State v. Dennis Wade Suttles ( 1999 )

IN THE TENNESSEE COURT OF CRIMINAL APPEALS
FILED
AT KNOXVILLE
September 29, 1999
JULY 1999 SESSION Cecil Crowson, Jr.
Appellate Court Clerk
STATE OF TENNESSEE, ) C.C.A. NO. 03C01-9801-CR-00036
)
Appellee, ) KNOX COUNTY
)
VS. )
) HONORABLE MARY BETH LEIBOWITZ
DENNIS WADE SUTTLES, ) JUDGE
)
Appellant. ) (First Degree Murder - Death Penalty)
FOR THE APPELLANT: FOR THE APPELLEE:
LESLIE M. JEFFRESS PAUL G. SUMMERS
501 Clinch Ave, Third Floor Attorney General & Reporter
P.O. Box 2664
Knoxville, TN 37901 MICHAEL E. MOORE
Solicitor General
BRANDT W. DAVIS
1707 Cove Creek Lane MICHAEL J. FAHEY II
Knoxville, TN 37919-8603 Assistant District Attorney General
425 Fifth Avenue, North
Cordell Hull Building, Second Floor
Nashville, TN 37243-0493
RANDALL E. NICHOLS
District Attorney General
WILLIAM HARRISON CRABTREE
SALLY JO HELM
Asst. District Attorneys General
400 Main Street
P.O. Box 1468
Knoxville, TN 37901-1468
OPINION FILED: _________________
CONVICTION AND SENTENCE OF DEATH AFFIRMED
JOE G. RILEY, JUDGE
OPINION
In this capital case, the defendant, Dennis Wade Suttles, was convicted by a Knox
County jury of first degree murder and sentenced to death. At the sentencing hearing, the
jury found two aggravating circumstances: (1) the defendant was previously convicted of
one or more felonies involving the use of violence, and (2) the murder was especially
heinous, atrocious, or cruel in that it involved torture or serious physical abuse beyond that
necessary to produce death. See Tenn. Code Ann. § 39-13-204(i)(2) and (5) (Supp.
1995). In this direct appeal as of right, defendant raises the following issues:
1. whether the evidence of premeditation is sufficient to support
his first degree murder conviction;
2. whether the statutory definition of second degree murder is
unconstitutionally vague;
3. whether the trial court erred by denying his request to distribute
a questionnaire to the jury pool prior to voir dire;
4. whether the trial court erroneously limited defense counsel’s
questioning of potential jurors;
5. whether the trial court erred by refusing to allow defense
counsel to review the psychological records of a state witness;
6. whether the evidence is sufficient to support the heinous,
atrocious, or cruel aggravating circumstance; and
7. whether the death penalty statutes are unconstitutional.
We AFFIRM the conviction and sentence of death.
TESTIMONY AT GUILT PHASE OF TRIAL
On March 13, 1996, the defendant murdered Patricia Gale Rhodes, his former
fiancee, in the parking lot of the Taco Bell on Chapman Highway in Knoxville, Tennessee.
The victim’s 15-year-old daughter, Christina, witnessed this brutal murder.
2
The defendant first met the victim in April of 1995. The two began dating, and in
October 1995, the defendant asked the victim to marry him. At that time, the victim’s
divorce was not final, so the engagement was delayed. In December 1995, the defendant
purchased a house, and he and the victim moved in together, along with the victim’s
daughter, Christina. At Christmas, the defendant gave the victim an engagement ring.
The defendant testified that the victim knew about his prior convictions. In 1986, the
defendant pled guilty to one count of felonious assault with bodily injury and three counts
of assault with intent to commit first degree murder. These convictions were the result of
the defendant attempting to force his former wife and 3-year-old son to come home with
him. When his former father-in-law tried to intervene, the defendant shot him and forcibly
took his former wife and son with him. One of these offenses was against a police officer
who was attempting to apprehend the defendant.
The defendant’s parole officer, Gwen Stargell, testified that on October 3, 1995, the
victim came with the defendant for his monthly report. Stargell told the victim about the
defendant’s prior convictions and asked her to call if anything unusual occurred.
In February 1996, the couple had domestic problems. According to the defendant,
they had an argument regarding the purchase of furniture, which led to the victim moving
out three days later. The defendant testified that during the argument, he tried to take the
engagement ring and broke the victim’s necklace when his hand slipped. At the time the
victim moved out, her co-workers indicated that the victim exhibited deep bruises on her
neck that looked like fingerprints.
According to the defendant, he was upset by the victim’s departure. Attempting to
convince the victim to come back, the defendant called her at work several times. He was
only able to talk with her once, and she told him not to call back. The defendant did not
know where the victim moved and testified that he did not try to find out. He bought cards
for her and would leave them on the windshield of her vehicle at work.
3
The victim was afraid of the defendant, who continued to call her at work and would
wait for her in the parking lot of her place of employment. Karen Black, with whom the
victim stayed, testified that the victim carried all of her financial papers in her purse so that
if something happened to her, the papers could be found. The victim’s co-workers refused
to allow the defendant to speak with the victim, and they escorted her to her vehicle each
evening after work.
One evening, the defendant tried to talk to the victim as she was leaving the parking
lot. The victim rolled up her window and drove away, and another employee blocked the
defendant’s vehicle so that he could not follow her.
In March 1996, the same month of the murder, the defendant spotted the victim’s
vehicle and followed her to the hospital, where the victim was going to visit her father.
According to the defendant, he talked to the victim, and the victim said that she would call
him so they could talk about their relationship. After work, the defendant went back to the
hospital parking lot and left some cards and mail on the windshield of the victim’s vehicle.
On the day of the murder, the defendant, who was a roofer, worked all day at the
Chili’s Restaurant on Kingston Pike. The defendant testified that it was a normal day. The
defendant’s co-workers confirmed that the defendant worked all day; he did not seem
angry or upset; and he did not make any threats about the victim. Neither co-worker
noticed anything unusual about the defendant that day.
After work, the defendant went to his mother’s residence and was invited to stay for
dinner. The defendant decided that he needed to go home and clean up first. Lee Napier,
the defendant’s stepfather, confirmed that the defendant stopped by the house a little after
5 p.m. The defendant left the house around 5:30 p.m., and he did not appear different or
angry at the time and did not say anything about the victim.
4
That same day, the victim picked up her daughter, Christina, and her friend, Arlisa,
around 4 p.m. After going to the grocery store and waiting at a red light, they saw the
defendant drive by, stop, and turn around at the second entrance of the grocery store. As
soon as the light changed, the victim drove off quickly and successfully eluded the
defendant. The victim then drove the girls to the Taco Bell, parking in the back to ensure
that the defendant would not see her car. On the defendant’s way back to his house
before dinner, he stopped at the Walmart. As he was leaving the Walmart parking lot, he
noticed the victim’s vehicle at the Taco Bell and parked beside it.
