State v. Vann

be required prior Rule 13 authorization Tennessee, Appellee, designated “ex- attorney’s an services fore STATE hourly peri” may at an rate be billed designated amount. excess of the Rule 13 must set forth in an order Such authorization VANN, Appellant. Gussie Willis

by hourly the trial court the rate to be billed. explicit petitioner procure prior Tennessee, The did Supreme Court hourly exceeding 40.00 approval for an rate $ at Knoxville. therefore, is, the rate an hour and limited to 21, 1998. Sept. an The neither abused of 40.00 hour. AOC $ arbitrarily in reduc discretion nor acted its 19, 1998. Rehearing Denied Oct. hourly rate from 150.00 petitioner’s $ City to 40.00 an hour. See McCallen $ (Tenn.1990) Memphis, 786 S.W.2d

(setting of review for common forth standard trial court of certiorari as whether

law writ jurisdiction illegally, arbi

exceeded or acted

trarily fraudulently). Ferrell, cause is remanded to Charles

Director of the Administrative Office of

Courts, of the March for consideration paid bill shall be in accordance which opin- the mandates of Rule 13 and this however, Payment petitioner,

ion. 2,500.00 cap set

shall not exceed $ against the

trial court. Costs shall be taxed Short,

petitioner, Ann execution C. which

may necessary. if issue

ANDERSON, C.J., DROWOTA and

BIRCH, JJ., REID, Special LYLE

Justice, concur. Second, setting submitting motion to the Court a written in the court. services rendered the Administrative forth: will be submitted to claim (a) proposed expert or ser- approval the name of the final Director of the Courts for vice; of the Courts and Director

Administrative how, (b) and where the examination is when Chief Justice. cases, are to be may to be conducted or the services capital determine that the court services, performed; expert investigative or other similar (c) report evaluation and necessary protection the cost of the services are ensure thereof; (Tenn. rights of a defendant. the constitutional services, (d) 40-14-207). the cost of other defense counsel Code Ann. appearances. approval such as court prior for such services must seek error, subparts. Af- some with numerous claims, fully considering the

ter defendant’s affirmed the Appeals the Court Criminal Thereafter, judgment. pursuant trial court’s Nashville, Mehler, Ashley L. Own- Brock (1997 39-13-206(a)(l) Ann. (Trial by, Appeal), and On Ken- Cleveland Court. Repl.),1 the case was docketed (Trial Miller, Only), Ap- neth Cleveland raised numerous issues The defendant pellant. Court, examining the carefully after but Walkup, Attorney Knox General and law, including John the thor- record and the entire Moore, Reporter, E. Michael Solicitor Gener- Ap- opinion the Court of Criminal ough al, Attorney Cauley, P. Assistant Gen- John peals and the of the defendant briefs eral, Nashville, Estes, At- Jerry Court, 1997, N. District 15, State, on December General, Athens, torney Appellee. for cause for oral setting an Order the entered January at term

argument the of Court Knoxville, argument to limiting and oral OPINION 12.2 Tenn. R. eight issues. See S.Ct. DROWOTA, Justice. below, explained the For reasons defendant, capital Gussie alleged that none of the errors determined Vann, degree first was convicted of Willis affirmatively appear to have affected felony perpetration aggra- murder in the guilt imposed. or the verdict of sentence rape, vated and counts of incest. In the two Moreover, jury’s supports the the evidence ag- sentencing hearing, the found three mitigating and findings aggravating as to (1) gravating murder “[t]he circumstances: circumstances, death and sentence a less against person than was committed arbitrary. or Accord- disproportionate not (12) age years of and the defendant twelve first for ingly, the defendant’s convictions (2) (18) older;” eighteen years age or and sentence degree murder and incest3 “[tjhe previously convicted of defendant was by affirmed. electrocution are death felonies, pres- more other than one statutory charge, elements involve ent whose BACKGROUND FACTUAL person;” to the and the use of violence by at the proof presented the State The heinous, especially atro- “[t]he murder was guilt that on phase of this trial established it torture or cious cruel in that involved p.m., approximately July 11:39 beyond physical abuse serious wife, Vann, made an the defendant’s Bernice Ann. produce death.” 39- reported that emergency call to 911. She (1991 204(i)(l), (2), Repl.). Find- and 13— had daughter, Necia eight-year-old her Vann circumstances aggravating the three rope her in the with a around fallen bedroom beyond outweighed mitigating circumstances paramed- The breathing. was not neck and doubt, sentenced reasonable 11:54 find the scene at ics arrived at by to death electrocution. defendant hysterically on the front crying Vann Bernice The inside the mobile porch. of Criminal defendant was appeal to the On direct Court holding attempting challenged home the victim Appeals, the both his defendant covering sentence, perform Except for a blanket raising CPR. eleven claims conviction provides Supreme penalty imposed 2. Court Rule Tennessee the death 1.“Whenever setting judgment degree part has pertinent first murder and when the follows: “Prior court, the defendant final in the trial argument, become review the record the Court shall oral appeal right from the trial of direct shall have assigned. The and consider all errors and briefs Appeals. of Criminal court to Court designating may is- an order those enter Court conviction and the sentence affirmance argument." oral addressed at sues wishes automatically reviewed death shall Supreme Upon the affirmance Tennessee Court. years on to three 3. was sentenced The defendant Appeals, shall of Criminal clerk the Court incest, to be count which are consecutive each Supreme Court case docket the challenge the death He does sentence. Ten- proceed in accordance case shall appeal. in this those sentences Appellate Procedure." nessee Rules lap, they Later in Ms the defendant was nude. The defen- corn as watched the movies. paramedics evening gone had into her dant told the that he was not the victim gone to a happened, sure what had but that earlier in bedroom. The defendant had local evening purchased cigarettes eating pop- the victim had been store and convenience market, candy. Upon re- go pieces corn. He had left and two of “CMco” home, turning victim he to take a shower unconscious had been discovered undressed screaming from the shortly in her room Ms wife after his and then heard his wife hallway return. possibly He said the victim had other room. He ran into the popcorn. carrying choked on saw his wife the victim her arms. arms and taking After the victim into Ms victim, only panties, clothed had no breathing, determining that she was not signs paramedics vital when the arrived go neighbor’s defendant told his wife to to a Despite the scene. their to revive efforts began house to call 911.4 The her, pronounced the victim was dead performing Shortly victim. CPR on the hospital. her arrival at the Dr. L. Robert thereafter, to the res- Bernice Vann returned Martin, attending emergency physi- room idence, neighbor. along with a Berrnce Vann cian, performed post-mortem examination obtained blanket for defendant since body, paramedic of the victim’s which Robert beginning had not been able to dress before panties West observed. The victim’s were he CPR on the victim. The defendant said gold removed and a broken necklace fell onto in the front of the ambulance on had ridden the examination table. Both West and Dr. way hospital and did not ask his Martin observed bruises on the victim’s neck happened they wife what had until arrived at slight opening vagi- and a tear at the of her defendant, hospital. According na. West testified that he a small observed Bermee Vann said she had found the victim trace of blood near the tear. Both West and sitting rope her dresser with a tied beside Dr. Martin described the victim’s anus as around her neck. The defendant said the dilated, tone, extremely with no muscle indi- given had never him indication victim cating multiple episodes penetration of anal hang that she wanted to herself. The defen- prolonged period over a of time. Dr. Martm police dant also volunteered information to prior years testified that in Ms prac- fifteen spent night that the victim often with an ticing gynecology, obstetrics and he had nev- uncle, his, person a male friend of and a er seen the anus of a in female child such a Rogers, named he Linda with whom had Dr. condition. Martin testified that he did having an affair. “hangman’s not discover a fracture” on the neck, indicating Crittenden, victim’s Ruby Zip” the victim had been clerk at “Mr. strangled hanged. rather than Dr. pur- Martin convenience store where the defendant visibly upset, candy described Bernice portedly purchased cigarettes Vann as “totally mght the defendant as nonchalant” when of the murder testified that she did daughter’s informed of their death. When not recall whether or not the defendant had happened, asked Dr. Martin evening. reg- what had come into the store that Cash replied gone tapes defendant that he had out for ister for the time the defendant cigarettes Photographs and did not know. claimed to have been at the store did not vaginal openings purchase the victim’s and anal were reflect a of the items he claimed to bought. admitted mto evidence. Tate, Jerry investigator

Also into evidence a state- a criminal with the admitted given by County Department, McMinn ment defendant to Tennessee Sheriffs testi- Investigation Agent dispatched Bureau Bro- that he to the emer- Richard fied had been gan gency investigate purported the defendant that from wMch said room to sui- p.m. July eight-year-old on the afternoon of in this case. about 4:30 cide victim (includ- he, wife, body, Upon viewing Ms and their four children her Tate noticed red victim) neck, ing videotaped severely had watched mov- marks around her her en- anus, They pop- opemng larged ies on their television. had eaten the tear at the of her family telephone a 4. The Vann did not have their home.

vagina, vaginal opened and blood near the victim’s condoms found the defendant’s observations, opening. As a result of his residence. kit rape Tate asked Dr. Martin to obtain expert a in ser- Raymond Depriest, T.B.I. samples body. from the victim’s then Tate analysis a ology, pair testified that his obtained consent from Vann verbal Bernice jeans and a t-shirt believed to have been visit their home murder, day worn the victim on the investigate the death. de- victim’s Tate jumper, the victim’s under- blue and white dirty scribed the mobile home as and unsani- wear, packages two of condoms taken from tary. inspection, Upon strip found a home, an anal tak- defendant’s swab bed sheet tied to a knob on a drawer proved negative victim all en from the no- dresser the victim’s bedroom. Tate saliva, presence sperm, Howev- blood. signifying very tight, ticed that the knot was er, analysis of sheets taken from the adult, child, perhaps an rather than a presence of semen victim’s bed revealed the had tied Tate the knot. found another sheet blood, stains which were consistent with the portion with a torn from it in a back bed- saliva, samples and semen taken from the room. as evidence the torn Tate seized two defendant. sheets, bed, the sheets from the victim’s Blythe, expert an hair and fiber Chester clothing. Approximately some of the victim’s In- from the Federal Bureau of comparisons later, two after the defendant and weeks (F.B.I.) Train- vestigation, Forensic Science mur- Bernice Vann had been arrested for the compared had Unit that he testified der, Vann,5 rape, of Necia Tate and incest samples hair from the victim and taken resi- obtained to search the Vann warrant rope to hair Bernice Vann debris from search, During ensuing a porno- dence. from the residence and seized defendant’s graphic videotape, pornographic various strangle to have used to believed been condoms, magazines, unopened packages of a Blythe de- victim. concluded that hair jar rope partially petroleum jelly, used of rope samples tak- bris from the matched noose, tied into a and the victim’s dresser Bernice Vann. en from the victim and He items, along with the were seized. These microscopically also found hairs that were victim,

