State v. Terry Proffitt ( 2010 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
FILED
AT KNOXVILLE June 2, 1999
Cecil Crowson, Jr.
FEBRUARY SESS ION, 1999 Appellate C ourt
Clerk
STATE OF TENNESSEE, ) C.C.A. NO. 03C01-9712-CC-00530
)
Appellee, )
)
) SEVIER COUNTY
VS. )
) HON. REX HENRY OGLE
TERRY PROFFITT, ) JUDGE
)
Appe llant. ) (Direct Appeal - First Degree M urder)
FOR THE APPELLANT: FOR THE APPELLEE:
JAMES W. GREENLEE JOHN KNOX WALKUP
118 Bruce Street Attorney General and Reporter
Sevierville, TN 37862
MICH AEL J . FAHE Y, II
Assistant Attorney General
425 Fifth Avenu e North
Nashville, TN 37243
AL SCHMUTZER
District Attorney General
CHARLES ATCHLEY
Assistant District Attorney
Sevier County Courthouse
Sevierville, TN 37862
OPINION FILED ________________________
AFFIRMED
JERRY L. SMITH, JUDGE
OPINION
On October 7, 1 996, the Se vier County G rand Jury indicted Appellant Terry
Proffitt for one coun t of first degree murd er. After a jury trial held on September
24–26, 1997, Appellant was convicted of first degree murder and was sentenced
to life imprisonment. Appellant challenges his conviction, raising the following
issues:
1) whether the trial cou rt erred when it excluded an expert opinion that
Appellant lacked the ability to “knowingly” kill the victim; and
2) whether the trial court erred when it w hen it refus ed to instruct the jury
that the doctrine of diminished capacity applies to the requisite mental
states for both first degre e and sec ond degre e murde r.
After a revie w of the re cord, we affirm the ju dgme nt of the trial co urt.
I. FACTS
On June 6, 1996, Appellant killed his ex-w ife, Kimb erly Proffitt, by shooting
her two times with a M arlin 45/70 lever action rifle. When questioned by police
later that night, A ppellant s tated that h e and M s. Proffitt had gotten into an
argument after Ms. Proffitt had mentioned her boyfriend. Appellant stated that
he then grabbed his rifle, which he believed was unloaded, in an attempt to scare
Ms. Proffitt. Appe llant sta ted tha t the rifle had fired a ccidenta lly when M s. Proffitt
pulled it. Appellant also testified that the rifle fired a second time while Ms.
Proffitt was still pulling it.
Agent Dan Royce of the Tennessee Bureau of Investigation testified that
in order to fire Appella nt’s rifle, the leve r would h ave to be worked and then the
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trigger would have to be pulled. Agent Royce also testified that in order to fire a
second shot, either the lever wo uld have to be worked again or the hammer
would have to be manually cocked and in either case, the trigger w ould ha ve to
be pulled again. Agent Royce testified that the rifle could not fire merely from
being g rabbed unless th e trigger w as pulled at the sam e time.
Doctor Cleland Blake testified that when he examined the body of Ms.
Proffitt, he discovered that she had bruises and cuts on her right hand. Dr. Blake
testified that the se wo unds were d efens ive wou nds th at were likely ca used while
Ms. Proffitt was holding the rifle and someone pulled it away from her. Dr. Blake
also testified that it would have been impossible for Ms. Proffitt to have still been
holding th e rifle when the seco nd sho t was fired.
J.R. Cant rell testifie d that a pprox imate ly three weeks before the shooting,
Appellant told Ca ntrell tha t he ha d bec ome upse t with Ms. Proffitt and he had
considered shooting her. Cantrell also testified that approximately one to two
weeks before the shooting, Appellant told Cantrell that it would be better if Ms.
Proffitt was dead a nd som eone e lse was ra ising their ch ildren.
Don ald Ogle testified that in September of 1995, he saw Appellant grab
Ms. Proffitt by the hair, pin her against a cabinet door, and put a knife to her
throat. Dona ld Og le also testified that in October of 199 5, he s aw Ap pellan t hold
a gun in Ms. P roffitt’s m outh. D onald Ogle further testified that when he called
Appe llant’s residence one week before the shooting and asked Ap pellant where
Ms. Proffitt was residing, Appellant told him where Ms. Proffitt was living and then
stated, “but she’s n ot going to live anywh ere long.”
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Johnny Ogle testified that three days before the shooting, Appellant stated
that “he ought to bu st a cap” on Ms. Proffitt, which Johnn y Ogle u ndersto od to
mean that App ellant oug ht to shoo t Ms. Pro ffitt.
Johnny Costner testified that four da ys befo re the s hootin g, App ellant to ld
Costner that he was g oing to kill Ms. Proffitt. Costner also testified that two days
before the sh ooting , Appe llant told Costner that he had thought about killing Ms.
Proffitt “all day long.”
