State v. James Morrow ( 1999 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON FILED
AUGUST SESSION, 1999
December 29, 1999
STATE OF TENNESSEE, ) Cecil Crowson, Jr.
C.C.A. NO. W1998-00583-CCA-R3-CD
) Appellate Court Clerk
Appellee, )
)
) SHELBY COUNTY
VS. )
) HON. JOSEPH DAILEY
JAMES MORROW, ) JUDGE
)
Appellant. ) (Direct Appeal- First Degree Murder)
FOR THE APPELLANT: FOR THE APPELLEE:
R. PRICE HARRIS PAUL G. SUMMERS
100 North Main, Suite 926 Attorney General & Reporter
Memphis, TN 38103
PATRICIA C. KUSSMANN
Assistant Attorney General
425 Fifth Avenue North
Nashville, TN 37243-0493
WILLIAM L. GIBBONS
District Attorney General
EDWARD PETERSON
Assistant District Attorney
201 Poplar Avenue
Memphis, TN 38103
OPINION FILED ________________________
AFFIRMED
JERRY L. SMITH, JUDGE
OPINION
On July 6, 1998, following a benc h trial, in the Shelby County Criminal
Court, James Morrow was convicted of two (2) counts o f first degree murd er.
This appeal raises the following issues:
(1)W hether th e eviden ce was legally sufficien t to convict the defend ant;
(2)Whether the trial court erred in den ying defens e coun sel’s mo tion to
withdraw from the case;
(3)Whether the trial cou rt shou ld have supp resse d the d efend ant’s
confession; and
(4)Whether the cour t erred in allo wing the state to ca ll lay witnesse s to
rebut expert testimony without giving prior notice to the defense.
The judgment of the trial court is affirmed.
FACTUAL BACKGROUND
On June 21, 1996, James Morrow (“appellant” or “defendant”) called 911
and told the operator that he had stabbed his wife and son to death, and that he
had attempted to commit suicide. Police, responding to the call, arrived at the
defen dant’s house and found both the defendant’s wife, Velma, and his son,
Jerrell, dead as the result of multiple knife woun ds. Th e defe ndan t was s evere ly
injured. Medical personnel arrived shortly thereafter and transported the
defendant to a hospital where he was treated for multiple self-inflicted knife
wounds and the apparent ingestion of a household cleaning solution.
Two days later, p olice officers q uestio ned th e defe ndan t at the h ospita l.
After waiving his Miranda rights, the defendant told the police that he had killed
his wife and son because he was suffering from d elusio ns at th e time . This
statem ent was typed by th e police a nd signe d by the d efenda nt.
The defen dant w as ind icted in December, 1996, and the trial court ordered
a psyc hiatric evaluation to determine whether the defendant was competent to
stand trial. Dr. Wyatt Nichols, a clinical psychologist, found that although the
defendant was competent to stand trial, he was insane at the time of the killings.
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The state proce eded to hire a sec ond ps ycholog ist, Dr. Edw ard W ise. After
conducting several interviews with the defendant and re searc hing th e defe ndan t’s
medic al backg round, D r. Wis e conc urred with Dr. Nich ols’ earlier res ult.
On April 8, 1998, the defendant waived his right to a jury trial, and a bench
trial comm enced . First, the State Medical Examiner testified that althou gh both
victims died from multiple stab wounds, they each probably remained alive for
some time while being stabbed. Next, a police officer who arrived on the scene
testified that the defendant calmly asked the officer to shoot him and became
angry when the officer did not. The officer who questioned the defendant in the
hospital testified that the defendant waived his Miranda rights a nd volu ntarily
confes sed to the murde rs. After this te stimon y, the state re sted.
The defense called Dr. Nichols, who testified that in his opinion the
defendant was insa ne at the tim e of the ho micides . After a thorough cross-
examination, howe ver, Dr . Nicho ls adm itted tha t the killing s cou ld have been the
result of jealousy, not insanity. The defense then called Dr. Wise to testify.
Unfortunate ly, Dr. W ise’s sche dule con flicted with the court’s, and the remainder
of the tria l was re sche duled to acc omm odate Dr. W ise’s sc hedu le.
The trial did not resume until July 6, 1998, alm ost three mo nths later.
During the recess, the defendant and his attorney apparently had a
disagreement. Both the defendant and his attorney filed separate motions asking
the trial court to allow the defense counsel to withdraw and to appo int new
coun sel. When the trial resumed, the court denied those motions, and the
defense continued presenting its case.
The defense called Dr. Wise who testified that he, too, was of the opinion
that the defendant was insane at the time of the commission of the offenses. On
cross-examination, Dr. W ise reje cted th e hypo thesis that the killings w ere a re sult
of the defendant’s jealousy. The defense then rested.
