State v. McKinney , 2002 Tenn. LEXIS 155 ( 2002 )

ADOLPHO A. BIRCH, JR.,

filed a concurring and dissenting opinion.

APPENDIX

(Excerpts from the Court of Criminal Appeals’ Decision)

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

November 7, 2000 Session

STATE OF TENNESSEE v. TIMOTHY MCKINNEY

Appeal from the Criminal Court for Shelby County

Nos. 98-01434, 98-01435 Joseph B. Dailey, Judge

No. W1999-00844-CCA-R3-DD— Filed March 28, 2001

We affirm the defendant’s convictions of first degree murder and attempted second degree murder and the death sentence imposed on the murder charge, despite the defendant’s claims that: (1) the trial court erroneously disallowed expert testimony on the reliability of eyewitness identification; (2) the jury’s capital sentencing verdict was infirm; (3) the trial court erroneously allowed the impeachment of a defense character witness during the penalty phase of the trial; (4) the trial court erred in allowing victim impact evidence that related to the impact of the victim’s death on persons or institutions other than the victim’s family; (5) the trial court erroneously limited the defendant’s argument to the jury during the penalty phase; (6) cumulative errors require reversal of the death sentence; (7) the Tennessee death penalty statute is, for various reasons, unconstitutional. We find no error and hold that the death penalty in this case was proportionate to the death penalty imposed in similar cases, the sentence was not arbitrarily imposed, and the evidence supports the jury’s finding of a statutory aggravating circumstance and its finding that the aggravating circumstance outweighs any mitigating circumstances. See Tenn.Code Ann. § 39-13-206(c)(l) (1997).

Tenn. R.App. P. 3; Convictions and Sentence of Death Affirmed.

James CuRWOOD Witt, Jr., J., delivered the opinion of the court, in which David H. Welles and Thomas T. Woodall, JJ., joined.

William Gosnell, Memphis, TN (Trial & Appeal);William D. Massey, Memphis, TN (Appeal), for the Appellant, Timothy McKinney.

Michael E. Moore, Solicitor General; Kathy Morante, Deputy Attorney General; William L. Gibbons, District Attorney General; Phillip Gerald Harris and David Henry, Assistant District Attorneys General, for the Appellee, State of Tennessee.

OPINION

[Deleted: Summary of Facts and Testimony]

I.

[Deleted: Eyewitness Expert Testimony]

II.

[Deleted: Jury Verdict Form]

III.

[Impeachment — Juvenile Adjudication]

In his third issue, the defendant argues that the trial court erred by permitting the state to attempt to use his juvenile adjudication for aggravated assault to impeach the testimony of his step-father, J.C. Tyus.

At sentencing, the defendant’s step-father, J.C. Tyus, testified on the defendant’s behalf. His testimony reflected that he had been married to the defendant’s mother over twenty-five years and was the only father the defendant had ever known. Tyus testified that as a small child, the defendant “wasn’t a real rowdy son ... [h]e wasn’t really running around like a rowdy son he was just like any other children, you know, but he really wasn’t bad, or nothing like that.” Tyus also stated that the defendant “wouldn’t get real angry, but if he gets angry he wasn’t, like no violence.” Tyus denied that the defendant had any outbursts or discipline problems while living at home.

Prior to cross-examination, the state sought permission at a bench conference to impeach Mr. Tyus. The state argued that Tyus was portrayed by the defense as a someone who knew the defendant well and who characterized the defendant as a peaceful, non-violent individual. In its proffer, the state submitted a copy of the juvenile court record reflecting the defendant’s April 1991 guilty plea in juvenile court to aggravated assault. The trial court granted the state permission to use the adjudication for impeachment purposes.

On cross-examination, Mr. Tyus reiterated that the defendant did not have any problems with anger or violence growing up. In response to the state’s queries regarding the defendant’s April 1991 juvenile adjudication, Tyus denied knowing that the defendant was involved in a drive-by shooting or that he had leveled and fired a shotgun at the arresting officers. The state, however, did not attempt to prove the aggravated assault adjudication. Actual evidence of the prior offense was not admitted into evidence until the defendant testified about it on direct examination later in the penalty phase.

The defendant argues that the trial court erred in allowing cross-examination about his juvenile adjudication to impeach Tyus and in failing to give a limiting instruction to the jury that the evidence was introduced for impeachment purposes only. The state counters that the trial court properly followed the dictates of State v. Nesbit, 978 S.W.2d 872 (Tenn.1998), in permitting Tyus’ impeachment, and while conceding that the trial court erred by failing to give a limiting instruction, the state asserts that the error was harmless.

