State v. James Young ( 1998 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE FILED
APRIL, 1997 SESSION
May 22, 1998
Cecil W. Crowson
Appellate Court Clerk
STATE OF TENNESSEE, )
) No. 01C01-9605-CC-00208
Appellee, )
) Rutherford County
vs. )
) Honorable J. S. Daniel, Judge
JAMES CLAYTON YOUNG, JR., )
)
) (Felony murder)
Appellant. )
FOR THE APPELLANT: FOR THE APPELLEE:
R. STEVEN WALDRON JOHN KNOX WALKUP
TERRY A. FANN Attorney General & Reporter
202 West Main St.
Murfreesboro, TN 37130 DARYL J. BRAND
Assistant Attorney General
Criminal Justice Division
450 James Robertson Parkway
Nashville, TN 37243-0493
WILLIAM C. WHITESELL, JR.
District Attorney General
303 Rutherford County Judicial Bldg.
Murfreesboro, TN 37130
OPINION FILED: ____________________
REVERSED AND REMANDED
GARY R. WADE, JUDGE
OPINION
The defendant, James Clayton Young, was convicted of felony murder,
a Class A felony. The trial court imposed a life sentence. The grand jury had returned
a three-count indictment that included charges of deliberate and premeditated murder,
felony murder in the perpetration of a rape or an attempted rape, and unlawful disposal
of a corpse. The defendant pled guilty to the unlawful disposal of a corpse and
received a one-year sentence to be served concurrently with the life sentence for felony
murder. Neither that conviction nor the sentence is at issue in this appeal. The trial
judge granted the defendant’s motion for judgment of acquittal on the first degree
murder charge and had instructed the jury on second degree murder, voluntary
manslaughter, reckless homicide, and criminally negligent homicide.
In this appeal of right, the defendant raises numerous issues. For the
purposes of this appeal we have grouped related issues into the following categories:
1. Sufficiency of the evidence. (Trial issues 19,
20, 21, 22)
2. Denial of defendant’s Motion to Suppress
and use of audio-tape at trial. (Pre-trial issue
1, Trial issues 1 and 18)
3. Expert testimony. (Trial issues 8, 9, 10, 11,
12, 13, 14, 15)
4. Lay witness testimony. (Trial issues 2, 5)
5. Admission of photographs and video tapes.
(Pre-trial issues 2 and 3; Trial issue 6)
6. Testimony of Jad Starnes. (Trial issues 3 and
7)
7. Trial court’s comments. (Trial issue 4)
8. A defendant’s right to plead guilty. (Trial
issue 17)
9. Prosecutorial misconduct. (Trial issue 16)
2
10. Right to a fair trial. (Trial issue 23)
There were errors in the course of trial and, in our view, the cumulative
effect of these errors requires a new trial. The judgment is, therefore, reversed.
I. Facts
At approximately 3:00 p.m. on January 8, 1995, Rodney Vaughn was
driving to his mother’s house in rural Rutherford County when a construction worker
flagged down his vehicle. When Vaughn stopped, the worker, who was unable to
speak English, led him to a place where he could see what appeared to be a blanket
covering a body in a steep ravine some twenty feet from the road. Vaughn telephoned
911, met the sheriff’s officers who responded to the call, and led them to the body of
a young man clad only in blue jeans. A plaid sleeping bag covered the upper portion
of the body. No identification was found. An autopsy established ligature strangulation
as the cause of death. Marks on the body indicated that the feet and hands had been
bound. There was a small gash on the back of the head. The body had other marks
and bruises and the pubic hair had been recently shaved.
During this period of time, Detective Melvin Cunningham of the
Murfreesboro Police Department had been investigating the disappearance of a
nineteen-year-old college student, Joseph Ladd. His employer notified his family when
Ladd did not report for work on the fifth and sixth of January. His roommates had not
seen Ladd. Shortly after initiating his investigation, Detective Cunningham interviewed
Warren Jones and the defendant. Both men acknowledged that they last saw Joey
Ladd on the evening of the third of January. Jones and Ladd, co-workers with the
defendant at the Garden Plaza Hotel in Murfreesboro, had gone to the defendant’s
apartment to drink some beer and talk. When Jones left at about 1:30 a.m., Ladd
3
declined a ride, explaining that he would walk home. The defendant claimed that Ladd
left a few minutes after Jones departed.
When Detective Cunningham learned of the discovery of the
unidentified body, he went to the morgue and determined that the deceased met Ladd’s
general description. When Ladd’s roommate came to the morgue, he was able to
make a positive identification.
The day after the body was found, investigators established that the
sleeping bag belonged to James Andrew Starnes, a friend of the defendant. Starnes
told the officers that he had probably left the bag at the defendant’s apartment.