rape samples kit from the the items of on the torn similar the hairs the victim search, in of samples seized the consent piece of sheet taken from the residence. A hair, blood, saliva, hair, pubic head and a mi- of hairs on the bed sheet were number obtained from the defendant’s penile swab samples the hair taken croscopically unlike death, person morning after the victim’s Examina- from the victim or Bernice Vann. samples and obtained from Bernice similar they tion of these hairs revealed came preceding Vann two weeks envelope from an labeled adult. Because arrest, Bu- submitted to the Tennessee were samples containing hair the defendant’s (T.B.I.) Investigation testing and reau of it, opened Blythe empty he had been when analysis. compare the had been unable to recovered laboratory Littlejohns, a T.B.I crime Linda samples hair of the defendant’s evidence section, expert in the trace evidence testified hair. physical compari- that she had conducted a Mertens, agent specializing found in vic- John an F.B.I. son of the torn bed sheet pro- portion analysis in testified that the DNA of sheet found DNA tim’s bedroom and found on the victim’s According in to her anal- files of semen stains the back bedroom. profile the DNA of the parts joined. at bed sheet matched ysis, the had one time indi- finding torn of another no evidence on the defendant. odds She found trace profile of matched that on the taken from the vidual whose DNA sheet or anal swab however, victim, found on sheet are one partial- semen stains which related jelly un- petroleum ten thousand. ly used container of Vann, aggravated aggravated rape, child and abuse Upon the trials were 5. motion of Bernice severed. The defendant’s trial held first. neglect. a total effective sentence She received pled guilty accessory after Vann later Bernice the fact to twenty-five years. of murder, felony to commit facilitation Jones, Troy County, neighbor, Lee The medical examiner for The defendant’s McMinn assisted Bernice Vann Foree, Jr., testified that he had Dr. William testified that he ex- night call 911 on the of the murder. Jones body approximately amined the victim’s he arrived at the Vann resi- said that when 31,1992. July 5:30 a.m. on Dr. Foree said dence, defendant, opinion, had been vaginal observed blood both in the victim’s doing everything power within his to save the and anal areas. He also a lacera- observed Vann victim’s life. Jones said that Bernice area, vaginal tion in the on her contusion eating him that the victim had been had told forehead, and on abrasions her lower extrem- it. might have choked on Jones popcorn and signs asphyxiation, ities. He noted Bernice also on cross-examination that stated angle depression based on the hysterical and had said some- Vann had been neck, victim’s concluded that the cause hanging thing about the victim herself. strangulation death had been rather than proof, At the close of the the State dis- hanging. markings Due to the on the vic- premeditated charge murder missed neck, tim’s he further concluded that on and the case was submitted strangulation accomplished had been from charges degree felony murder of first behind the victim. two of incest. The found the counts Toolsie, pathologist Dr. Ronald at Brad- murder, guilty felony count one Center, ley performed autopsy Medical by vaginal penetration, and one incest agreed with Dr. Foree that the cause of penetration. count of anal incest strangulation. According death had been trial, sentencing phase At the Toolsie, quarter-inch depression Dr. produced the birth certificates of both ligature strangu- the victim’s neck indicated the defendant and the victim to establish rope lation with the consistent found against a the murder had been committed defendant’s home. Torn muscles the vic- person years age than twelve less tim’s neck indicated that considerable force eighteen years age the defendant was applied strangle had been the victim. Dr. copies or older. The State also introduced repeated Toolsie also had found evidence of prior judgments January two 1994. dated sexual abuse. Based his observation of a judgments These reflected that the defen- vaginal opening tear to the victim’s and fresh previously dant had been convicted of two wall, bruising vaginal on the inside of her Dr. aggravated rape. Finally, counts of the Toolsie concluded that the most recent abuse proof State relied the medical intro- had occurred around the time of Dr. death. guilt phase duced at the of the trial to estab- Toolsie said the victim’s anus had been dilat- especially lish that the murder been had normal, larger heinous, atrocious, ed three or four times than or cruel in that it involved indicating repeated beyond she had suffered anal physical torture or that serious abuse penetration period produce over some of time. Be- death. tone, cause of the marked lack of anal muscle behalf, Testifying in his own the defendant penetration Dr. Toolsie said that anal could had one of chil- stated that he been fifteen accomplished have been at the time of death family dren. His had farmed the land of though injury even there was no evident poor, loving. others and had been but From hy- the victim. Dr. Toolsie said the victim’s ten, age the the the defendant had farmed intact, pen-

men had been but stated home, land. When his oldest brother left the something penis etration with other than a responsibility defendant assumed the of ear- breaking could have occurred the without adult, younger siblings. ing for his As an the hymen. Dr. Toolsie also noted that the vic- carpet in a mill defendant had worked and as scalp tim had a one inch contusion on her “of injured In a truck driver. 1980 he had been duration,” very quar- time recent and a one job carpet placed mill on the the on Finally, ter inch cut inside her mouth. Dr. prescription pain medication. He had be- medication, Toolsie testified that he had found no materi- and as a come addicted breakdown, resembling result, in popcorn al the victim’s stom- a had nervous had hospitalized. ach. the defendant mar- by electrocution. The ried the had been defendant to death Bernice Vann. After victim defendant, born, judgment in accordance according to the Bernice trial court entered a respon- pieces,” jury’s “went to so he took over the Court of with the verdict and reviewing for all the household chores After Appeals sibilities Criminal affirmed. child care. In 1989 the defendant had sus- considering the record and errors as- injuries attempted defendant, an truck tained severe in signed by judg- we affirm the hijacking. had beaten the head He been court and of Criminal ment of trial Court iron, injuries causing and a with tire head Appeals. disk in As a result of

dislocated his back. injuries, INSTRUCTIONS ON he suffers recurrent seizures. JURY killing The defendant denied victim OTHER OFFENSES how, hands, knowing or’ at had whose she the trial asserts that defendant sexually abusing He denied died. also jury on court’s failure to instruct victim. degree degree than first of homicide other felony deprived him of his state and brother, murder Eston Allen Gene defendant’s rights by jury, Vann, federal to trial constitutional testified the defendant and his reliability process, heightened due re father did not have a harmonious relation- as quired capital cases. The defendant ship, had been defendant not “want- case the proof that under the ed,” serts and that their father often had beaten on given an instruction should the defendant with handle. He also broom degree murder. He the offense of second the defendant had been the testified children, could have conclud also asserts that the all primary caretaker of his who Vann, rather proof ed that Bernice defendant, from appeared particularly love defendant, actually had committed than the the victim. murder, had and that the defendant McMahan, Marie sis- Lisa defendant’s merely assistance furnished substantial provided had ter testified that defendant Accordingly, felony. the commission support siblings. McMahan food and jury should have been he contends that the her defi- expressed belief that defendant offense of facili given an instruction on the nitely had not committed the crimes of which felony. responds that The State tation of Finally, the defense he had been convicted. an case did warrant evidence concerning the introduced medical records instruction either offense. hospitalization and treatment defendant’s charged the In this the indictment depression tendencies. and suicidal premeditated in count one with proof presented, upon the Based murder, degree and in count two first proven had determined that perpetration degree murder first aggravating of three circumstances existence the case submitted to rape. of Before was (1) beyond mur- “[t]he a doubt: reasonable decision, dismissed jury for the State against person than der was committed less murder, one, pro- premeditated count (12) years age the defendant twelve degree felony theory of first ceeded on the (2) (18) older;” years age eighteen or was instructed the trial then murder. The court previously convicted “[t]he defendant degree solely jury of first on offense felonies, pres- more other than the one or felony murder. statutory charge, involve ent whose elements record, in this person;” Reviewing the evidence the use of violence to Appeals heinous, agree Court of Criminal atro- with the especially murder was “[t]he failing in court not err or that the trial did cruel in that it involved torture cious or degree on give jury instruction second beyond physical abuse that serious felony. The of a § 39- murder and facilitation produce Tenn.Code Ann. death.” (1991 that in establishes 13-2Q4(i)(l), (2), Repl.). Find- evidence this record perpetra- victim had been killed aggravating circumstances ing that the three had died or that the victim beyond rape, tion of a mitigating circumstances outweighed choking popcorn, doubt, from an accidental jury sentenced a reasonable

101 v. jury applicable law. State that the victim had committed suicide. The as Forbes, 431, (Tenn.Crim.App. record in this case is devoid of evidence to 447 918 S.W.2d State, support jury charge 1995); on the offenses of 547 S.W.2d 531 Graham v. degree (Tenn.1977). second murder and of a Applying facilitation that standard to the 589, felony. Boyd, 593 State 797 S.W.2d in this we have determined instructions (Tenn.1990); King, con instruction did not mislead or (Tenn.1986). Therefore, in- failure to jury applicable law. fuse the jury struct on these was not offenses by challenged as error The instruction error. is as follows: can convicted Before the Defendant be JURY INSTRUCTIONS homicide, must any degree of the State The defendant next contends that the proven beyond a reasonable doubt proximate trial court’s instruction as to cause deceased, of the Necia that the death prosecution relieved the of its burden of Vann, brought a result of the about as intent, proving deprived criminal him of his is, Defendant; agency criminal of the verdict, right jury ato unanimous and shifted was due to the death deceased proof the burden to the defendant. The the unlawful act of the Defendant. State concedes that the instructions com unlawfully dangerous One who inflicts a plained given of should not have been in this upon another is held for the conse- wound proximate case because the issue cause injury, quences flowing from such whether by proof. had not raised The State through op- sequence be direct or however, argues, that the error is harmless agencies dependent eration of intermediate given because the instructions were correct arising original out of the cause. and, statements of the law considered as a Defendant, To convict the it is not neces- whole, instructions were not mis sary act act that his or failure to be leading, contradictory, confusing. cause, nor the sole most immediate cause that, recently We have stated in de only necessary It of death. is termining whether instructions are erro unlawfully Defendant contributed to the neous, charge this Court must review the death of the deceased. entirety its and read it as a whole. State v. following Death a wound from which (Tenn.1997); Hodges, 944 S.W.2d ensue, might death inflicted with intent to Stephenson, State v. kill, presumed to have been caused (Tenn.1994). Supreme The United States wound, proceeding such and the burden of evaluating Court has observed that in claims proof upon the offer of Defendant instructions, of error courts must show that death resulted from some other remember that cause not attributable to the Defendant. [jjurors solitary do not sit isolation proceeding while the burden of parsing booths instructions subtle shift, may proof the burden never shifts meaning way shades of the same always upon prove and is lawyers might. among Differences them beyond a reasonable doubt that the death interpretation may instructions brought of the deceased was about process, thrashed out in the deliberative unlawful act of the Defendant. understanding with commonsense acts, you any, If if find the Defendant’s light instructions in the of all that has unlawfully to did not cause contribute place likely prevail taken trial to the deceased, you or if have a the death of the hairsplitting. over technical proposition, as to reasonable doubt this 370, 380-81, Boyde California, 494 U.S. you acquit then him. must 1190, 1198, (1990); 110 108 316 S.Ct. L.Ed.2d Tran, Though agree that see also v. Van we with the defendant State (Tenn.1993). charge A in this case not warrant should be consid- the evidence did instruction, prejudicially giving proximate if it fails to fair- the cause we do ered erroneous ly legal agree if that the instruction relieved the submit the issues or it misleads the not

