State v. Stephen Abbott ( 2010 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE FILED
MAY 1998 SESSION
December 9, 1998
Cecil W. Crowson
STATE OF TENNESSEE, * C.C.A. NO. 01C01-9704-CC-00122 Clerk
Appellate Court
APPELLEE, * MAURY COUNTY
(Transferred from Giles County)
VS. * Hon. William B. Cain, Judge
STEPHEN JOHN ABBOTT, * (Second Degree Murder (Two Counts);
Attempted First Degree Murder; and
APPELLANT. * Attempted Second Degree Murder)
For Appellant: For Appellee:
Hershell D. Koger John Knox Walkup
135 N. First Street Attorney General and Reporter
P.O. Box 1148 450 James Robertson Parkway
Pulaski, TN 38478 Nashville, TN 37243-0493
Larry L. Roberts Karen M. Yacuzzo
627 Second Avenue South Assistant Attorney General
Nashville, TN 37210 Criminal Justice Division
450 James Robertson Parkway
Nashville, TN 37243-0493
Mike Bottoms
District Attorney General
P.O. Box 459
Lawrenceburg, TN 38464
OPINION FILED: ____________________
REVERSED AND REMANDED FOR NEW TRIAL
GARY R. WADE, PRESIDING JUDGE
OPINION
The defendant, Stephen John Abbott, was indicted in Giles County for
two counts of first degree murder and two counts of attempted first degree murder.
After a change of venue to Maury County, he was convicted of second degree
murder for the deaths of Carolyn Foster and Diane Collins (counts 1 and 2), the
attempted second degree murder of Carol Yancy (count 3), and the attempted first
degree murder of Ron Shirey (count 4). The trial court imposed sentence as
follows:
count 1 second degree murder twenty years
count 2 second degree murder twenty years
count 3 attempted second degree murder ten years
count 4 attempted first degree murder twenty years
The two second degree murder sentences are to be served consecutively with
release eligibility after service of at least eighty-five percent of the forty-year term.1
In this appeal of right, the defendant presents the following issues for
review:
(1) whether the evidence is sufficient to support the
verdicts of guilt for all four offenses;
(2) whether the trial court erred by refusing to grant the
defendant's motion for judgment of acquittal at the close
of the state's proof;
(3) whether the indictment sufficiently charges each
offense;
(4) whether the juvenile court erred by transferring the
defendant to circuit court to be tried as an adult;
(5) whether the juvenile court erred by consolidating the
defendant's transfer hearing with that of his co-
defendant;
1
"There shall be no release eligibility for a person committing [second degree murder] on or
after July 1, 1995." Tenn. Code Ann. § 40-35-50 1(i)(2).
2
(6) whether the trial court erred by overruling the
defendant's motion to suppress his oral statements;
(7) whether the trial court erred by refusing to strike
certain potential jurors for cause;
(8) whether the trial court erred by refusing to grant the
defendant's motion for a change of venire;
(9) whether the trial court erred by allowing evidence that
the defendant and co-defendant were wearing black
clothing at the time the crimes were committed;
(10) whether the trial court erred by failing to charge the
lesser offense of facilitation of a felony; and
(11) whether the trial court erred by imposing an
excessive sentence.
We must reverse and remand for a new trial due to the failure to
charge the lesser offense of facilitation of a felony.
On November 15, 1995, Deputy Kyle Helton of the Giles County
Sheriff's Department drove to Richland High School to teach a class about the
importance of avoiding drugs and violence. Upon his arrival at 7:55 A.M., he
learned that someone had just been shot. When he saw blood on the floor and
"people laying in the hallway," he contacted the sheriff's department, seeking
additional help. He then determined that Carolyn Foster and Carol Yancy, both
teachers, had suffered gunshot wounds to the head area and that a student, Diane
Collins, had been shot in the neck. The weapon used was a .22 rifle. Officer Helton
took Jamie Rouse into custody; the defendant was not "anywhere around ...."
Agent Wayne Wesson, of the Tennessee Bureau of Investigation,
interviewed the defendant twice on the day of the shootings. On each occasion, the
defendant provided a signed, written statement. At about 1:30 P.M., the defendant
told Agent Wesson that he had known Rouse for about one and one-half years and
3
that they had been good friends. He revealed that Rouse liked heavy metal music
and was rumored to be a Satan worshiper. The defendant stated that Rouse had
carved an inverted cross on his forehead once before, always wore black, and had
previously shaved his head. The defendant recalled that the evening before the
shootings, Rouse had said that he was tired of school and wanted to quit. He told
Agent Wesson that on the day of the shooting, Rouse called the defendant and
informed him he would pick him up for school early. They arrived at school at
approximately 7:55 A.M. and Rouse left his truck armed with a .22 rifle. The
defendant claimed that he called out to Rouse, who did not respond but proceeded
into the school. The defendant stated that Rouse attempted to fire his weapon at
Ms. Foster, but the safety was in place. He recalled that Rouse lowered the gun,
disabled the safety, and fired at Ms. Foster again and then fired at Ms. Yancy. The
defendant claimed that he then left the area and heard one or two more shots. He
asserted that he knew nothing about Rouse's intentions and had not noticed the rifle
in the vehicle.
In a second statement, provided at 6:15 P.M. on the day of the
murders, the defendant revealed that he and Rouse wanted to quit school because
they did not "fit in." He acknowledged that on the night before the shooting, Rouse
talked about killing a trooper who had given him a ticket and killing Tina Mueller,
someone with whom he had argued. He told Agent Wesson that when Rouse
asked if he wanted to help, he responded, "I don't know." The defendant also
recalled Rouse saying "he was going to take care of Shirey and Hobbs." When
Rouse asked if he would help, the defendant "laughed and said, yeah." The
defendant explained that he did not really believe Rouse would follow through on the
threats. The defendant acknowledged that he saw the rifle when he got into the
truck. He recalled Rouse, who had a "brick of shells," said, "it's going to happen
4
today." He remembered that on the way to school, Rouse threatened to shoot
"anyone who gets in my way" and that Rouse stopped at the residence of Stephen
Ray, showed him the gun and shells, and claimed, "It's going to happen today."
When Ray responded, "You're crazy," the defendant contended that he indicated
agreement. After leaving the Ray residence and upon arriving at the high school,
Rouse asked, "Are you ready?" The defendant recalled that Rouse then took the
weapon and left. The defendant emphasized to Agent Wesson that he did not
believe Rouse would shoot anyone and that he "was shocked" by what had
occurred.
Michael Chapman, chief investigator for the Giles County Sheriff's
Department, interviewed the defendant a day later. He stated that the defendant
admitted to driving the truck to school. Officer Chapman testified that the defendant
had stated that Rouse did not mention shooting a trooper until after the defendant
started driving Rouse's truck.
Sheriff Eddie Bass testified that he was called to the scene of the
shootings immediately. When he located the defendant, the defendant was wearing
"[b]lack from head-to-toe. Shirt, pants, boots. I believe a black coat, also."
Rebecca Lee Giles, who arrived at Richland High at about 7:30 on the
morning of the shootings, saw Jamie Rouse come through a doorway at about 7:55
A.M. Rouse, who carried a gun at his side, shot Ms. Yancy and Ms. Foster. Ms.
Giles, who immediately fled to the parking lot, testified at trial that the defendant was
not present and that Rouse appeared to be acting alone.
Carol Yancy, a teacher at the school, testified that on the morning of
5
the shootings, she and Carolyn Foster were standing in the doorway to Ms. Foster's
classroom when Rouse approached them with a rifle. She had no other recollection
until she regained consciousness on the way to the hospital. A gunshot wound to
her head required hospitalization for several days.
Teacher Ralph Johnson recalled hearing a noise that sounded "like
two firecrackers," looking into the hallway, and seeing Ms. Yancy and Ms. Foster on
the floor. When he heard another shot a few seconds later, he ran toward the
shooting and helped take the murder weapon away.
Ron Shirey, a teacher and coach who was responsible for much of the
discipline at the school, was to monitor the halls until classes began. He heard a
loud pop, saw Ms. Collins "holding her neck or throat" and bleeding profusely, and
then saw Rouse armed with a rifle.
Rachel Warren Harmon, who grew up with and rode the bus with the
defendant and Rouse, worked with them at Delta Express, a truck stop. She
testified that on the evening before the shootings, she noticed Rouse and the
defendant engaged in conversation outside the business. She remembered that
they stopped their conversation when she approached them and the defendant
stated, "We'll just discuss it later."
Jim Matthews, a criminal investigator for the District Attorney's office,
found a black jacket, several compact discs and a CD case, and 433 .22 long rifle,
high velocity cartridges in Rouse's truck.
Dr. Ann Bucholtz, who had performed an autopsy on fourteen-year-old
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Diane Collins, determined that a gunshot wound to the neck had caused her death.
Dr. Charles Warren Harlan, who performed an autopsy on Carolyn Foster,
determined that gunshot wounds to the head and the neck had caused her death.
Billy Rogers, a student at Richland High School, also worked at Delta
Express. He recalled the defendant saying that he might lose "a couple of friends
tomorrow"; when he asked their identity, the defendant responded, "If there was a
Lord, he better make it snow, so we ain't got school tomorrow."