At noon on January 10, Detectives Mark Warf and Cunningham
interviewed the defendant, a thirty-four-year-old college student at Middle Tennessee
State University, at his apartment. The defendant first claimed that the three men went
to his apartment after work, drank some beer, listened to music, and talked. He said
that at about 1:30 a.m., Jones left and that Ladd left shortly thereafter. The defendant
signed his statement and consented to a search of his apartment. The detectives
found a paint ball gun and other paint ball equipment, leather straps, hair clippers, and
some catalogs.1
Later that afternoon, the defendant telephoned Detective Warf and
told him that he had more information. When the detectives returned, the defendant
1
The record of the hearing on the motion to suppress indicates that the
catalogs displayed pornographic material and a variety of sexual apparatus. The
wrapper that contained the catalogs showed that the defendant had received them
after Ladd’s death. The defendant told the police that he did not like the catalogs
and had planned on sending them back. The jury heard nothing about the content
of the catalogs.
4
revealed that he was gay, but did not engage in homosexual relationships. He claimed
that only one person was aware of his homosexuality.
After officers interviewed Warren Jones that evening, the defendant was
brought to the sheriff's department for further questioning. He arrived at the station at
about 11:30 p.m. The interview continued throughout the night, and at approximately
5:00 a.m. the defendant signed his second written statement. In this document, he
acknowledged that his actions caused in the death of Joey Ladd. The defendant did
not testify at trial. The interview at the sheriff's department was recorded. Both the
audiotape and the written statement were entered into evidence at trial.
The defendant told officers that he and Jones, a twenty-four-year-old
student at Middle Tennessee State University, had become concerned about Ladd’s
excessive drinking and partying. They decided to approach Ladd after work and talk
to him about his reckless lifestyle. They recalled driving Ladd to his apartment on
Tuesday, January 3, at about 10:30 p.m. Jones followed in his own car. He related
that for the next two hours the men talked about paint ball, school, work, and girl
friends. According to Jones, Ladd drank an entire six pack of “tall boys” and then
began drinking Jagermeister. The defendant drank beer and then switched to orange
juice and vodka. At 1:30 a.m., January 4, Jones left because he wanted to write a
letter to his fiancée.
The defendant claimed that he and Ladd continued to drink and that the
talk turned to sex. The defendant told the officers that he admitted his homosexuality
and that Ladd revealed that he had some unexplored bisexual interests. The defendant
said that he and the victim went into the bedroom and engaged in consensual sexual
activity. The defendant contended that he was unable to obtain an erection and the
5
victim penetrated him anally. The defendant stated that he then used a finger to
penetrate the victim and at some point after the first sexual encounters, shaved the
victim’s pubic hair. The two men then discussed bondage, a topic that the defendant
acknowledged had been the frequent subject of his sexual fantasies. The defendant
obtained two pairs of handcuffs belonging to his roommate, a military policeman in the
Army Reserve. He claimed that his wrists and ankles were shackled by the victim.
When the defendant still was not sufficiently aroused, he then placed the cuffs on the
victim as he lay face down on the bedroom floor.
By this time it was after 5:00 a.m. and the two had been drinking steadily
throughout the night. Still hoping to achieve an erection, the defendant placed one of
the victim’s socks in the victim’s mouth and secured it with duct tape. He admitted to
others that he took the victim’s rugby shirt, wrapped it around his head and neck and
while seated on the victim’s back, he began to ride “like a horse” pulling straight back
on the shirt with both hands. The defendant realized at some point the victim was
struggling and choking. By the time he stopped, the victim was silent. The defendant
recalled that he took out the gag, removed the handcuffs, and dragged the unclothed
victim onto the bunk bed.
The defendant told officers that he thought the victim had passed out from
all the alcohol. Later the defendant realized the victim was not breathing. When he
was unable to locate a pulse, the defendant became frantic and, while conceding that
he should have called authorities, he did not. The statement is not clear as to the
exact order in which the following events occurred, but, at some point, the defendant
dressed the body in underwear and jeans, placed it in a sleeping bag, and dragged the
body to the foot of the stairs where it would rest on cold concrete. The defendant
noticed that the victim had a cut on the back of his head as he placed the body in a
6
sleeping bag. The defendant told officers that he may have banged the victim’s head
against the upper rail of the bunk bed when he was trying to get him into the bunk. He
took the victim’s wallet, drove around for a while, and eventually threw the wallet off a
slab bridge into a creek.2 At 3:00 p.m., the defendant reported for work, taking the
victim’s shirt, boots, socks, and backpack with him. He threw them into the dumpster
behind the hotel. 3
When the defendant returned home from work that night, he dragged the
body to his car and placed it in the trunk. He told officers that he noticed that there was
blood on both the sleeping bag and the floor from the cut on the victim’s head. He
recalled that he drove to a secluded place near a paint ball field and dragged the body
to a ditch. He then covered the body with the sleeping bag and returned to his
apartment to clean the blood from the stairwell floor and that on the bumper of his car.