Doctor Michael Smith testified that in h is opinion, Appellant suffered from
“a major depres sion of se vere to psychotic proportions” that rendered Appellant
incap able of either pre medita ting the sh ooting or forming an intent to kill. Dr.
Smith adm itted, ho weve r, that if a p erson stated that he or she was g oing to kill
another, that could be evide nce of an intent to kill. Dr. Sm ith also admitted that
if a person stated that he or she had been thinking about killing another for a long
period of time, that could also be eviden ce of an intent to kill. In addition, Dr.
Smith admitted that if a person had mad e up a story in o rder to avoid
respon sibility for a killing, that could be evidence that the person was capable of
forming an intent to kill.
In a jury out hearing, Dr. Smith testified that in h is opin ion, Ap pellan t’s
mental condition rendered him incapable of “know ingly” killing Ms . Proffitt.
Howeve r, the trial c ourt ru led tha t this testimony wa s inadmissib le. The trial court
based this ruling on its determination that the doctrine of dimin ished capa city only
applied to first degree murder charges and was inapplicable to second degree
murder charge s. Thus , the trial court ru led that D r. Smith could testify that
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Appellant did not have the ability to premeditate or form the intent to kill, but Dr.
Smith could not testify that Ap pellan t did no t have th e ability to “know ingly” kill.
At the close of trial, Appellant submitted a special jury request for an
instruction on diminishe d capacity. This proposed instruction stated, in relevant
part, that if the jury con cluded that App ellant’s dim inished c apacity rende red him
incap able of having the requisite mens rea for either first degree murder or for
second degree murder, the jury must find him not guilty of those offenses. The
trial court rejected this instruction and instead, the court instructed the jury that
if it conclu ded th at App ellant’s dimin ished capa city rend ered h im incapable of
acting intentionally or with premeditation, then it must find him not guilty of first
degree murde r.
II. EXPERT TESTIMONY
Appellant contends that the trial court erred whe n it refused to perm it Dr.
Smith to testify that Appellant did not have the ability to “knowingly” kill. The
State concedes that the trial court erred, but maintains that it was harmless error
under th e circum stance s.
Appr oxima tely three months after Appe llant’s trial, the Tennessee Supreme
Court addressed the issue of dim inished capacity in State v. Hall, 958 S.W.2d
679 (Tenn. 1997). The supreme court stated:
[T]o gain admissibility, expert testim ony rega rding a d efenda nt’s incap acity
to form the required mental state must satisfy the general relevancy
standards as well as the evidentiary rules which spec ifically govern expert
testimony. Assuming that tho se sta ndard s are s atisfied , psych iatric
evidence that the defendant lacks the capacity, because of mental disease
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or defect, to form the requisite culpable mental state to commit the offense
charge d is adm issible und er Ten nesse e law.
Id. at 689. The supreme court made no distinction between the application of the
doctrine of diminished capacity to first degree or second degree murder charges.
Indeed, this Court has previously stated that
Although not explicitly addressed, the Hall opinion appa rently did no t limit
application of the d octrine to spe cific inten t crime s, as th is Cou rt implie d in
[State v. ]Phipps, 883 S.W.2d [138,] 149 n. 19 (declining to decide whether
diminished capa city neg ates m ental s tates o ther tha n spe cific intent). W e
believe this is implicit in the court’s repeated statements that diminished
capac ity is relevant to negate the requisite culpable mental state, not just
premeditation and de liberation. Hall, 958 S .W .2d at 6 90 (em phas is
added). Moreover, the distinction between general and specific intent
crimes has be en aba ndone d in our crim inal code . Tenn. Code Ann. §
39-11-3 01 (Se ntencing Com mission Com ments ).
State v. Calvin Lee Sneed, No. 03C01-9611-CR-00444, 1998 WL 309137, at *13
n.9 (Tenn. Crim. App., Knoxville, June 12, 1998). Because the doctrine of
diminished capac ity applies to all offenses in which the State is required to prove
a specified mens rea, we conclude that the trial court should have allowed Dr.
Smith to give his o pinion tha t Appella nt’s men tal condition rend ered h im
incapable of “know ingly” killing Ms . Proffitt. 1 Howe ver, we ag ree with the State
that the trial court’s error was harmless under the circumstances of this case.
In this case, the jury heard Dr. Smith’s opinion that Appellant suffered from
“a major depression of severe to psychotic proportions” that rendered Appellant
incap able of either premeditating the shooting or forming an intent to kill. The
jury obviously rejected Dr. Smith’s opinion and concluded that Appellant had
committed a premeditated and intentional k illing. Ind eed, th ere wa s am ple
evidence upon w hich a ratio nal jury cou ld base th is conclu sion. It is
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The re is n o disp ute th at Dr . Sm ith’s o pinion satis fies th e gen eral s tand ards of rele vanc y as w ell
as th e rule s of e viden ce th at go vern expe rt test imo ny.