prosecution proving of criminal OTHER CRIMES EVIDENCE of its burden intent, deprived right him to unani- of his a that the trial The defendant next contends verdict, jury mous the burden of and shifted by admitting photographs the court erred proof to the defendant. The instruction testimony concerning past sexual to proof shift of clearly did not the burden is and excluded abuse because it irrelevant fact, the in- the defendant. In instruction 404(b). Alternatively, by R. Tenn. Evid. jury proof that “the of formed burden by trial court erred defendant asserts the always is upon never shifts and its minimal admitting the evidence because prove beyond that a reasonable doubt outweighed by preju- its probative value was brought death of deceased was about dicial effect. of More- the unlawful act the Defendant.” photograph responds The State that over, nothing in there is the instruction pen- highly prove relevant to that anal was deprived of which would have the defendant at the time of etration could occurred fact, In right to a verdict. unanimous injury to the murder no evident with specifically trial court instructed the anal muscle tone had victim because represent verdict must the consid- “[t]he episodes repeated destroyed prior and juror. In judgment of each order ered agree. penetration. anal We verdict, that each return a is 404(b) pro- Rule of Evidence Tennessee juror Your must be agree thereto. verdict vides that: unanimous, is, for a twelve votes verdict crimes, wrongs, or acts of other Evidence finding guilty or twelve votes a verdict prove is the character of not admissible Finally, guilty.” respect not with finding action in con- person a in order to show argument that the instruction defendant’s may, It formity with the character trait. proving relieved the the burden however, purposes. for other be admissible intent, correctly trial disagree. court must be satisfied be- The conditions which ele- on the instructed the as follows are: allowing such evidence fore felony ments of murder: (1) request hold a must court guilty you For to find the defendant jury’s presence; hearing outside offense, proven must have be- the state (2) that a mate- The court must determine yond a reasonable doubt the existence con- other than conduct rial issue exists following essential elements: forming a character trait and must (1) unlawfully killed that the defendant upon request the record the mate- state on victim; alleged issue, ruling, and the reasons for rial evidence; admitting in the killing committed that the if attempt perpetrate of or the evidence perpetration The court must exclude is, killing outweighed by alleged rape; that that the probative its value alleged prejudice. closely danger connected unfair separate, distinct and rape and was a determining evidence of whether event; and independent admitted, erroneously other crimes has been jury-out hearing the record of the we review to com- intended the defendant abused its if the trial court to determine alleged rape; mit DuBose, discretion. State (If) killing was the result (Tenn.l997)(standard appellate review reckless act the defendant. where trial court has of discretion abuse procedural added). substantially complied with the Clearly, (Emphasis charge, read 404(b)). Similarly, un requirements Rule correctly jury of the informed the as whole 403 and Rule of Evidence previously ex- der Tennessee required. For intent Court, photo decisions of reasons, previous we conclude plained it to an admissible if is relevant graph is preju- not instructions read a whole were probative dispute if its value is erroneous; therefore, and this issue issue dicially prejudicial effect. outweighed not its without merit.

103 improper an or unfair suggest a decision on Stephenson, State v. 542 S.W.2d Banks, (Tenn.1994); photographs the and testimo- basis. Instead 564 S.W.2d (Tenn.1978). neces- ny prior abuse were regarding The of a trial sexual decision position that the judge photograph sary support to the State’s to admit a into evidence anally raped vaginally and at appeal will not be absent a victim had been overturned showing They neces- clear of an Id. the time of the murder. were abuse of discretion. sary explain that the victim could have to case, sought prove In this the to penetrated anally time of the been at the during the defendant the victim murdered injury. sustaining an evident murder without rape, the course aof and that he committed (evi- DuBose, at Compare 654-55 by vaginal penetration. incest and anal show cause dence relevant and admissible to emergency physician room testified that he accident). intent, death, and lack of injuries apparent found no fresh to the vic- they Though photographs graphic, the are area, tim’s anal the but described condition testimony regard- depict are to relevant ongoing repeated her anus as consistent with conse- injuries in this and the Toolsie, penetration. anal patholo- Dr. Accordingly, quences prior sexual abuse. gist performed autopsy, who testified the defendant has failed to show the trial that because of the condition of the victim’s admitting court discretion in abused its anus, penetration at time of death could evidence. resulting have occurred without a evident Toolsie, injury. Foree, Dr. Dr. the med- alleges The defendant also examiner, ical both testified that the victim by admitting trial court erred into evidence injuries vaginal region had fresh her indic- testimony enumerating of Detective Tate penetration ative of at the time of death. residence, items seized from the defendant’s Photographs vaginal of the victim’s anal and jar jelly, including half-empty petroleum regions were introduced into evidence. mag pornographic videotape, pornographic The record reflects that at the end of the azines, The defendant and unused condoms. jury-out hearing admissibility to determine testimony regarding the asserts that stated, photographs, “I trial court portrayed items him as a sexual deviant and probative outweighs preju- find the value prejudice. conceding resulted in While effect, deny prejudicial dicial and do not ef- irrelevant, testimony ar the State fect.” The defendant asserts that since the gues that the error is harmless because it effect, judge recognized prejudicial trial affirmatively appear does not to have affect photographs should not have admit- agree. ed the verdict. We argument ted. The defendant’s fails to rec- A review of the record reveals ognize that most evidence introduced testimony State did not elicit the of Detective lawsuit, civil, the trial of criminal or has maga- characterizing videotape Tate prejudicial impact position on the of one pornographic relating zine as the title of party determining to the lawsuit. wheth- Instead, attempted videotape. the State 404(b), required by er exclusion is Rule to end Detective Tate’s narrative and steer prejudi- issue is not whether the evidence is path. him down a different Neither cial, unfairly prejudicial. but whether it is tapes magazines presented nor the were DuBose, has 953 S.W.2d at 655. This Court in- jury, investigator related no emphasized prejudice” “[a]n that “unfair jury regarding formation to the the contents tendency suggest undue decision on an videotape magazines. Though basis, commonly, improper though not neces- information was not relevant and should not DuBose, sarily, an emotional one.” admitted, agree have been with the Court Banks, quoting at S.W.2d harm- Appeals that the error is Criminal 951. 52(a). P. less. Tenn. R.Crim. probative value of the evidence (i)(5) AGGRAVATING CIRCUMSTANCE challenged by the in this case was that the evi- outweighed by danger prej unfair The defendant next asserts udice, tendency support application not have a dence is not sufficient did strangu- force. He described the out in substantial aggravating