Danielle Robinson, a student at the high school, remembered passing
Rouse in the hallway and seeing the gun. She then saw the defendant, eight or ten
feet away, and told him Rouse had a gun. She recalled his response, "He does?"
She testified that she saw the defendant later in the day and that he was "in a daze,"
pale, and unresponsive.
Student Beth Rogers, a cousin to Rouse, testified that when Ms.
Collins was shot, her boyfriend grabbed her and shoved her into the bathroom.
Immediately after the shooting, she saw the defendant, pale and crying, in the
parking lot. When she asked the defendant whether the rifle was in the front of the
truck, the defendant responded, "No, it must have been in the back." Ms. Rogers
also recalled that Rouse had previously threatened to kill people, but that she did
not take him seriously.
Stephen Ray testified that on the morning of the shootings, the
defendant and Rouse had stopped at his residence on their way to school. He
recalled that Rouse was driving the truck and that a rifle was on the seat in plain
view. Ray testified that Rouse acknowledged that the weapon was his. When he
7
asked Rouse, "Who are you going after," either Rouse or the defendant replied
"Hobbs [the school principal] and whoever gets in the way." Ray, who was uncertain
which of the two responded, then saw a box of ammunition and a gun clip in the
truck. He could not recall whether Rouse or the defendant warned him to stay in the
parking lot at school, "because they didn't want me hit by any stray bullets." Ray
remembered that the defendant moved into the driver's seat before driving away
and that Rouse was in the passenger seat. Ray testified that he did not think Rouse
was serious about actually shooting anyone.
When Ray arrived outside the school, he saw Rouse walking toward
the door carrying a rifle in his left hand. Ray then recalled gunshots: "two somewhat
close together, and a slight pause, and then a third." Afterward, Ray saw the
defendant walking in the parking lot; he described the defendant on the "verge of
tears, pale, [t]rembling, [j]ust general shock." Ray recalled the defendant said he
could not "believe he done it."
Several witnesses testified for the defense. Thomas Ray, Stephen
Ray's father, was a character witness for the defendant. He described the
defendant as "[e]ven-tempered ... [an a]verage teen-ager and a good boy." Rick
Pitts, the defendant's supervisor at the Delta Express, described the defendant as
an above average employee and recalled that the defendant was very upset over
the shootings, a "nervous wreck." He remembered that the defendant was unable
to control his emotions and had "held his head down between his hands, and stood
there and shook."
James Nichols, an agricultural education instructor at Richland High,
testified at the Juvenile Transfer Hearing. He remembered seeing Rouse fire his
8
rifle toward Coach Shirey and grabbing the barrel of the rifle in an effort to take it
away from Rouse. During the struggle, a shot was accidentally fired into the ceiling.
When Nichols ordered Rouse to surrender the gun, Rouse responded, "I can't. I've
went too far." Nichols and several others were able to take the gun from Rouse.
The defendant, who was seventeen years old when the shootings
occurred, was a senior at the school and worked at Delta Express. He had planned
to enlist in the Navy after school and had scored in the upper ten percent on the
Armed Service Vocational Aptitude Battery Test. He testified that he had befriended
Rouse in his sophomore year and had often heard Rouse threaten to kill people but
had never before known him to carry out any of the threats or violence against
anyone.
He recalled that on the evening before the shooting, Rouse, who was
not on duty at the time, stopped by Delta Express to exchange a compact disc
player. He remembered that Rouse had threatened to kill Tina Mueller and had
sought his help. The defendant claimed that he responded, "I don't know" and then
laughed because he did not think Rouse was serious. The defendant
acknowledged telling Billy Rogers, "If there is a God, I hope it snows tomorrow."
While conceding that he had said to Rogers that he was going to lose a couple of
friends, he did not think anyone was going to get killed but only that some type of
fight would occur.
He testified that on the morning of the shooting, Rouse had called to
say that he would pick him up a little early. When he got in Rouse's truck, the
defendant saw the gun and shells in the seat. He testified that he asked about the
weapon and Rouse responded, "It's going to happen today." Along the way, Rouse
9
stopped to purchase a drink and a candy bar and then drove to Steve Ray's home.
Ray came to the truck and asked about the weapon; Rouse responded it was for
"Hobbs, and whoever gets in the way." The defendant testified that he agreed with
Ray, who said, "You're crazy."
The defendant testified that he then agreed to Rouse's request that he
drive. He described the request as not unusual because he had driven the truck
several times previously. He explained that he agreed to drive because he had not
driven in a while, as his own truck was "broke down." The defendant recalled that
Rouse placed the weapon in his lap and said, "now he can shoot the cop in front of
the school." The defendant explained that he thought Rouse was joking, but
conceded that he was a little worried about Rouse's behavior. He testified that
when he parked the truck, Rouse got out fast and walked toward the school without
waiting. The defendant yelled three or four times at Rouse, who did not respond.
The defendant, who had no recollection of Rouse loading the rifle, recalled that
Rouse fired at Ms. Foster and Ms. Yancy and continued to walk down the hall. The
defendant, who insisted he did not help plan the shootings and had no intent to
harm anybody, stated that he left the school grounds with Ray.
Perry Gammons testified for the state in rebuttal. He claimed that the
morning of the shootings, he had seen the defendant and Rouse talk near the front
of Rouse's truck and then walk side by side toward the school.
(1)
The defendant first argues the evidence is insufficient to support the
verdicts of guilty for all four offenses. He argues the state's case is based on
"speculation and conjecture."
10
On appeal, of course, the state is entitled to the strongest legitimate
view of the evidence and all reasonable inferences which might be drawn therefrom.
State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). The credibility of the
witnesses, the weight to be given their testimony, and the reconciliation of conflicts
in the proof are matters entrusted to the jury as the trier of fact. Byrge v. State, 575
S.W.2d 292, 295 (Tenn. Crim. App. 1978). When the sufficiency of the evidence is
challenged, the relevant question is whether, after reviewing the evidence in the light
most favorable to the state, any rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt. State v. Williams, 657 S.W.2d
405, 410 (Tenn. 1983); Tenn. R. App. P. 13(e).
The defendant may be found criminally responsible for Rouse's
conduct if "[a]cting with intent to promote or assist the commission of the offense, or
to benefit in the proceeds or results of the offense, [he] solicits, directs, aids, or
attempts to aid another person to commit the offense." Tenn. Code Ann. § 39-11-
402(2).
"[I]t is evident that Tenn. Code Ann. § 39-11-402(2) ... is derived from
common law." State v. Carson, 950 S.W.2d 951, 954 (Tenn. 1997). Even under the
theory of criminal responsibility for the acts of another, mere presence during the
commission of the crime is not enough to convict. See Flippen v. State, 365 S.W.2d
895, 899 (Tenn. 1963); Anglin v. State, 553 S.W.2d 616, 619 (Tenn. Crim. App.
1977). Presence and companionship with the perpetrator of a felony before and
after the commission of the offense are circumstances from which one's
participation in the crime may be inferred. No particular act need be shown. It is not
necessary for one to take a physical part in the crime. Mere encouragement of the
principal is sufficient. State v. McBee, 644 S.W.2d 428 (Tenn. Crim. App. 1982).
11
While the defendant "'must knowingly, voluntarily, and with common
intent unite with the principal offenders in the commission of the crime,'" the
"'common purpose need not be to commit the particular crime which is committed.'"
Carson, 950 S.W.2d at 954 (quoting State v. Foster, 755 S.W.2d 846, 848 (Tenn.
Crim. App. 1988)). In Carson, our supreme court reaffirmed the "natural and
probable consequences" rule:
"[I]f two persons join in a purpose to commit a crime,
each of them, if actually or constructively present, is not
only guilty as a principal, if the other commits that
particular crime, but he is also guilty of any other crime
committed by the other in pursuance of the common
purpose, or as a natural or probable consequence
thereof."
950 S.W.2d at 954 (quoting Key v. State, 563 S.W.2d 184, 186 (Tenn. 1978))
(emphasis in original).
Under these guidelines, we must conclude, despite the closeness of
the factual issue, that the evidence is sufficient to support all of the defendant's
convictions. At the time of the offenses, second degree murder was defined as a
"knowing killing of another." Tenn. Code Ann. § 39-13-210(a). Our code defines
"knowing" as follows:
"Knowing" refers to a person who acts knowingly with
respect to the conduct or to circumstances surrounding
the conduct when the person is aware of the nature of
the conduct or that the circumstances exist. A person
acts knowingly with respect to a result of the person's
conduct when the person is aware that the conduct is
reasonably certain to cause the result.
Tenn. Code Ann. § 39-11-302(b).
First degree murder is defined as a "premeditated and intentional
killing of another." Tenn. Code Ann. § 39-13-202(a)(1). "'Premeditation' is an act
done after the exercise of reflection and judgment" and requires that the "intent to
12
kill must have been formed prior to the act itself." Tenn. Code Ann. § 39-11-302(d).
