State v. Shipp ( 2010 )

FILED
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE
September 11,
MAY 1998 SESSION
1998
Cecil Crowson, Jr.
Appellate Co urt Clerk
STATE OF TENNESSEE, )
)
Appellee, ) C.C.A. No. 03C01-9711-CR-00492
)
vs. ) Knox County
)
TADARYL SHIPP, ) Hon. Mary Beth Leibowitz,
Judge
)
Appellant. ) (First Degree Murder,
) Conspiracy to Commit First
Degree Murder)
FOR THE APPELLANT: FOR THE APPELLEE:
M. CHRISTOPHER COFFEE JOHN KNOX WALKUP
Attorney at Law Attorney General & Reporter
P.O. Box 870
Knoxville, TN 37902 ELIZABETH B. MARNEY
Asst. Attorney General
425 Fifth Ave. N., 2d Floor
Nashville, TN 37243-0493
RANDALL E. NICHOLS
District Attorney General
S. JO HELM
WILLIAM CRABTREE
Asst. District Attorneys General
P.O. Box 1468
Knoxville, TN 37901-1468
OPINION FILED:________________
CONVICTIONS AFFIRMED, CONSECUTIVE SENTENCES VACATED,
AND REMANDED
CURWOOD WITT, JUDGE
2
OPINION
The defendant, Tadaryl Shipp, appeals the convictions of first degree
murder and conspiracy to commit first degree murder that he received at his jury
trial in the Knox County Criminal Court. Shipp is presently serving consecutive
sentences of life and 25 years in the Departmentof Correction. In this direct appeal,
he challenges the sufficiencyof the convicting evidence and the propriety of the trial
court's sentencing determination. Having reviewed the record and the briefs of the
parties and having heard oral arguments, we affirm both convictionsand sentences;
however, we vacate the imposition of consecutive sentences and remand in order
for the trial court to make the appropriate findings before determining whether the
defendant will serve his sentences concurrently or consecutively.
The defendant's convictionsstem from the 1995 "Job Corps murder"
involving four students from the Knoxville Job Corps. The victim was Colleen
Slemmer. The defendant and two young women have been convictedof her murder.
Christa Gail Pike is on death row for her part in the murder. State
v. Christa Gail Pike, No. 03C01-9611-CR-00408 (Tenn. Crim. App.,
Knoxville, Nov. 26, 1997) (Tenn. R. Sup. Ct. 12, § 2 review pending).
According to the evidence of record, Shadolla Peterson pleaded
guilty to being an accessory after the fact and received a six year
probationary sentence.
A few days prior to January 12, 1995, the defendant told Kip O'Hara he
3
had to make a human sacrifice because the celestialbodies were in alignment. The
defendant had a Ouija board with him when he had this conversation with O'H
On January 12, 1995, Daniel Wayland encountered Pike, Peterson and
the defendant off the Job Corps campus. Pike and Peterson inquired whether
Wayland had seen Slemmer, and the defendant said, "[W]hen we find her, she's
dead." Wayland admitted, however, that he may have attributed this assertion to
Pike in a previous statementto law enforcement, but he contended he was "shook
up" at the time and his recollection had since improved. He said that Pike, Peterson
and the defendant were all in agreement when the assertion was made.
On the day of the murder, Pike told Kimberly Ann Iloilo Rhodes that she
was going to kill Slemmer. Pike also said she was looking for Peterson to get a box
cutter from her.
According to the statement the defendant gave law enforcement
shortly after the murder, Pike, Peterson, Slemmer and the defendant left the Job
Corps campus at 8:50 p.m. and walked to Tyson Park. Pike confronted Slemmer
about Slemmer'ssupposed romantic interest in the defendant. Pike made Slemmer
take off her shirt. Pike became physically violent, hitting Slemmer. Peterson also
struck Slemmer. As the confrontation escalated, Slemmer began grabbing the
defendant, who pushed and slapped her. Pike began cutting Slemmer with a
miniature meat cleaver. Pike was growing madder as the confrontation continued.
4
Peterson had a box cutter and joined Pike in cutting and stabbing the victim.