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incon ceivab le that a rational jury, having concluded that Appellant had committed
an intentional and premeditated murder, could also conclude that Appellant had
not acted “know ingly.” Such a conclus ion wo uld de fy all logic . Ther efore, it is
obvious that even if Dr. Smith had been allowed to testify that Appellant’s mental
condition rendered h im incapab le of a “knowing” k illing, the jury would have
rejected that opinion just as it rejected the opinio n that A ppella nt cou ld not k ill
intentio nally or with premeditation. Thus, we conclude that the trial court’s error
in limiting the e xpert testim ony was harmle ss. See Tenn. R. Ap p. P. 36 (b). Th is
issue ha s no m erit.
III. JURY INSTRUCTIONS
Appellant contends that the trial court erred when it refused to instruct the
jury that the doctrine of diminished capacity applies to the requisite mental states
for both first degree and second degree murder. The State concedes that the
trial court erred, but contends that the error was harmless.
Initially, we note that the trial court “has the duty to give a complete charge
of the law applicab le to the facts of the cas e.” State v. Daven port, 973 S.W.2d
283, 287 (Tenn . Crim. App. 1998). As previously stated, the doctrine of
diminished capacity as it applies to both first degree and second degree murder
was applicab le to the fac ts of this cas e. Thus, the trial court erred when it failed
to instruc t the jury that it sh ould c onsid er whether Appella nt’s men tal state
rendered him incapable of having the requisite mental state (“knowing”) for
second degree murder. However, we agree with the State that this was harmless
error.
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This issue is somewhat analogous to the issue presented in the case of
State v. Williams, 977 S.W .2d 101 (Tenn . 1998). In Williams, the Tennessee
Supreme Cour t held th at the tria l court’s failure to instruct the jury on the lesser
offense of voluntary manslaughter was harmless when the jury convicted the
defendant of first degree murder after it had been instructed on both first degree
and se cond d egree m urder. Id. at 106. The supreme court stated:
By convicting the defendant of first degree murder the jury determined that
the proof was sufficient to establish all the elements of that offense beyond
a reason able do ubt, includ ing that the killing was “in tentional, d eliberate
and premed itated.” In other words, by finding the defendant guilty of the
highest offense to the exclusion of the immediately lesser offense, second
degree murde r, the jury nec essarily reje cted all oth er lesser o ffenses,
including voluntary manslaughter. Accordingly, the trial court’s erroneous
failure to charge volun tary manslaughter is harmless beyon d a rea sona ble
doubt because the jury’s verdict of guilt on the greater offense of first
degree murder and its disinclination to consider the lesser included offense
of second degree murd er clea rly dem onstra tes tha t it certain ly would not
have retu rned a ve rdict on volu ntary ma nslaug hter.
Id. Similarly, the jury’s rejection of Dr. Smith’s opinion that Appellant could not
kill intentionally or with premeditation ind icates that it certainly would h ave
rejected Dr. Sm ith’s opinion that App ellant cou ld not “kno wingly” kill. The re is no
question that “inte ntiona l” and “p reme ditation” are “greater” mental states than
“knowin g.” For instan ce, “‘[i]ntention al’ refers to a pers on wh o acts intentio nally
with respect to the nature of the conduct or to a result of the cond uct wh en it is
the perso n’s conscious o bjective or desire to engage in the conduct or cause the
result.” Tenn . Code Ann. § 39-11-302(a) (1997 ). In add ition, “‘pre med itation’ is
an act done after the exercise of reflection and judgm ent.” Ten n. Cod e Ann. §
39-13-202(d) (Supp. 1998). Further, “‘[k]nowing’ refers to a person who ac ts
know ingly with respe ct to the co nduct o r to circumstances surrounding the
conduct when th e perso n is awar e of the na ture of the c onduc t or that the
circumstances exist. A person acts knowingly with respect to a result of the
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perso n’s conduct when the pe rson is aware that the cond uct is re ason ably ce rtain
to cause the result.” Tenn. Code Ann. § 39-11-302(b) (1997). By convicting
Appellant of first degree murder, the jury found beyond a reasonable doubt that
Appellant had killed in tentionally a nd with preme ditation. In finding that Appellant
acted with the se hig her m ental s tates, th e jury ne cess arily reje cted a ll other
lesser mental states. Thus, the jury clearly would not have found that Appellant
had been incapable of “knowingly” killing. Therefore, we conclude that the trial
court’s erroneous failure to instruct the jury that the doctrine of diminished
capacity could nega te the re quisite men tal state for sec ond d egree murd er is
harmle ss beyo nd a rea sonab le doub t. See Tenn. R. App. P. 36(b). This issue
has no merit.
Accordingly, the judgment of the trial court is AFFIRMED.
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JERRY L. SMITH, JUDGE
CONCUR:
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GARY R. WADE, PRESIDING JUDGE
___________________________________
L. T. LAFFERTY, SENIOR JUDGE
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