The defendant entered the Taco Bell and came up to their booth. He and the victim
argued loudly, and the defendant followed her outside. Amanda Reagan, a Taco Bell
employee, confirmed that the defendant entered the restaurant and went directly to their
table. She saw the defendant grab the victim’s arm and try to make her leave with him.
Once outside, Christina and Arlisa got in the vehicle, while the victim and the
defendant stood beside the vehicle and continued talking. At some point, the defendant
grabbed the victim and prevented her from getting into her vehicle. When Christina got
out, the defendant had one arm around the victim’s neck and was holding a knife to her
throat. He told Christina “Get back or I’ll kill her.” As Christina was stepping back, the
victim told the defendant that she would go with him. The defendant put the knife in his
pocket, saying that he was sorry. When the defendant let go, the victim ran toward the
Taco Bell. The defendant followed her, tackled her, pulled out the knife, got on top of her,
slashed her throat, and started stabbing her. Christina was approximately three feet away.
During the attack, the victim was screaming for Christina to stay back.
The defendant testified that while they were talking outside, the victim told him that
if he did not stay away, she would have him killed. The defendant grabbed the victim and
told her not to threaten him. He had the knife at the victim’s neck, but he did not intend to
harm her. The defendant testified that he was a little angry at that time, but he was not
ready to hurt anyone and was only reacting to the threat made by the victim. The
5
defendant let go of the victim and put his arms down. He apologized, and the victim told
him he was a dead man. According to Christina, her mother did not make any threats.
The defendant could not remember any of the subsequent events. Despite his alleged
inability to remember doing bodily harm to the victim, the defendant admitted that he must
have killed her.
Shawn Patrick Kane saw the couple fighting as he was walking out of the Food Lion.
As he got into his truck, Kane saw the victim break away and the defendant chase and
tackle her. Kane saw the defendant raising his hand in a striking motion toward the victim.
When Kane got to the Taco Bell parking lot, the victim was on the ground, and the
defendant turned back toward Kane, looked at him, then “nonchalantly” got in his car and
drove away. As Kane drove up, Christina saw the defendant get up, wipe off his knife, put
it in his pocket, and leave. The defendant smiled at her as he drove by.
When Kane arrived, there was blood coming out of the victim’s neck and back. The
victim tried to get up but was unable to do so. Kane and a nurse who was at the scene
tried to stop the bleeding. The victim said that she was choking, and as she tried to move,
her neck split open and she started gurgling blood. Kane did not hear any further
communication from the victim, but she was still trying to move when they put her in the
ambulance. Kane wrote down the defendant’s license plate number and gave it to the
police.
Around 7 p.m., the defendant called a friend, Donna Rochat. He told her that he
thought he had killed the victim after an argument in the parking lot of the Taco Bell. The
defendant said that he stabbed the victim in the back, cut her throat, and stabbed her in
the chest. Rochat told the defendant to turn himself in; however, he said that he could not
do that. While the defendant seemed calm, he said that if he had a gun, he would kill
himself.
6
Later that evening, the police located the defendant at his house. The officers
observed the defendant coming from the direction of a field across from the house. When
the defendant reached the residence, the officers arrested him. A knife with a wooden
handle and a 3 ½ inch blade was found in the defendant’s pocket. The defendant told the
officers that his vehicle was parked at a church parking lot approximately one mile from the
residence. The defendant was cooperative and seemed unemotional and indifferent.
Dr. Sandra K. Elkins, the Knox County Medical Examiner, performed the autopsy
on the victim. She found numerous wounds on the surface of the body which were caused
by a sharp instrument such as a knife. On the victim’s face, there was an incise wound to
the left side of the upper and lower lips. To the neck area, there were four major wounds.
Three of these were stab wounds to the left side of the neck. The fourth wound was a
large gaping slash on the right side of the neck. Dr. Elkins also found one stab wound just
beneath the left breast and three stab wounds to the left front shoulder area. There were
defensive wounds to the hands. Specifically, there were two cut wounds to the right hand
and a superficial slash wound to the wrist. On the left hand, there was one slash wound
across the front of the hand and a deeper cut wound to the inside of the thumb. There
were six stab wounds ranging from the right upper back down to the left back region under
the shoulder blade area. There were also some superficial wounds under the chin.
According to Dr. Elkins, the victim would have been alive at the time the wounds
were produced, and no single wound would have caused the victim to lose immediate
consciousness. The victim’s larynx was damaged; however, the vocal chords were
uninjured. She would have been able to speak, but the damage to the larynx would have
made speech difficult.
In Dr. Elkins’ opinion, the cause of death was multiple knife stab wounds.
Specifically, the victim died of bleeding from vessels that were cut in the wound to the right
side of the neck. This wound, which cut the victim’s jugular vein and external carotid
artery, would have caused death sooner than any of the other wounds. The other wounds
7
could have potentially caused death, given enough time and without medical treatment.
In Dr. Elkins’ opinion, the victim would have bled to death within 10 minutes from the
wound to the right side of the neck. Application of pressure to the wound may have
delayed the time of death by five minutes. At the time of the autopsy, it appeared that the
victim had lost over half the volume of blood in her body. Consciousness would have
tapered off within five to six minutes. Dr. Elkins was unable to tell which wound occurred
first.
Lee Napier, the defendant’s stepfather, testified that he had known the defendant
for 35 years. During that time, he had never seen the defendant angry or upset with
anyone. The defendant was easy to get along with and was always calm. The defendant
lived with the Napiers for a year.
Dr. Jerry Matthews, a clinical psychologist, evaluated the defendant in 1991 and
1993 at the request of the Tennessee Board of Paroles. The purpose of his evaluations
was to determine whether the defendant had active symptoms of mental disorders that
needed to be treated, to determine the defendant’s capacity to reoffend, and to
recommend needed services if the defendant was to be paroled.
Based on his review of the defendant’s history, he learned that the defendant was
born at home as a “blue baby,” meaning that he had to be resuscitated at birth. His older
brother died of suffocation at the age of five. Shortly thereafter, the defendant’s father left
the family, and the defendant went to live with his paternal grandparents because his
mother was unable to support him. The defendant’s grandparents were strict, religious
people, and his grandmother was the disciplinarian. The defendant dropped out of school
around the seventh grade and went to work. He later received his GED. He was married
at the age of 22. The marriage lasted for 12 years and produced one child. When the
defendant was 32, his wife left him a note saying that she was leaving him. The defendant
reacted by getting a pistol and going out to find her. His prior convictions resulted from this
violent episode.