Slemmer pleaded for the attack to end and promised she would walk to her home in
Florida if she were released. The defendant admitted tripping Slemmer as she tried
to run away, causing her to hit her head on a rock. The defendant also admitted
cutting Slemmer three or four times, including on the arm with the box cutter. After
Slemmer had been seriously injured,she was talking and screaming loudly. At Pike's
request, the defendant went to see whether there was anyone in the area. While
searching, he found a rag by a dumpster, which he tied over Slemmer's mouth to
keep her quiet. Slemmerattemptedto flee, but she fell in some mud. The defendant
went to her and brought her back. Pike began hitting Slemmer with rocks. Peterson
hit Slemmer with a brick or piece of asphalt. When Pike began hitting Slemmer with
the rocks, the defendant became uncomfortable with the assault and walked down
a hill but later returned to the scene to find Slemmer's head "all busted open on the
side." Slemmer was gurgling and breathing. Pike and the defendant carved a
pentagram in Slemmer'schest. The defendant helped Pike move Slemmer to a "hill
of mud" with bushes and little trees around it. Peterson and the defendant threw
Slemmer'sshirt and jacket in the bushes. The three assailants washed their hands
in a mud puddle. Then they went to a gas station,where Peterson and Pike washed
again and threw away some of Slemmer'spersonal effects. The defendant said he
returned to the Job Corps campus before Pike and Peterson, at 10:50. He said it
took him 30 minutes to walk from Tyson Park to the Job Corps campus.
When Pike and Peterson returned to the Job Corps campus, Pike told
5
her friendRhodes that she had killed Slemmerbecause she was afraid she was going
to get caught. Rhodes thought Pike said the defendant had assisted in killing
Slemmer, although she admitted having testified at Pike's trial that Pike said she
killed Slemmer.
An employee of the University of Tennessee grounds department
discovered Slemmer's body on the morning of January 13. University and Knoxville
police officers responded to the scene.
During the afternoon of January 13, Pike and the defendant went to get
identification cards from Robert Alfred Pollock, the Job Corps orientationspecialist.
Pike left her jacket in Pollock's office, and he later turned the jacket over to William
Hudson, the Job Corps security supervisor. Hudson, in turn, surrendered the jacket
to a Knoxville Police Department officer, who found a piece of skull bone in a pocket.
Jennifer McCrary testified that she and Pike went to Tyson Park on
January 13. The police would not allow them to go into the area where they had
planned to go. As they were walking on "The Strip," they saw the defendant coming
toward the park. The defendant asked Pike why she was coming from the park, and
the two began arguing. McCrary had walked away and could not hear the specifics
of the argument.
Detective Randy York of the Knoxville Police Department interrogated
6
Pike and the defendant in the early morning hours of January 14, 1995. In addition
to the contents of the defendant's statementsummarized above, the defendant told
Det. York that he had dabbled in satanism since he was ten years old.1 He said Pike
was "pretty deep" into satanic worship. Both he and Pike were wearing pentagram
necklaces when they were taken into custody on January 14, and the defendant
admitted he had satanic paraphernalia in his room at the Job Corps campus. The
defendant was also wearing a hexagram earring and hat pin.2 The defendant
claimed, however, that the killing had not been a planned satanic offering. He said
he carved the pentagram on the victim'schest and then thought that Slemmer could
be a satanic sacrifice. The defendant claimed that in his mind the killing had
nothing to do with the fact that the following day was Friday the 13th, "Devil's
birthday."
The defendant professed to Det. York that he was unaware of any plan
to kill Slemmer prior to the events taking place. Pike and Peterson told him they
were going to "get [Slemmer] somewhere and do . . . whatever they could to her."
He thought this meant they were "going to beat her up or something." He knew Pike
and Peterson had the box cutter and miniature meat cleaver, but he thought they
were "just going to scare her with them or something." He claimed he had no idea
1
The defendant was seventeen at the time of his crimes.
2
Detective York testified that he had been trained to
recognize the pentagram as a symbol representative of a goat
head. In satanism, the goat head represents Satan. The
hexagram is a symbol for conjuring or controlling demons.
7
they were going to cut Slemmer.
Doctor Sandra Elkins, the Knox County Medical Examiner, performed
an autopsy of the victim. Bruises on the victim'sbody were inflictedbetween 30 and
45 minutes prior to death. The numerous lacerations and slash wounds inflicted
prior to death were insufficient to render the victim unconscious. The cause of
death was blunt force trauma to the head. The victim'ssinuses and lungs filled with
blood following the head injury to the base of the skull, and she essentially drowned
in her own blood.
DNA profiling of blood found on the shirt and pants the defendant wore
on the night of the murder matched Slemmer's DNA profile.
