defen- narrow the class of death committed, age. years of he was 20 were ders dants, way in a that reason- but must do so woman the child of a Vietnamese He was ably justifies imposition of a more se- who died Vietnam an American soldier compared defendant vere sentence on the child, was a small 1968. the defendant When prop- A guilty of murder. to others found until he was very and did not talk he was sick device, therefore, provides a narrowing er According the clinical age. years of six distinguish the case principled way to psychiatry professor psychologist imposed from penalty the death University Medical School of Tennessee not, many it was cases which the defen- and tested had interviewed who in penalty case a death must differentiate very dant, him a described to the defendant even-handed, objective, and substantial- an Vietnam, had in where he childhood difficult many murder ly way from the rational aunt, an and also with orphanage in an may not lived penalty cases in which the death him naked to a by tying him result, disciplined narrow- who imposed. proper be As portion audio to mute the According to his the failure bit him. tree where ants it was videotape the crime scene when psychiatrist, the defendant account to the provide jury, and the failure to the and had shown for some time on the street had lived interpreter for the independent, unbiased marijuana early an at an exposed to become at trial consti- only eye-witness who testified Saigon in fell age. stopped He school when they cannot errors tute such substantial 1975. harmless, espe- merely as brushed aside spon- auspices program of a Under penalty is cially in a case in which the Church, defendant sored the Catholic undermine confidence sought. These errors Memphis in and his mother arrived conviction integrity of the defendant’s in the dropped years age. He when he was 17 But, single first-degree murder. for year. His American after one out of school (and prejudicial) error most obvious Mitchell, testified that the de- sponsor, Mrs. the trial court’s before us is record now and a half lived with her for one fendant jury at the sentenc- faulty instruction to the cooked and years, during which time he trial, for regarding the basis ing phase of the Mitchell, ill for Mrs. who was with cared penalty. imposition of the death cancer, and her children. She described hon- “very, very humble” and trial, defendant as aggravating the time of At personnel manager of the defen- est. The § 39-2- question, T.C.A. circumstance employer and his immediate dant’s former 203(i)(5) (1982), encompassed a murder very good him supervisor described as a heinous, atrocious, or cruel “especially employee, responsible and well-mannered. depravity torture or of mind.” that it involved agent cooperat- An FBI testified that he had that, Ten- Having correctly concluded under Chung with the FBI in their search for ed law, the murders for which Heck Van nessee prior Bounnam. The defendant had no did not involve “tor- Tran had been convicted history criminal of arrest. The record ture,” statutory judge the trial truncated psychiatrist described the defendant as de- (i)(5) charged language of subsection esteem, truly pressed, suffering from low jury it could find as remorseful for the crimes he had committed. that the murder of each victim whom, portrait person for This is not the of a de- especially cruel in that it involved “was pursuant rigorous searching propor- to a pravity of mind.” review, tionality the death sentence is war- Many challenges vagueness and over- ranted. against Tennes- breadth have been mounted by majority process followed in its “heinous, aggrava- atrocious and cruel” see’s proportionality proof relied review and the circumstance, early ting beginning as as upon affirming the sentence of death are Dicks, e.g., 1981. See subject further to the criticisms made (Tenn.1981). None, far, so have State, Middlebrooks v. 840 S.W.2d at 354-55 Perhaps com- been the most successful.1 (Reid, C.J., concurring dissenting). (i)(5) to date plete discussion of circumstance Williams, found in I the sentence of death and would reverse (Tenn.1985), in the Court based its impose imprisonment. sentences of life three language of circum- interpretation of the Justice, DAUGHTREY, dissenting. dictionary definitions of the stance statute, terms found that subsection appeal aspects of this There are several follows: troubling. my judgment, that are In given of the statute must be permit failure to individual voir words trial court’s meaning. ordinary and natural circumstances of their dire of the under the (or trial), determining meaning, we refer change the venue of the this case Standard, Capital Standardless should not be Cases—the 1. This uniform result in Tennessee Creech, (1986). signal statutory provisions taken as a that such But see Arave v. N.C.L.Rev. 941 uniformly accepted by - U.S. -, courts or commenta are 123 L.Ed.2d Rosen, "Espe analysis, a full see tors. For cially Aggravating Circumstance Heinous” Dictionary Heritage nature, American fairly the En- that the inference can be of glish Language depraved where we find drawn the follow- state of mind of ing the murderer existed at definitions: the time the fatal upon blows were inflicted the victim. This “Grossly reprehen- wicked or Heinous — is true it is “the because murderer’s state