8
Based on his evaluation in 1991, it was Dr. Matthews’ opinion at that time that the
defendant presented a substantial risk of violent behavior if released on parole. The most
risk would be when the defendant was involved in a heterosexual relationship. Dr.
Matthews described the defendant as the type person who reacts to his present
environment without thought or reflection. When the defendant is unable to control what
is going on in his environment, it creates anxiety and puts the defendant at risk of being
violent. Because the defendant was abandoned as a child, he is afraid of being alone.
This creates fear and anxiety which overwhelms him. Having been born a “blue baby,” the
defendant also has a diminished capacity to deal with stress and is unable to control his
emotions. This causes the defendant to become impulsive and unpredictable.
The defendant was denied parole in 1991. Between 1991 and 1993, the defendant
attended anger management classes in prison. He was then released on parole in 1994.
Dr. Matthews also evaluated the defendant after the homicide at the request of
defense counsel. In his opinion, the defendant was in a high state of emotional arousal
at the time of the murder. Putting the knife to the victim’s throat was for the purpose of
intimidating her into coming back with him. When the victim said something that gave him
reassurance, he released her. However, when the victim said that she would have him
killed, that was the “straw that broke the camel’s back.” The defendant reacted impulsively,
totally and intensively, and with violence, and without the ability to restrain himself. In Dr.
Matthews’ opinion, the murder was the result of basic, primitive emotions of anger, fear,
and hurt, resulting in an impulsive and explosive act of violence.
Based on this proof, the jury found the defendant guilty of premeditated first degree
murder.
9
TESTIMONY AT SENTENCING PHASE OF TRIAL
At the sentencing hearing, the state relied upon the proof at the guilt phase of the
trial and only presented the indictments and judgments from the defendant’s previous
convictions. On January 6, 1986, the defendant pled guilty to one count of felonious
assault with bodily injury and enhancement for use of a firearm against Lloyd Barnes, for
which he was sentenced to 30 years plus 5 years for the enhancement; one count of
assault with intent to commit first degree murder by use of a firearm against Nancy Suttles,
for which he was sentenced to 5 years; one count of assault with intent to commit first
degree murder while in the possession of a firearm against Brian Suttles, for which he was
sentenced to 5 years; and one count of assault with intent to commit first degree murder
by use of a firearm against Tim Trentham for which he was sentenced to 5 years.
The defendant presented his institutional records from the Tennessee Department
of Correction. He was released from prison on July 27, 1994, and returned on March 20,
1996, just after the homicide. At the time of the defendant’s parole, 29 recommendation
letters were written by staff members at the correctional center. David Allen Sexton, the
Social Warden of Operations at Northeast Correctional Complex, testified that the
defendant had two write-ups during his time of incarceration. The first was in December
1990, for having contraband in his cell. Specifically, the defendant had in his possession
a small drill bit, a small screwdriver, a utility blade, a wrench, two concrete nails, and three
other nails. The defendant received a written reprimand. The defendant’s other write-up
was a violation of policy and procedures at the institution. Specifically, the defendant had
in his possession a fan which had the name and inmate number scrubbed off.
During his entire time of incarceration, the defendant worked. His records do not
reflect that he was violent as an inmate, and he reached “trusty” status. When the
defendant was paroled, the warden and associate warden recommended it.
10
The defendant’s mother, Lois Evelyn Napier, testified that the defendant was born
at home. He was born breach and was a “blue baby.” The defendant’s father, Holbert
Suttles, left when the defendant was about four. The defendant went to live with his
paternal grandparents, who raised him. Mrs. Napier was unable to keep the defendant
because she was working two jobs. The defendant did not get into trouble as a child. After
the defendant was convicted of his previous offenses, Mrs. Napier and her husband
visited him weekly in prison. When he was released on parole, the defendant lived with
them. They did not have any trouble with the defendant. Mrs. Napier testified that she
loved her son very much and wanted to help him. On the night of the murder, the
defendant called her and asked if she would go to the Taco Bell to see if the victim was
alive. The defendant was 44 years of age at the time of the murder.
Based on this proof, the jury found that (1) the defendant was previously convicted
of one or more felonies involving the use of violence to the person, and (2) the murder was
especially heinous, atrocious, or cruel in that it involved torture or serious physical abuse
beyond that necessary to produce death. See Tenn. Code Ann. § 39-13-204(i)(2) and (5)
(Supp. 1995). The jury determined that these aggravating circumstances outweighed any
mitigating circumstances and sentenced the defendant to death.
I. SUFFICIENCY OF THE EVIDENCE OF PREMEDITATION
The defendant contends that the evidence does not support a finding of
premeditation. He asserts that the state failed to introduce any evidence that he had an
opportunity to reflect upon his actions for any appreciable length of time after his mind was
free from the influence of excitement or passion and further failed to establish a pre-
existing plan to kill. We find that the evidence is sufficient to support the verdict.
A. Standard of Review
A jury verdict approved by the trial judge accredits the state's witnesses and
resolves all conflicts in favor of the state's theory. State v. Williams, 657 S.W.2d 405, 410
11
(Tenn. 1983). On appeal, the state is entitled to the strongest legitimate view of the
evidence and to all reasonable inferences which might be drawn therefrom. State v.
Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). Moreover, a guilty verdict removes the
presumption of innocence which the appellant enjoyed at trial and raises a presumption
of guilt on appeal. State v. Grace, 493 S.W.2d 474, 476 (Tenn. 1973). The appellant has
the burden of overcoming this presumption of guilt. Id.
In reviewing the sufficiency of the evidence, the relevant question for an appellate
court is whether, after viewing 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, 319, 99 S. Ct. 2781, 2789, 61
L. Ed. 2d 560 (1979); State v. Duncan, 698 S.W.2d 63, 67 (Tenn. 1985); Tenn. R. App. P.
13(e).
B. Premeditation
At the time of the defendant's offense, first degree murder was defined as the
"premeditated and intentional killing of another." Tenn. Code Ann. § 39-13-202(a)(1)
(Supp. 1995). Under the statute, premeditation requires "the exercise of reflection and
judgment," Tenn. Code Ann. § 39-13-202(d) (Supp. 1995), and "a previously formed
design or intent to kill." State v. West, 844 S.W.2d 144, 147 (Tenn. 1992) (citing McGill v.
State, 475 S.W.2d 223, 227 (Tenn. Crim. App. 1971)). The purpose to kill does not
necessarily have to pre-exist in the mind of the accused for any definite period of time.