Criminal attempt is defined as follows:
(a) A person commits criminal attempt who, acting with
the kind of culpability otherwise required for the offense:
(1) Intentionally engages in action or causes a result that
would constitute an offense if the circumstances
surrounding the conduct were as the person believes
them to be;
(2) Acts with intent to cause a result that is an element of
the offense, and believes the conduct will cause the
result without further conduct on the person's part; or
(3) Acts with intent to complete a course of action or
cause a result that would constitute the offense, under
the circumstances surrounding the conduct as the
person believes them to be, and the conduct constitutes
a substantial step toward the commission of the offense.
(b) Conduct does not constitute a substantial step under
subdivision (a)(3) unless the person's entire course of
action is corroborative of the intent to commit the
offense.
(c) It is no defense to prosecution for criminal attempt
that the offense attempted was actually committed.
Tenn. Code Ann. § 39-12-101.
With the view that the verdict accredited the witnesses for the state
and in the light most favorable to the position of the state, the evidence is adequate
to support the verdict of second degree murder. On appeal of the guilty verdict, the
presumption is one of guilt rather than one of innocence. The night before the
shootings, the defendant and Rouse discussed going to school and killing an officer,
a student with whom Rouse had had a verbal altercation, a teacher, and a principal.
When Rouse asked the defendant if he wanted to help, the defendant responded,
"Yeah." On the next day, the defendant drove Rouse to the school. He admitted
seeing the murder weapon and ammunition in the truck. There was some evidence
the defendant walked with Rouse into the school before Rouse shot and killed Ms.
Foster and Ms. Collins and severely injured Ms. Yancy. By doing so, Rouse
committed two murders and an attempt to murder. By aiming his weapon and firing
13
at Shirey, a teacher Rouse advised the defendant that he would kill, Rouse
committed attempted first degree murder.
That Rouse and the defendant did not specifically plan or discuss their
intended crimes against the particular victims does not serve to excuse or mitigate
guilt. Under the ruling in Carson, the defendant is liable for all crimes which are the
natural and foreseeable consequences of the plan. That persons at the school
other than those specifically discussed would be injured or killed during this plan is,
in our view, reasonably foreseeable. Carson, 950 S.W.2d at 955.
(2)
In a related argument, the defendant claims that the trial court erred by
refusing to grant his motion for judgment of acquittal. Rule 29, Tenn. R. Crim. P.,
empowers the trial judge to direct a judgment of acquittal when the evidence is
insufficient to warrant a conviction either at the time the state rests or at the
conclusion of all the evidence. Overturf v. State, 571 S.W.2d 837 (Tenn. 1978). At
the point the motion is made, the trial court must favor the opponent of the motion
with the strongest legitimate view of the evidence, including all reasonable
inferences, and discard any countervailing evidence. Hill v. State, 470 S.W.2d 853(Tenn. Crim. App. 1971).
The standard by which the trial court determines a motion for judgment
of acquittal at that time is, in essence, the same standard which applies on appeal in
determining the sufficiency of the evidence after a conviction. That is, "whether,
after reviewing 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." Tenn. R. App. P. 13(e); Jackson v. Virginia, 443 U.S. 30714
(1979). We have previously concluded the evidence is sufficient to support the
convictions; accordingly, this issue is without merit.
(3)
The next issue is whether the indictment sufficiently charges each
offense. The defendant argues that the count charging first degree premeditated
murder fails to allege the element of "deliberate"; the count charging felony murder,
for which the defendant was convicted of second degree murder, fails to allege the
element of "reckless" as well as "deliberate" with respect to the underlying felony;
and the counts charging attempted first degree murder fail to allege "deliberate."
Generally, an indictment must set forth the elements of the offense.
State v. Perkinson, 867 S.W.2d 1, 5 (Tenn. Crim. App. 1992). It is settled law that
"[w]hen the indictment or presentment fails to fully state the crime, all subsequent
proceedings are void." Id. (citing State v. Morgan, 598 S.W.2d 796, 797 (Tenn.
Crim. App. 1979)).
Provisions of the state and federal constitutions guarantee the
criminally accused knowledge of "the nature and cause of the accusation." U.S.
Const. amend. VI; Tenn. Const. art I, § 9. "Fair and reasonable notice of the
charges against an accused is a fundamental constitutional requirement." State v.
Trusty, 919 S.W.2d 305, 309 (Tenn. 1996). To be sufficient, an indictment must
"inform the defendant of the precise charges; ... must enable the trial court upon
conviction to enter an appropriate judgment; ... and must protect [the] defendant
against double jeopardy." Id. As a matter of fairness, the constitutional requirement
is designed to afford the criminally accused with an adequate opportunity to prepare
any defense before the trial. See, e.g., Pope v. State, 258 S.W. 775 (Tenn. 1924);
15
Daniel v. State, 50 Tenn. 257 (1871).
In Perkinson, our court explained the rationale for requiring the
indictment to charge the essential elements of the offense:
To allow a prosecutor or court to make a subsequent
guess as to what was in the minds of the grand jury at
the time they returned the indictment would deprive the
defendant of a basic protection that the grand jury was
designed to secure, because a defendant could then be
convicted on the basis of facts not found by, and perhaps
not even presented to, the grand jury that indicted him.
867 S.W.2d at 5 (quoting United State v. Cecil, 608 F.2d 1294, 1297 (9th Cir.
1979)).
In our view, the indictments are sufficient. Count one alleges as
follows:
[the defendant] did unlawfully commit First Degree
Murder by being criminally responsible for ... the conduct
of James Ellison Rouse ... in that the [defendant] acting
with intent to promote or assist the commission of said
offense, or to benefit in the proceeds or results of said
offense, did intentionally, knowingly, wilfully and
unlawfully solicit, direct, aid or attempt to aid the said
James Ellison Rouse to unlawfully, knowingly,
intentionally and with premeditation kill Carolyn Foster
with a .22 rifle ....
At the time the offense was committed, in November 1995, first degree murder was
defined as a "premeditated and intentional killing of another." Tenn. Code Ann. §
39-13-202. It is unnecessary that the indictment allege the killing was deliberate.
See State v. Michael K. Christian, No. 03C01-9609-CR-00336, slip op. at 10 (Tenn.
Crim. App., at Knoxville, Mar. 23, 1998), app. filed, May 26, 1998.
Count two alleges as follows:
[The defendant did aid and abet Rouse] to unlawfully and
knowingly kill Dianne Collins with a .22 rifle, in attempting
to perpetrate First Degree Murder, to-wit: while [Rouse]
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did unlawfully, knowingly, intentionally and with
premeditation attempt to kill Ron Shirey.
The defendant complains that the indictment should have alleged the killing of Ms.
Collins was reckless and that the attempted first degree murder of Shirey was done
deliberately. At the time of the offense, our law defined felony murder as a "killing of
another committed in the perpetration of or attempt to perpetrate any first degree
murder ...." Tenn. Code Ann. § 39-13-202(a)(2). "No culpable mental state is
required for conviction under subdivision (a)(2)." Id. Accordingly, there is no
requirement that the indictment allege the killing was reckless. Also, as noted
previously, a premeditated first degree murder does not require a deliberate killing.
Counts three and four charge the defendant with aiding and abetting
Rouse "to unlawfully, knowingly, intentionally and with premeditation attempt to kill
[the victim]." The defendant complains the counts should have alleged the
attempted murders were deliberate. At the time the offenses were committed,
however, deliberation was not a requisite element and, in consequence, did not
need to be alleged. Christian, slip op. at 10.
(4)
Next, the defendant claims that the juvenile court erred by transferring
him to circuit court to be tried as an adult. He argues that he had the ability and
predisposition to benefit from rehabilitation and did not require such a transfer.
Much of the proof at the transfer hearing mirrored the proof at trial.
The night before the shootings, the defendant and Rouse abruptly ended a private
discussion when co-worker Rachel Warren approached them. The defendant told
Rouse they would discuss the matter later. The defendant told the police that
Rouse had discussed shooting Tina Mueller, a student, Shirey, a teacher, and
17
Principal Hobbs. When asked if he wanted to help, the defendant responded in the
affirmative. On the day before the shootings, the defendant informed Billy Rogers
that he was about to lose a couple of friends. The defendant drove the truck to
school.
The defendant presented several witnesses on his behalf. Dr.
Kenneth Anchor, a clinical psychologist, testified that he examined the defendant
and found he "did not demonstrate the typical juvenile delinquent or juvenile
offender profile." Dr. Anchor’s overall interpretation of various psychological tests
was as follows:
This is a young man who is not confident. He does not
enjoy good self-esteem. He has a great deal of
problems living; problems in relationships. ... And the
bottom line, here is this is somebody who is very much in
need of mental health resources or services.
It was Dr. Anchor's opinion that the defendant would benefit greatly from treatment:
"I believe he has sufficient intellect to benefit from it. I believe he would be
cooperative and motivated ... to restore himself ... I think the prognosis is
favorable."
The defendant's mother, Donna Abbott, testified that her son had
never caused the family any difficulties, always having helped with household
chores. She testified that he also helped financially, having worked the past one
and one-half years. Because the defendant's father was disabled, the family relied,
in part, on the defendant's income. Ms. Abbott described her son as active in
school.