I
In his first issue, the defendant claims the evidence is insufficient to
sustain his convictions. When a defendant challenges the sufficiency of
the evidence, an appellate court’s standard of review is, whether
after considering the evidence in the light most favorable to the
prosecution, any rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt. Jackson v.
Virginia, 443 U.S. 307, 324, 99 S. Ct. 2781, 2791-92 (1979); State v.
Duncan, 698 S.W.2d 63, 67 (Tenn. 1985); Tenn. R. App. P. 13(e).
This rule is applicable to findings of guilt based upon direct
8
evidence, circumstantial evidence, or a combination of direct and
circumstantial evidence. State v. Dykes, 803 S.W.2d 250, 253
(Tenn. Crim. App. 1990).
Moreover, a criminal offense may be established exclusively by
circumstantialevidence. Duchac v. State, 505 S.W.2d 237 (Tenn. 1973); State v.
Jones, 901 S.W.2d 393, 396 (Tenn. Crim. App. 1995); State v. Lequire,
634 S.W.2d 608 (Tenn. Crim. App. 1987). However, before an
accused may be convicted of a criminal offense based upon
circumstantial evidence alone, the facts and circumstances "must
be so strong and cogent as to exclude every other reasonable
hypothesis save the guilt of the defendant." State v. Crawford, 225
Tenn. 478, 470 S.W.2d 610 (1971); Jones, 901 S.W.2d at 396. In
other words, "[a] web of guilt must be woven around the defendant
from which he cannot escape and from which facts and
circumstances the jury could draw no other reasonable inference
save the guilt of the defendant beyond a reasonable doubt."
Crawford, 470 S.W.2d at 613; State v. McAfee, 737 S.W.2d 304, 305
(Tenn. Crim. App. 1987).
In determining the sufficiency of the evidence, this court
should not reweigh or reevaluate the evidence. State v. Matthews,
805 S.W.2d 776, 779 (Tenn. Crim. App. 1990). Questions concerning
9
the credibility of the witnesses, the weight and value of the
evidence, as well as all factual issues raised by the evidence are
resolved by the trier of fact. State v. Cabbage, 571 S.W.2d 832, 835
(Tenn. 1978). Nor may this court substitute its inferences for those
drawn by the
trier of fact from the evidence. Liakas v. State, 199 Tenn. 298, 305,
286 S.W.2d 856,859 (1956); Farmer v. State, 574 S.W.2d 49, 51
(Tenn. Crim. App. 1978). On the contrary, this court is required to
afford the State of Tennessee the strongest legitimate view of the
evidence contained in the record as well as all reasonable and
legitimate inferences which may be drawn from the evidence.
Cabbage, 571 S.W.2d at 835.
A. First Degree Murder
Once a homicide is established, it is presumed to be
second degree murder. Witt v. State, 46 Tenn. (6 Cold.) 5, 7 (1868),
overruled on other grounds, Campbell v. State, 491 S.W.2d 359(Tenn. 1973). In order to elevate the offense to first degree murder,
the state must prove premeditation and deliberation.3 State v.
3
On January 12, 1995, first degree murder was "[a]n
intentional, premeditated and deliberate killing of another."
Tenn. Code Ann. § 39-13-202(a)(1) (Supp. 1994) (amended 1995).
The element of deliberation has since been omitted. See Tenn.
10
Brown, 836 S.W.2d 530, 543 (Tenn. 1992) (citing Bailey v. State, 479
S.W.2d 829, 733 (Tenn. Crim. App. 1972)).
At the time of this offense, the Criminal Code defined a
deliberate act as "one performed with a cool purpose." Tenn. Code
Ann. § 39-13-201(b)(1) (1991) (amended 1995). A premeditated act
was one which was "done after the exercise of reflection and
judgment." Tenn. Code Ann. § 39-13-201(b)(2) (1991) (amended
1995). Both premeditation and deliberation may be established by
circumstantial evidence. See Brown, 836 S.W.2d at 541.
In pertinent part, an individual is criminally responsible
for another's conduct if "[a]cting with the intent to promote or
assist the commission of the
offense, or to benefit in the proceeds or results of the offense, the
person solicits, directs, aids or attempts to aid another person to
commit the offense." Tenn. Code Ann. § 39-11-402(2) (1997).
The defendant's challenge to the sufficiency of his first
Code Ann. § 39-13-202(a)(1) (1997).