Instead, it is the accused’s mental state at the time he or she allegedly decided to kill that
must be considered in order to determine whether the accused was sufficiently free from
excitement and passion to be capable of premeditation. Tenn. Code Ann. § 39-13-202(d)
(Supp. 1995).
The element of premeditation is a question of fact to be resolved by the jury. State
v. Gentry, 881 S.W.2d 1, 3 (Tenn. Crim. App. 1993); State v. Anderson, 835 S.W.2d 600,
605 (Tenn. Crim. App. 1992). "As is usually the case, a determination of a culpable mental
12
state, such as premeditation, must be inferentially made from the circumstances
surrounding the killing." State v. Burlison, 868 S.W.2d 713, 717 (Tenn. Crim. App. 1993);
see also Gentry, 881 S.W.2d at 3.
While there is no strict standard governing what constitutes proof of premeditation,
Tennessee Courts have relied on the following circumstances in determining whether an
inference of premeditation is supported: the use of a deadly weapon upon an unarmed
victim; the victim was retreating or attempting to escape when shot; calmness immediately
after the killing; and declarations by the defendant of his intent to kill. See, e.g., State v.
Bland, 958 S.W.2d 651, 660 (Tenn. 1997); West, 844 S.W.2d at 148.
Other relevant factors from which a jury may infer premeditation include planning
activities by the defendant prior to the killing, facts about the defendant's prior relationship
with the victim from which motive may be inferred, and the nature of the killing. Gentry,
881 S.W.2d at 4-5 (citation omitted). "[T]he fact that repeated blows (or shots) were
inflicted on the victim is not sufficient, by itself, to establish first-degree murder." State v.
Brown, 836 S.W.2d 530, 542 (Tenn. 1992) (emphasis added); see also State v. Darnell,
905 S.W.2d 953, 962 (Tenn. Crim. App. 1995).
C. Analysis
We conclude the proof of premeditation is sufficient to support the jury’s verdict.
Specifically, the defendant grabbed the unarmed victim and held a pocket knife to her
throat, telling the victim’s daughter to “Get back or I’ll kill her.” After the victim indicated
that she would go with him, the defendant released her and put the knife back in his
pocket. Thereafter, as the victim attempted to flee from the defendant, he tackled her. He
pulled the knife out of his pocket, opened it, stabbed and slashed the victim, and then
turned her over and stabbed her several more times in the back. The medical examiner
found twelve major wounds, defensive wounds to the hands, and other superficial wounds.
The defendant wiped the knife off, put it in his pocket, “nonchalantly” walked back to his
car, and drove away, smiling at the victim’s daughter. While the proof does not necessarily
13
reflect that the defendant went to the Taco Bell with the intent to kill the victim, the proof
supports a finding that he acted with premeditation at the time of the murder.
Defendant contends the testimony of Dr. Matthews establishes that he lacked the
capacity to premeditate. Under State v. Hall, 958 S.W.2d 679 (Tenn. 1997), cert. denied,
___ U.S. ___, 118 S. Ct. 2348, 141 L. Ed. 2d 718 (1998), “psychiatric testimony must
demonstrate that the defendant’s inability to form the requisite culpable mental state was
the product of a mental disease or defect, not just a particular emotional state or mental
condition.” Id. at 690. At best, Dr. Matthews’ testimony showed that the defendant is at
risk of being violent when he is unable to control his environment, especially when he is
rejected in a heterosexual relationship. Dr. Matthews testified that the defendant was in
a high state of emotional arousal at the time of the murder and was unable to restrain
himself. He did not testify that the defendant had a mental disease or defect which caused
his mental state at the time of the murder. Under Hall, the testimony of Dr. Matthews was
insufficient to show that the defendant had a diminished capacity to premeditate the
murder. Moreover, as discussed above, in light of the factors which tend to show the
existence of premeditation, the proof in this case overwhelmingly supports the jury’s finding
of guilt. .
II. STATUTORY DEFINITION OF SECOND DEGREE MURDER
The defendant contends that the statutory definition of second degree murder is
unconstitutionally vague and was incapable of clear definition by the trial court or
understanding by the jury. Thus, the jury could not fully consider the charge of second
degree murder. He contends that the absence of a true distinction between first degree
murder and second degree murder deprived him of due process as guaranteed by the Fifth
and Fourteenth Amendments to the United States Constitution and by Article 1, § 8 of the
Tennessee Constitution. We disagree.
14
In accordance with the definition of second degree murder, as set forth in Tenn.
Code Ann. § 39-13-210 (Supp. 1995), the trial court gave the following instruction
regarding second degree murder:
Any person who commits second degree murder is guilty of a crime.
For you to find the Defendant guilty of this offense, the State must have
proven beyond a reasonable doubt the existence of the following essential
elements.
1. That the Defendant unlawfully killed the alleged victim, and
2. That the Defendant acted knowingly.
The distinction between voluntary manslaughter and second degree
murder is that voluntary manslaughter requires that the killing result from a
state of passion produced by adequate provocation sufficient to lead a
reasonable person to act in an irrational manner.
Bear in mind, that if you find a knowing killing with adequate
provocation, that is voluntary manslaughter.
A person acts intentionally when that person acts with a conscious
objective either to cause a particular result, or to engage in particular
conduct.
A person acts knowingly if that person acts with an awareness, either
that his or her conduct is of a particular nature, or that a particular
circumstance exists.
The requirement of knowingly is also established if it is shown that the
Defendant acted intentionally.
The second degree murder statute was challenged in State v. Jerry Taylor, C.C.A.
No. 01C01-9612-CC-00499 (Tenn. Crim. App. filed July 29, 1998, at Nashville), perm. to
app. denied (Tenn. February 1, 1999), including an assertion that the statute failed to
properly differentiate the varying degrees of homicide. In reviewing this claim, this Court
held:
In our view, the words of Tenn. Code Ann. § 39-13-210 are sufficiently
precise to put an individual on notice of prohibited activities. The language
sets out boundaries sufficiently distinct for the courts to fairly administer the
law. See State v. Thomas, 635 S.W.2d 114, 116 (Tenn. 1982).
15
Slip op. at 8. While in State v. Jerry Taylor, the defendant was specifically concerned that
the statute failed to differentiate between second degree murder and voluntary
manslaughter, the same reasoning is applicable in the present case. In addition to being
properly instructed on second degree murder, the jury was clearly instructed that first
degree murder required a finding of premeditation, which was fully defined.
This issue is without merit.