In rebuttal, the state called seven (7) witnesses to rebut the experts’
conclusions that insanity, not jealousy, precipitated the crime. All of these
witnesses testified to see ing an d/or he aring s pecific instances of the defen dant’s
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jealous, controlling behavior before the killings took place. The trial court
convicted the defen dant an d sente nced h im to two concu rrent life sen tences .
SUFFICIENCY OF THE EVIDENCE
The appellant contends that, given the evidence at tria l, no rationa l fact-
finder could have concluded that the appellant was legally sane when he
murdered his wife and son. He also asserts that the trial judge erred by ignoring
the we ight of th e evide nce p resen ted at tria l.
Although this case was a bench trial, the findings o f the trial judge who
conducted the proceeding carry the same weight as a jury verdict. State v. T ate,
615 S.W.2d 161, 162 (Tenn. Crim. App. 1981). Thus, on appeal, the state is
entitled to the strongest legitimate view of the evidence and all reasonable
inferences which m ay be dra wn there from. State v.Cabbage, 571 S.W.2d 832,
835 (Tenn. 1978). When the sufficiency of the evidence is challenged, the
relevant question is wheth er, after reviewing the evidence in a light most
favorable to the state, any rational trier of fact could have found the essential
eleme nts of the c rime b eyond a reas onab le doubt. Jackson v. Virgin ia, 443 U.S.
307, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (19 79); State v. Cazes, 875 S.W.2d 253(Tenn. 1994), cert. denied, 513 U.S . 1086, 11 5 S. Ct. 74 3, 130 L . Ed. 2d 644
(1995) ; Ten n. R. App. P. 1 3(e).
Moreover, questions concerning the cred ibility of the witnesses, the weight
and value to be given the evidence, as well as all factual issues raised by the
evidence, are resolved by the trier of fact, not th is Court. State v. Pappas, 754
S.W.2d 620, 623 (Tenn. Crim. App. 1987). This Court may no t reweigh or
reevalua te the evide nce. Cabbage, 571 S.W .2d at 835 .
First degree murder is “[a] premeditated and intentional killing of anothe r.”
Tenn. Code. Ann. § 39-13-202(a)(1)(Supp. 1995). “‘Premeditation’ means that
the intent to kill must have been formed prior to the act itself. It is not necessa ry
that the purpose to kill pre-exist in the mind of the accused for any definite period
of time.” T enn. C ode. An n. § 39-1 3-202(d )(Supp . 1996). Finally , the fact
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finder may in fer pre med itation fro m the circum stanc es su rroun ding th e killing.
State v. Gentry, 881 S.W .2d 1, 3 (T enn. C rim. App . 1993).
In this case , the state presented uncontoverted evidence that the
defendant killed his wife and son inten tionally and with prem editation. T he state
played a 911 tape in which the de fenda nt calm ly told the operator that he killed
the victims becau se “they chose to die.” The state also introduced the
defen dant’s signed confession in which the defendant articulated his reasons,
formed before the ac t, for killing the victims. He also told police th at he ha d to
chase his son down the hall to finish killing him. The medical examiner explained
that both victims had been stabb ed num erous times . Thus, the judg e had m ore
than enough eviden ce to c onvict th e defe ndan t if he was sane at the time of the
killings.
The defendant claims, however, that the trial judge erred in not agreeing
with two experts who testified that the defendant was legally insane at the time
of the killings. Insanity at the time an offense is committed is an abso lute
defense to a crime . State v. Sparks, 891 S.W .2d 607, 615 (Tenn. 199 5).
Tennessee defines insanity as “an affirmative defense to prosecution that, at the
time of the commission of the acts constituting the offense, the defendant, as a
result of a severe mental disease or defect, was unable to appreciate the nature
or wrongfulness of such defendant’s acts. Mental disease or defect does not
otherwise constitute a defense. The defendant has the burden of proving the
defense of insanity b y clear an d convin cing evide nce.” Tenn. Code. Ann. § 39-11-
501(a)(Su pp. 1996). 1
At trial, the defendant presented two experts who testified that, at the time
of the offense, the de fenda nt was legally insane. Although the state did not offer
any contrary expert testimony, it did offer rebuttal by lay-witnesses. The thrust
of this rebuttal and of the state’s cross-examination of the d efens e’s experts was
1
Although a crim inal defen dant has always be en pres ume d sane , prior to 199 5 he only ha d to
present prima facie evidence to the contrary. The burden then shifted to the state to prove, beyond a
reasonable doubt, that the defendant was sane at the time of the offense. In 1995 the Le gislature
amended Tennessee Code Annotated Section 39-11-501 to place the burden of proof of insanity on
the defe ndant.