11
degree murder conviction centers on the proof of premeditation and
intent. We are convinced, however, that both premeditation and
deliberation were sufficiently proven to sustain the defendant's
conviction based upon his criminal responsibility for the actions of
Pike and/or Peterson.
In the light most favorable to the state, Pike told her
friend Kimberly Rhodes she was going to kill Slemmer. The
defendant confided to Kip O'Hara in the days prior to the murder
that he had to make a human sacrifice because the celestial bodies
were in alignment. On the day of the murder, he told Daniel
Wayland that when he, Pike and Peterson found Slemmer she was
dead. Pike and Peterson procured weapons prior to the
confrontation with Slemmer. The defendant knew Pike and
Peterson had weapons. Pike, Peterson and the defendant lured
Slemmer to a remote area in or near Tyson Park. The three inflicted
a chilling assault on Slemmer for 30 to 45 minutes. When Slemmer
tried to get away, the defendant twice thwarted her escape. The
defendant helped conceal the crime by checking to see if anyone
was within earshot of Slemmer's screams and binding her mouth so
that she would be unable to make noise. After Slemmer was
mortally wounded, the defendant helped Pike move the victim to a
brushy area and helped Peterson conceal the victim's clothing in
12
the bushes. The next day, the defendant became upset with Pike
for returning to the scene of the crime.
From this evidence, a rational jury could find the
defendant criminally responsible for first degree murder based upon
his aid to Pike and/or Peterson in the commission of the murder and
his common intent to murder the victim. See State v. Frank
Whitmore, No. 03C01-9404-CR-00141, slip op. at 10 (Tenn. Crim.
App., Knoxville, June 19, 1997) (defendant's guilt of first degree
murder by criminal responsibility for conduct of another supported
in part by defendant's participation in burglary during which murder
was committed, failure to assist the wounded victim, and disposing
of evidence); State v. Bordis, 905 S.W.2d 214, 222 (Tenn. Crim. App.
1995) (planning activity prior to the crime relevant to
premeditation); Brown, 836 S.W.2d at 541 (facts relevant to
premeditation include the use of a deadly weapon on an unarmed
victim, a particularly cruel killing, and declarations of intent to kill
the victim); State v. McBee, 644 S.W.2d 425, 428-29 (Tenn. Crim.
App. 1982) (criminal intent may be inferred from presence,
companionship, and pre- and post-offense conduct of defendant).
B. Conspiracy to Commit First Degree Murder
A person is guilty of conspiracy where he acts with one
13
or more other persons, "each having the culpable mental state
required for the offense which is the object of the conspiracy and
each acting for the purpose of promoting or facilitating commission
of an offense, [and] agree[s] that one (1) or more of them will
engage in conduct which constitutes such offense." Tenn. Code
Ann. § 39-12-103(a) (1997).
The defendant claims there is insufficient proof that he
entered into an agreement with Pike and/or Peterson to murder the
victim. Although the defendant is correct to the extent that there
is no direct evidence of an agreement, the record is replete with
circumstantial evidence that the defendant conspired with Pike and
Peterson. See State v. Shropshire, 874 S.W.2d 634, 641 (Tenn.
Crim. App. 1993) (conspiracy may be proven by circumstantial
evidence). In the light most favorable to the state, days before
Slemmer's murder the defendant said he had to make a human
sacrifice. The defendant and Pike carved a satanic pentagram on
Slemmer's chest. Pike and the defendant were wearing necklaces
bearing the same symbol when they were taken into custody. On
the day of the murder, both Pike and the defendant made
statements foretelling Slemmer's death. The defendant was
accompanied by Pike and Peterson when he made his statement in
this regard. Pike and Peterson procured weapons. The defendant
14
knew Pike and Peterson were armed, and he accompanied them
and the victim to Tyson Park. The defendant participated in the
horrific torture of Slemmer. When Slemmer tried to escape, the
defendant tripped her once and brought her back another time so
that he, Pike and Peterson could continue their assault. The
defendant gagged Slemmer so she would not scream. A rational
jury could find the defendant's claim of ignorance of Pike's and
Peterson's plan incredible and accredit the state’s evidence as
strong circumstantial proof beyond a reasonable doubt that the
defendant conspired with Pike and Peterson to murder the victim.
We find the evidence sufficient to sustain the
defendant's convictions of first degree murder and conspiracy to
commit first degree murder.
II
Next, the defendant challenges the maximum 25-year sentence
imposed for conspiracy and the imposition of consecutive sentencing. In
determining whether the trial court has properly sentenced an
individual, this court engages in a de novo review of the record with
a presumption that the trial court's determinations were correct.