III. JURY POOL QUESTIONNAIRE
The defendant contends that the trial court erred by denying his motion requesting
permission to distribute a jury questionnaire to the jury pool in advance of voir dire
proceedings. We respectfully disagree.
Prior to trial, the defendant filed a “Motion to Order Administration of a Juror
Questionnaire.” The attached questionnaire contained 79 questions to be completed by
potential jurors. It appears that after a hearing on the matter, the trial court denied the
motion; however, a transcript of the hearing is not included in the record.
The goal of voir dire is to ensure that jurors “are competent, unbiased, and impartial,
and the decision of how to conduct voir dire of prospective jurors rests within the sound
discretion of the trial court.” State v. Howell, 868 S.W.2d 238, 247 (Tenn. 1993); see
generally State v. Harris, 839 S.W.2d 54, 65 (Tenn.1992). In the present case, the
defendant does not allege that the jurors who served on his case were incompetent,
biased, or partial. Moreover, the record does not reflect that the trial court abused its
discretion by denying the defendant’s request to use the jury questionnaire. See State v.
Stephenson, 878 S.W.2d 530, 540 (Tenn. 1994) (trial court did not abuse its discretion in
denying defendant’s pre-trial motion to disseminate a detailed questionnaire to prospective
jurors); State v. Smith, 857 S.W.2d 1, 20 (Tenn. 1993) (defendant failed to show prejudice
as a result of denial of a motion to submit proposed questionnaire to prospective jurors
prior to voir dire).
16
Accordingly, we find that this argument is without merit.
IV. LIMITATION OF JUROR QUESTIONING
The defendant’s contention that the trial court restricted his questioning of potential
jurors is also without merit. During voir dire proceedings, after defense counsel had asked
a number of questions to potential jurors, the state requested a bench conference. The
state objected to the relevance of the questions being asked by defense counsel. At the
end of the discussion, the trial court indicated that
“at some point I’m going--I’m going to cut you off, and
we’re going to do rounds on these people. It’s now [four]
o’clock. Before we go forward I’m going to stand them up and
let them stretch. They (sic) been in here for fifty minutes or so.
If you use twenty--and I’m not suggesting you should--but if
you have a lot more to ask -- in about ten or fifteen more
minutes I’m probably going to cut you off.”
At the end of the questioning of this particular group of jurors, another bench
conference was held. The following discussion took place:
MR. JEFFRESS: I want to--perhaps this is not the time, but I think that I
have to object to being cut off on the voir dire.
THE COURT: I haven’t cut you off yet.
MR. JEFFRESS: Well--
THE COURT: I told you I was going to cut you off in fifteen minutes,
but I wasn’t.
MR. JEFFRESS: Well, I feel like I have been.
THE COURT: If you want to ask some other questions, you can do
that.
MR. JEFFRESS: No, I think we’ve done--(Inaudible phrase)
THE COURT: Okay. Your objection is noted for the record and is
recorded in support of this.
MR. JEFFRESS: Okay.
The record reflects that the trial court did not cut off defense counsel’s opportunity
to question the potential jurors. Counsel was given a second opportunity to question the
17
potential jurors after raising his objection at the bench but did not do so. Accordingly, it
was not the trial court that limited the questions asked by defense counsel.
This issue is without merit.
V. PSYCHOLOGICAL RECORDS OF CHRISTINA RHODES
The defendant contends that the trial court erred by not allowing defense counsel
to review the psychological treatment records of Christina Rhodes, the daughter of the
victim, who witnessed the killing of her mother and who testified at trial on behalf of the
state. The defense requested these records so they could cross-examine the witness
regarding her competency and credibility both at the time of the offense and at trial.
Specifically, the defendant asserts that without these records he was unable to effectively
question her credibility, with particular reference to what she actually observed and heard
at the time of the offense and how later psychological problems may have affected her
memory as to those events. Upon review of the sealed records, we find that the trial court
properly held that the psychological treatment records need not be disclosed.
Upon discovery that Ms. Rhodes had been seen by a psychologist after the death
of her mother, the defense filed a “Motion to Compel Identification of Psychiatrist or
Psychologist Treating Witness Christie Rhodes.” The prosecution obtained the name of
the psychologist from Christina’s father. The defense then filed a subpoena for the
treatment records, which the trial court granted. Before the records were delivered, the trial
court indicated to defense counsel that it was willing to conduct an in camera examination
of the records to determine whether “(a) there is anything exculpatory or (b) there is
anything within those reports that would indicate some lack of reality, I guess is what you’re
looking for.” Defense counsel indicated that the trial court was correct. Upon conducting
an in camera examination of the records, the trial court made the following finding:
[Christina] had some nightmares in the beginning and they got better
and then flashbacks, nothing about what happened, nothing about
18
hallucinations, nothing about--she said she didn’t remember her dreams.
She didn’t remember the nightmares when she woke up.
I’m not going to release the records, and I will put them under seal
...
In State v. Middlebrooks, 840 S.W.2d 317 (Tenn. 1992), our Supreme Court held
that to ensure a defendant’s right to cross-examine is not denied, trial courts should review
psychiatric records of witnesses in camera to determine if the records are relevant in
determining the witness’ veracity. Id. at 333. In Middlebrooks, the trial court’s failure to
review the records was held to be harmless error because a review of the sealed records
revealed that they contained very little information probative on the issue of credibility. Id.
In the present case, the trial court properly reviewed the psychological records of Christina
and determined that the information contained need not be disclosed to the defense.
Having reviewed the psychological records, this Court agrees that the records need not be
disclosed. They contain nothing exculpatory.
This issue is without merit.
VI. SUFFICIENCY OF EVIDENCE SUPPORTING
HEINOUS, ATROCIOUS, OR CRUEL AGGRAVATING CIRCUMSTANCE
The defendant argues that the proof does not support a finding of torture or serious
physical abuse beyond that necessary to produce death. In response, the state contends
that the proof, in the light most favorable to the state, supports a finding of both torture and
serious physical abuse beyond that necessary to produce death. We find that the
evidence is sufficient to support application of this aggravating circumstance.