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that the action s of the de fendan t were m ore likely tho se of a jealous, controlling
husba nd than that of an in sane p erson.
The fact-finder “is allowed to consider both lay and expert testimony as
evidence, and it may d iscou nt expe rt testim ony wh ich it find s to be in conflict with
the facts of the case.” Sparks, 891 S.W.2d at 616. Accordingly, the judge, acting
as fact finder, had both the prerogative and the duty to evaluate the credibility of
all witnes ses a nd to c redit the testimony as he saw fit. In this case, he
specifically stated that he found the de fense ’s experts’ theories implausible but
found the state’s witnesses credible. We will not second guess the trial ju dge’s
findings in this regard.
This issu e is withou t merit.
SUBSTITUTION OF COUNSEL
The defendant next contends that the trial court erred in denying his motion
to allow defense counsel to withdraw and have new counsel appointed after his
relation ship with his attor ney had deteriora ted. We must disagree with the
defend ant on this point.
In this case, the timing of the trial was unusual. The trial commenced
without a jury on Ap ril 8, 1998. Th e state conclud ed its direct proof on tha t day,
and the defense called the first expert to testify. After the first expert testified , it
became clear that the defense would need to call a second expert. In ord er to
accom moda te the second expert’s sched ule, the trial court adjou rned a nd did not
resume until Ju ly 6, 1998. In the interim (May 22, 1998), the defendant filed a pro
se motion to have his appointed attorney replaced with new coun sel. The
defendant also filed a civil suit against the appointed attorney for malpractice and
breach of promise.2 Several days later, the de fense a ttorney filed a motion to
2
The record is unclear as to when the suit was filed.
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withdraw as counsel. The defendant’s attorney renewed her motion on the day
the trial resu med, a nd the jud ge den ied relief.
A defend ant who reques ts the substitution of defense counsel bears the
burden of dem onstrating that (1) counsel’s representation is ineffective,
inadequate, and falls below the range of competency expected in criminal
representation; (2) the defendant and appo inted counsel have been embroiled
in an irrec oncila ble co nflict; or (3 ) com mun ications between the defendant and
counsel have c omp letely broken down. State v. Gilmore, 823 S.W.2d 566, 568-
69 (Tenn . Crim. A pp. 1991 ). A defe ndan t’s refus al to co opera te with c ouns el,
however, does not jus tify subs tituting c ouns el. State v. McClennon, 669 S.W.2d
705, 70 7 (Ten n. Crim. A pp. 198 4).
A trial judge m ay perm it the withdra wal of an a ttorney ap pointed to
represent an indigent defendant in a crimin al case fo r good c ause. Tenn. Code
Ann. § 40-14 -205 (1 990). H e has wide d iscretio n, how ever, in matters regarding
the appo intme nt and relief of c ouns el, and his actio n will not be set aside on
appeal unless a plain abuse of that discretion is shown . State v. Branam, 855
S.W.2d 563, 566 (Tenn. 1993); State v. Rub io, 746 S.W.2d 732, 737 (Tenn.
Crim . App. 1987). Here, the trial judge did not abuse his discretion when he
found no bas is for requirin g appo intmen t of new co unsel. H e listened to th e
defense counsel’s arguments that her relationship with the defendant had
become acrimonious and that the defendant had filed a civil suit ag ainst her. In
response, the cour t found tha t the coun sel’s perfo rmanc e was m ore than
adequ ate and that any breakdown in communications between the defendant and
his attorney was n ot severe enough to require substitution o f counsel. The court
also found that the request was an improper one to make in the m iddle o f trial,
because
[if the filing of a civil suit necessitated substitution of
coun sel] then in the middle of any trial that was h eard in
these courts if a defendan t didn’t like how things we re
going or wanted to reset this matter for six months, [he
would only ne ed to] w alk acr oss th e stree t and file a civil
suit, and boom, the attorney’s gone and the case is reset.
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The appellant also asse rts that h is filing of a civil suit ag ainst h is
attorney midw ay thro ugh th e trial cre ated a conflict of interest that required
appointment of new counsel. An actual conflict, rather than a mere p ossibility
of a conflict, mus t exist in o rder to implica te the d efend ant’s Sixth Amendment
rights. Cuyler v. Sullivan, 446 U.S. 335, 350, 100 S. Ct. 1708, 1717-19, 64
L. Ed. 2d 333 (1980). Furthermore, the appellant must show that the actual
conflict adversely affected the lawyer's performance. Id.; Netters v . State, 957
S.W.2d 844, 848 (Tenn. Crim. App. 1997). Assuming arguendo that the
lawsu it created an actual conflict of interest for the attorney, the appellant has
not demonstrated how it affected his attorne y’s perform ance. State v. Street,
768 S.W.2d 703, 708 (Tenn. Crim. App.1988). Indeed, the trial judge found
that the defense lawyer performed “extreme ly well.” Based on the record
before this Court, we agree w ith that ass essm ent. For these reasons we find
no revers ible erro r in con nectio n with th e trial court's rulin g on c ouns el's
motion to withdraw.