Tenn. Code Ann. § 40-35-401(d) (1997). This presumption is
"conditioned upon the affirmative showing in the record that the
15
trial court considered the sentencing principles and all relevant
facts and circumstances.” State v. Ashby, 823 S.W.2d 166, 169
(Tenn. 1991). In conducting our de novo review, we must consider
the evidence at sentencing, the presentence report, the sentencing
principles, the arguments of counsel, the statements of the
defendant, the nature and characteristics of the offense, any
mitigating and enhancement factors, and the defendant’s
amenability to rehabilitation. Tenn. Code Ann. §§ 40-35-210(b), 40-
35-103(5) (1997); Ashby, 823 S.W.2d at 168.
In the appellate courts, the party appealing the
sentencing determination has the burden of showing that it is
improper. Tenn. Code Ann. § 40-35-401(d), Sentencing Comm'n
Comments (1997); Ashby, 823 S.W.2d at 169. A component of this
burden is preparing a record "which conveys a fair, accurate and complete
account of what transpired in the trial court with respect to the issues which form
the basis of the appeal." State v. Oody, 823 S.W.2d 554, 559 (Tenn. Crim. App. 1991);
Tenn. R. App. P. 24(b). If the record fails to contain necessary items with respect
to an appellate issue, the court is precluded from consideringthe merits of the issue.
State v. Ballard, 855 S.W.2d 557, 560-61 (Tenn. 1993); Tenn. R. App. P. 24(b).
In the case at bar, the defendant has not included the presentence
report in the record. Because this document is necessary for a de novo review of
16
the trial court's sentencing determination,4 we are unable to review the
sentencing issues on their merits. In this situation, a waiver of the
sentence enhancement and mitigation issues and affirmance of the
trial court’s sentence length determination is the result. Oody, 823
S.W.2d at 559. However, we discern an error of law in the trial
court’s consecutive sentencing determinations, and we conclude
in this case that justice is better served by remanding the case to
the trial court for a new determination as to concurrent or
consecutive service of the sentences.
We review questions of law de novo. State v. Davis, 940
S.W.2d 558, at 561 (Tenn. 1997). As part of such a de novo review,
we conclude that the trial court’s rationale for ordering consecutive
sentences was legally erroneous.
In announcing its decision to order consecutive service
of the defendant’s sentences, the trial court declared the defendant
a “dangerous offender”. See Tenn. Code Ann. § 40-35-115(b)(4)
(1997). The dangerous offender is one of the categories of offender
for which consecutive sentencing is allowed. Tenn. Code Ann. § 40-
35-115(b) (1997). However, in State v. Wilkerson, our supreme court
4
Tenn. Code Ann. § 40-35-210(b); § 40-35-103(5) (1997);
Ashby, 823 S.W.2d at 168.
17
held that merely finding the defendant to be a dangerous offender
is an insufficient basis for ordering consecutive sentencing. State
v. Wilkerson, 905 S.W.2d 933, 938 (Tenn. 1995).
The proof must also establish that the terms imposed
are reasonably related to the severity of the offenses
committed and are necessary in order to protect the
public from further criminal acts by the offender.
Id. The record of the sentencing hearing reflects no attempt by the
trial judge to consider or apply these two factors mandated by
Wilkerson. There were no findings of fact relative to these factors.
On remand, should the trial court find the defendant to be a
dangerous offender, it should follow the principles announced in
Wilkerson in considering the use of consecutive sentences.
Because of the incomplete status of the sentencing
record before us, we have not reviewed the trial court’s sentencing
determinations except for the legal issue addressed above. The
absence of the presentence report precludes not only our further
review of the other sentencing issues raised by the defendant but
also precludes our taking any action on the consecutive sentencing
issue other than remanding the case for new findings of fact and
determinations. We leave it to the trial court to determine, in its
discretion, whether a further hearing is to be conducted or whether
the necessary determinations should be made on the record that is
18
already before the court.
Accordingly, the convictions and sentences are affirmed,
the imposition of consecutive sentences is vacated, and the case
is remanded for the trial court to make appropriate findings of fact
and to determine whether the sentences shall run concurrently or
consecutively.
_______________________________
CURWOOD WITT, JUDGE
CONCUR:
_____________________________
JOSEPH M. TIPTON, JUDGE
_____________________________
JOE G. RILEY, JUDGE
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