At trial, Dr. Charles Harlan, the medical examiner, testified that death had
been caused by ligature strangulation and that the faint pale pink marks around the
neck were consistent with having been caused by a broad piece of cloth. Dr. Harlan
found no evidence of forced penetration, no scarring or tears to the anus. The victim’s
blood alcohol level was .19 at the time of his death. It was Dr. Harlan's opinion that if
the victim’s blood alcohol level had reached .21, he could have vomited or become
comatose. He stated that the bruises on the wrists and ankles were likely made by thin
bands and that the abrasions on the victim’s fingertips were probably the result of being
scraped across some firm surface. Dr. Harlan testified that the victim had a laceration
on the back of his head that was four-fifths of an inch in length. It was his opinion that
2
A passer-by noticed the wallet floating in the water and retrieved it. When he
was unable to locate Ladd, he turned the wallet over to the sheriff’s department.
3
These items were never recovered as they had been taken to the landfill prior
to the discovery of the victim’s body.
7
the victim’s injuries could have been the result of a struggle although he conceded that
they could have been caused either just before or just after death had occurred.
Both Jacob Cook, the defendant’s roommate for four years, and Jones,
his long-time friend, testified for the state. Neither man had any idea that the defendant
had homosexual proclivities. Cook, who was staying in Nashville with his parents at the
time of Ladd’s death, recalled being unable to find his handcuffs and asking the
defendant to look for them. Jones corroborated the defendant’s statements about
many of the events that occurred during the evening of January 3 and until 1:30 a.m.
the next day.
James Andrew Starnes, another friend of the defendant, testified that he
had known the defendant both at work and at school. He had often been to the
defendant’s apartment along with other co-workers and college friends. Because he
had noticed that the defendant seemed uncomfortable around women, he once asked
if he was gay. The defendant acknowledged that he was.
All three men testified that the defendant had never made any sexual
advances toward them. The defendant and Cook slept in the same room and Starnes
had frequently spent the night in his apartment.
The state introduced photographs showing the bruises and other injuries
to the victim, photographs of the defendant’s apartment, a picture of the contents of the
defendant’s refrigerator, and a videotape of the body as it was found.
At the conclusion of the proof, the trial judge granted the defendant’s
motion for a judgment of acquittal on the charge of first degree premeditated murder
8
and announced that he would instruct the jury only on felony murder and second
degree murder, voluntary manslaughter, reckless homicide, and criminally negligent
homicide. Just before the case was sent to the jury, the defendant attempted to plead
guilty to second-degree murder. When the state objected, the trial court refused to
accept the plea. The jury then returned a guilty verdict of felony murder committed in
the perpetration either of a rape or of an attempted rape.
II. Sufficiency of the Evidence
A.
A peculiar problem arises in conjunction with our consideration of the
sufficiency of the evidence. The jury found the defendant guilty of felony murder
committed in the perpetration of a rape or in the perpetration of an attempted rape.
See Tenn. Code Ann. § 39-13-202 (a) (2) (1997). The evidence established two
distinct and separate sexual episodes. In the first, the defendant digitally penetrated
the victim’s anus. During the second episode, the defendant attempted unsuccessfully
to penetrate the victim with his penis. The defendant admitted that these actions
occurred. The issue at trial was consent. At various points in the trial, the state argued
that none of the sexual activity was consensual and that the defendant at first digitally
penetrated and then either strangled the victim while attempting to rape him a second
time or killed him to prevent his telling anyone about the homosexual encounter. In the
final sentence of the closing argument, however, the state asked the jury to return a
verdict of guilty of murder during the perpetration of an attempted rape. Both the
indictment and the jury instruction use the disjunctive, as does Code section 39-13-
202(a) (2), and the jury returned a verdict finding the defendant guilty of felony murder
in the perpetration of a rape or in the attempted perpetration of a rape. The judgment
form entered by the trial court reports that the defendant either raped or attempted to
rape the victim. Confusion is apparent in the briefs submitted to this court. The
9
defendant argues that there is insufficient evidence of rape while the state argues that
there is ample evidence in the record to support a conviction based on attempted rape.
The trial court neither gave an augmented unanimity instruction nor required an election
of “offenses” to ensure that all twelve jurors agreed on the same set of facts for the
underlying felony.
Although neither party raises the issue of jury unanimity, we briefly
consider the issue under the plain error standard in order to do substantial justice. State
v. Adkisson, 899 S.W.2d 626, 636 (Tenn. Crim. App. 1984); Tenn. R. Crim. P. 52(b).
A defendant has the fundamental constitutional right under Tennessee law to a
unanimous verdict before a conviction for a criminal offense may be imposed. State
v. Shelton, 851 S.W.2d 134, 137 (Tenn. Crim. App. 1993); State v. Brown, 823 S.W.2d
576, 581 (Tenn. Crim. App. 1991); see also State v. Brown, 762 S.W.2d 135, 137
(Tenn. 1988). Protection of this right may require special precautions by the trial court
to ensure that the jury does not reach a “patchwork verdict” based on different offenses.