of the circumstance set 39-13-204(i)(5) (1991), upon in case “violent.” Based lation this as Tenn.Code Ann. heinous, that the is especially proof, atro- this we conclude evidence murder was “[t]he that the murder was cious or cruel in that it involved torture sufficient to establish heinous, atrocious, in beyond necessary especially or cruel that physical that serious abuse beyond abuse produce physical ar- it serious to death.” The defendant also involved Moreover, necessary in prosecution engaged produce miscon- that to death. gues that the torture. urging aggrava- to find the is sufficient to establish duct evidence The in murdered her ting “repeated, victim this ease was circumstance based father, vagi- anal and repeated, repeated perpetrated child.” own as anal abuse this Certainly facts are rape nal her. these only He contends that abuse of the victim temporal proximity in to the to establish that the victim suffered which occurred sufficient killing, aggravating pain. mental prove is relevant to severe circumstance. disagree with the defen We also injuries Pointing out the number argument prosecutor’s claim that the dant’s body, observed on Necia Vann’s the State improper. portion prosecu of the was That clearly argues that evidence establishes argument complained of is follows: tor’s subjected to that victim had been serious especially that the murder was The third is physical contemporaneous her abuse with heinous, in in- or cruel that atrocious argues evi The also that the death. State physical serious abuse volved torture or rape because the dence shows torture necessary produce to death. beyond that her father would have abuse victim evidence of that You have also received physical pain. As to resulted mental you This have this trial. is evidence misconduct, alleged prosecutorial received, injuries, neck of what was these argues prosecutor’s argument, that the State necessary produce death. You have to whole, not erroneous. considered injuries other received into evidence also Williams, In necessary produce go beyond that to that (Tenn.1985), in- “torture” as the we defined just are a few: the doctors death. These pain physical or mental fliction of severe testified, pathologist and others have upon the victim while he or she remains alive head, testified, there is the contusion respect to and conscious. Id. 529. With injury vaginal area is the that there beyond physical that neces- “serious abuse probably you under the evidence death,” sary produce to stated death, contemporaneous or close heard Odom, (Tenn.1996), “seri- S.W.2d 18 that repeated, repeated repeated, there was but degree, and that ous” alludes a matter were fad- anal abuse of this child. There physical “beyond that” abuse must injuries testified too been “necessary produce more than what lip. a cut All of this There was [sic]. proof in this case Id. at 26. The death.” point that at this trial evidence multiple the victim suffered established that injuries, as to these stands uncontradicted of her murder. injuries the course they necessary to beyond that were once, twice, both raped but She had produce death. anally observed vaginally. Witnesses argument, prosecutor’s vaginal regions. do not view the and anal We blood in both her whole, injuries imply past vaginal open- taken as sustained tear to her She had region, proof victim sustained serious bruising vaginal and a are ing, in the beyond injury pro- physical head one inch in contusion on her which was argument addressed the addition, duce death. the victim was stran- diameter. injuries general in a sense. in her victim’s gled such force that muscles physical past anal and abuse literally pathologist reference to torn. The neck were summarizing the prosecutor was arose as the resiliency of muscle tissue described though testimony. This reference present isolated tearing, such as that stated technically improper, is not error which could only application from the results 105 and solicited the bathroom This brator from be deemed to have affected the verdict. vibrator; that the defendant child use issue is without merit. no semen would people that had told several MOTION TO SUPPRESS victim, indicating condoms be found on abuse; perpetrate the may have used to that The defendant next contends authorities that Bernice Vann had told suppressed trial court evi should rope around her found with a the victim was pur dence about items seized from his home neck, rope necessitating a for the thus search to a defective search warrant. The suant object the murder that served as or another says support that the affidavit in Furthermore, the affidavit stated weapon. allege a of the search warrant failed to nexus Willis that mobile home of Gussie “[t]he place crime to be between the with a equipped and Bernice Vann Vann allege searched and failed to a time frame access” to adult provides dish which satellite during question in which the facts occurred. The affidavit re- programming. television Thus, argues, the defendant the affidavit fails scene,” the “death premises to the ferred probable evidence to establish cause and the photographs that of the “death and stated pursuant sup seized should have been videotapes appeared which scene” had shown responds pressed. The State that the infor non-commercially copied, an is, fact, to have been missing in alleged mation to be in vaseline, open jar a booklet titled affidavit attached to the search warrant. Say Help Your Kids No To Sex.” “How to 97, Longstreet, In v. 99 State 619 S.W.2d respect to the time frame which With (Tenn.1981), this Court held that to establish occurred, the affida- question the facts in had probable cause an affidavit must forth set days previous that within the five vit stated may facts from which a reasonable conclusion officer had observed the affiant and another be that the drawn evidence will be found to sex- the certain enumerated items related place pursuant to be searched premis- bondage in the named ual abuse and Likewise, warrant. Id. the affidavit must es. magis- contain information which will allow a view, correctly trial court found our trate to determine whether the facts are too facts the affidavit sets forth sufficient probable stale to establish cause at the time reasonably could Id.; magistrate from which the sought. warrant issuance of the see State, that a nexus existed 26, have concluded both v. Tenn. 114 also Welchance 173 (1938). McCormick, place crime and the to be between the v. 584 S.W.2d 781 searched, sufficiently facts were and that the (Tenn.Crim.App.1979). S.W.2d 824 probable Hicks recent to establish cause See Applying of this those rules facts State, 351, 250 559 194 Tenn. S.W.2d conclude that the Court of Criminal we McCanless, (1952); 183 Tenn. Waggener v. Appeals properly court’s affirmed the trial (Tenn.1946); judgment denying the defendant’s motion McCormick, (Tenn.Crim.App. 584 S.W.2d 821 suppress. Approximately weeks after two 1979). The defendant’s assertion murder, a warrant to search the Vann suppressed is should have been evidence pur- residence issued. Several items seized without merit. admitted into evi- suant to the warrant were support dence at trial. The affidavit MENS REA —INCEST had been warrant stated that the victim argues chronically sexually anally vagi- The defendant next abused charging him two counts of nally; pathologist examined the indictment with who allege proper mens rea and pen- incest did not victim had determined sexual Recently, disagree. is therefore void. We etration of the victim had occurred within (Tenn.1997), Hill, death; forty-eight that another child State v. hours of express which neither that Bernice held that for offenses provided had a sworn statement culpa ly require, plainly dispense nor to have sexual rela- had solicited her Vann state, defendant, an indictment which fails the child ble mental tions with the and when allege a mental state will be suffi- refused, procured specifically a vi- Bernice Vann had long required iji so as mental can cient state sfc if: logically allegations inferred from the day July, or about the 30th On satisfy the indictment so as to constitutional Tennessee, County, and McMinn before statutory requirements and of and notice finding of indictment did this unlawful- 727. form. Id. at ly penetration of the engage in sexual anal 39-23-501, opening as defined T.C.A. of of The offense incest defined Vánn, a person Necia the said Defendants (1991 Repl) §Ann. 39-15-302 as daughter, in of know to be their violation follows: 39-15-302, against T.C.A. all of which is peace dignity the State of Ten- of (a) person engages A commits incest who nessee. penetration in sexual as defined 39- Appeals agree the Court of Criminal We with 13-501, a person with he or she knows to “knowingly” of can be the mens rea

be, regard legitimacy: without of logically language inferred from the (1) child, parent, person’s natural The nature the criminal con- indictment. of uncle, aunt, grandparent, grandchild, penetration, alleged, duct sexual nephew, niece, stepparent, stepchild, gives phrase, daughter,” their “know[n] adoptive child; adoptive parent, or to the inference. The defendant’s claim rise is void is without merit. indictment (2) person’s or brother sister by adoption. whole or half-blood or PROPORTIONALITY REVIEW (b) felony. is a C Incest Class Finally, we consider whether comparative of death is defendant’s sentence offense, of respect With commission ly considering of disproportionate the nature expressly the definition incest does not begin, as the crime and the defendant. We plainly dispense culpable with a require, nor always, proposition the sen intent, Accordingly, mental state.6 knowl- proportional to the crime of tence of death or establish edge, recklessness will suffice to Bland, first-degree murder. State culpable mental for commission of state (Tenn.1997). If this case is S.W.2d 651 39-ll-301(c) §Ann. the offense. Tenn.Code lacking “plainly in circumstances consistent (1991 Therefore, Repl). under our recent with those in similar cases which death Hill, decision in if one of those three penalty imposed,” previously has logically culpable in- mental states can be disproportionate. of death is Id. sentence indictment, allegations in the ferred from the However, of death is not 665. a sentence argument Id. at the defendant’s must fail. merely the circum disproportionate because 727. to those of stances of the offense are similar The indictment at issue this case has another offense for which charged following: role, in life Id. received a sentence. Our conducting proportionality review is not to BERN- GUSSIE WILLIS VANN AND than death that a sentence “less assure day on or the 30th ICE ANN about VANN similar charac imposed in a case with never July, County, in McMinn Tennes- Instead, duty Id. our “is to assure teristics.” see, finding of indict- before the that no death sentence is affirmed.” aberrant pen- unlawfully engage in