A. Standard of Review
As previously stated, the jury's verdict, approved by the trial court, accredits the
testimony of the witnesses for the state and resolves all conflicts in favor of the state's
theory. State v. Hatchett, 560 S.W.2d 627, 630 (Tenn. 1978); State v. Grace, 493 S.W.2d
474, 476 (Tenn. 1973). On appeal, "the State is entitled to the strongest legitimate view
19
of the trial evidence and all reasonable or legitimate inferences which may be drawn
therefrom." State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). This Court does not
reweigh or re-evaluate the evidence. Id. The jury's verdict, therefore, will only be disturbed
if, after a consideration of the evidence in the light most favorable to the state, a rational
trier of fact could not have found the existence of the aggravating circumstance beyond a
reasonable doubt. Jackson v. Virginia, 443 U.S. at 319, 99 S.Ct. at 2789; State v. Carter,
988 S.W.2d 145, 150 (Tenn. 1999).
B. Torture/Serious Physical Abuse
Tenn. Code Ann. § 39-13-204(i)(5)(Supp. 1995) provides that the death penalty may
be imposed if the state proves beyond a reasonable doubt that "[t]he murder was
especially heinous, atrocious, or cruel in that it involved torture or serious physical abuse
beyond that necessary to produce death." Proof of either torture or serious physical abuse
beyond that necessary to produce death is sufficient to support the aggravator.
"Torture" has been defined as "the infliction of severe physical or mental pain upon
the victim while he or she remains alive and conscious." State v. Williams, 690 S.W.2d
517, 529 (Tenn. 1985); see also State v. Pike, 978 S.W.2d 904, 917 (Tenn. 1998). In
State v. Odom, 928 S.W.2d 18 (Tenn. 1996), our Supreme Court held that the term
"serious physical abuse" as used in the aggravator means something distinct from
"torture," that "serious" alludes to a matter of degree, and that the abuse must be physical
and must be "beyond that" or more than what is "necessary to produce death." Id. at 26;
see also State v. Nesbit, 978 S.W.2d 872, 887 (Tenn. 1998).
C. Analysis
In the present case, the defendant inflicted twelve major wounds on the victim with
a knife. Dr. Sandra K. Elkins found three stab wounds to the left side of the neck. A fourth
wound was a large gaping slash that took up most of the right side of the neck, severing
the victim’s jugular vein and external carotid artery. Dr. Elkins also found one stab wound
just beneath the left breast and three stab wounds to the left front shoulder area. There
20
were six stab wounds ranging from the right upper back down to the left back region under
the shoulder blade area. Dr. Elkins testified that the victim was alive at the time of the
wounds and would have bled to death within 10 minutes from the wound to the right side
of the neck. Application of pressure to the wound may have delayed the time of death by
five minutes. Consciousness would have tapered off within five to six minutes. Compare
State v. Smith, 868 S.W.2d 561, 580 (Tenn. 1993). There is evidence of defensive
wounds to the hands, suggesting that the victim was aware of and attempting to protect
herself against the attack. See Pike, 978 S.W.2d at 917-18; State v. Sutton, 761 S.W.2d
763, 767 (Tenn. 1988); State v. Melson, 638 S.W.2d 342, 367 (Tenn. 1982). The victim’s
daughter testified that as the defendant was stabbing her, the victim was screaming for
Christina to stay back. Kane, a bystander who attempted to assist the victim, testified that
the victim said she was choking, and as she tried to move, the slash wound to her neck
opened wide and she began gurgling blood. Her speech was also affected by a puncture
of the larynx, which was allowing air to escape. The testimony showed that the victim
continued to try to move as she was placed in the ambulance.
We conclude the evidence is sufficient to establish that the victim suffered severe
physical and mental pain between the infliction of her wounds and death. See Carter, 988
S.W.2d at 150. Thus, the element of “torture” was proven. Furthermore, we conclude the
evidence was sufficient to establish that the brutal physical abuse inflicted upon the victim
was indeed “excessive” and far beyond that necessary to produce death. See Nesbit, 978
S.W.2d at 887. Thus, the element of “serious physical abuse beyond that necessary to
produce death” was proven.
This issue is without merit.
21
VII. CONSTITUTIONALITY OF THE DEATH PENALTY STATUTE
The defendant raises several challenges to the constitutionality of Tenn. Code Ann.
§ 39-13-204 (Supp. 1995). These arguments have been rejected repeatedly by our
Supreme Court.
A. Cruel and Unusual Punishment
First, the defendant contends that death by electrocution or any means is cruel and
unusual punishment under the Eighth Amendment to the United States Constitution and
Article 1, § 16 of the Tennessee Constitution. The argument that death by electrocution
is cruel and unusual punishment was rejected in State v. Black, 815 S.W.2d 166, 179
(Tenn. 1991). Moreover, our Supreme Court has repeatedly reaffirmed its holding. See
State v. Nichols, 877 S.W.2d 722, 737 (Tenn. 1994); State v. Cazes, 875 S.W.2d 253, 268
(Tenn. 1994); State v. Howell, 868 S.W.2d 238, 258 (Tenn. 1993); State v. Smith, 857
S.W.2d 1, 23 (Tenn. 1993); State v. Bane, 853 S.W.2d 483, 489 (Tenn. 1993).
In 1998, our Legislature gave defendants sentenced to death the option of lethal
injection. See Tenn. Code Ann. § 40-23-114 (Supp. 1998). While our Courts have not
addressed the issue of whether lethal injection constitutes cruel and unusual punishment,
such challenges have been rejected by the federal courts. See LaGrand v. Stewart, 133
F.3d 1253, 1264-65 (9th Cir. 1998); Poland v. Stewart, 117 F.3d 1094, 1104-05 (9th Cir.
1997); Kelly v. Lynaugh, 862 F.2d 1126, 1135 (5th Cir. 1988); Woolls v. McCotter, 798
F.2d 695, 698 (5th Cir. 1986). We likewise conclude that lethal injection is not
constitutionally prohibited.
B. Heinous Aggravating Circumstance
Next, the defendant contends that the broad scope, interpretation, and lack of
definitions of pertinent and controlling provisions of the aggravating circumstances listed
in Tenn. Code Ann. § 39-13-204(i)(Supp. 1995) fail to limit the jury’s exercise of discretion
or provide a meaningful basis for narrowing the population of those convicted of first
22
degree murder to those eligible for the death penalty. Specifically, the defendant submits
that the heinous, atrocious, or cruel aggravating circumstance fails to sufficiently narrow
the scope of death-eligible defendants.
Our Supreme Court rejected similar contentions in analyzing the former version of
this aggravating circumstance, Tenn. Code Ann. § 39-2-203(i)(5) (1982), which read: "[t]he
murder was especially heinous, atrocious, or cruel in that it involved torture or depravity of
mind." See Black, 815 S.W.2d at 181-82; State v. Barber, 753 S.W.2d 659, 670 (Tenn.