State v. Forbes, 918 S.W.2d 431, 445-446 (Tenn. Crim. App. 1995). When the proof
shows the commission of multiple acts with multiple results, the results being separate
criminal offenses, and there are insufficient counts in the charging instrument to
accomodate all of the offenses shown, the usual precaution to assure jury unanimity
is to require the election of offenses. Shelton, 851 S.W.2d at 137; State v. Burlison,
501 S.W.2d 801 (Tenn. 1973); State v. Clabo, 905 S.W.2d 197, 205 (Tenn. Crim. App.
1995). However, where there is only one offense resulting from multiple actions of the
defendant, see State v. Phillips, 924 S.W.2d 662 (Tenn. 1996), the proper precaution
is giving to the jury an augmented instruction relative to the unanimity requirement.
State v. James R. Lemacks, No. 01C01-9606-CC-00227, slip op. at 12-13 (Tenn. Crim.
App., Nashville, June 26, 1997), pet. for perm. app. filed (Tenn. Aug. 25, 1997); Brown,
823 S.W.2d at 581-83.
10
Although the wording of the indictment, the trial court’s instructions, and
the jury verdict raise the specter of a “patchwork verdict,” we find that no “real potential”
for a non-unanimous verdict exists.4 Because of the peculiar facts in this case, a juror
who concluded that the first sexual encounter was non-consensual would have to arrive
at the same conclusion about the second encounter.
The indictment, the verdict, and the judgment all refer to a “rape or
attempted rape.” In its closing argument, the state contended that the killing was during
an attempted rape. Both the state and the defense referred to the underlying felony as
“rape or attempted rape” throughout the trial. For example, defense counsel claimed,
“This is not a case of rape or attempted rape.” At one point, the state interjected that
it did “not have to prove a rape occurred, either a rape or attempted rape, and that’s the
charge in the indictment.” That instructions on attempt were not provided to the jury
might have added to the confusion about which of the two underlying felonies was
chosen to support the verdict.
4
Although the definition of felony murder invited the jury to find the defendant
guilty of felony murder in the perpetration of a rape or in the attempted perpetration
of a rape, Tenn. Code Ann. § 39-13-202(a)(2), we do not intend to suggest that this
use of alternative theories in the statute, the indictment, and the jury instructions
raises unanimity concerns. Generally, alternative theories, mental states, modes of
committing the crime, or means by which the crime was committed may be
submitted to the jury without the necessity of precautions to assure jury unanimity.
Tenn. Code Ann. § 40-18-112 (1997); see also Schad v. Arizona, 501 U.S. 637, 111
S. Ct. 2491 (1991); State v. Daniel Joe Brown, No. 02C01-9611-CC-00385, slip op.
at 16-17 (Tenn. Crim. App., Jackson, Dec. 3, 1997). In a given case, such as the
present case, the coincidence of alternative theories and the defendant’s
commission of multiple criminal acts tends to disguise the basis for the appellate
court’s detection of a unanimity problem, see VanArsdall v. State, 919 S.W.2d 626,
633 (Tenn. Crim. App. 1995); Forbes, 918 S.W.2d at 445, that basis being the
multiplicity of the acts committed by the defendant. State v. Tidwell, 922 S.W.2d
497 (Tenn. 1996); Shelton, 851 S.W.2d at 137; Burlison, 501 S.W.2d 801; Daniel
Joe Brown, slip op. at 15-16; VanArsdall, 919 S.W.2d at 633; Clabo, 905 S.W.2d at
205; Brown, 823 S.W.2d at 581-82; but see State v. James R. Lemacks, No.
01C01-9606-CC-00227, slip op. at 11-13.
11
Nonetheless, “[a]s long as the jury unanimously agreed that the second
encounter was an attempted rape, it is irrelevant that some jurors may have believed
that the first penetration also occurred without the victim's consent.” Furthermore, it is
the felony that enhanced the homicide to one of first degree murder. To reach that
conclusion, the jury had to be unanimous in rejecting the defense of consent, which
was a prerequisite to the determination that the felony was committed.
There are very limited instances wherein a harmless error analysis is
appropriate in the resolution of election or unanimity issues. In Shelton, our supreme
court found harmless error where the victim testified in detail about one incident of
sexual abuse and testified generally about other instances. Shelton, 851 S.W.2d at
138. Our supreme court was able to determine that “the jurors must have considered
the evidence of this particular incident in convicting the defendant of aggravated rape
... [and] the Burlison error as to this conviction was harmless beyond reasonable
doubt.” Id. Also, in Clabo, this court found harmless error where the victim testified
about and was questioned about “one precise incident.” A panel of this court
concluded that “minor innuendos about another incident were harmless.” Id. at 205.