ment did sexual Id. vaginal opening defined etration of the Vann, 39-13-501, per- duty, performing of Necia we do T.C.A. know to be their formula or scienti son the said Defendants not utilize a mathematical 39-15-302, rigid. Id. In daughter, grid. fic The test is choos in violation T.C.A. cases, comparing we consider against peace digni- similar all of which is (1) include, variables, many of which some ty of of Tennessee. the State case, specifi- In this the in- or herself and the victim. 6. the definition of the offense specific allegation cally perpetrator dictment contains requires that the have knowl- requirement. knowledge edge relationship familial between himself (2) death; testified death; for the defense though a witness the means of the manner of (4) home, (B) killing; at the Vann the motivation for the that when he arrived (5) death; similarity place everything of the vic- he could doing defendant was circumstances, including age, physical tim’s testi- When the defendant revive the victim. conditions, treat- and mental and the victims’ of this phase of the trial during penalty fied (6) killing; ment the absence or no remorse. The defendant he showed presence premeditation; absence to a certain cooperated with the authorities presence provocation; absence extent, consent by giving them verbal justification; inju- presence morning after the residence on the search his ry to and effects on nondecedent victims. Id. refuted, murder, but, was he when his alibi reviewing at 667. When the characteristics insight any other on the events did not offer (1) defendant, of the we consider: the defen- evening murder. There is of the of the prior prior activity; dant’s record or criminal nothing in record to indicate the defen- the (2) (3) race, age, gender; the and defendant’s Finally, capacity rehabilitation. dant’s for mental, physical or the defendant’s emotional knowledge of particular had the defendant (4) condition; or the defendant’s involvement victim because he is helplessness the of the (5) murder; coop- role in the the defendant’s Considering nature of the the her father. (6) authorities; eration with the defendant’s defendant, we conclude that crime and the (7) remorse; knowledge the defendant’s penalty the cruel imposition of the death for (8) victim; helplessness and the young dispropor- child is not killing of this capacity for Id. defendant’s rehabilitation. penalty imposed similar tionate to factors, cases, Applying places these we note that Vann into and that this murder proof helpless, eight- reflects that the class of defendants for whom death year-old strangled victim was to death her penalty appropriate punishment. anis violent, strangulation own father. The was review, conducting In have discov- our which is evidenced the torn muscles in the only im- ered a few cases which a apparent victim’s neck. There no motive posed a sentence less than death for a factu- killing. simply for the It is a senseless mur ally In v. James similar murder. perpetrated by der the defendant while he Julian, 03C01-9511-CR-00371, No. Lloyd anally vaginally raped daughter. and his own (Tenn.Crim.App., at Knox- 1997 WL 412539 home, The victim was murdered in her own 1997), ville, kidnapped July the defendant place society in which our citizens of acquain- three-year-old daughter of an ordinarily feel most secure. There is cer of Tellieo tance. He drove to a remote area tainly proof killing provoked no that the time, Lake, swimming for a un- and after justified. or had criminal defendant pen- attempted penile victim and dressed the previously record. He had been convicted of vagina, of her but was unable to do etration aggravated rape. two counts of is no There victim, anally raped the so. He then proof mental defendant suffered cry loudly, began to scream and he when she at the time the crime was emotional defect with attempted to muffle her screams his committed, although apparently he had unsuccessful, right he was he hand. When drugs past. prescription addicted to the victim to grabbed her neck and choked proof no that the defendant was There is also cleaning and the victim death. After himself fact, killing. at the time of the In intoxicated lake, body her naked into in the he tossed introduced evidence to show that the State surrounding underbrush. Forensic ex- samples taken the defendant the blood from body aminations of the victim’s revealed morning on the after the murder indicated injury consistent bruising and soft tissue system. drugs in his that he had no alcohol bruising her strangulation, as well as trial, with According proof in this the defen forehead, knees, Swelling and back. and se- completely involved in the offense dant was damage vaginal and anal vere tissue perpetrator the offense and was the actual evident, semen was also rape. openings was murder the course of Wit mouth, vagina, and found in the victim’s little emotion nesses testified that showed death, proof, upon the hospital after anus. Based victim’s degree felony Julian co- by jury when the offense was committed. was convicted first sought by turning penal- operated murder. The State the death authorities him- with the sentencing ty, phase, fact, and at the police. In he returned self into (1) aggravating found two circumstances: Chattanooga by renting a trip from a work less than victim was twelve by his car when he was informed mother that years age over defendant was case, police looking were for him. In this (18); eighteen that the murder cooperated little the au- the defendant heinous, especially and cruel in that atrocious acquainted with thorities. "WhileJulian was physical torture or serious abuse involved victim, In he was not related her. beyond produce death. ease, perpetrated the crime the defendant 13—204(i)(l) Ann. 39— daughter. own (1997 Repl.). determined Ware, a Hamil- Paul William aggravating circumstances did County twenty-four-year-old ton de- outweigh mitigating circumstances degree fendant was convicted of first murder imprisonment for sentenced the defendant killing four-year-old female child. She possibility parole. life Tenn. without asphyxiation. victim had been died of The (1997 39-13-204(0(2) § Repl.).7 Code Ann. anally vaginally raped, as in this and case. mitigation twenty- proof that The showed vaginal and sustained abrasions to She three-year-old single male had a defendant body. The murder oc- anal areas her longstanding history drug and alcohol case, curred, home, in history this in the victim’s had of criminal abuse. He some behavior, visiting drug possession where the was the room- primarily and driv- defendant jury He had under the influence offenses. mate of the victim’s mother. The found (1) sexually a child mater- that aggravating been abused as his two circumstances: grandfather had an years age nal and his mother been less victim was than twelve (18); parents alcoholic. His were divorced and eighteen over and the defendant was family history. had an unstable especially defendant hei- and that the murder was been problems He had emotional and had nous, in and cruel that involved atrocious a diagnosed depressive disorder and with beyond physical torture or serious abuse personality with borderline mixed disorder produce death. Tenn.Code . The he had smoked 13—204(i)(l) (1997 features. defendant said Repl.). §Ann. and 39— marijuana in and consumed a fifth of bourbon jury ag- determined that murder. The defendant the hours before the outweigh not gravating did circumstances police himself into for com- had turned mitigating and sentenced the circumstances mitting the offense. imprisonment for life without defendant to possibility parole. Ann. Tenn.Code Though the means and manner death 39-13-204(f)(2) (1997 Repl.). Again, § unlike quite to the murder this case are similar case, mitigation proof was substantial Julian, appar- are v. other differences State family regarding back- introduced Ware’s case, striking. ent and Unlike history a and ground, including abuse had that the defendant did not find Julian mental, emotional, psycho- instability, his and felony of violent previously convicted a been history, history of alcohol and logical his Moreover, mitigation substantial offense. problems, prior good drug related con- regarding men- proof was introduced Julian’s prior lack of a record of violent duct and condition, his abusive and and emotional tal felonies, finally, and his conduct since the drug family background, and his unstable offense, including efforts at rehabilitation addiction, including proof and alcohol regret. Proof feelings of remorse and was drugs under the- influence of and alcohol was to show that Ware was under ease, also introduced killing. little In this at the time influence, drug at the offered, of an intoxicant proof proof mitigation was Also, committed. while time the offense was the defendant was was offered to show that victim, not acquainted Ware was drugs with and alcohol not under the influence report death. should judge the Rule 12 sentence commented on 7. The trial relationship the victim of in this had a familial related to her unlike the defendant Accordingly, there is a discerni- the offense. ease. in each sentence for the lesser ble basis Allen, Finally, in a State v. John Edward review, Based our similar life case. case, seventeen-year-old Shelby County following cases which conclude that the degree mur- convicted of first defendant was many imposed have has been penalty death rape of ligature strangulation der for the this ease. similarities'with three-year-old one child. The found (Tenn. Keen, 926 In circumstance, killing aggravating boyfriend of 1994), twenty-seven-year-old felony, committed the course of a was hand over the mother held his the victim’s 2—203(i)(7) rape. § Ann. 39— raped her eight-year-old victim’s mouth (1982). instructed, jury was but did not The tied shoe He then until she defecated. heinous, especially find that the murder was tightly so string the victim’s throat around atrocious, or cruel in that it involved torture neck, body her into her and threw that it cut depravity Ann. 39- of mind. Tenn.Code After the defendant into the Wolf River. 203(i)(5)(1982). jury imposed a sen- 2— felony aggravated pled guilty murder and imprisonment. Rule 12 tence of life hearing held. The rape, sentencing mitigation report reflects that substantial aggravating circumstances8 found three introduced, including that the de- proof was of death. imposed a sentence prior Again no criminal record. fendant had (Tenn. in this Allen was unlike the defendant Irick, fact, related to the victim. In Allen was 1988), twenty-six-year-old victim. acquainted children, not even with the On including the babysitting a friend’s noted, judge 12 report, case, “[a]l- Rule the trial raped victim. As in this the defendant involving though this was a horrible case vaginally and anal- seven-year-old victim abuse, ligature strangulation, sexual and hid- as he held his hand ly. The victim suffocated child, ing body year a I feel screaming. of three old keep mouth to her from over her proper jury the life sentence was in view of the of was convicted The defendant youth prior good felony-murder aggravated and record of the defen- degree first and Following sentencing hearing, rape. dant.” 9 aggravating circumstances found four In of the similar cases in which a each the defendant to death. The and sentenced imposed, sentence less than death was there mitigating evidence defendant had offered is a discernible basis for the lesser sentence. of under the influence that he had been (Tenn. Carter, marijuana at the time he commit- or alcohol 1986). Indeed, only the differences are not offense, past and that he had a ted the discernible, they striking. are None of impairment. mental imprisonment to life or defendants sentenced (Tenn. Coe, In 655 S.W.2d 903 imprisonment possibility without the of State v. life 1983), stranger was a parole previously convicted of vio- the defendant had been eight-year-old victim. He lured her into his felony Two of the three had lent offenses. car, spot, raped and her. All drove to an isolated prior no criminal record. three completed rape, the victim Coe in those cases introduced sub- When defendants point, At that told him that Jesus loved him. mitigation proof. None of the three stantial (18) (1) eighteen years age against per- of or old- defendant was er; 8. The murder was committed heinous, (12) age (2) years especially and the than twelve of atro- son less The murder was (18) torture, eighteen years age or old- defendant was or or cruel in that it involved cious heinous, er; (2) especially atro- mind; (3) The murder was depravity commit- The murder was torture, or in that it involved cious or cruel with, avoiding, interfering purpose ted mind; (3) commit- depravity The murder was prosecution preventing arrest or or a lawful engaged was in commit- ted while the defendant another; (4)The murder the defendant or attempting rape. ting to commit Tenn.Code or engaged was while the defendant was committed 39-2-203(i)(l);(5) (7) (1982). § & Ann. attempting rape. committing- commit in 39-2-203(i)( ),(5),(6) § & Ann. per- against a was committed 9. The murder (1982). age years and the than twelve son less detailed,11 are of the strangled the defendant the victim until she cases not herein imposed by not opinion penalty turned blue. When the victim did imme- diately strangulation, from he disproportionate die in this not case is pocket stabbed her the neck with a knife penalty imposed for crimes. similar agonizing and watched as she suffered death Eventually, throes. left her die in the he CONCLUSION

wooded area. Coe was convicted of first murder, degree felony kidnaping aggra- of Tenn. In accordance with the mandate rape. Following sentencing 39-13-206(c)(l) (1997 vated hear- Repl), § Ann. Code presence ag- found the of four principles adopted prior and the decisions gravating circumstances10 sentenced the Court, the entire of this we have considered defendant to death. The defendant had of- cause find that the sen- record theory mitigating as fered evidence the imposed in arbi- tence of death was not had been under the influence extreme fashion, supports, as trary that the evidence ' at the time mental emotional disturbance discussed, jury’s finding of previously he committed the offense. circumstances, statutory aggravating jury’s finding aggravating circum- cases, present In these as in the three mitigating circumstances outweighed stances raped a the defendant murdered and beyond a doubt. Tenn.Code Ann. reasonable case child victim. victim each was (1997 13—206(e)(1)(A.)—(C) Repl.). We 39— attack, particularly helpless was assignments have considered the defendant’s disparity strength victim this case. The require and determined none error in each between the victim and specifi- respect to issues not reversal. With great, of the three cases was as it was in this herein, cally we affirm the decision addressed cases, the case. In two of the three victim Appeals, authored of the Court of Criminal acquainted was with her assailant. Woodall, joined in Judge T. Thomas ease, only acquainted victim Judge Judge Hayes and David David G. killer, to him. He her she was related opinion portions of that H. Welles. Relevant Certainly, father. that fact exacerbates her published appendix. hereafter as an are killing. the horrific nature of this two by electrocu- defendant’s sentence of death cases, the assault occurred in the the three be car- is affirmed. The sentence shall tion home, in this In all own as case. victim’s day as law on the 29th provided ried out cases, prior found that three January, unless otherwise ordered heinous, especially atrocious the murder was proper authorities. this Court or other depravi- or in that it torture or cruel involved ease, ty Similarly, mind. in this especially hei- J.,

found that the murder was J., HOLDER, ANDERSON, C. and atrocious, nous, or cruel involved concur. beyond physical torture or serious abuse BIRCH, J., separate opinion, reviewing dissents with produce After death. REID, Justice, joins. many Special other cases discussed above and certainly against person in Tennessee 11. There are other cases The murder was committed 10. (12) age has been sentenced to years the defen- in which the defendant than twelve less older; in terms of eighteen years age death which are similar to one or dant death, heinous, strangulation especially and manner of atrocious or the method murder was torture, Hodges, e.g. depravity violence. See State v. 944 or cruel in that it involved Cauthern, (Tenn.1997); mind; (3) 778 S.W.2d 346 State v. was committed for The murder Johnson, with, (Tenn.1989); 743 avoiding, interfering pre- 39 State v. or S.W.2d purpose O'Guinn, (Tenn.1987); 709 venting prosecution State v. arrest or of the de- S.W.2d lawful another; (4)The (Tenn.1986). we deem it murder was fendant engaged unnecessary facts of these to discuss in detail the the defendant was committed while cases, rape. in the three cases committing attempting to since the circumstances commit 39-2-203(i)( closely ),(5),(6) above are so similar & discussed Ann. (1982). of this case. circumstances

HI

APPENDIX Athens, TN 37371

(Excerpts Criminal from the Court of Decision) 10,1997. Appeals’ FILED: June OPINION AP- THE OF IN COURT CRIMINAL AFFIRMED