sible; abominable; odious; vile.” killing” of the time mind at which of cruel; “Extremely evil or Atrocious — must to depraved. be shown have been bad; monstrous; exceptionally abomina- (Emphasis supplied.) Lujan [124 ble.” (1979)] Ariz. supra; 604 P.2d 629 pain Disposed to inflict or suffer- Cruel — Ariz. [131 v. Ortiz 639 P.2d 1020 ing; suffering; causing painful.” (1981)], supra. Torture: —“The infliction of phys- severe Williams, 690 529-30.2 pain punishment ical as a meaus or of. discussion, From gleaned this it can be coercion; this; experience of mental aspects that are there two to circumstance anguish; thing method or that objective subjective. and the other anguish; —one pain causes such or to inflict In order to establish that a is “cru murder great physical pain.” with or mental el,” objective it that must be shown conduct corruption; Depravity wicked —“Moral by the defendant resulted to the “torture” perverse or act.” hand, victim. On the other to demonstrate provides Our that it statute is the mur- atrocious,” it proof or is “heinous especially heinous, der which must be atro- “depravity” must as establish defendant’s cious, or cruel. The second clause this subjective of mind. state State v. Gra Cf. viz., statutory provision, "... in that it ham, Ariz. 660 P.2d depravity mind,” involved torture or (1983), Court, Supreme the Arizona qualifies, limits restricts the preceding and interpreting statutory provision, a similar heinous, “especially words cru- atrocious or held “cruelty” pain involves the el.” This clause second means that to victim, distress on the visited while the terms especially show the murder was hei- “depraved” go perpetra and “heinous” nous, atrocious or cruel the State must attitude, tor’s mental state as reflected prove that torture of it involved the victim in his words and actions. depravity of mind of the killer. Williams, According “apples” to of ob- “Torture” means the infliction severe jectivity “oranges” can be mixed with the physical pain upon or mental the victim subjectivity, only to a extent: but limited he while or she remains alive con- torture depravity can be used establish In proving scious. that such oc- torture mind, theory that on the one must be de- curred, State, necessarily, proves also praved engage in the another torture of depravity that the murder involved of mind being. nothing human But there is murderer, because state of mind specific Williams that would authorize the willfully of one who inflicts such severe case, i.e., given the instruction physical pain or mental on the is victim cruelty by nothing shown more could be depraved. “depravity than of mind.” In this convolu- However, “depravity hold that we (i)(5), subjective tion of subsection state may, circumstances, mind” in some be of mind would be used establish the exis- torture, although shown as hereinabove de- result, objective cruelty, and tence of an fined, occurring If did not occur. acts thus, apples proverbially, would “mix with the victim after death of are relied oranges.” upon depravity show mind murderer, clearly Cruelty, improper. Such a such acts must shown to result Williams, requires infliction have occurred so close to time of the defined death, pain suffering, or torture. It is victim’s must have of such been qualify specific thus Williams for atrocious or cruel" and 2. The issue in Williams was whether body mutilation of death after the victim’s committed penalty. the death "heinous, could be considered occurred head, have ren- in which would blank by in- the same terms as defined Williams Hence, immediately mind, unconscious. although dered Lee depravity heinousness involve Arthur Lee does not Moreover, killing legislative in action atrocity are. any beyond in mind” that found “depravity vague nature appears to concede Indeed, fact that first-degree murder. “depravity,” the Tennessee General the tenn Ging kill Bounnam not to told Assembly element of circum- defendant eliminated that shooting may (i)(5) Lee and the fact the sub- Sam in 1989 and reworded stance struggle by Arthur’s precipitated “The murder have been that it now reads: section so finding “deprav- heinous, atrocious, against a cruel in are both factors or especially was ity.” physical torture or serious that it involved necessary produce beyond that abuse noted, in this rec- previously the facts As 39-13-204(i)(5) (Supp.1990) death.” T.C.A. “cruelty,” as that term is ord not establish do added). Thus, subjec- entirely (emphasis an require the infliction defined in Williams may longer as the no be used tive standard they suffering. Certainly do not pain penalty in imposition of the death basis for Rather, in State v. Dixon. meet the test of