Thus, a harmless error analysis is appropriate only where the proof overwhelmingly
established the offense for which conviction is sought and proof of the other crimes is
marginal or tangential. See also State v. Daniel Joe Brown, No. 01C01-9611-CC-
00385, slip op. at 20 (Tenn. Crim. App., Jackson, Dec. 3, 1997) (finding the election
error harmless where although the evidence “technically” may have established two
separate incidents of reckless endangerment, there was proof in “great detail” about
only “one particular instance.”)
In Brown, Judge Tipton, speaking for this court, made the following
12
comment:
In a case where the evidence shows that the defense is,
simply, a denial that any offense occurred and that the
evidence in favor of the state's position is of a similar
quality as to each offense proven and is derived from the
same witness(es), then it is extremely difficult to imagine
that a potential exists of the jury splitting its findings. Such
a clear cut case would not seem to call for an augmented
unanimity instruction, since the accrediting of the
witnesses as to one offense would necessarily accredit
them as to the others.
823 S.W.2d at 584 (emphasis added).
This type of harmless error analysis was not embraced by our supreme
court in its two most recent opinions on this issue. See State v. Walton, 958 S.W.2d
724 (Tenn. 1997), and Tidwell v. State, 922 S.W.2d 497 (Tenn. 1996). In Tidwell, the
petitioner was convicted of 14 counts each of rape, incest and contributing to the
delinquency of a minor. 922 S.W.2d at 498-99. The victim testified that sexual activity
occurred with her father “approximately once a week” over a fourteen month period.
The victim testified in general terms. She was, however, able to testify with particularity
to incidents that occurred in December 1985 and in April 1986. Id. The defendant
confessed to having had sexual intercourse with the victim and acknowledged the last
incident occurred in January 1987. Id. The defendant filed a post-conviction petition
alleging ineffective assistance of counsel for failure to seek election of offenses. Id. at
499. Reiterating the rule announced in Burlison and affirmed in Shelton, our supreme
court reversed all of the convictions except for those in which the defendant had
confessed (the January 1987 incident) and those for which the victim testified to with
particularity (the December 1985 and April 1986 incidents). In Tidwell, the state had
argued that “non-unanimity was impossible” and that “jury unanimity is attained in such
cases because, although the jury may not be able to distinguish between the various
acts, it is certainly capable of unanimously agreeing that they took place in the number
and manner described.” Id. at 501 (discussing the state’s position). Our supreme court
13
rejected the state’s argument that because “non-unanimity was impossible,” a reversal
of the convictions was not required:
[The state’s] approach, in our view, is akin to a “grab-bag”
theory of justice. To illustrate the operation of this theory,
in any given case the State could present proof on as many
offenses ... as it chose. Because all such offenses will
have been “proven,” the jury may ... reach into the
brimming bag of offenses and pull out one for each count.
... [S]uch an approach is contrary to our law.
Id.In Walton, the supreme court found plain error meriting a reversal
because “each juror was left to choose independently the acts of abuse upon which to
base a verdict. This is the grab bag result condemned in Tidwell. We have no means
here by which we can be assured that each juror relied upon the same evidence to
convict the defendant.” Walton, 958 S.W.2d at 727-28.
A harmless error analysis on a unanimity issue must always be based
upon the particular facts of the case. As indicated, the defendant did not deny either
of the sexual encounters and the only issue was whether there was consent, a notion
unanimously rejected by the jury. This assures the “well established right under our
state constitution to a unanimous jury verdict....” Shelton, 851 S.W.2d at 137. This
conviction is either “grab bag” or “patchwork ” as precluded by the holdings in Walton
or Shelton. The particular facts here are much less vulnerable to confusion in the
context of a felony murder.
The circumstances in Schad v. Arizona, 501 U.S. 624, 111 S. Ct. 2491(1991), may be analogous. The United States Supreme Court concluded that a jury
need not agree on which overt act, among several possible alternatives, was the means
by which a crime was committed. The crime here was that of felony murder, a verdict
14
upon which there was unanimous consent. That not only required a rejection of the
defense claim of consent but a conclusion that, at a minimum, each of the elements of
attempted rape was established beyond a reasonable doubt. These circumstances fit
within that limited, harmless error category on the issue of jury unanimity. 5
B.
The defendant does not deny that his actions caused the victim’s death.
He contends, however, that the evidence does not demonstrate that he forced the
victim to engage in the sexual activity during which the victim was killed.
When an accused challenges the sufficiency of the evidence, an appellate
court’s standard of review is whether, after considering the evidence in the light most
favorable to the prosecution, any rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307,
319, 99 S. Ct. 2781, 2789 (1979); State v. Duncan, 698 S.W.2d 63, 67 (Tenn. 1985);
Tenn. R. App. P. 13(e). This rule is applicable to findings of guilt based upon direct
evidence, circumstantial evidence, or a combination of direct and circumstantial
evidence. State v. Dykes, 803 S.W.2d 250, 253 (Tenn. Crim. App. 1990).