PEALS OF TENNESSEE WOODALL, JUDGE. T. THOMAS AT KNOXVILLE SESSION, 1996 DECEMBER OPINION Tennessee, Appellee, State of ANALYSIS WAS SUF- THE EVIDENCE WHETHER THE DEFEN- TO SUSTAIN FICIENT Vann, Appellant. Willis Gussie FELONY FOR DANT’S CONVICTIONS C.C.A. NO. 03C01-9602-CC-00066. IN- OF AND TWO COUNTS MURDER CEST. COUNTY, R. McMINN HON. STEVEN that the evidence The Defendant contends (FELONY BEBB, JUDGE MURDER- Defendant’s to sustain the was insufficient INCEST) PENALTY; DEATH felony and incest. murder convictions FOR THE APPELLANT: First, argues the evi- the Defendant KENNETH MILLER perpetrator prove he was dence failed Attorney at Law proof that the crime. He states Box 191 P.O. the circumstances entirely circumstantial and Cleveland, TN 37364-0191 to exclude strong cogent were not so (At Trial) hypothesis by a rea- every other reasonable the State doubt. He asserts sonable L. ASHLEY OWNBY hypothesis reasonable faded to exclude the Attorney at Law committed the murder. Sec- that Ms. Vann 180 N. Ocoee Street ond, failed to that the evidence contends P.O. Box 176 in fur- prove killing was committed Cleveland, TN 37364-0176 rape. therance of a (At Appeal) Trial and On sufficiency the evidence is When the MEHLER BROCK appeal, the of review questioned on standard Attorney at Law “whether, viewing in the the evidence after Roycroft Place prosecution, light most favorable Nashville, TN 37203 fact could have found rational trier of (On Appeal) beyond a of the crime essential elements THE APPELLEE: FOR Virginia, 443 doubt.” Jackson v. reasonable JOHN KNOX WALKUP 307, 319, 2781, 61 L.Ed.2d 560 99 S.Ct. U.S. Reporter Attorney & General (1979). is entitled This means that the State evi strongest legitimate view of the to the MICHAEL E. MOORE and all reasonable inferences which dence Solicitor General Cabbage, may it. v. 571 be drawn from State KATHY MORANTE (Tenn.1978). Likewise, 832, the 835 S.W.2d Attorney Deputy General credibility weight of the and of determination P. JOHN CAULEY testimony of witnesses and reconciliation the Attorney Assistant General testimony in that are entrusted of conflicts Parkway 450 James Robertson case, fact, in exclusively trier of this Nashville, 37243-0493 TN Sheffield, jury. 676 S.W.2d the State, (Tenn.1984); Byrge v. 575 S.W.2d 547 N. ESTES JERRY Further, 292, 295 the (Tenn.Crim.App.1978). Attorney District General the same appellate review is standard for Avenue 203 East Madison upon direct the conviction is based whether P.O. Box 647 112 performed autopsy pathologist who the

or circumstantial evidence. State John the son, victim, the (Tenn.Crim.App. tearing on that the testified 1982). only the victim’s neck could muscle tissue in great from the exertion of have resulted may An proven by offense circumstan if it upon the victim. asked force When State, tial alone. Price v. evidence possible to have been for woman would (Tenn.Crim.App.1979). S.W.2d force, response “[i]t his was that exert such upon where a conviction is based depend would on how athletic she is.” evidence, entirely circumstantial as case, jury concedes in this must find that Blythe, expert Although the F.B.I. Chester proof only guilt is not consistent with comparisons, testified hair fiber inconsistent his inno accused but rope on the to have been hair found believed evidentiary cence. There be an must basis strangle the victim those of used to matched every jury can which exclude other victim, samples hair taken Ms. Vann and theory hypotheses except reasonable apparently lost. from the Defendant were State, guilt. Tenn.Crim.App. Pruitt v. Consequently, comparison no was conducted. (1970). 256, 460 385, 390 argument is that In essence Defendant’s against the evidence the De- Ne- either Bernice or Defendant killed Vann began fendant with his own statements. His perpetration rape, cia Vann evening account of his whereabouts on the argues each mutual exclusion of other. He directly the victim’s death was contradicted preponderance indi- evidence testimony by the clerk store Bernice committed homicide. cates Vann showing register receipts cash items being reject to De- purchase entitled pur- had not been With claimed comments, due contra- alibi in his statement chased. He also made odd unre- fendant’s record, event, dictory testimony contained concerning individu- lated other suspected overwhelmingly shows that Defen- proof that he als when he stated never only pres- and his were the adults daughter commit suicide but dant wife that his would in the home when Necia Vann died. spent the ent that she had on a few occasions Furthermore, Dan, entitled to infer Rogers, night with her Uncle Linda that an adult male exerted He from evidence a male friend his. also admitted necessary to do dam- the excessive force having Rogers. with Linda an affair age resulting ligature strangulation. from the certainly The could have viewed proof indicates it was Defendant’s The self-serving attempt an statements sperm It was the victim’s bed sheet. offering suspicion. seemingly He was deflect essentially who was nude with Defendant raped his suspects other who could have paramedics ar- neighbor and victim when a why he daughter explanation and some fact, jury, as the trier rived. rape no motive to her. would have sexual brought reject entitled to certain evidence of the Defendant before behavior through out Defendant’s cross-examination being told the victim’s death also after attempted to examination which and direct theory. The supported the State’s Defen- give explanation of the incrimina- an innocent paramedic at the scene that the dant told the ting against him. evidence popcorn. apparently choked on victim had State, supra, quoted Pruitt v. this Court However, pop- no autopsy revealed that State, Tenn. from Marable v. Martin, by victim. Dr. ingested corn was held, (1958), wherein it emergency physician, room described “totally “really cool” and oblivi- Defendant of circumstantial evidence is Weight just fact that he was informed that ous The for the to determine. question was dead.” daughter evidence, from such inferences to be drawn circumstances the extent to which the pointed also to the evidence medical Toolsie, guilt and inconsistent Dr. are consistent with perpetrator. Defendant as

H3 Defendant, the medical conduct of the questions primarily innocence are with evidence, physical evidence were and the jury. jury could have con- proof which the from Pruitt at 391. strangled the vic- cluded Defendant damaging against The most evidence Also, during perpetration rape. tim perhaps Defendant was the medical testimo- vaginal penetration was proof anal and ny related to the sexual assault support the two convictions sufficient to victim. He asserts that the State failed to Accordingly, is without this issue incest. prove that the murder committed was merit. rape. much of commission THE JURY TO INSTRUCT REFUSING testimony supports the medical and forensic EN- THAT THE CASE WAS STATE’S theory. the State’s TIRELY CIRCUMSTANTIAL. examiner, paramedic The medical who guilt phase of the At the conclusion of the scene, criminal investi- arrived at the trial, requested trial court the Defendant gator dispatched emergency who was to the been no to instruct the that there had they room each testified that observed blood presented linking the Defen- direct evidence coming genital from the victim’s area. Dr. charged trial court dant to the offenses. The Toolsie, performed the medical examiner who request gave and instead refused such victim, autopsy of the testified that there followinginstruction: abuse, repeated was evidence of sexual guilt of the Defendant as well as strong that there evidence that the most was may required proved fact to be be “probably recent of the abuse occurred at evidence, by by direct circum- established about the time of death.” There was a tear evidence, combined. stantial both lining vagina, bruising fresh Direct is defined as evidence evidence wall, apparent vaginal on the inside of the proves the of the fact in which existence and the marked lack of muscle tone in the presumption. inference or issue without penetration possible anal area made rectal may testimony Direct consist of evidence leaving any appreciable injury. without Dr. perceived by the person of a who has fact, magnitude Toolsie also testified that the of a means of his senses the existence muscles, injury, including tearing sought proved disproved. be bleeding underlying rope with associated proof consists of Circumstantial evidence neck, mark on the victim’s indicated that of collateral facts and circumstances which pressure applied substantial directly prove must have been do not the fact issue but may in- ligature. magni- logically He from that fact testified that the which ferred. required produce tude of the force

injury up could not have been inflicted a child the evidence is made of entire- When evidence, only you quite ly a female athletic. circumstantial then before who justified finding the Defendant would be Physical pointed evidence also to the De- guilty, you must find that all the essential perpetrator fendant as the of the sex of- hypothesis of facts are consistent with the Except wrapped fenses. for a blanket guilt, compared all as that is to be him, the around Defendant was nude when every proved; facts the facts must exclude paramedics night arrived his house on the hypotheses except that of other reasonable found on of the child’s death. Semen stains guilt; the facts must establish such a the victim’s sheets matched those of the bed certainty guilt as to of the Defendant Defendant, Agent specializing and an F.B.I. beyond mind a reasonable convince the analysis testified that the odds of DNA that the Defendant is the one who doubt finding profile whose DNA another individual necessary not committed the offense. It is match those found on the sheet were would particular proved fact should be that each one in ten thousand. enough if facts beyond a reasonable doubt jury beyond summary, proved satisfy In a while the evidence are to circumstantial, of all the facts elements of the crimes was reasonable doubt thereby is incorrect assert- Defendant trial court that the instructed charged. to constitute the crime Before a penetration anal only that evidence of would guilty justified, of the circum- verdict felony of murder. allow him to be convicted stances, together, taken must be of a con- Moreover, previously determined we have tendency, leading nature and clusive sufficient to convict the evidence was pro- a satisfactory conclusion and whole felony Defendant of murder and incest ducing certainty a effect moral penetration. is without mer- anal This issue Defendant, else, and no one committed the it. offense. PRETRIAL PUBLICITY WHETHER These instructions were taken from the DEFENDANT. THE PREJUDICED Jury Tennessee Pattern Instruc- Criminal trial tions, 37.06, The Defendant next claims are of accurate statements venue, change failing court State, 440, erred the law. Marable v. 203 Tenn. (1958). failing inquire regarding the nature of 461, 456-57 313 S.W.2d Where the juror’s exposure prejudicial publicity, each a trial court’s instructions on matter are jury pursuant failing and in to admonish the proper, special request its of a denial not 24(f), State, disagree. to Rule Tenn. R.Crim. P. We error. Shell v. 584 S.W.2d (Tenn.Crim.App.1979). We conclude CHANGE OF VENUE thorough court’s trial instruction of law contends that the trial Defendant re- sufficient to counter the Defendant’s was a denying his motion for court erred quest specific for a instruction change pretrial publicity. of venue due to upon entirely case based circum- State’s only prospec He that because four claims This mer- stantial evidence. issue is without jurors in the venire had heard tive entire it. and the trial court excused more of case IN- THE “SEXUAL PENETRATION” twenty-five persons initially for than STRUCTION cause, trial court should have been aware prejudicial pretrial pub nature of the of The Defendant next asserts that the trial licity granted the and should have motion. penetration court’s instruction on sexual argument, support In of his the Defendant Specifically, in error. that be- asserts (Tenn. Hoover, 594 S.W.2d 743 cites State penetration cause the court defined sexual as change Crim.App.1979). The of of matter intercourse, intrusion, any other “[a]nal venue discretion addresses itself sound slight opening of ... anal of [t]he however court, change a a of of the trial and denial of body,” person’s could there- another only appeal an venue will be reversed on felony murder convict the Defendant of of discretion. affirmative clear abuse penetration. He on evidence of anal based Bates, (Tenn. 868, 877 not have been contends that the should 1991), denied, 841, 112 502 U.S. S.Ct. cert. felony the Defendant of to convict allowed (1991). In this 116 L.Ed.2d 98 case penetration on anal because murder based part find no abuse of discretion on the of penetration anal was based the evidence of trial court. upon past not con- incidents sexual abuse Hoover, this court 594 S.W.2d at with murder. nected group factors to be listed seventeen quoted only has The Defendant his brief grant determining considered in whether part which in trial court’s instruction Among change are na- venue. these entirety following: its states ture, extent, pub- timing pretrial of licity, degree in the penetration sexual inter- of care exercised means Sexual intrusion, familiarity course, jury, any other however selection of the the venire’s person’s body publicity or with the and its effect them slight, any pat [sic] dire, on voir object open- through or anal shown their answers genital into per- person’s body, but emission and the Defendant’s utilization ings another emptory challenges. required. is not of semen