Tennessee. case, there no “torture” this where was (and an new, the sole basis for instruc- wholly objective is obvi- shown thus standard (i)(5) the defen- clarity subsection was ously improvement, in terms of tion under mind”), and alleged “depravity of rationality. may it no more than dant’s But do pain beyond did not suffer in Tennessee where the victims restate what has been law by gunfire, experienced death passed on the constitu- since the Court first (i)(5) have applicable terms would tionality more of circumstance “atrocious,” case, rather than noted been “heinous” State v. Dicks. Court “heinous, truncating as he By the instruction atrocious and cru- “cruel.” that Tennessee’s did, judge may in Flor- the trial have confused el” circumstance was similar to those instruction, by jury. Certainly, cou- Georgia approved that had this flawed ida and been testimony, may well Gregg pled Dr. Supreme Court in with Smith’s United States jurors’ away attention Georgia, 49 have directed the 428 U.S. 96 S.Ct. Florida, (1976), at the of the defendant’s mind from the state L.Ed.2d 859 Proffitt murders, ostensibly time of the which was 49 L.Ed.2d 913 U.S. farther, charge, “ap- aspect of the and direct- Going specifically the relevant we physical effect of murder proved” placed on the Flori- ed it toward the the construction victims, which, strictly speaking, Supreme the Florida Court da statute Dixon, (Fla.1973), 283 So.2d relevant. aggravating cir- type the effect that this if confusion of terms But even this directed at “the conscience- cumstance was overlooked, ma- as the instruction could be unnecessarily pitiless less or crime which is con- jority proposes, there remains a serious Dicks, 615 torturous to the victim.” on a defen- question about reliance stitutional at 131-32. as a circumstance “depravity of mind” dant’s penalty. imposition of the déath proof “unnecessary supporting tor- There was no deprav- defined previously, we have physical abuse of the vic- As noted ture” or excessive terms, vaguest of as conduct Amy ity in proof ease. The shows that tims this constituting a head, evincing corruption” or “moral shot once in the “execution Lee was Williams, 690 perverse act.” Chuey potentially style”; Kai Yin suffered a “wicked developed no stan- at 529. have and at about the S.W.2d We fatal wound to her throat a de- determining the existence of dards for fatally shot in the back of the same time was perverse head, praved, morally corrupt, wicked or “execution-style,” by the defendant. necessarily act, say that it is immediately other than to rendered The two women were proves torture of the state proven Arthur Lee whenever unconscious these wounds. victim, “may, in some circum- and that it eight as the result of suffered bullet wounds torture, stances, here- although guns. be shown attempts to seize his assailants’ (empha- defined, Id. did not occur.” shooting point Lee inabove admitted defendant added). case, law, principled way distinguish Based on Tennessee case no sis legally penalty imposed, all we know about what is from except for the required prove “depravity,” to in many cases which it was not.” Id. depraved in acts occur- ruling Williams that Maynard Cartwright, In v. another shot- ring shown to have after death “must be gun involving aggra- torture or murder occurred so close to the time of the victim’s victim, battery found vated the Court death, nature, have been of such a and must “very it Godfrey -to be relevant” as reviewed fairly can that that the inference drawn allowing Oklahoma’s statute a death sentence depraved state of mind of the murderer “especial- imposed to be for murders that are at the time the fatal blows were existed heinous, atrocious, ly The or cruel.” Court upon the victim.” Id. at 530. Of inflicted Georgia, observed that Furman v. 408 U.S. course, governs restriction this latter 238, 313, 2726, 2764, 92 33 L.Ed.2d 346 S.Ct. timing alleged of a act” to reflect “wicked (1972), limiting requires channeling “the nothing that depravity, but it adds would imposing of the sentencer’s discretion in help a fact-finder determine whether the Maynard, at penalty.” death See 486 U.S. question actually product in murder 362, 108 at 1858. It further noted that S.Ct. is, mind, depraved whether it was of a par- Godfrey “rejected the submission that a “morally corrupt” or “wicked.” murder, surrounding a ticular set of facts “depravity prong of Because the of mind” be, shocking they might however were (i)(5) vague, is so aggravated circumstance themselves, enough in some nar- and without given instruction in this case allowed the facts, rowing principle apply those jury unguided to exercise the sort of discre- imposition penalty.” warrant the by the United States Su- tion condemned 363, in at 108 S.Ct. at 1859. Court Id. preme Godfrey Georgia, v. 446 U.S. Court ultimately Maynard held that the Oklahoma 420, 1759, (1980), 100 64 L.Ed.2d 398 S.Ct. ... “gave guidance than the statute no more 356, Maynard Cartwright, 486 U.S. jury language that the returned its verdict (1988). 