5
In State v. Tony Scott Walker, No. 02C01-9704-CC-00147, slip op. at 6
(Tenn. Crim. App., Jackson, Dec. 3, 1997), app. pending, Feb. 4, 1998, a panel of
this court held as follows:
In order to prove felony murder, the State need not prove
the actual commission of the underlying felony; rather,
the State must prove only that murder was committed in
the perpetration of or attempt to perpetrate the
underlying felony. See State v. Allen, No. 02C01-9307-
CR-00166 (Tenn. Crim. App., at Jackson, Aug. 24,
1994). Moreover, we note that attempted robbery is a
lesser included offense of robbery. See Bandy v. State,
575 S.W.2d 278, 281 (Tenn. 1979). Accordingly, we do
not agree with the appellant that the trial court's
instruction provided alternative theories from which
members of the jury could choose in finding the appellant
guilty of murder committed in the perpetration of a felony.
15
In determining the sufficiency of the evidence, this court should not
reweigh or reevaluate the evidence. State v. Matthews, 805 S.W.2d 776, 779 (Tenn.
Crim. App. 1990). Nor may this court substitute its inferences for those drawn by the
trier of fact from the evidence. Liakas v. State, 199 Tenn. 298, 286 S.W.2d 856, 859
(1956); Farmer v. State, 574 S.W. 2d 49, 51 (Tenn. Crim. App. 1978). On the contrary,
this court is required to afford the State of Tennessee the strongest legitimate view of
the evidence contained in the record as well as all reasonable and legitimate inferences
which may be drawn from the evidence. State v. Cabbage, 571 S.W.2d 832, 835
(Tenn. 1978).
The appellant was tried and convicted by a jury. A guilty verdict from the
jury, approved by the trial judge, accredits the testimony of the state’s witnesses and
resolves all conflicts in favor of the state. State v. Williams, 657 S.W.2d 405, 410
(Tenn. 1983); State v. Hatchett, 560 S.W.2d 627, 639 (Tenn. 1978). Since a verdict
of guilty removes the presumption of innocence and replaces it with a presumption of
guilt, the accused has the burden in this court of demonstrating why the evidence is
insufficient, as a matter of law, to support the verdict. State v. Tuggle, 639 S.W.2d
913, 914 (Tenn. 1982).
A criminal offense may be established exclusively by circumstantial
evidence. Duchac v. State, 505 S.W.2d 237, 241 (Tenn. 1973); State v. Jones, 901
S.W.2d 393, 396 (Tenn. Crim. App. 1995); State v. Lequire, 634 S.W.2d 608 (Tenn.
Crim. App. 1981). Before an accused may be convicted of a criminal offense based
upon circumstantial evidence alone, the facts and circumstances “must be so strong
and cogent as to exclude every other reasonable hypothesis save the guilt of the
defendant.” State v. Crawford, 225 Tenn. 478, 484, 470 S.W .2d 610, 613 (1971);
Jones, 901 S.W.2d at 396. In other words, “[a] web of guilt must be woven around the
16
defendant from which he cannot escape and from which facts and circumstances the
jury could draw no other reasonable inference save the guilt of the defendant beyond
a reasonable doubt.” Crawford, 225 Tenn. at 484, 470 S.W.2d at 613; State v. McAfee,
737 S.W.2d 304, 305 (Tenn. Crim. App. 1987).
If properly instructed by the trial court, the assessment of whether the
direct and circumstantial evidence excludes other likely possibilities is a jury question.
Our scope of review is more limited. 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 triers of fact. Byrge v. State, 575 S.W.2d 292, 295 (Tenn. Crim.
App. 1978).
In our view, a jury is entitled to accept that portion of the defendant’s pre-
trial statement or testimony that it deemed credible and reject that which it deemed to
be false. State v. Gilbert, 612 S.W.2d 188, 190 (Tenn. Crim. App. 1980)(citing Batey
v. State, 527 S.W.2d 148 (Tenn. Crim. App. 1975)). “In confessions or statements of
the kind voluntarily made by the accused the jury must take the whole of this statement
or confession and weigh it as they weigh the other evidence, rejecting some part if they
desire to do so and giving credit to other parts of the statement if they have a sufficient
reason to do so under all the evidence as it is introduced.” Espitia v. State, 288 S.W.2d
731, 733 (Tenn. 1956). This quote from the Espitia opinion is consistent with the
general rule:
It is for the jury to say what weight shall be given to the
several parts of the statement, for they may well believe
that part which charges the prisoner, and reject that which
tends to exculpate him.
20 Am. Jur., Evidence, § 488 (1939 & Supp. 1966); see 29A Am. Jur. 2d, Evidence, §
1431 (1994).