Evidence Rule 405 governs the impeachment of character witnesses. Tenn. R. Evid. 405. It provides that in “eases in which evidence of character or a trait of character of a person is admissible, proof may be made by testimony as to reputation or by testimony in the form of an opinion,” but it requires adherence to specific procedures and conditions before cross-examination inquiry may be made “into relevant specific instances of conduct.” Id. First, counsel must apply to the court before introducing a specific instance of conduct to impeach a character witness; second, the trial court must conduct a hearing to determine the relevancy of the proposed inquiry; third, the trial court must determine a reasonable factual basis for the inquiry exists; and fourth, the trial court must determine that the probative value of the instance of conduct outweighs its prejudicial effect. Nesbit, 978 S.W.2d at 881-83. In addition to these Rule 405 based requirements, our supreme court has said that the trial court must instruct the jury “that the specific acts of conduct were admitted for the limited purpose of evaluating the credibility of the character witness.” Id. at 883.

At this juncture, we recognize that there are two different trial court actions being challenged here. The Rule 405 requirements for cross-examining a character witness about specific instances of misconduct are designed to assure that the cross-examination is itself acceptable and not necessarily to assure that evidence is acceptable. See Tenn. R. Evid. 405(a) (establishing conditions for “allowing inquiry on cross-examination about specific instances of conduct”). On the other hand, Nesbit requires that the trial court must instruct the jury “that the specific acts of conduct were admitted for the limited purpose of evaluating the credibility of the character witness.” Nesbit, 978 S.W.2d at 883 (emphasis added). This requirement is geared to addressing the jury’s use of admitted evidence. See Tenn. R. Evid. 405, Advisory Comm’n Comments.

First, we consider the decision to allow the impeachment. Prior to cross-examination, the state sought permission to introduce evidence of that specific instance of the defendant’s conduct in order to demonstrate the fallibility of Mr. Tyus’ opinion, and the trial court conducted a bench conference outside the jury’s hearing. See Tenn. R. Evid. 405(a)(1). The state presented a copy of the defendant’s juvenile court adjudication for aggravated assault which unequivocally established a “reasonable factual basis” for the specific instance of conduct to be used for impeachment. See Nesbit, 978 S.W.2d at 883. The trial court considered the basis for the state’s request and then permitted use of the adjudication on the basis that it showed bias by the witness and knowledge (or lack thereof) of the defendant and his activities. Although not explicitly finding that the probative value of the evidence outweighed its prejudicial effect, the court implicitly determined that probative value outweighed prejudice. This determination is amply supported by the record. Id. The decision to allow the impeaching cross-examination was not erroneous.

Now we must determine whether the failure to give a limiting instruction was error. We note that, in Nesbit, the evidence was admitted into evidence when the cross-examined character witness acknowledged hearing about tales of Nes-bit’s misconduct. Id, at 884. In the present case, however, the character witness did not admit knowing that the defendant had assaulted an officer or had received a juvenile adjudication resulting from this assault, nor did the state introduce independent proof of the assault or resulting adjudication.¹ Under these circumstances, we question, therefore, whether the Nesbit requirement of a limiting instruction is implicated. Nevertheless, we recognize that the cross-examination raised the specter of the defendant’s prior commission of aggravated assault, and we will review the effect of the trial court’s failure to give a limiting instruction as if the evidence was introduced. See Tenn. R. Evid. 405, Advisory Comm’n Comments (implying that mere cross-examination about “rumors,” as opposed to the witness acknowledging the “rumors,” may require the limiting instruction).

In our view, if the failure to give the limiting instruction was error, it was harmless. See Tenn. R.Crim. P. 52(a). Evidence of the defendant’s prior aggravated assault was substantively admissible to contradict the defendant’s temperate nature, a material fact shown by the character witnesses. When “fact contradiction” involves controverting the testimony of a witness, it is sometimes viewed as a process of witness impeachment. See N. Cohen, et al., Tennessee Law of Evidence, § 6.07[4], at 6-57 through 62 (4th ed.2000). In a broader sense, however, when evidence contradicts material, adjudicative facts, the real efficacy of the evidence is substantive fact rebuttal that incidentally impeaches a fact or fact witness. See State v. Electroplating, Inc., 990 S.W.2d 211, 231, n. 17 (Tenn.Crim.App.1998). In other words, when “fact contradiction” evidence is relevant to the issues on trial, it is generally admissible as substantive evidence. Id.; see Tenn. R. Evid. 402. Thus, when Mr. Tyus testified about the defendant’s youthful normalcy and peacefulness, the state’s cross-examination of him can be viewed not only as a challenge to his efficacy as a character witness, but as a contradiction of the asserted fact. Even though the state may have been required to “take” Tyus’ answer as a function of impeachment, we believe that the evidence would logically have been probative on the issue of the defendant’s peaceful deportment as a teenager and could have been independently presented. For all we know, the state only declined to present it in rebuttal when the defendant himself presented the evidence on direct examination. Moreover, had the character witness acknowledged the defendant’s prior offense or adjudication, the evidence would have functioned substantially, in which event no limiting instruction would have been necessary.