1853, 372 In 108 S.Ct. 100 L.Ed.2d Godfrey,” appellate and that review of the Godfrey, murdered his wife the defendant infirmi- “did not cure the constitutional facts single shotgun and mother-in-law with blasts. ty circumstance.” Id. 486 allege that torture prosecutor did not 364, at 1859. U.S. at occurred, yet penalty sought the death under May is true that since the release of It permitting it a mur- Georgia’s statute when nard, upheld the con we have reviewed and vile, “outrageously wantonly der is or horri- (i)(5) against stitutionality of circumstance torture, ble or inhuman that it involved distinguishing challenges vagueness, mind, depravity aggravated battery or. an it, theory that un Tennessee statute on the jury the de- to the victim.” The sentenced statutes, Georgia like the and Oklahoma on a truncated ver- fendant to death based “heinous, qualified atrocious or the terms statute, stating murders sion of the finding “torture or by requiring a cruel” vile, “outrageously wantonly were horrible depravity mind” to the existence review, and inhuman.” its United Williams, See, e.g., 690 of the circumstance. jury’s Supreme found that the States Court Teel, 236, 527; 793 S.W.2d S.W.2d at State version of the statute was an unconstitutional denied, 1007, (Tenn.), 111 251 cert. 498 U.S. imposing penalty, basis for the death because (1990); 571, 112 L.Ed.2d 577 S.Ct. words, “nothing in few stand- there is these 908, (Tenn.1989), Henley, 918 cert alone, ing implies any inherent restraint denied, 3291, 1031, 110 497 U.S. S.Ct. arbitrary capricious infliction of on the (1990); Thompson, L.Ed.2d 800 and State v. the death sentence.” Id. at 100 S.Ct. at (Tenn.1989), denied, 239, 252 cert. Holding Godfrey’s 1765. “crimes cannot 1031, 110 111 L.Ed.2d 497 U.S. S.Ct. be said to have reflected consciousness sound, may be This distinction materially ‘depraved’ than that of more murder,” that “torture” can be defined person guilty the extent the Court reversed making guide jury the death sentence. Id. at terms that will S.Ct. “[tjhere It val 1772. determination. is not The Court concluded is subsection denied, us, (Tenn.1989), 497 U.S. ease, cert. in a like the one now before id (1990); 111 L.Ed.2d 796 jury asked to determine S.Ct. “depravity of need reflects infliction of violence and gratuitous the record whether help defined for fatally mind” and in which that term is wounded and mutilation of a less amorphous terms of victim, Zagorski 701 S.W.2d less Williams, ie., “wickedness,” “perversity,” (Tenn.1985), 478 U.S. cert. denied corruption.” Such undefined (1986), and “moral L.Ed.2d 722 indefinable) (and terms, apparently without depravity. Oklahoma as evidence factor or factors must be explication of what killing, description how court’s similar depravity, ren present in order to establish ever, constitutional found not to cure the capital punishment the Tennessee ders circumstance infirmity aggravating of the unconstitutionally vague, to the ex scheme 356, Cartwright, 108 Maynard v. 486 U.S. on circumstance tent that a sentence is based S.Ct. 1853. (i)(5). majority in this case refers by rulings States Su Recent United (i)(5) jury as harmless botched instruction capital that when a preme Court indicate However, apparent from the it is error. jury to a on alternative case is submitted Supreme Court decisions United States theories, unconstitutionality of the (the jury in capital in a trial the sentencer or ver requires theories that the conviction Tennessee) adequately informed of must be reviewing court is dict be set aside where the constitutionally limiting construction of a theory relied on uncertain as to which capital aggravator. vague as a term used e.g., reaching its verdict. See 1, Mississippi 111 S.Ct. v. 498 U.S. See Shell 3,1, 111 Mississippi v. 498 U.S. S.Ct. Shell 356, 313; Maynard Cartwright 486 U.S. v. (1990) 314, (Marshall, J., 313, 112 L.Ed.2d 1 1853; Godfrey Georgia, v. 446 U.S. 108 S.Ct. concurring); Maryland, v. 486 U.S. Mills 420, in a a sentencer 100 S.Ct. 1759. Where 367, 376-7, 108 1860, 1866,100 L.Ed.2d S.Ct. state, requires “weighing” one that States, (1988); Leary 384 v. United 395 U.S. mitigating fac weighing aggravating 6, 30-32, 1532, 1545-46, 89 S.Ct. 23 L.Ed.2d circumstance, tors, weighs an invalid (1969); California, Stromberg 57 v. 283 U.S. Espinosa v. Eighth Amendment is violated. (1931). 359, 532, 51 75 L.Ed. 1117 S.Ct. 2926, Florida, - U.S. -, -, 112 S.Ct. Williams, Except for the discussion in (1992); 2928, v. L.Ed.2d 854 Clemons 120 expressly any stan Court has never set forth 738, 752, Mississippi 110 S.Ct. 494 U.S. dards for what must be shown to establish (1990). 