The defendant's father, Don Abbott, testified that the defendant had
been working with him and another son to start a pallet recycling business. He
18
stated that he and his sons had begun construction of a building, collected pallets,
and had purchased a truck and office equipment. He described the defendant as
having a strong interest and ability in mechanics and electronics.
Morris Mitchell, a counselor at Richland High School, testified that the
defendant scored well above average on various proficiency tests and college
admission tests. He stated that the defendant also scored well on the Armed
Service Vocational Aptitude Battery.
Section 37-1-134, Tenn. Code Ann., provides for a transfer from
juvenile court to circuit court under the following circumstances:
The disposition of the child shall be as if the child were
an adult if:
***
(4) The court finds that there are reasonable grounds to
believe that:
(A) The child committed the delinquent act as alleged;
(B) The child is not committable to an institution for the
mentally retarded or mentally ill; and
(C) The interests of the community require that the child
be put under legal restraint or discipline.
(b) In making the determination required by subsection
(a), the court shall consider, among other matters:
(1) The extent and nature of the child's prior delinquency
records;
(2) The nature of past treatment efforts and the nature of
the child's response thereto;
(3) Whether the offense was against person or property,
with greater weight in favor of transfer given to offenses
against the person;
(4) Whether the offense was committed in an aggressive
and premeditated manner; and
(5) The possible rehabilitation of the child by use of
procedures, services and facilities currently available to
the court in this state.
19
In ordering the transfer to circuit court, the judge ruled from the bench
as follows:
There is an area here concerning Mr. Abbott that
needs looking into by a jury of his peers. I've listened as
open-mindedly as I can, with his young man's whole
problem in mind. But I think that there is enough
involvement here that it should be dealt with in a different
setting.
There certainly was time to reflect, and to do other
things, than what transpired this morning of this tragic
event. And all of the activities, leading up to it that's
been testified to by these other witnesses, leave me with
a real bad feeling about this situation involving this young
man; that he had the opportunity to have disengaged
himself from this entire scenario, but he didn't do it.
So I'm going to transfer him, also.
About a week later, the court entered a written order ruling as follows:
The juvenile concerned, Stephen John Abbott,
has been charged with crimes involving the loss of
human life, and the Court has found that there are
reasonable grounds to believe that he committed these
acts. The evidence shows that the acts were committed
in an aggressive and premeditated manner. The juvenile
is 17 years of age, and he will be 18 in a few weeks. As
this Court has means of dealing with a child only up to
his nineteenth birthday, the possibility of rehabilitation in
a case of this seriousness is not good.
At the time of the transfer, there were reasonable grounds to believe
the defendant had committed the alleged acts. See Tenn. Code Ann. § 37-1-
134(4). The state presented proof which would allow the trial judge to conclude the
defendant discussed the shootings with Rouse the night before and then drove the
truck to the school the next day to execute the plan. There is also a reasonable
basis to believe the defendant is not committable to an institution for the mentally
retarded or mentally ill. Id. Finally, given the gravity of the offenses, there is a
reasonable basis for concluding the defendant needed to be "put under legal
restraint." Id.20
That the defendant did not have a prior criminal background weighs in
his favor. The offenses involved, however, were "against the person" and were
"committed in an aggressive and premeditated manner." Id. While the defendant
offered persuasive evidence that the acts were out of character and that he could
benefit from psychological treatment, the transfer, in our view, was appropriate.
(5)
The defendant also claims the juvenile court erred in consolidating his
transfer hearing with that of his co-defendant Rouse. He asserts that the "very
nature of a transfer hearing [requires] individual attention" and complains that the
consolidation of his transfer hearing with Rouse violated due process principles.
The state argues that the defendant has failed to show prejudice by virtue of
consolidation of the cases.
We agree with the state. The defendant has not explained how his
due process rights have been violated, other than the complaint that he has not
received individualized treatment. Yet the record does not support his claim that he
was deprived of individual attention. The orders indicate consideration of the
circumstances of each juvenile. Both were afforded the opportunity to cross-
examine the state's witnesses and to put on their own evidence. Rule 1(d), Tenn. R.
Juv. P., provides that where "no specific procedure is prescribed by the rules, the
court may proceed in any lawful manner, in accordance with written local rules of
court, which shall not be inconsistent with these rules or with any other applicable
law." Obviously the trial judge complied with the statutory requirement that the
defendant be afforded a hearing to determine the appropriateness of the transfer.
See Tenn. Code Ann. § 37-1-134. A consolidation, when the crimes and the facts
and circumstances arise out of the same incident, is not "inconsistent" with the
21
statute.
(6)
The defendant also claims the trial court erred by overruling his motion
to suppress a statement he gave while in custody because he had not been advised
of his Miranda rights. On the date of the shootings, the defendant provided two
signed statements which were admitted into evidence through the testimony of
Officer Chapman; neither has been challenged in this appeal. The following day,
Officer Chapman asked the defendant if he knew about Rouse's plan to shoot the
officer who directed traffic in the front of the school. The defendant responded that
he learned about the plan only after he undertook to drive the truck to school.
Based on this response, Officer Chapman provided Miranda warnings and turned on
the tape recorder. The defendant then gave a fourth lengthy statement. The trial
court suppressed the fourth statement because the defendant requested an
attorney after the warning was given but officers continued to take the statement.
The statement at issue is the third statement the defendant made before any
Miranda warnings were given.
Officer Chapman testified that after the shootings, he learned from
other sources that the defendant drove the truck to the school and that there had
been a plan to shoot the officer who worked in front of the school. The day after the
shootings, he called the defendant's mother and told her he had "two questions" he
wanted to ask. When the defendant's parents brought him to the station, Officer
Chapman did not give any Miranda warnings. Instead, explained that he wanted to
talk about two issues: first, whether there was a plan to shoot the police officer that
works in front of the school; and, second, whether the defendant was driving. The
defendant responded by saying he did not learn about the plan to shoot the officer
22
until after he took the steering wheel of Rouse's truck. It was at this point that the
officer turned on the tape recorder and gave Miranda warnings.
The officer insisted that the defendant was not in custody at that time,
was not under any restraint, and had been brought to the station by his parents on a
voluntary basis. When asked whether the officer intended to let the defendant
leave, the officer answered, "After these statements were completed, I had to call
the District Attorney's office to see where we were as far as any kind of charges.
That took some time. It was my intention that they be allowed to go.... The Sheriff
overruled that." When asked whether he told the defendant and his parents they
were free to leave, the officer responded, "Yes. I told them they could go. They
wanted to stay until they heard the results of what the District Attorney's office
decided, as to whether there would be any criminal charges or not."
The trial court denied the motion to suppress, ruling as follows:
To take Miranda to the extreme, everybody who
was interrogated would have to be mirandized.
The question -- and it is a thin-line question, here -
- is whether or not Mr. Abbott had become the focus of
the investigation. ...
At what point did he independently become the
focus of a criminal investigation involving him? That is
the question that has to be answered in order to make a
determination of whether statement number three, ...
which is the oral statement immediately preceding the
taped statement, is to be suppressed.
I do not think the evidence justifies suppression of
the statement made at that time. ...
The motion to suppress the oral statement will be
denied.
In Miranda v. Arizona, 384 U.S. 436, 444 (1966), the United States
Supreme Court ruled that prior to custodial interrogation, the police must inform the
individual being questioned that he has the right to remain silent, that any
23
statements made may be used against him, that he has the right to an attorney, and
that if he can not afford an attorney, one will be appointed for him prior to
questioning. "Custodial interrogation" was defined as "questioning initiated by law
enforcement officers after a person has been taken into custody or otherwise
deprived of his freedom of action in any significant way." Id.Because warnings were not given prior to the statements, the crucial
issue is whether the defendant was "in custody." In State v. Anderson, 937 S.W.2d
851, 851-52 (Tenn. 1996), our supreme court "clarif[ied] standards by which courts
determine whether a person being questioned by law enforcement officers is 'in
custody,' and therefore entitled to" Miranda warnings. The court acknowledged that
in State v. Morris, 456 S.W.2d 840 (Tenn. 1970), it held that the focus of the
investigation test was the appropriate standard. Anderson, 937 S.W.2d at 853. Our
supreme court ruled, however, that the holding in Morris was inconsistent with
several opinions by the United States Supreme Court and determined that the
"focus or progress of the investigation is not relevant to determine whether a person
is in custody." Id. Instead, the court set forth the following rule: "whether, under the
totality of the circumstances, a reasonable person in the suspect's position would
consider himself or herself deprived of freedom of movement to a degree associated
with a formal arrest." Id. at 855.
Several factors are relevant in determining whether the suspect is in
custody:
(1) the time and location of the interrogation;
(2) the duration and character of the questioning;
(3) the officer's tone of voice and general demeanor;
(4) the suspect's method of transportation to the place of
questioning;
24
(5) the number of police officers present;
(6) any limitation on movement or other forms of
restraint imposed on the suspect during the interrogation;
(7) any interactions between the officer and the
suspect, including the words spoken by the officer to the
suspect, and the suspect's verbal and nonverbal
responses;
(8) the extent to which the suspect is confronted with the
law enforcement officer's suspicions of guilt or evidence
of guilt;
(9) and finally, the extent to which the suspect is made
aware that he or she is free to refrain from answering
questions or to end the interview at will.