1988). Likewise, our Courts have rejected this contention with respect to the current
version of the statute, Tenn. Code Ann. § 39-13-204(i)(5), which reads: “[t]he murder was
especially heinous, atrocious or cruel in that it involved torture or serious physical abuse
beyond that necessary to produce death.” See Nesbit, 978 S.W.2d at 887; Odom, 928
S.W.2d at 26.1
1
Moreover, even if this versi on of the he inous, atrocio us, or cruel aggravating circum stance were
held to be unconstitutional, it would be harmless error in this case. See State v. Howell, 868 S.W.2d
238 (Te nn. 199 3). In Howell, the Supreme Court set forth factors to consider in determining whether
application of an inap propriate ag gravating circu mstance was harm less error:
(1) the number and strength of remaining valid aggravating circumstances;
(2) the prosecutor's argument at sentencing;
(3) the evidence admitted to establish the invalid aggravator; and
(4) the nature, quality, and strength of the mitigating evidence.
Id. at 261.
In applying these factors, the Court recognized that “more crucial than the sum of the remaining
aggravating circum stance s is the q ualitative nature o f each c ircums tance, its substance and
persuasiveness, as well as the quantum of proof sup porting it.” Id. This is particularly true of the prior
violent felony aggravator, and its effect and qualitative persuasiveness increases w here there is proof,
as in this case, o f more than on e prior vio lent felo ny convi ction. State v. Nichols, 877 S.W.2d 722, 738
(Tenn. 1 994). M ore rece ntly, our S uprem e Cou rt has sa id,
[A] defendant’s prior conviction for second-degree murde r is a sign ificant e lemen t to be
considered in our analysis [of a death penalty sentence]; in fact, we have affirmed the
death sentence in all but one previous case in which a prior violent felony conviction
suppo rted the a ggravati ng facto r in Ten n. Cod e Ann. § 39-2-20 3(i)(2).
State v. Boyd, 959 S.W.2d 557, 561 (Tenn. 1998)(commenting that the “remaining case” involved a prior
offense of voluntary manslaughter, “a lesser grade of offense than second-degree murder”)(citations
to case s omitte d), cert. denied, ___ U .S. ___, 1 19 S.C t. 116, 14 2 L.Ed.2 d 93 (19 98).
Based upon our review of the factors set forth in Howell, this Court finds that even if application
of the hein ous, atrociou s, and cruel aggravator were u nconstitutional, such error was harm less in
sentencing the defendant to death. In so finding, we note that the defendant has four prior convictions
for felon ies invo lving the use of vi olence to the pe rson.
23
C. Limitation on Jury’s Discretion
Next, the defendant contends that Tenn. Code Ann. § 39-13-204 (Supp. 1995) fails
to sufficiently limit the exercise of the jury’s discretion. Specifically, he contends that once
the jury finds that an aggravating circumstance applies, it has unbridled discretion to
impose a death sentence regardless of the proof of mitigation. This argument was rejected
in State v. Smith, 857 S.W.2d at 21-22; see also Franklin v. Lynaugh, 487 U.S. 164, 178-
80, 108 S. Ct. 2320, 2330, 101 L. Ed. 2d 155 (1988); State v. Hurley, 876 S.W.2d 57, 69
(Tenn. 1993).
Next, the petitioner contends that Tenn. Code Ann. § 39-13-204(g)(Supp. 1995)
requires the jury to impose the death penalty if it finds that the aggravating circumstances
outweigh the mitigating circumstances in violation of the Eighth and Fourteenth
Amendments of the United States Constitution and Article 1, §§ 8 and 16 of the Tennessee
Constitution. The defendant argues that the jury is discouraged from making the ultimate
determination that the death penalty is the appropriate sentence in any specific case and
is instructed not to consider sympathy.
The argument that the statute fails to require the jury to make the ultimate
determination of whether death is the appropriate penalty in a specific case has been
rejected by the Supreme Court. See State v. Brimmer, 876 S.W.2d 75, 87 (Tenn. 1994);
Smith, 857 S.W .2d at 22. Moreover, arguments regarding the “no-sympathy” instruction
have been rejected. See Brimmer, 876 S.W.2d at 83; Howell, 868 S.W.2d at 257; State
v. Boyd, 797 S.W.2d 589, 596-98 (Tenn. 1990).
Next, the defendant asserts that Tenn. Code Ann. § 39-13-204 (Supp. 1995) is
unconstitutional because it does not inform the jury in specific terms of its ability to impose
a life sentence out of mercy. This argument has been rejected by our Supreme Court.
See State v. Bigbee, 885 S.W.2d 797, 813-14 (Tenn. 1994); Melson, 638 S.W.2d at 366.
24
D. Consequence of Failing to Reach Verdict
Finally, the defendant contends that Tenn. Code Ann. § 39-13-204 (Supp. 1995) is
unconstitutional because it prohibits the jury from being informed of the consequences of
its failure to reach a unanimous verdict in the penalty phase. Pursuant to Tenn. Code Ann.
§ 39-13-204(h) (Supp. 1995), the jury is not to be informed of the effect of its inability to
unanimously agree on a punishment. Our Supreme Court has repeatedly upheld this
provision of the statute. See Brimmer, 876 S.W.2d at 87; Cazes, 875 S.W.2d at 268;
Smith, 857 S.W.2d at 22-23; Barber, 753 S.W.2d at 670-71.
VIII. PROPORTIONALITY REVIEW
A. Standard of Review
Although not raised by the defendant, pursuant to Tenn. Code Ann. § 39-13-
206(c)(1)(D), a comparative proportionality review must be undertaken in capital cases.
In conducting a comparative proportionality review, the Court must begin with the
presumption that the sentence of death is proportionate to the crime of first degree murder.
Hall, 958 S.W.2d at 699. A death sentence will be considered disproportionate if, when
taken as a whole, the case is "plainly lacking in circumstances consistent with those in
similar cases in which the death penalty has been imposed." State v. Bland, 958 S.W.2d
651, 665 (Tenn. 1997). A sentence of death, however, is not disproportionate merely
because the circumstances are similar to those in another case in which a defendant
received a life sentence. Hall, 958 S.W.2d at 699. The role of this Court in conducting
comparative proportionality review is to assure "that no aberrant death sentence is
affirmed," not to assure that a sentence "less than death has never been imposed in a
case with similar characteristics." Id.
In comparing similar cases, the Court must consider many factors, including (1) the
means of death; (2) the manner of death; (3) the motivation for the killing; (4) the place of
death; (5) the similarity of the victims' circumstances including age, physical, and mental
conditions, and the victims' treatment during the killing; (6) the absence or presence of
premeditation; (7) the absence or presence of provocation; (8) the absence or presence
25
of justification; and (9) the injury to and effects on nondecedent victims. Bland, 958
S.W.2d at 667.