1441, 1450, ag An 725 108 L.Ed.2d depravity of mind. than abuse of the Other if de gravating is invalid its circumstance death, body close to the time of State v. vague to leave the sentenc scription is so as O’Guinn, (Tenn.), 561, 709 S.W.2d determin guidance for er without sufficient denied, 871, 244, cert. 479 U.S. 107 S.Ct. 93 factor. presence or absence of the ing the Williams, (1986); 690 L.Ed.2d 169 State v. —Black, U.S. -, -, 112 Stringer v. 529-530, Court, determining S.W.2d at 117 L.Ed.2d 367 S.Ct. depravity proved, has if of mind has been appellate court possible It for an massive stab referred to “vicious and to affirm weighing state like Tennessee Miller, body, 771 wounds” to the only by consti penalty, it can do so denied, but (Tenn.1989), 497 405 cert analysis or a re tutional harmless error 3292, 111 110 S.Ct. L.Ed.2d 801 U.S. aggravating mitigating cir victim, weighing of (1990); striking repeated State (Tenn.1982), appellate at the trial or level. Melson, cumstances v. —Black, at -, denied, Stringer U.S. S.Ct. v. 103 S.Ct. cert. U.S. 1137; (1983); Mississippi 494 at U.S. Clemons L.Ed.2d 983 senselessness 239, 750-3, appellate at 1449-51.3 The killing, Thompson,' S.Ct. Clemons, “especially hei- Supreme appeared even if there had been no Court same 3. aggra- analyses. at all and the valid approve The first nous” instruction two harmless error against beyond vating circumstance was to be balanced ask whether it was reasonable would mitigating The second in- been the circumstances. doubt that the sentence would have “heinous, cruel” circum thorough analysis that the atrocious or court must make a “depravity on the stance was submitted role the invalid prong only, mind” the sentence this case played sentencing process may not permitted should not be to stand. automatically factor assume that the invalid weighing process. infected the has above, pointed As out the Tennessee Gen- — Black, at -, Stringer v. U.S. Assembly implicitly recognized the eral has time, present at 1136-7. At the lan- uncertainty “depravity” inherent Supreme Court has indicated United States (i)(5), guage formerly found subsection require process by new, standard, that it objective will has substituted a appellate weighing court in a state exam follows: ines a death sentence skewed an invalid heinous, especially atro- The murder was clearly mitigator must be stated and ex cious, torture or or cruel in that it involved — Lewis, plained. See Richmond v. U.S. physical beyond that neces- serious abuse -, L.Ed.2d sary produce death. — Florida, Sochor (reweighing); U.S. 13—204(i)(5)(Supp.1990) (empha- T.C.A. 39— -, -, 112 S.Ct. 119 L.Ed.2d added). change constitutes sound sis This clearly (appellate court must indi recog- I that it should be policy, and believe analysis being error is cate harmless by this as a constitutional mandate nized made); Mississippi, see also Clemons applied in this ease. Court and (under at 1451 certain U.S. for resen- would be a remand result require circumstances “it would a detailed (i)(5) in- tencing proper under a subsection explanation for the based on the record” struction, as to those counts which at least agree giving the error in Court support the arguably proof sufficient “especially was harm heinous” instruction Otherwise, proper proce- penalty. less). appears Williams To extent that be for the Court to set aside dure would specific terms to have defined “torture” in the trial court and sentences of death set explained jury, to a that can be against the defendant. impose life sentences (i)(5) may upheld as constitutional. But reasons, respectfully I dissent For these where, here, “depravity of mind” is majority opinion. from the jury basis submitted to the (i)(5), finding the constitu under subsection validity resulting sentence is

tional doubtful,

highly of a consis the absence applied

tent standard that can be to deter

mine whether the murder resulted from “de developed by the

pravity.” None has been certainly supplied

Court none was date — given jury in case—and the fact

to the appellate court preme beyond Court reiterated inquiry whether a reason- volves an as to beyond would have been the same doubt that able doubt the result a reasonable must conclude especially circum- heinous had the error did not contribute the constitutional properly defined in the instruc- stance been tions, obtained. sentence 753-4, at 1451. In U.S. at 110 S.Ct. Florida,-U.S.-,-, Sochor 2114, 2123, (1992), the Su- 119 L.Ed.2d

Case Details

Case Name: State v. Van Tran

Court Name: Tennessee Supreme Court

Date Published: Sep 27, 1993

Citation: 864 S.W.2d 465

Court Abbreviation: Tenn.