To reach the conclusion that the defendant’s juvenile aggravated assault is relevant to issues on trial in the sentencing phase of the present capital case, we need only look to Tennessee Code Annotated section 39-13-204(c), which provides:

In the sentencing proceeding, evidence may be presented as to any matter that the court deems relevant to the punishment and may include ... the defendant’s character, background history, and physical condition; any evidence tending to establish or rebut the aggravating circumstances enumerated in subsection (i); and any evidence tending to establish or rebut any mitigating factors.

TenmCode Ann. § 39-13-204(c) (Supp. 2000).

In addition to the character testimony of J.C. Tyus, the defense presented the testimony of three other witnesses at the sentencing phase in an effort to convey to the jury a sense of the defendant’s nonviolent and non-confrontational character.² Plainly, the testimony of these witnesses was offered to present non-statutory mitigation evidence of the defendant’s peaceful nature. Evidence of his previous juvenile court adjudication of aggravated assault would logically serve to rebut that non-statutory mitigation evidence. See id.; State v. Vincent C. Sims, No. W1998-000634-CCA-R3-DD, slip op. at 24, 2000 WL 298901 (Tenn.Crim.App., Jackson, Mar. 14, 2000) (testimony of defendant’s relatives that he was not an aggressive person opened the door to state’s cross examination about defendant’s prior convictions; evidence was admissible under § 39-13-204(c) to rebut mitigating circumstances). As such, the evidence that was suggested in the course of Mr. Tyus’ cross-examination, had it been introduced by the state, would have been admissible as substantive evidence in rebuttal or, in other words, to contradict mitigating evidence. If it can be said that the trial court erred in not giving the instruction, in view of the evidence being “suggested” but not “introduced” as to the substantive issue, then surely the error is harmless.

■ The harmlessness of any error is further illustrated by pointing out again that it was the defendant himself who actually introduced evidence of his juvenile court adjudication of aggravated assault. On direct examination during the sentencing phase, he admitted this adjudication. It may well be that the defense intended to steal the state’s impeachment thunder by admitting the adjudication, and to that end, the defense may have intended that the use of this direct-testimony evidence would be limited to impeachment purposes. We observe, however, that the state would not have been permitted to use the adjudication to impeach the defendant. See Tenn. R. Evid. 609(d) (“Evidence of juvenile adjudications is generally not admissible under this rule.”). Moreover, the defendant apparently made no request for limiting instructions. All in all, we conclude that, especially in the absence of a request for a limiting instruction, the evidence introduced by the defendant was available for unrestricted use by the jury. See State v. Smith, 24 S.W.3d 274, 279-80 (Tenn.2000). Thus, for this additional reason, we conclude that the trial court did not err when it failed to give the limiting instruction mandated by Nesbit.

As an adjunct to his argument that the trial court erred in failing to give a limiting instruction, the defendant also claims that the prosecution engaged in misconduct by arguing in closing that the conviction was substantive evidence of a pattern of conduct by the defendant which justified imposition of the death penalty. In light of our conclusion that the evidence was admissible substantively, this claim fails to discredit the sentence.

IV.

[Deleted: Victim Impact Testimony]

V.

[Deleted: Residual Doubt Argument]

VI.

[Cumulative Effect of Errors]

In his sixth issue, the defendant complains that the cumulative effect of all errors at trial violated due process and his right to a constitutionally rehable, non-arbitrary sentencing determination. We have examined, however, all issues raised by defendant and find no more than a single error, and we have ruled above in section III that the single error, if any, is harmless. There are no errors to accumulate.

VTI.

[Unanimous Jury Verdict]

In his seventh issue, the defendant argues that requiring the jury to unanimously agree on a life sentence and prohibiting informing the jury of the consequences of a non-unanimous verdict violated his constitutional rights pursuant to McKoy v. North Carolina, 494 U.S. 433, 110 S.Ct. 1227, 108 L.Ed.2d 369 (1990), and Mills v. Maryland, 486 U.S. 367, 108 S.Ct. 1860, 100 L.Ed.2d 384 (1988). “In McKoy and Mills, the Court held that sentencing schemes that permit jurors to consider only unanimously found mitigating circumstances in determining whether the aggravating circumstances are sufficient to justify imposition of death penalty impermissibly limit the jurors’ consideration of mitigating evidence in violation of the Eighth Amendment.” State v. Hall, 8 S.W.3d 593, 602 (Tenn.1999).