Id. at 855.
Generally, a trial court's findings of fact at a motion to suppress are
binding on appeal unless the evidence preponderates otherwise. State v. Odom,
928 S.W.2d 18, 22 (Tenn. 1996). In this instance, however, the trial court's finding
and ruling focused on whether the investigation had moved to the accusatory stage;
the trial court did not address whether, "under the circumstances, a reasonable
person" would have "considered himself ... deprived of freedom of movement to a
degree associated with a formal arrest." Anderson, 937 S.W.2d at 855. Because
Anderson was filed several months after the suppression hearing in this case, the
trial court did not have the benefit of the opinion at the time of the ruling. For a
different reason than that articulated by the trial court, we conclude the defendant
was not in custody and thus not entitled to Miranda warnings.
The questioning occurred at the police station, but was brief. There is
no indication that the method of inquiry was overly confrontational. There is no
proof as to the officer's tone of voice or his general demeanor. The defendant and
his parents voluntarily traveled to the station. There were few officers present, no
25
restraint on the defendant's movement during questioning, and, most significantly,
the defendant and his parents were informed that they were free to leave. The
defendant's parents chose to stay to learn whether the District Attorney's office
intended to prosecute. In our assessment, the trial court did not err by overruling
the motion to suppress.
(7)
The defendant argues the trial court erred by refusing to strike certain
prospective jurors for cause. He specifically complains about prospective jurors
Thomas Gatlin, Lisa Edwards, and William Davis.
The defendant complains that prospective juror Thomas Gatlin should
have been excused for cause because he indicated he would like to see the
defendant testify. Gatlin indicated that he had heard about the case and "had an
opinion." The trial court asked if he could "overcome that opinion and follow the
charge of the judge and follow the evidence in the case." Gatlin responded
affirmatively. Defense counsel asked if it would be necessary for the defendant to
testify in order for him "to decide this case." Gatlin responded, "After hearing what
they say, yes, I would have to hear it"; but he also indicated that if the defendant did
not testify, he would not hold it "against him." When defense counsel moved to
strike Gatlin for cause, the trial court responded as follows:
Counsel, you are assuming that the prospective juror
knows the law in phrasing the question that way. A
defendant does not have to testify, as a matter of law.
He has a perfectly valid right not to testify, and the Court
will instruct you in the law that if he does choose not to
testify, neither the Judge nor the jury can draw any
inference against him simply because he did not testify.
Now, that is not a matter of fact. That is ... a matter of
law, which the court will charge to you at the end of the
case. Challenge for cause is denied.
The defendant used a peremptory challenge to remove Gatlin from the jury.
26
The defendant also complains about prospective juror Lisa Edwards.
When defense counsel asked if any of the prospective jurors thought the defendant
was "probably guilty of something, or he wouldn't be sitting [there]," Ms. Edwards
responded affirmatively. Ms. Edwards explained that she based that opinion on
what she had heard and read in the media. Ms. Edwards related that she "[thought]
he was involved in it." The defendant moved to strike Ms. Edwards for cause.
The trial court asked Ms. Edwards if she could "set that [the news
media] aside and try this lawsuit on the real evidence in the case?" Ms. Edwards
responded that she could and the she realized the defendant "is innocent until the
state proves him guilty." No further attempt was made by the defendant to
challenge Ms. Edwards for cause, although he later used a peremptory challenge to
remove her from the jury.
The defendant also complains about prospective alternate juror
William Davis, who attended the same church as Assistant District Attorney General
Sanders and had known Sanders for four or five years. They are on a first-name
basis and had served on a governing body of the church together. They have never
visited each other in their homes. Davis asserted that the relationship would not
affect his decision as a juror and that if he had a reasonable doubt about the
defendant's guilt, he would find him innocent. After the trial court denied his motion
to challenge for cause, the defendant used a peremptory challenge to remove
Davis.
Prior to the jury being finally selected, the defendant, who had used all
of his peremptory challenges, again objected to the court's refusal to remove Gatlin,
Edwards, and Davis for cause. He also represented to the trial judge that if he had
27
not used his peremptory challenges on those three prospective jurors, he would
have used them on juror Marilyn Roderick and juror Donnie McNealy, who were in
the first group of prospective jurors to be seated. Brief questioning of McNealy
revealed that he worked at Union Carbide and has two teenage children. He had
heard abut the shootings through the media. The record shows that no questions
were submitted to Ms. Roderick.
Article I, section 9 of the Tennessee Constitution assures the accused
in a criminal prosecution "the right, among other rights, to a speedy public trial ...
[by] an impartial jury." "[T]he challenge for cause was designed to exclude from the
jury triers whose bias or prejudice rendered them unfit...." Manning v. State, 292
S.W. 451, 455 (Tenn. 1927). "The qualification of a juror is within the trial judge's
discretion and his finding a juror to be qualified will not be disturbed on review
except on the clear showing of an abuse of discretion." Burns v. State, 591 S.W.2d
780, 782 (Tenn. Crim. App. 1979).
Rule 24, Tenn. R. Crim. P., provides in part:
Any party may challenge a prospective juror for cause if:
***
(2) The prospective juror's exposure to potentially
prejudicial information makes the person unacceptable
as a juror. ... A prospective juror who states that he or
she will be unable to overcome preconceptions shall be
subject to challenge for cause no matter how slight the
exposure. If the prospective juror has seen or heard and
remembers information that will be developed in the
course of trial, or that may be inadmissible but is not so
prejudicial as to create a substantial risk that his or her
judgment will be affected, the prospective juror's
acceptability shall depend on whether the testimony as to
impartiality is believed. If the prospective juror admits to
having formed an opinion, he or she shall be subject to
challenge for cause unless the examination shows
unequivocally that the prospective juror can be impartial.
28
(Emphasis added).
While juror Gatlin initially indicated he would need to hear the
defendant testify, he then asserted he would not hold it against the defendant if he
did not testify. The state argues there was no error because the trial court
rehabilitated the juror. Yet "[e]xtreme care should be taken in trying to rehabilitate a
prospective juror into vocalizing impartiality." State v. Strouth, 620 S.W.2d 467, 471
(Tenn. 1981) (discussing with approval the Advisory Commission Comments to Rule
24, Tenn. R. Crim. P.). The Advisory Commission "disapproves of questions
tending to lead the prospective juror or suggest partiality in the first instance, and
also disapproves of that procedure in 'rehabilitating' the prospective juror into
vocalizing impartiality." Advisory Commission Comments to Rule 24, Tenn. R. Crim.
P.
The trial judge made a lengthy statement to the juror about the
defendant's right not to testify and then concluded, "Now, that is not a matter of fact.
That is ... a matter of law, which the Court will charge to you at the end of the case."
In our view, the pronouncement by the trial court did not meet the guidelines
established by the rule. This is especially so because no follow up questions
occurred and the juror did not "unequivocal[ly]" assert he would not require the
defendant to testify before finding reasonable doubt. Advisory Commission
Comments to Rule 24, Tenn. R. Crim. P.
Gatlin's comments indicated that he could not find the defendant not
guilty unless he testified. While the record establishes that he was not rehabilitated,
the resolution of this issue "depends not so much on the trial court's ruling
concerning [Gatlin] as it does upon the examination and qualifications of [Ms.
29
Roderick and McNealy], the juror[s] the defendant was 'forced' to accept." State v.
Gray, 960 S.W.2d 598, 608 (Tenn. Crim. App. 1997). "[A]ny error in refusing to
excuse [a juror] for cause ... does not entitle the defendant to a new trial unless the
jury that ultimately heard the case was not fair and impartial." State v. Howell, 868
S.W.2d 238, 249 (Tenn. 1993) (citations omitted). Because the voir dire of Ms.
Roderick and McNealy contains no hint of bias or prejudice, the defendant's
complaint about the excused juror Gatlin is without merit.
The defendant complains about juror Edwards' exposure to pretrial
publicity and her acknowledgment that she thought the defendant may have been
involved in some way. She did, however, "unequivocally" assert she could follow
the law and accept the proposition that the defendant was presumed innocent.
"Jurors need not be totally ignorant of the facts of the case on which they sit [and
even] the formation of an opinion on the merits will not disqualify a juror if [he] can
lay aside [his] opinion and render a verdict based on the evidence presented in
court." Howell, 868 S.W.2d at 249 (internal quotation marks omitted). The trial
court did not err by refusing to remove Ms. Edwards for cause.
The defendant's complaint about prospective alternate juror Davis is
also without merit. When the defendant used a peremptory strike to remove Davis,
the replacement was Kerry Pennings. None of the three alternate jurors participated
in the deliberations. The defendant is not entitled to a new trial unless he carries the
heavy burden of demonstrating that "the jury that ultimately heard the case was not
fair and impartial." Gray, 960 S.W.2d at 608.
(8)
The defendant also claims the trial court erred by refusing to grant his
30
motion for a change of venire. The defendant had filed a pretrial motion seeking
either a change of venire or, alternatively, a change of venue. After a lengthy
hearing, the trial court granted a change of venue from Giles County to Maury
County. The defendant now complains that a change of venire should have been
granted instead.