This issu e is withou t merit.
SUPPRESSION OF DEFENDANT’S STATEMENT
The appellant also claims that the trial court should not have a llowed his
confession to be presented at trial. The defendant did not object to the
admission of his sta teme nt at trial o r raise th e issue in his motion for new trial.
Thus, this issue has been waived. Tenn R. App. P. 3(e); State v. Coker, 746
S.W.2d 167, 17 3 (Ten n. 1987 ), cert. denied, 488 U.S. 871, 109 S. Ct. 180, 102
L. Ed. 2d 149 (19 88); State v. McPherson, 882 S.W.2d 365, 373 (Tenn. Crim.
App. 1994). Further, the record of the su ppres sion h earing is not in the record
on appeal. Thus, we cannot reach the merits of the issue even absent the
waiver. State v. Banes, 874 S.W .2d 73, 82 (T enn. Crim. A pp. 1993).
This issu e is withou t merit.
SCOPE OF REBUTTAL
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The defendant claims the trial court should not have allowed the state
to call several rebuttal witnesses, all of whom testified that they had seen the
defendant threate n his w ife, his w ife’s co- worke r, or oth erwise act jea lously
and/or controlling the past. The defendant claims these witnesses did not
rebut the defense of insanity, but were actually case-in-chief witnesses used
by the prosecution to establish a motive for the murders. As such the
defendant maintains he should have been given pre-trial notice that these
witnesses would testify, an d that th e testim ony is in adm issible b ecau se it is
not true rebu ttal testimo ny. See, State v. Jones, 1987 WL 25401 (Tenn. Crim.
App. 1987 ). W e mu st disa gree w ith the d efend ant’s a ssertio ns in this regard.
W e have consistently held that any competent evidence which explains
or is a direct reply to or a contradiction of material evidence introduced by the
accused is admissible in rebuttal. State v. S mith, 735 S.W.2d 831, 835-36
(Tenn. Crim. A pp. 198 7); State v. Jones, 1987 WL 25401 (Tenn. Crim. App.
1987). Furthermo re, the scope of rebuttal evidence lies within the sound
discretion of the trial judge, and his or her decision will not be disturbed
absent abuse. State v. Scott, 735 S.W .2d 825, 828 (Tenn. Crim . App. 1987 ).
Finally, it is well-settled that lay witnesses m ay be called to re but expert
testimony. Edwards v. State, 540 S.W .2d 641 , 646 (T enn. 19 76), cert.
denied, 429 U.S. 10 61, 97 S.C t. 784, 50 L.Ed.2 d 777 (197 7).
In this case both defense experts testified that they rejected the notion
that the defendant killed his wife and son in a jealo us, controlling rage.
Specifically, Dr. Nich ols testified th at, although he co nside red the hypoth esis
that the defendant may have killed the victims because he was jealous, he
thought the defenda nt’s temporary ins anity, not his jealousy, led to the killings.
He also testified that he knew the defendant had a history of jealous behavior
and knew th e nature of the defe ndant’s p rior beha vior. Dr. Wise agreed. The
rebuttal witnesses were called to establish the extent of the jealous behavior
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that the defendan t exhibited before the crime. Each one refuted a key
assumption on wh ich the defen se exp erts relie d in form ing the ir opinions that
the murders were a result of insanity, not jealousy. For example, one witness
testified that the defendant had lied to Dr. Nichols about his correspondence
with the witness. Another testified that she had seen the defendant threaten
to kill a man he susp ected o f having a n affair with th e defen dant’s wife . It is
clear that this testimony was proper rebuttal to the defense expert’s testimon y.
Thus, the trial court was within its discretion when it allowed these witnesses
to testify without prior notice to the defe nse. See State v. Teel, 793 S.W.2d
236, 24 6 (Ten n. 1990 ) This issu e is withou t merit.
Accordingly, the judgment of the trial court is AFFIRMED.
______________________________
JERRY L. SMITH, JUDGE
CONCUR:
___________________________________
DAVID H. WELLES, JUDGE
___________________________________
JAMES CURWOOD WITT, JR., JUDGE
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