17
The legislature defined first degree murder as “[a] reckless killing of
another committed in the perpetration of, or attempt to perpetrate any ... rape ....”
Tenn. Code Ann. § 39-13-202(a)(2) (Supp. 1994). Rape is defined as the “unlawful
sexual penetration of a victim by the defendant or of the defendant by the victim
accompanied by any of the following circumstances: (1) Force or coercion is used to
accomplish the act; (2) The defendant knows or has reason to know that the victim is
mentally defective, mentally incapacitated or physically helpless....” Tenn. Code Ann.
§ 39-13-503 (emphasis added) . As no specific mens rea is required by the rape
statute, “intent, knowledge or recklessness suffices to establish the culpable mental
state.” Tenn. Code Ann. § 39-11-301(c) (emphasis added) .
To convict an accused of criminal attempt, the state must prove beyond
a reasonable doubt that an accused who acted with the kind of culpability otherwise
required for the offense
(1) [i]ntentionally 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) [a]cts 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) [a]cts 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.
Tenn. Code Ann. § 39-12-101(a)(1),(2),(3) (1991).
To find the defendant guilty of felony murder in this case, the jury had to
find beyond a reasonable doubt that the defendant, acting with the intent to commit a
18
forcible rape, intentionally engaged in actions that would result in a rape, and that
during these acts, the defendant recklessly killed the victim. If the victim consented to
the sexual activity, no attempt to rape occurred, and the defendant cannot be convicted
of felony murder.
The trial court instructed the jury that the essential elements for felony
murder were as follows:
(1) The defendant unlawfully killed the victim, and
(2) That the killing was committed in the perpetration of or
the attempted perpetration of an alleged rape; that is, that
the killing was closely connected to the alleged rape or
attempted rape and was not a distinct or independent
event, and
(3) That the Defendant intended to commit the alleged rape
or attempted rape, and
(4) That the killing was the result of a reckless act by the
Defendant.
While no instruction was provided on the statutory definition of attempt, the trial court
did provide the following charge on circumstantial evidence:
Circumstantial evidence consists of proof of collateral facts
and circumstances which do not directly prove the fact in
issue, but from which that fact may be logically inferred.
When the evidence is made up entirely of circumstantial
evidence, then before you would be justified in finding the
Defendant guilty, you must find that all the essential facts
are consistent with the hypothesis of guilt, as that is to be
compared with all the facts proven.
The facts must exclude every other reasonable theory or
hypothesis except that of guilt, and the facts must establish
such a certainty of guilt of the Defendant as to convince the
mind beyond a reasonable doubt that the Defendant is the
one who committed the offense....
In the light most favorable to the state, the pretrial statement establishes
that the victim penetrated the defendant with his penis and the defendant digitally
penetrated the victim. According to the defendant, the victim then passed out. When
the victim regained consciousness, the defendant handcuffed the victim's arms behind
19
his back and also handcuffed the victim's ankles. At some point, he shaved his pubic
hair. The defendant stuffed a sock into the mouth of the victim, who was highly
intoxicated and lying face down on the floor, and then placed duct tape around the
victim's head and mouth as he attempted to talk. The defendant told officers he then
mounted the victim's back, attempting to achieve an erection, and then wrapped a
T-shirt around the victim's neck and pulled. The defendant did not respond to the
victim's struggles or his choking and did not release his hold until the victim lay
motionless.
While a medical examination of the victim failed to indicate trauma to the
genital or rectal areas, the defendant admitted that he shaved the unconscious victim’s
pubic area without consent. The defendant, some fifteen years older than the victim,
claimed that the sexual penetration and the bondage were consensual but
acknowledged that the victim, who had no known history of homosexuality, was very
drunk. A medical examination established the victim’s blood alcohol level to be .19 at
the time of his death. The proof suggests that the alcohol level could have been higher
prior to his death; the defendant's concession that the victim had lost consciousness
before the second sexual encounter tends to corroborate that.
When he discovered that the victim was not breathing, the defendant
disposed of the victim’s wallet in a nearby river and discarded his shirt, boots, and
backpack into the dumpster at his workplace. On the following evening, the defendant
drug the body to his car, placed it in the trunk, and drove to a remote location before
disposing of the body. The defendant cleaned any traces of the incident and, when first
questioned by police, the defendant denied any knowledge of the victim’s death or
whereabouts. A second statement to police was equally untruthful.
20
Initially, the evidence establishes at least a reckless killing. By
continuously pulling on a T-shirt wrapped around the neck of the struggling, choking
victim, the defendant caused his death by consciously disregarding a substantial and
unjustifiable risk. The defendant acknowledged his failure to release his hold until the
victim ceased to move. The jury had a rational basis for determining the presence of
an adequate mens rea.