Section 20-4-201, Tenn. Code Ann., governs change of venire:
Cases in which venue changeable.--In all civil cases at
law where the issue is to be tried by jury, and in all cases
of issues in courts of equity directed to be tried by jury,
either in the circuit or chancery court, in all civil cases
before a judge of the court of general sessions, and in all
criminal cases:
(1) The venue may be changed, at any time before trial,
upon good cause shown, as prescribed in this part; or
(2) A court may issue an order for a special venire of
jurors from another county if in its discretion it determines
the action to be necessary to ensure a fair trial.
Tenn. Code Ann. § 20-4-201.
Prior to 1995, the statute only authorized a change of venire in civil
cases. Effective May 30, 1995, however, the statute was amended to allow for a
change of venire in criminal cases. In State v. Nichols, 877 S.W.2d 722 (Tenn.
1994), the defendant filed a motion for a change of venue. Rather than moving the
situs of the trial, the trial court ordered that the jury be chosen from residents of a
different county. Id. at 727. The defendant appealed, arguing that there was no
authority for the procedure used by the trial judge. The supreme court found that
the filing of the motion for a change of venue constituted a waiver of the right to
have the jury drawn from the county where the indictment originated; in so doing,
the court observed that a statute allowing for "summoning juries from another
county" would "ensure uniformity and fairness across the state and avoid error from
excessive experimentation." Id. at 729. The amendment was the legislative
31
response to the suggestion.
When there is excessive pretrial publicity, either a change of venire or
a change of venue is an appropriate remedy. Id. The issue is discretionary for the
trial court and will not be overturned unless there is an abuse of that discretion. See
Tenn. Code Ann. § 20-4-201(1). Here, the trial judge sent questionnaires to every
potential juror, allowed extensive voir dire, and excused several jurors who indicated
they could not be impartial because of the pretrial publicity. He also excused
potential jurors who knew the victims or had significant knowledge about the trauma
the victims' families had suffered. This record does not indicate that the jury was
unfair or biased.
(9)
The defendant next claims the trial court erred by allowing evidence
that he and his co-defendant were wearing black clothing at the time the crime was
committed. He argues that the evidence was irrelevant and unduly inflammatory
and had a prejudicial effect on the trial.
Sheriff Eddie Bass testified that the defendant wore a black shirt, black
pants, and black boots on the day of the shooting. There was also evidence that
Rouse wore black on the day of the shootings. In closing, the state argued, "It's not
enough to convict, ... but why are these buddies wearing black on this day?"
Admission of this evidence is governed by Tenn. R. Evid. 403, which
provides as follows:
Exclusion of Relevant Evidence on Grounds of Prejudice,
Confusion, or Waste of Time. Although relevant,
evidence may be excluded if its probative value is
substantially outweighed by the danger of unfair
32
prejudice, confusion of the issues, or misleading the jury,
or by considerations of undue delay, waste of time, or
needless presentation of cumulative evidence.
The term "unfair prejudice" has been defined as "[a]n undue tendency
to suggest decision on an improper basis, commonly ... an emotional one." State v.
Banks, 564 S.W.2d 947, 951 (Tenn. 1978) (quoting Advisory Committee Note to
Fed. R. Evid. 403). One authority characterizes evidence that is unfairly prejudicial
as that designed to appeal to the sympathy, sense of horror, or instinct to punish. J.
Weinstein and M. Burger, Weinstein's Evidence Manual 6-20 to 6-21 (Student ed.
1987).
Whether to admit evidence under Rule 403 is within the discretionary
authority of the trial court and will not be reversed absent a clear showing of an
abuse. State v. Dickerson, 885 S.W.2d 90, 92 (Tenn. Crim. App. 1993); State v.
Allen, 692 S.W.2d 651, 654 (Tenn. Crim. App. 1985).
In our view, the trial court did not err by allowing the testimony. The
defendant's theory at trial was that he had no idea Rouse was actually going to
shoot the victims. That the defendant and Rouse were dressed similarly or wore the
same color of clothing on the day of the shootings lends support to the state's theory
that the two acted in concert. Accordingly, the evidence had some "probative
value." Tenn. R. Evid. 403. Because the testimony about the defendant's clothing
was brief and not overly emphasized in the context of the entire trial, the trial court
properly admitted the evidence. It did not, therefore, qualify as "unfairly prejudicial."
Tenn. R. Evid. 403.
33
(10)
The defendant argues the trial court erred by failing to charge the
lesser offense of facilitation of a felony as to all counts. The defendant was indicted
for two counts of first degree murder and two counts of attempted first degree
murder. The offenses of second degree murder and voluntary manslaughter were
charged as lesser offenses of first degree murder. Attempted second degree
murder and attempted voluntary manslaughter were charged as lesser offenses of
attempted first degree murder. Although all of the charges were based on the
defendant's being criminally responsible for Rouse's conduct, facilitation of a felony
was not charged.
The trial judge has a duty to give a complete charge of the law
applicable to the facts of the case. State v. Harbison, 704 S.W.2d 314, 319 (Tenn.
1986). There is an obligation "to charge the jury as to all of the law of each offense
included in the indictment, without any request on the part of the defendant to do
so." Tenn. Code Ann. § 40-18-110(a). "Pursuant to our statute, rule, and case law
interpretations, defendants are entitled to jury instructions on all [lesser offenses], if
the evidence would support a conviction for the offense." State v. Trusty, 919
S.W.2d 305, 311 (Tenn. 1996). Such a charge "allows the jury to consider all
relevant offenses in determining the appropriate offense, if any, for conviction" and
"more evenly balances the rights of the defendant and the prosecution and serves
the interests of justice." Id. It is only when the record is devoid of evidence to
support an inference of guilt of the lesser offense that the trial court is relieved of the
responsibility to charge the lesser crime. State v. Stephenson, 878 S.W.2d 530,
549-50 (Tenn. 1994); State v. Boyd, 797 S.W.2d 589, 593 (Tenn. 1990).
34
In Trusty, 919 S.W.2d at 310, our supreme court ruled as follows:
Tennessee law recognizes two types of lesser offenses
that may be included in the offense charged in the
indictment: offenses necessarily included in the
indictment and offenses that are lesser grades of the
charged offense. An offense is "necessarily included in
the indictment ... only if the elements of the included
offense are a subset of the elements of the charged
offense and only if the greater offense cannot be
committed without also committing the lesser offense."
Id.Our supreme court also provided guidance on how to determine
whether an offense is a lesser grade or class of the offense charged: "[o]ne need
only look to the statutes to determine whether a given offense is a lesser grade or
class of the crime charged." Id. at 310. By way of example, the court observed that
the legislature has divided criminal homicide "into the grades of first-degree murder,
second-degree murder, voluntary manslaughter, criminally negligent homicide, and
vehicular homicide." Id.Here, the defendant was found criminally responsible for Rouse's
conduct. The controlling statute provides that "a person is criminally responsible for
an offense committed by the conduct of another if: (2) [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). Facilitation of a
felony occurs when a person "knowing that another intends to commit a specific
felony, but without the intent required for criminal responsibility under 39-11-402(2),
... knowingly furnishes substantial assistance in the commission of the felony."
Tenn. Code Ann. § 39-11-403.
35
Facilitation is a lesser grade of criminal responsibility for the conduct of
another. State v. Utley, 928 S.W.2d 448, 952 (Tenn. Crim. App. 1995). In Utley,
this court ruled that facilitation should only be charged "where the facts could cause
reasonable minds to conclude that the defendant lacked the intent to promote or
assist in or benefit from the felony's commission." Utley, 928 S.W.2d at 452. In our
view, there was sufficient evidence for "reasonable minds" to have concluded the
defendant had facilitated the felonies and, at the same time, had lacked the "intent
to promote or assist in or benefit from" their commission.
The defendant's statements to Rogers about there being no school on
the day of the shootings and that Rogers might lose "a couple of friends" suggest
the defendant knew something about Rouse's desire to shoot one or more persons
at the school. That the defendant undertook the responsibility of driving Rouse's
truck qualifies as "furnish[ing] substantial assistance." Tenn. Code Ann. § 39-11-
403. Finally, the defendant's pretrial statements, while self-serving, and his behavior
after the shootings were evidence in support of the defense theory, i.e., that he
lacked the intent to promote, assist in, or benefit from the shootings.
The defendant claimed that the first time Rouse asked for his help, he
provided an equivocal answer. He stated that on the second occasion Rouse asked
for help, he responded, "Yeah," and laughed--implying that he did not take the
question seriously. That the defendant responded "yeah" and laughed could mean
he earnestly desired to assist in the crimes. It could be interpreted as a refusal to
accept the request as seriously made. The jury must be given the option of
determining which interpretation to attach. The first interpretation would support the
convictions. The second would have supported an instruction on the lesser offense.