In comparing similar defendants, the Court must consider variables such as: (1) the
defendant's prior criminal record or prior criminal activity; (2) the defendant's age, race, and
gender; (3) the defendant's mental, emotional, or physical condition; (4) the defendant's
involvement or role in the murder; (5) the defendant's cooperation with authorities; (6) the
defendant's remorse; (7) the defendant's knowledge of helplessness of the victim(s); and
(8) the defendant's capacity for rehabilitation. Id.
“Comparative proportionality review is not a rigid, objective test.” Id. at 668. This
Court does not need to "employ a mathematical formula or scientific grid." Hall, 958
S.W.2d at 699. Rather, in using these factors to compare the circumstances of this case
to other death penalty cases, this Court must rely upon "the experienced judgment and
intuition of its own members." Bland, 958 S.W.2d at 668.
B. Analysis of Similar Cases
In State v. Smith, 868 S.W.2d 561 (Tenn. 1993), the defendant shot, stabbed and
cut the throat of his estranged wife. Two other victims, the defendant’s step-children, were
also killed at the same time in a similarly violent manner. Like the defendant in this case,
Smith was a white male approximately 40 years of age at the time of the murder. One of
the aggravating circumstances found by the jury to support the sentence of death was the
previous version of (i)(5) -- that “[t]he murder was especially heinous, atrocious, or cruel
in that it involved torture or depravity of mind.” Tenn. Code Ann. § 39-2-203(i)(5)(1982).
In State v. Johnson, 743 S.W.2d 154 (Tenn. 1987), the defendant murdered his wife
by suffocation. The victim would have been conscious from one to four minutes as the
defendant forced a large plastic garbage bag into her mouth. The aggravating
circumstances found by the jury to support the sentence of death were (i)(2) -- the
defendant was previously convicted of one or more felonies involving the use of violence
26
and the previous form of (i)(5) -- that “[t]he murder was especially heinous, atrocious, or
cruel in that it involved torture or depravity of mind.” Tenn. Code Ann. § 39-2-203(i)(2) and
(5)(1982).
In State v. Hines, 919 S.W.2d 573 (Tenn. 1995), the 24-year-old white male
defendant stabbed the female victim to death. There were three lethal stab wounds to the
victim’s chest, three slight stab wounds to the neck, and defensive wounds on the victim’s
hands. The aggravating circumstances found by the jury to support the sentence of death
were (i)(2) -- the defendant was previously convicted of one or more felonies involving the
use of violence, and (i)(5) -- the murder was especially heinous, atrocious, or cruel. The
defendant claimed as mitigation that he was under extreme mental or emotional
disturbance.
In State v. Jon Douglas Hall, No. 02C01-9703-CC-00095 (Tenn. Crim. App. filed
April 29, 1998, at Jackson), the 30-year-old white male defendant beat his estranged wife
causing serious trauma to various parts of her body, including the neck. She was then
dragged to the backyard and put in the swimming pool face down to drown. The cause of
death was strangulation and/or drowning. The defendant’s children were present and
witnessed part of the beating. One of the aggravating circumstances found by the jury was
that the murder was especially heinous, atrocious, or cruel. Tenn. Code Ann. § 39-2-
203(i)(5).
In State v. Harries, 657 S.W.2d 414 (Tenn. 1983), the 31-year-old male defendant
shot and killed a female clerk during the robbery of a convenience store. The jury imposed
the death penalty upon a finding that the defendant was previously convicted of one or
more felonies involving the use of violence. The jury also applied the felony murder
aggravating circumstance; however, the Supreme Court held this to be harmless error.
In State v. Cribbs, 967 S.W.2d 773 (Tenn. 1998), cert. denied, ___ U.S. ___, 119
S. Ct. 343, 142 L. Ed. 2d 283 (1998), the 23-year-old defendant murdered the female victim
27
during a robbery of the victim’s home. The aggravating circumstances found by the jury
were (i)(2) -- the defendant was previously convicted of one or more felonies involving the
use of violence, and (i)(7) -- the murder was committed during the commission of a felony.
Although the Supreme Court held that it was error to rely upon the felony murder
aggravating circumstance, the Court held the error to be harmless beyond a reasonable
doubt. The defendant had two previous convictions of attempted second degree murder
and one previous conviction of aggravated robbery.
In State v. Howell, 868 S.W.2d 238 (Tenn. 1993), the defendant shot and killed a
clerk during the robbery of a convenience store. The aggravating circumstances found by
the jury were (i)(2) -- the defendant was been previously convicted of one or more felonies
involving the use of violence and (i)(7) -- the murder was committed while the defendant
was engaged in committing a felony. Although application of the felony murder aggravator
was error, the Supreme Court applied a harmless error analysis and affirmed the death
sentence. Id. at 260-62. The defendant had prior convictions for first degree murder,
armed robbery, and attempted first degree murder.
In State v. Nichols, 877 S.W.2d 722 (Tenn. 1994), the jury found that the defendant
had five prior convictions for aggravated rape and that the murder was committed during
the commission of a felony. The Supreme Court held that application of the felony murder
aggravator was harmless error and upheld the sentence of death. Id. at 737-39.
In State v. Roy Keough, No. 02C01-9708-CR-00317 (Tenn. Crim. App. filed January
13, 1999, at Jackson), transferred, No. 02S01-9901-CR-00009 (Tenn. January 27, 1999),
the defendant accosted his estranged wife and her friend in a lounge in Memphis. The
three were asked to leave after an argument. In the parking lot, the defendant stabbed the
victims with a bayonet. His wife was sitting in her car at the time he stabbed her in the
throat. The aggravating circumstance found by the jury to support the sentence of death
was that the defendant had previously been convicted of one or more prior felonies
involving violence. Tenn. Code Ann. § 39-2-203(i)(2). The defendant, a divorced white
28
male, was 51 years of age at the time of the murder. He raised as a mitigating
circumstance that he was under extreme mental or emotional disturbance at the time of
the murder. The death penalty was affirmed.
C. Our Determination
While "[n]o two cases are alike, and no two defendants are alike," State v. Barber,
753 S.W.2d at 665, the above-mentioned cases bear many similarities with the case now
before the Court. Based on these similarities, the imposition of the death penalty is not
aberrant, nor is its application to the defendant arbitrary, excessive or disproportionate.
CONCLUSION
Our review of the record indicates the defendant received a fair trial, was justly
convicted, and was sentenced to death by the jury. Concluding there is no error in the
record before this Court, we AFFIRM the conviction and sentence of death.
________________________________
JOE G. RILEY, JUDGE
CONCUR:
________________________________
GARY R. WADE, PRESIDING JUDGE
________________________________
DAVID H. WELLES, JUDGE
29