The trial court’s jury instructions in this case with regard to imposition of a life sentence tracked Code section 39-13-204(f). Subsections (f)(1) and (2) specify in pertinent part,

(1) If the jury unanimously determines that no statutory aggravating circumstance has been proven by the state beyond a reasonable doubt, the sentence shall be imprisonment for life....

(2) If the jury unanimously determines that a statutory aggravating circumstance or circumstances have been proven by the state beyond a reasonable doubt, but that such circumstance or circumstances have not been proven by the state to outweigh any mitigating circumstance or circumstances beyond a reasonable doubt, the jury shall, in its considered discretion, sentence the defendant either to imprisonment for life without possibility of parole or imprisonment for life.

Tenn.Code Ann. § 39—13—204(f)(1), (2) (Supp.2000).

As best we can discern, the defendant actually presents three familiar issues regarding the constitutionality of Tennessee’s death penalty scheme. He attacks the requirements (1) that a life sentence be based upon a unanimous verdict; (2) that the jury be deprived of knowledge that a life sentence would be the result of a non-unanimous verdict, see TenmCode Ann. § 39-13-204(h) (Supp.2000); and (3) that a finding that aggravating circumstances do not outweigh mitigating circumstances be based upon a unanimous verdict.

These arguments have been rejected by the Tennessee Supreme Court. See State v. Cribbs, 967 S.W.2d 773, 796 (Tenn.1998); State v. Hall, 968 S.W.2d 679, 718 (Tenn. 1997); State v. Brimmer, 876 S.W.2d 75, 87 (Tenn.1994) (cases rejecting attack based upon requirement of unanimity of life-sentence verdict). See also Cribbs, 967 S.W.2d at 796; Brimmer, 876 S.W.2d at 87 (cases rejecting claim that jury should be informed of effect of non-unanimous verdict). See also State v. Smith, 893 S.W.2d 908, 926 (Tenn.1994); State v. Nichols, 877 S.W.2d 722, 735 (Tenn.1994) (cases rejecting attack upon requirement of unanimity of finding that aggravating circumstances do not outweigh mitigating circumstances). They avail the defendant no relief.

VIII.

[Prosecutorial Discretion]

In his eighth issue, the defendant argues that the unlimited discretion vested in the District Attorneys General whether to seek the death penalty violates his Eighth and Fourteenth Amendment constitutional rights.

This argument has been repeatedly rejected by the Tennessee Supreme Court. See, e.g., State v. Smith, 993 S.W.2d 6, 27 (Tenn.1999) (affirming this court’s conclusion that “[p]rosecutorial discretion used in selecting candidates for the death penalty does not result in any constitutional deprivation”); State v. Cazes, 875 S.W.2d 253, 268 (Tenn.1994); State v. Brimmer, 876 S.W.2d 75, 86-87 (Tenn.1994).

IX.

[Discriminatory Imposition of Death Penalty]

In his ninth issue, the defendant charges that the discriminatory imposition of the death penalty, based upon race, geography and gender, violates his constitutional rights under the Eighth and Fourteenth Amendments.

Again, this argument has been rejected repeatedly by the Tennessee Supreme Court. See, e.g., State v. Cazes, 875 S.W.2d 253, 268 (Tenn.1994); State v. Brimmer, 876 S.W.2d 75, 87, n. 5 (Tenn.1994); State v. Smith, 857 S.W.2d 1, 23 (Tenn.1993).

X.

[Deleted: Proportionality]

CONCLUSION

Based upon the foregoing, the judgment of the trial court and the sentence of death imposed by the jury in the above-captioned case is AFFIRMED.

1 . As an exercise in witness impeachment, the state may have been limited to "taking the witness’s answer.” If so, it cotdd not have offered independent evidence of the aggravated assault or the resulting adjudication. N. Cohen, et al., Tennessee Law of Evidence, § 4.05[4][d], at 4-108 (4th ed.2000).

2 . Tawanda Waterman, the defendant’s girlfriend, testified that the defendant treated her “real nice, respect [sic]" and that she never witnessed him get angry.

Linda Moshier, the wife of the defendant's former work supervisor, testified that she and her husband developed a friendship with the defendant and that she never witnessed any angry outbursts or problems with the defendant. Moshier also testified that she had "seen him several times just step away from people who wanted to start problems with him” and that "[the defendant] indicated ... that he did not want trouble in his life, he had been down that road.”

Zacharias Stewart testified that he had known the defendant for eighteen years and that they had grown up in the same church. The defense introduced a drawing given to Stewart by the defendant which Stewart described as representing "that after he was finished with his time [the defendant] was looking to do ... good and better things.” Stewart stated that "[the defendant] had a great personality ... all through the years that we went to church together we kind of had a tight bond ... he was like a brother to me.” On cross-examination, the witness agreed that his and the defendant’s church did not teach violence as a way to resolve conflict and that assassination or vindictive behavior is against the teachings of the church.