36
Of more significance is that several state witnesses testified to the
defendant's demeanor immediately after the shootings. Ray testified that the
defendant was on the "verge of tears, pale. Trembling, [j]ust general shock." Pitts,
the defendant's supervisor at the Delta Express, described the defendant as visibly
distraught over the shootings, "a nervous wreck, ... and [shaking]." As argued by
the defense, this behavior lent some support to the claim that the defendant lacked
the intent to promote or benefit from the felonies. One witness testified that after the
first set of shootings, Rouse grinned. When Nichols tried to stop Rouse, Rouse
resisted. Several individuals had to wrestle Rouse to the ground to stop him. That
behavior contrasts significantly with the descriptions witnesses gave of the
defendant. The proof suggests that Rouse originated the plan, armed himself, and
collected the necessary ammunition entirely on his own. Rouse committed the
crimes. Several witnesses testified that the defendant was not present when the
shootings occurred.
Because there was some evidence, circumstantial and direct, that the
defendant only facilitated the shootings, that lesser offense should have been
charged to the jury. In our view, the failure to charge the lesser offenses qualifies as
reversible error. In State v. Willie Williams, Jr.,, No. 03S01-9706-CR-00060, slip op.
at 8-9 (Tenn., at Knoxville, Sept. 21, 1998) (for publication), our supreme court
overruled several prior cases and, by a three to two majority, held that the right to
instructions on lesser offenses is a statutory right, rather than one founded in the
Tennessee Constitution2 and that, in consequence, the error is subject to a
harmless error analysis:
Reversal is required if the error affirmatively appears to
have affected the result of the trial on the merits, or in
2
"[T]he jury shall have the right to determine the law and the facts, under the direction of the
court, as in other crim inal case s." Tenn . Const. A rt. I § 19. See McG owan v . State, 17 Tenn. 184(183 6) an d its p roge ny.
37
other words, reversal is required if the error more
probably than not affected the judgment to the
defendant's prejudice.
(citing Tenn. R. Crim. P. 52(a); Tenn. R. App. P. 36(b)),
The proof of the greater offense was not overwhelming. There was
substantial, credible evidence that the defendant merely facilitated the shootings.
During deliberations, the jury posed the following question for the trial court: "If we
find the act to have been committed to have been first degree murder or attempted
murder by Mr. Rouse, does that imply that we can only imply the same result for Mr.
Abbott, if we find that he attempted to help or did help Mr. Rouse, or can Mr. Abbott
be found for a lesser crime of second degree or voluntary manslaughter." From this,
the jury very clearly considered the defendant's level of participation and culpability.
It is also apparent that the jury considered making a distinction between the level of
Rouse's culpability and that of the defendant. In our view, the failure to charge the
lesser offenses affirmatively appears to have affected the verdict to the prejudice of
the defendant.
The state contends that if the "proof establishes guilt of the greater
offense and the defendant claims he was unaware of the principal actor's intentions,
the defendant is not entitled to an instruction on facilitation," pointing out that the
"defendant argued that he did not know Rouse intended to commit a crime and that
he did not assist him." Yet some of the proof submitted by the state tended to
support facilitation rather than the greater offense. Also, it is a well-established rule
of law that the defendant's protestation of innocence at trial does not relieve the trial
court of the duty to instruct on offenses which are lesser than the one the state
charges, when they are genuinely raised by the evidence.
38
In Templeton v. State, 240 S.W. 789 (Tenn. 1922), our supreme court
reversed a murder conviction for failure to charge manslaughter. The state argued
the defendant was not prejudiced by the omission because "counsel insisted ... that
he was not guilty of any offense at all while the state insisted he was guilty of
murder, not manslaughter." Id. at 791. In reversing the conviction, our high court
ruled that "it is [the court's] duty to tell the jury what the law is applicable to any
phase whatever of offenses charged against a defendant. He cannot be excused
from doing so upon the ground merely that the defendant insists he is not guilty of
anything and the state that he is guilty of a higher offense." Id.The state also points to several cases where this court has found no
reversible error for failure to charge facilitation. See State v. Spadafina, 952 S.W.2d
444 (Tenn. Crim. App. 1996); Utley, 928 S.W.2d at 453; State v. Julius E. Parker,
No. 02C01-9606-CR-00188 (Tenn. Crim. App., at Jackson, Apr. 23, 1997). In
Spadafina, a panel of this court ruled that "[f]acilitation of first degree murder was
not raised by the proof of the State or the defendant[;] ... [n]either the State's proof
nor the defendant's proof raises sufficient evidence upon which reasonable minds
could convict the defendant of facilitation of murder." 952 S.W.2d at 14. In Utley,
this court found that "no evidence existed in this case to support a lesser included
offense of facilitation of felony murder." 928 S.W.2d at 453. In Parker, the state
showed the defendant initiated the robbery, furnished the murder weapon, benefited
in the proceeds, and was present when the murder occurred. slip op. at 15. The
defendant, however, denied any participation or planning in the robbery. Neither the
state's proof nor the defendant's proof supported an inference of guilt of facilitation.
The panel in Parker correctly concluded that the record was "devoid of any evidence
permitting an inference of guilty of the lesser offense." Id., slip op. at 15. In this
case, however, some of the state's proof supported an inference of facilitation of the
39
crimes. Clearly, Parker, Utley, and Spadafina do not serve as precedent for the
state's claim. The failure to instruct on lesser offenses which were legitimately
raised by the evidence presented does not qualify as harmless error in this case; the
cause must be remanded for a new trial.
(11)
The defendant's final argument is that the trial court imposed an
excessive sentence. He complains about the length of the individual sentences as
well as their consecutive nature. The defendant was sentenced as follows:
count 1 second degree murder twenty years
count 2 second degree murder twenty years
count 3 attempted second degree murder ten years
count 4 attempted first degree murder twenty years
Counts one and two are to be served consecutively with release eligibility after
service of eighty-five to one-hundred percent of the forty-year term.
When there is a challenge to the length, range, or manner of service of
a sentence, it is the duty of this court to conduct a de novo review with a
presumption that the determinations made by the trial court are correct. Tenn. Code
Ann. § 40-35-401(d). This presumption is "conditioned upon the affirmative showing
in the record that the trial court considered the sentencing principles and all relevant
facts and circumstances." State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991); see
State v. Jones, 883 S.W.2d 597 (Tenn. 1994). The Sentencing Commission
Comments provide that the burden is on the defendant to show the impropriety of
the sentence.
40
Our review requires an analysis of (1) the evidence, if any, received at
the trial and sentencing hearing; (2) the presentence report; (3) the principles of
sentencing and the arguments of counsel relative to sentencing alternatives; (4) the
nature and characteristics of the offense; (5) any mitigating or enhancing factors; (6)
any statements made by the defendant in his own behalf; and (7) the defendant's
potential for rehabilitation or treatment. Tenn. Code Ann. §§ 40-35-102, -103, and -
210; State v. Smith, 735 S.W.2d 859, 863 (Tenn. Crim. App. 1987).
At the time of these offenses, the presumptive sentence for a Class A
felony was the midpoint in the range. Tenn. Code Ann. § 40-35-210(c). Should the
trial court find mitigating and enhancement factors, it must start at the presumptive
minimum in the range and enhance the sentence based upon any applicable
enhancement factors, then reduce the sentence based upon any appropriate
mitigating factors. Tenn. Code Ann. § 40-35-210(e). The weight given to each
factor is within the trial court's discretion provided that the record supports its
findings and it complies with the Sentencing Act. See Ashby, 823 S.W.2d at 169.
The trial court, however, should make specific findings on the record which indicate
its application of the sentencing principles. Tenn. Code Ann. §§ 40-35-209 and -
210.
Dallas Foster, victim Foster's husband, testified that Ms. Foster had
been a school teacher for about twenty-one years and was fifty-eight years old when
she lost her life. Her death had been "extremely hard" on him and their children.
Joyce Ramsey, Ms. Foster's sister, testified that she had a close relationship with
her sister. Ron Shirey, the victim of the attempted first degree murder, testified that
he would never forget the shootings.
41
Judy McKenna testified for the defendant that she was a family friend
of the Abbott's. The defendant worked for a time with her husband at a truck stop
and was never paid for his help. The defendant was trustworthy, polite, and a hard
worker. E.N. Bentley testified that he was the manager at the Delta Express when
the defendant worked there. He was an above average worker and always received
a very positive rating on his performance appraisal.
Donna Abbott, the defendant's mother, testified that the defendant was
in his senior year of high school when the shootings occurred. Because her
husband is disabled, the family is on a limited income. The defendant helped "make
ends meet" by contributing financially to the family. The defendant also helped out
around the home. The defendant is very close to his brothers and they had all been
working together to start a pallet business.
The defendant testified that he was sorry the shootings had occurred.
He contended that if he had believed Rouse, he would have "stopped him
somehow."
The testimony at the juvenile transfer hearing concerning the
defendant's above average academic record and his potential for rehabilitation
through psychological treatment was entered into evidence at the sentencing
hearing.
The trial court applied the following enhancement factors:
(1) offense involved more than one victim (Tenn. Code
Ann. § 40-35-114(3));
(2) personal injuries inflicted on the victims were great
(not applied to the attempted first degree murder of
Shirey) (Tenn. Code Ann. § 40-35-114(6));
42
(3) the defendant had no hesitation about committing a
crime when the risk to human life was high (Tenn. Code
Ann. § 40-35-114(10));
(4) the crime was committed under circumstances where
the potential for bodily injury was great (Tenn. Code Ann.