H5 you very to do what believe your best conclude that the trial we case, that of this justice under the facts is carefully meticulously orchestrated court and make you hard to the evidence listen jury process De- selection to insure the you we will can make and the best decision pro- fendant a fair trial. He instructed the jury point the happy. at this all be Since jurors spective responsibilities, to as their has sworn and no evidence has not been extensively pretrial questioned them as to you going to allow presented are been cause, jurors publicity, and al- excused for evening. your Howev- go to to home this (3) panels pro- lowed voir dire of three er, say you you that need to feel let me Moreover, jurors. spective the Defendant these you under oath because as if were only exercised five of his fifteen you on lawyers depending are both sides peremptory challenges. This issue is without justice, Mr. for as well as Vann merit. using in their that the is witnesses INQUIRE THE FAILURE TO AS TO myself depend- are prosecution. They and EACH EXPO- NATURE OF JUROR’S you justice. And in order to do ing on PRETRIAL PUBLICITY. SURE TO you tonight justice I ask that refrain would The Defendant asserts that no efforts were watching reports, news from the television prejudice made to assess the likelihood of reading newspapers, and discuss- from pretrial exposure your spouse girlfriend trial from and that or this case you say, exceptionally vigilant boyfriend. or I don’t mean can’t court should have been jury,’ ‘I’m I think that needs to jurors on the but prospective that had not to ensure things really. of the hardest be it One exposed to inadmissible matters con- you required guess I that will be do reports. tained in the media them, just But if it not talk about it. tell stated, previously we conclude that the trial your somebody or who wants to [is] friends thoroughly presumption court discussed wife, know, your ‘Hey, I’ve husband or proof of innocence and the burden of State’s I talk about it and been instructed not to jurors. potential of the Each of with each you its over.’ will tell about when jurors jury on indicated who served they opinion Here, commendably prior that either had no the trial court was duty they opinion understand its case could set that aside. concerned ease. The trial court had to not discuss the This issue is without merit. great previously spent a deal of time TO THE FAILURE ADMONISH JURY insuring jurors had not dire voir 24(f),TENN. R. PURSUANT TO RULE opinion until formed and not form an would P. CRIM. jury. The the case was submitted to the the trial The Defendant contends that failed to show that Defendant has jury only admonishing court erred jurors actually ease were who sat He that the admonishment once. contends prejudiced by any publicity or the trial given evening before the trial commenced repeatedly failure to admonish them. court’s was insuffi- before sworn Garland, 176, 187 See State protect against the risk that cient Kyger, (Tenn.Crim.App.1981); jurors exposed coverage would be to media (Tenn.Crim.App.1989). 18-19 disagree. of the ease. We merit. This claim is also without selected, potential jury When the THE SUF- EVIDENCE WAS WHETHER trial instructed the as follows: THE FINDING court FICIENT TO SUPPORT THE “PRIOR VIOLENT FELONY” OF jury, I point since we have a At this AGGRAVATOR. embarking say you you are want to very morning a ease upon tomorrow argues that the introduc- The Defendant very important, important to the State aggra- prior convictions for tion of his two very important support Tennessee and to Gus Wil- rape are insufficient to vated Vann, morning, aggravating you jury’s I on the circum- lie and as said reliance Defendant you try “[t]he which states that I and that we all ask is that stance all ask 116 previously

was or convicted of one more felonies, charge, present other than the heinous, especially The murder was statutory involve use whose elements atrocious, in that it involved or cruel person.” Ann. violence beyond physical or abuse torture serious 39-13-204(i)(2). The Defendant contends produce that death. aggravated rape may proved that be since showing that there was unlawful sexual are instructed that the word: You penetration of a victim less than thirteen old,

years aggravated rape does not neces-

sarily person. involve violence the infliction of severe ‘Torture’ means At sentencing, upon the State relied two pain upon victim physical or mental (2) judgments aggravated conviction for or remains alive and con- while he she rape against coun- the Defendant. Defense 'scious. contending objected, sel that a case of aggravated rape where the child under is hold The Defendant has misconstrued the thirteen, rela- there could be a consensual saving that No restriction Williams. tionship in which there would be no violence. “willfully” have inflicted the Defendant must objection. The trial court overruled the placed upon pain on the victim was severe Tennessee Code Annotated section 39-13- argument Defendant’s is without mer The 204(i)(5), repeatedly but rather the court has 935, Hoyt, 948 it. In State v. 928 S.W.2d sufficiently narrows held that instruction un (Tenn.Crim.App.1995), this court stated death-eligible defendants. See the class of equivocally “rape a serious offense is Odom, (Tenn. 18, 26 State v. 928 S.W.2d injurious body which to both the and mind 1996); Black, 166, 181 815 S.W.2d State Supreme victim.” The Tennessee Cazes, 253, (Tenn.1991); S.W.2d State v. 875 impliedly acknowledged use of Court has denied, 1086, (Tenn.1994), 513 U.S. 267 cert. aggravated rape aggravating as an circum (1995). 743, L.Ed.2d 644 This 115 130 S.Ct. Nichols, 722, stance. See 877 S.W.2d issue is without merit. 1114, denied, (Tenn.1994), 513 737 cert. U.S. “REASONABLE WHETHER THE (1995). 909, 115 791 This S.Ct. 130 L.Ed.2d VIOLATES DOUBT” INSTRUCTION issue merit. is without DUE PROCESS. IMPROPER INSTRUCTION JURY was de Defendant contends 517, Williams, 690 Citing State v. rights nied under the Due Process Clause (Tenn.1985), the Defendant maintains 529 of the Fourteenth Amendment United jury instructed improperly was un was States Constitution because omit- aggravator because the instruction constitutionally concerning instructed “any requirement ted find guilt at the meaning of “reasonable doubt” “willfully’ physical pain mental severe sentencing phase trial. of the following the Defendant.” inflicted notes, accurately the su Defendant instruction, pertinent part, given consistently preme court and this court the trial court: upheld constitutionality the instruc 722, provides Nichols, law that no death Tennessee 877 S.W.2d tion. State v. See (Tenn.1994), denied, imposed by but penalty shall 513 be U.S. cert. (1995); finding that the State a unanimous 130 L.Ed.2d S.Ct. Bush, proven beyond a reasonable doubt Dean 504- has v. Michael (Tenn.l997)(for statutory publication)(petition existence of one more 4/14/97). reh’g, with which This issue also aggravating circumstances shall filed following: out merit. limited to the