§ 40-35-114(16)); and
(5) the offense was committed on school property (Tenn.
Code Ann. § 40-35-114(17)).
The trial court refused to find any mitigating circumstances.
The trial court imposed twenty year sentences for the two second
degree murders and the attempted first degree murder. All Class A felonies, the
Range I sentence for those offenses is fifteen to twenty-five years. Thus, the trial
court imposed the presumptive minimum sentence for each of those offenses. For
the attempted second degree murder, a Class B felony, the Range I sentence is
eight to twelve years. The trial court imposed the mid-range sentence of ten years.
Even though the trial court found several enhancement factors and
declined to find any mitigating circumstances, it still imposed the presumptive
minimum sentence for the three Class A felonies. It was within the trial court's
discretion to find the several enhancement factors but afford them no weight, as the
statute provides if "there [are] enhancement but no mitigating factors, ... the court
may set the sentence above the minimum." Tenn. Code Ann. § 40-35-210(d)
(emphasis added). The ten-year sentence for attempted second degree murder
may be considered an enhanced sentence, as the presumptive minimum for that
offense is eight years. Tenn. Code Ann. § 40-35-112.
The defendant complains about the trial court's finding the
enhancement factors that the personal injuries inflicted upon the victims were great;
that he had no hesitation about committing the crime when the risk to human life
43
was high; and that the crime was committed under circumstances where the
potential for bodily injury was high. Tenn. Code Ann. § 40-35-114 (6), (10), (16).
That the personal injuries were great could not enhance the second
degree murder sentences; it is inherent in those offenses. State v. Jones, 883
S.W.2d 597 (Tenn. 1994). That enhancement factor could, however, be applied to
the attempted second degree murder of the victim Yancy. "Particularly great injuries
are not essential to the commission of [attempted murder], but prove greater
culpability." State v. Nix, 922 S.W.2d 894, 903 (Tenn. Crim. App. 1995). The trial
court did not apply the factor to the sentence for the attempted first degree murder
of Shirey.
That the defendant had no hesitation about committing a crime when
the risk to human life was high and that the potential for bodily injury to a victim was
great are both applicable. It is true that this court has held that factor (10), no
hesitation about committing the crime, should not apply when "the only person
subject to being injured is the victim." State v. Makoka, 885 S.W.2d 366, 373 (Tenn.
Crim. App. 1994). Factors (10) and (16), however, may be applied where "people
other than the victim[s]" are present and "are subject to injury." State v. Sims, 909
S.W.2d 46, 50 (Tenn. Crim. App. 1995). Here, there were several other students
and teachers in the vicinity of the shootings. Application of these factors is
appropriate to all of the shootings.
The defendant also complains the court erred by refusing to find
certain mitigating factors. The defendant had argued the applicability of the
following:
(1) he acted under strong provocation;
44
(2) he played a minor role;
(3) he lacked substantial judgment in committing the
offenses due to his youth;
(4) he committed the crimes under such unusual
circumstances that it is unlikely a sustained intent to
violate the law motivated his conduct;
(5) he acted under the duress or domination of another
person;
(6) he had no history of prior criminal conduct;
(7) the crimes were contrary to his character; and
(8) he is amenable to rehabilitation.
See Tenn. Code Ann. § 40-35-113 (2), (4), (6), (11), (12), and (13). The trial judge
rejected all of these. The latter three mitigating factors were offered under Tenn.
Code Ann. § 40-35-113(13), which allows consideration of any "factor consistent
with the purposes of this chapter." The trial court found they were not mitigating
circumstances.
In our view, the trial court correctly ruled that there is no proof that the
defendant acted under strong provocation. We also agree there was no proof the
defendant played a "minor role." If the defendant drove Rouse to school to assist in
the shootings, that conduct would not qualify as a minor role. The trial court ruled
that there was no proof that the defendant lacked substantial judgment due to his
youth. While seventeen years of age, the defendant qualifies as youthful, but there
was much positive testimony about his level of maturity and his degree of
responsibility. There was no proof he lacked substantial judgment. We further
agree that there was no proof that the defendant did not possess a sustained intent
to violate the law. The crimes were discussed the night before. The next day they
were executed. These facts suggest a sustained intent to violate the law. There
was also no proof that the defendant acted under the duress or domination of
45
another person. While there was proof that Rouse developed the plan, there is no
evidence he coerced the participation of the defendant.
In our view, the three nonstatutory mitigating circumstances are
entitled to some weight. Balanced against the weight of the enhancement factors,
however, the sentences imposed by the trial would remain unchanged. The
sentences are appropriate, given the weight of the enhancement factors. The
sentence for attempted second degree murder was enhanced by two years. In our
view, however, the enhancement was warranted, if for no other reason, because the
crime was committed on school property.
We now turn to the appropriateness of ordering two of the twenty-year
sentences to be served consecutively for an effective forty-year term. Prior to the
enactment of the Criminal Sentencing Reform Act of 1989, the limited classifications
for the imposition of consecutive sentences were set out in Gray v. State, 538
S.W.2d 391, 393 (Tenn. 1976). In that case our supreme court ruled that
aggravating circumstances must be present before placement in any one of the
classifications. Later, in State v. Taylor, 739 S.W.2d 227 (Tenn. 1987), the court
established an additional category for those defendants convicted of two or more
statutory offenses involving sexual abuse of minors. There were, however,
additional words of caution: "[C]onsecutive sentences should not routinely be
imposed . . . and . . . the aggregate maximum of consecutive terms must be
reasonably related to the severity of the offenses involved." Taylor, 739 S.W.2d at
230. The Sentencing Commission Comments adopted the cautionary language.
Tenn. Code Ann. § 40-35-115. The 1989 Act is, in essence, the codification of the
holdings in Gray and Taylor; consecutive sentences may be imposed in the
discretion of the trial court only upon a determination that one or more of the
46
following criteria3 exist:
(1) The defendant is a professional criminal who has
knowingly devoted himself to criminal acts as a major
source of livelihood;
(2) The defendant is an offender whose record of
criminal activity is extensive;
(3) The defendant is a dangerous mentally abnormal
person so declared by a competent psychiatrist who
concludes as a result of an investigation prior to
sentencing that the defendant's criminal conduct has
been characterized by a pattern of repetitive or
compulsive behavior with heedless indifference to
consequences;
(4) The defendant is a dangerous offender whose
behavior indicates little or no regard for human life, and
no hesitation about committing a crime in which the risk
to human life is high;
(5) The defendant is convicted of two (2) or more
statutory offenses involving sexual abuse of a minor with
consideration of the aggravating circumstances arising
from the relationship between the defendant and victim
or victims, the time span of defendant's undetected
sexual activity, the nature and scope of the sexual acts
and the extent of the residual, physical and mental
damage to the victim or victims;
(6) The defendant is sentenced for an offense
committed while on probation;
(7) The defendant is sentenced for criminal contempt.
Tenn. Code Ann. § 40-35-115(b).
In Gray, our supreme court ruled that before consecutive sentencing
could be imposed upon the dangerous offender, as now defined by subsection
(b)(4) in the statute, other conditions must be present: (a) that the crimes involved
aggravating circumstances; (b) that consecutive sentences are a necessary means
to protect the public from the defendant; and (c) that the term reasonably relates to
3
The first four criteria are found in Gray. A fifth category in Gray, based on a specific number
of prior felo ny conviction s, ma y enhanc e the sen tence ra nge bu t is no longe r a listed criterion . See
Tenn. Code Ann. § 40-35-115, Sentencing Comm ission Comments.
47
the severity of the offenses.
In State v. Wilkerson, 905 S.W.2d 933, 938 (Tenn. 1995), our high
court reaffirmed those principles, holding that consecutive sentences cannot be
required of the dangerous offender "unless the terms reasonably relate[] to the
severity of the offenses committed and are necessary in order to protect the public
(society) from further criminal acts by those persons who resort to aggravated
criminal conduct." The Wilkerson decision, which modified somewhat the strict
factual guidelines for consecutive sentencing adopted in State v. Woods, 814
S.W.2d 378, 380 (Tenn. Crim. App. 1991), described sentencing as a "human
process that neither can nor should be reduced to a set of fixed and mechanical
rules." Wilkerson, 905 S.W.2d at 938. The record must show that the sentencing
principles and all relevant facts and circumstances were considered before the
presumption of correctness applies.
The trial court found consecutive sentences were appropriate because
the defendant was a dangerous offender. We agree. Assistance the defendant
provided Rouse indicates a lack of regard for human life. The plan posed a grave
danger, not only to the intended victims but also to all of the others at the school. In
our view, an aggregate forty-year term would have not been excessive had the
convictions been upheld. Because, however, the trial court must under our law
instruct the jury on not only the crime charged but also all lesser offenses raised by
the evidence, the convictions must be reversed. All possible alternatives must be
provided in the instructions. The cause is, therefore, remanded for a new trial.
__________________________________
Gary R. Wade, Presiding Judge
48
CONCUR:
________________________________
David G. Hayes, Judge
________________________________
Jerry L. Smith, Judge
49