H7 AG- FELONY” THE EF- THE “PRIOR VIOLENT CUMULATIVE WHETHER UN- IS CIRCUMSTANCE GRAVATING ALL FECT OF VIOLATES ERRORS CONSTITUTIONAL. THE DEFENDANT’S CONSTITUTIONAL RIGHTS. aggrava contends that this The Defendant and con overly broad ting circumstance cumula- The Defendant contends that the in the manner trary legislative intent alleged effect of all errors at trial tive both interprets “prior conviction” in which sentencing constitutional violates his However, capital sentencing. purposes of rights. as court finds no re- this previously has addressed this issue been respect versible error with to the Defen- Caldwell, in 671 Supreme v. our Court State issues, prior dant’s this merit issue is without 459, (Tenn.1984), correctly as 465 also. brief, in which noted the Defendant his the date of “prior conviction” was defined as DEATH WHETHER TENNESSEE’S capital sen purposes conviction for PENALTY STATUTE IS CONSTITU- and, therefore, overly tencing, is neither TIONAL. contrary legislative intent. This broad nor The Defendant that the “Tennes- v. submits merit. also State issue is without See (Tenn.1994), Nichols, 722, 736 penalty imposition see death 877 S.W.2d statute denied, 909, 130 1114, 115 513 U.S. cert. S.Ct. of the sentence of death in violate this State (1995). L.Ed.2d 791 Sixth, Fifth, Eighth and Fourteenth “AVOIDING, Amendments to United Constitu- States THE INTERFERING tion, I, WITH, 8, 9,16 THE as Article OR PREVENTING LAWFUL well Sections THE II, OR OF 17, ARREST PROSECUTION and Article 2 Section of the Tennessee CIR- DEFENDANT” AGGRAVATING (a) Constitution” because fails to the statute IS CUMSTANCE UNCONSTITUTIONAL. defendants; death-eligible the class of narrow (b) imposed arbitrarily the sentence is Defendant maintains because this (c) capriciously; electrocution is cruel and applied been in cases where circumstance has (d) punishment; appellate perpetra- unusual victim “could have identified circumstance in not suffi- tor” the itself does process inadequate. constitutionally review eligi- ciently population narrow of death acknowledged Defendant has brief The trial court directed ble defendants. majority “that the of the issues raised” re- against ag- judgment application of this garding constitutionality of the Tennes- Therefore, gravating this cir- circumstance. penalty see death statute have been decided jury nor cumstance was neither found adversely arguments by to his the Tennessee charged in this is moot. and the issue Supreme Court. Defendant also admits “HEINOUS, ATROCIOUS, THE OR “in preserve raised the issues them order CIRCUMSTANCE IS VAGUE CRUEL” for later review.” AND OVERBROAD. THE STATUTE FAILS TO NARROW Defendant this circum- asserts that DE- THE CLASS OF DEATH ELIGIBLE it does not stance is unconstitutional FENDANTS. intent, include an element but we opin- previously addressed this claim this aggra- first The Defendant asserts that the it to be merit. See ion and found without vating circumstances set forth in Tennessee III(8)(C). 39-13-204, section “have Code Annotated COMBINATION, IN SUBSECTIONS broadly interpreted they so fail (I)(2), (5), (6), AND NOT NARROW DO provide ‘meaningful for narrow- such basis’ DE- THE OF DEATH ELIGIBLE CLASS population of convicted of first those FENDANTS. degree eligible murder to those for the sen- Furman v. of death” as mandated in that, tence argues in combina- The Defendant 238, 2726, Georgia, tion, 33 aggravating 408 U.S. 92 S.Ct. encom- these circumstances (1972). majority of disagree. pass 346 We homicides committed L.Ed.2d 118 Black, (Tenn.1990); State, v. and the statute does not therefore 793 S.W.2d 236 Smith, (Tenn.1991); 815 S.W.2d 166 eligible narrow class death defendants. (Tenn.1993), denied, 510 cert. Again, supreme repeatedly court has re- 126 L.Ed.2d 461 U.S. S.Ct. Keen, jected argument. See State v. Cazes, (1993); S.W.2d 253 andState S.W.2d at 742. (Tenn.1994). THE DEATH SENTENCE IS IMPOSED AND IS CRUEL UN- ELECTROCUTION AND ARBITRARILY. CAPRICIOUSLY USUAL PUNISHMENT. multiple grounds, On the Defendant as The Defendant contends that electrocution penalty is imposed capri serts that the death unnecessarily torturous painful is an and arbitrarily, ciously grounds and all have but has this issue form of execution. supreme previously been our addressed by our previously been determined Su- also (1) He unlimited court. asserts that discre Court, preme accordingly, we and conclude prosecutor tion is vested in the as to whether v. is without merit. See State that issue (2) penalty; or not to seek the death the Black, 815 S.W.2d at 179. penalty imposed discriminatory in a death is THE APPELLATE PROCESS REVIEW economics, race, geography, due manner INADEQUATE. CONSTITUTIONALLY IS (3) gender; and there is lack of uniform appellate The Defendant asserts that the (4) selection; jury standards for the death process meaningful and is con- review is not qualification process make-up of skews the process. in De- ducted of due The violation jury prosecutorially the and in results has that no death sentence fendant notes (5) prone jury; prohibited are defendants grounds that overturned on the it was been jurors’ misconceptions addressing from about of disproportionate. He attacks absence such matters as cost versus of incarceration concerning mitigating cir- findings written deterrence, execution, and method execu cumstances, inadequacy informa- (6) tion; jury required agree is unani trial completed by in courts tion found forms (7) sentence; impose life mously in order to required by Supreme Court Tennessee unanimously jury required agree 12, any published lack indicia Rule applicable mitigating are circumstances or criteria for consideration which can be Maryland, in violation of Mills v. 486 U.S. by the addressed Defendant. (1988) 367, 1860, 108 S.Ct. 100 L.Ed.2d 384 however, cases, have Numerous held Carolina, 433, McKoy and v. 494 U.S. North proportionality ade Tennessee’s review is (1990); 1227, 110 108 S.Ct. L.Ed.2d 369 quate constitutional standards. to meet State meaning jury is not instructed on the and 112, 115-16 Coleman, v. 619 S.W.2d See State circumstances; mitigating function Barber, (Tenn.1981); 753 v. S.W.2d State jury required not make ultimate (Tenn.1988); Keen, 659, v. State 926 663-668 appropriate determination that death is the (Tenn.1994). Moreover, 727, 743-44 S.W.2d proce penalty because the “mechanistic” ease, opinions particular published and in this jury’s guiding making; for dure decision reports prepared pursu available trial court closing final and defendant is denied Supreme 12 of Tennessee ant to Rule argument penalty phase of the trial. reviewed, this examina Court have been arguments We find the Defendant’s Defendant’s death sen tion revealed that the They specifically

without merit. disproportion tence is neither excessive nor Smith, 908, rejected in v. 893 State S.W.2d considering nature of crime ate both the denied, 829, (Tenn.1994), U.S. cert. 616 926 Coe, State v. 655 Defendant. See 99,133 (1995),and 53 then- 116 L.Ed.2d S.Ct. (Tenn.1983); Irick, v. 762 903 State S.W.2d rejected Thompson, v. 768 substance State Cauthern, (Tenn.1988); v. 121 State S.W.2d denied, (Tenn.1989), 239 cert. 497 S.W.2d (Tenn.1989) (death sentence 778 39 1031, 3288, 111 L.Ed.2d 796 U.S. 110 S.Ct. sentencing remanded new reversed and (Tenn.1990), (1990); Boyd, State v. 797 S.W.2d hearing trial court error ground denied, admitting rt. 498 U.S. S.Ct. the defendant statement ce Keen, (1991); Teel, sentencing hearing); v. State 112 L.Ed.2d 861 State H9 majority explained, As premeditat- charged the defendant with both (death (Tenn.1994) re- S.W.2d 727 sentence first-degree first-degree mur- ed murder sentencing versed and remanded for new rape. Before the perpetration of in the der instruction). hearing due to error jury, the State submitted to the case was of death in case was sentence premeditated charge requested that arbitrary in an imposed fashion. The trial court dis- dismissed. murder be jury’s record supports evidence submit- charge, the case was missed statutoiy circum- finding aggravating theory felony- on the ted to the stances, circum- aggravating The trial court instructed murder. clearly outweighed in- stances the evidence solely felony-murder. offense on the any mitigating troduced to establish factors Cleveland, beyond a reasonable doubt. (Tenn.1997), this Court held that trial courts 13—206(c)(1). §Ann. 39— juries statutorily required to instruct on are “lesser-grade or all lesser-included and CONCLUSION offenses, if introduced at class”1 the evidence grounds has no Defendant offered legally support a trial is sufficient-to convic- relief from warrant his convictions lesser If the record is tion for the offenses. felony murder, by vaginal penetration, incest evidence, failure of such then to devoid Moreover, penetration. anal incest charge a lesser offense does not constitute to we conclude that the Defendant has failed error. any ground warranting relief from establish legally case is The evidence the instant judgment of the sentence death. The support the a convictionfor less- sufficient trial court is affirmed. murder. second-degree er offense of Under T. Thomas Woodall /s/ 39-13-210(a)(l) (1991), § Ann. Tenn.Code Woodall, Judge Thomas T. second-degree requires proof of a murder knowing killing. strangulation The act of Concur: instrument, probable rope, the murder with H. David Welles /s/ certainly suggests an act is which intent Welles, Judge David H. kill, particularly in this where the strangulation was described as “violent.” (See Separate Concurring) Thus, jury could infer from the evidence Hayes, Judge David G. presented strangulation perpe- BIRCH, Justice, dissenting. Indeed, knowingly intentionally. trated theory of proceeded pre- on the the State I agree majority’s with the resolution up point murder when meditated clos- every in this ease the effect of issue but one: case ing arguments were made and the jury court’s failure to on trial instruct jury submitted to for deliberation. second-degree majority murder. con- then, Clearly, interpreted the evi- the trial failure to instruct cludes that court’s having intentional dence as established con- second-degree offense jury on the duct.2 error evidence murder is not because the Furthermore, not offense. the forensic evidence support the record does sup- strangulation injuries does not rape indeed con- I find the evidence can Because murder, clusively they I inflicted at port second-degree show that were conviction M.D., Toolsie, per- Ron who time. respectfully dissent. same intent, necessarily no then it if contains 2. If the evidence shows 1. An offense is ''lesser-included” greater are not in the knowledge. elements that contained Ann. shows 39- also "lesser-grade” “established A offense is ll-301(a)(2) (1991)("When offense. acting knowingly suf- simply by legislature and is determined element, an element is also fices to establish statutoiy looking chapter the offenses set in a at forth person intentionally.”) if a acts established may part.” "lesser-grade” A offense greater not in the contain elements contained Cleveland.,959 at 553. offense. murder, offense, victim, diately degree lesser second autopsy formed on testified injuries vagina necessarily rejected had all other lesser occurred “very shortly” prior offenses, manslaughter.” death. including voluntary to her An esti- phrase “very contrast, mation of how much time the have an here the did not shortly” encompassed provided. “immediately is not And lesser reject the opportunity to inju- They offense,” because there was no evidence of recent other lesser offense. anus, ry to the not he could determine when of first-de- instead offered choice were Thus, penetrated. had the anus last been Surely, must gree acquittal. one murder or supports the evidence the inference that than probably error conclude that this more to, injuries prior separate sexual were judgment the defendant’s affected the from, just strangulation, as it well sordid prejudice, particularly light of the injuries supports the inference that the were jury. facts before concurrently. inflicted recog- majority’s Perhaps reluctance support Because evidence could a con- second-degree mur- nize that a conviction for murder, second-degree viction for the trial attributable, may supportable der in failing erred instruct court of the facts part, least in to the sordid nature is, question that offense. The next of what must be rights But constitutional involved. majority effect is the error? The vigor every defen- protected equal applied analysis error Williams a harmless dant, regardless of the heinousness affirmed in that the conviction case. charged. she Con- crime for which he or 517. S.W.2d sequently, under the circumstances view, however, my right In to a I remand the case would be constrained to supported on offenses lesser instruction Thus, respectfully I case for retrial. must merely statutory right the evidence is not dissent. 40-18-110(a) § provided Ann. Special I am Jus- authorized to state (1990). Essentially, compo- it is an inherent joins dissenting opinion. tice Reid right constitutional to trial nent basic by jury, which can the violation of never be Williams, error. treated harmless ON PETITION ORDER (Birch, J., dissenting); at 532 see also S.W.2d FOR REHEARING Const, (“the I, right Tenn. art. of trial rehearing filed on petition A has been inviolate”); Bobo, shall remain v. appellant. behalf of After consideration (Tenn.1991); same, majority of is of the Court (Tenn.1977); Staggs, 554 626-27 S.W.2d petition opinion should be State, 669, 679-82, 210 Tenn. Strader appel- hereby same denied the cost (1962). Thus, I 229-30 would lant. provide such hold that failure to instruc- subject analysis. harmless error

tion is Reid ad- Special Justice Birch and Justice Moreover, original if the harmless error anal- expressed even in their here the views applied, ysis is the error this case would dissenting opinion. Williams, require the find- still reversal. Drowota, F. III Frank /s/ predicated

ing of on the harmlessness Drowota, III, Frank F. Justice provided that the trial court instructions fact offenses, second-degree lesser murder on two ar- reckless The defendant homicide. that the trial court committed revers-

gued by refusing to also instruct

ible error voluntary manslaughter, an offense supported by

the State conceded majority disagreed, reasoning

evidence. The “by finding guilty of the the defendant offense, of the imme-

highest to the exclusion

Case Details

Case Name: State v. Vann

Court Name: Tennessee Supreme Court

Date Published: Sep 21, 1998

Citation: 976 S.W.2d 93

Court Abbreviation: Tenn.