Secondly, even though a medical examination was unsuccessful in
confirming any sexual penetration of the victim, the defendant’s statement, if believed,
established an intentional penetration or attempted penetration of the victim that
eventually resulted in the strangulation of the victim. The jury is entitled to utilize its
common sense in evaluating the entirety of the evidence. In our view, the jury had a
rational basis for determining that force or coercion was used or that the victim,
because of his level of intoxication, was too “mentally incapacitated or physically
helpless” to offer resistance. Tenn. Code Ann. § 39-13-503. Despite the vigorous
claims on the part of the defendant that the sexual encounters were completely
consensual, many of the surrounding circumstances suggest otherwise as to the
second encounter. Alcohol overuse had resulted in the loss of consciousness of the
victim at one point. The jury could have reached a verdict of guilt for a reckless killing
during the perpetration of a rape or attempted rape.
Thirdly, the jury could have reasonably concluded from the evidence that
the defendant bound and gagged an unconscious victim, mounted the victim, and
pulled the T-shirt which was wrapped around his neck until he died. The jury could infer
that restricting the victim's freedom of movement, shaving pubic hair without permission
and subduing possible cries for help were substantial steps towards penetration of the
victim. It might properly determine that the restraint on the victim implied force or
21
coercion. See State v. McKnight, 900 S.W.2d 36 (Tenn. Crim. App. 1994) (force could
be found from the defendant holding the victim down). There were unexplained injuries
to the fingertips of the victim. The jury could also have reasonably concluded from the
medical evidence that the victim was either “mentally incapacitated or physically
helpless.” It could have rationally disregarded the claim that the victim consented to the
encounter and at the same time accredited other portions of the defendant's statement.
The concealment of the body and disposal of the body, the wallet and the
other personal items of the victim were all corroborative of guilt, tending to refute the
claim of consent. Ashcraft v. Tennessee, 327 U.S. 274, 278, 66 S. Ct. 544, 546
(1946)(willful concealment of material facts relating to crime is considered evidence of
guilt). So was lying to the police. “[S]tatements denying guilt followed by a confession
... may carry the strongest implications of a guilty knowledge.” Id. The evidence, when
considered in the light most favorable to the state, is sufficient to support a felony
murder verdict. A rational trier of fact, in the opinion of the majority, could have found
the essential elements of the crime beyond a reasonable doubt.
III. Issues Relating to the Defendant’s Statements
A. Motion to Suppress
The defendant contends that both his final oral and written statements
were given in violation of his rights under the United States and Tennessee
constitutions. The state, on the other hand, argues that the defendant knowingly and
voluntarily waived his Miranda rights and that he never invoked his right to counsel as
a protection against self-incrimination. See Miranda v. Arizona, 384 U.S. 436, 86 S. Ct.
1602 (1966). After a careful review of the record and the applicable law, we find the
actions of the authorities in this case did not violate the defendant’s constitutional rights
as guaranteed under the Fifth Amendment of the United States Constitution and Article
22
1, Section 9 of the Tennessee Constitution.6
Evidence presented at the hearing on the motion to suppress indicates
that at approximately 11:30 p.m on the night of January 9, 1995, the defendant agreed
to accompany two police officers to the station for further questioning in regard to the
death of Joey Ladd. Although the equipment for videotaping the interview
malfunctioned, a tape recorder preserved the audio portion. The defendant read and
signed a standard form waiving his constitutional rights. About five minutes into the
interview and before he made any incriminating statements, the defendant said, “I’m
sorry, I’m just wondering if I should have a lawyer.” This statement on the tape is
followed by a long blast of static that lasts for several seconds. When questioned about
what transpired during this time, Detective Warf conceded that he did not recall all that
he had said. However, he knew that he had asked the defendant, “Do you need an
attorney to help you tell the truth?” and that the defendant had replied, “No.” The
defendant, who testified at the suppression hearing, did not contradict Warf’s
testimony. He recalled nothing of what was said except the single question to which
the detective testified. The record indicates that the interview began sometime around
midnight and that the defendant began his written statement at approximately 3:00 a.m.
During the interview, the defendant refused the first offer of something to drink but
6
We note that the defendant’s Sixth Amendment right to counsel is not
implicated in this case. Davis v. United States, 512 U.S. 452, ---, 114 S. Ct. 2350,
2354 (1994). A defendant's Sixth Amendment right to counsel attaches when
“formal adversary judicial proceedings ” begin. Moore v. Illinois, 434 U.S. 220, 266
(1977); Kirby v. Illinois, 406 U.S. 682, 688 (1972). The Court has not, however,
specified the precise point at which those proceedings begin. Generally, a mere
arrest will not trigger the Sixth Amendment right to counsel at a pretrial
confrontation. Moore, 406 U.S. at 228. In Tennessee, the initiation of adversary
proceedings begins with either a formal charge such as an arrest warrant, at the
time of the preliminary hearing if there was no formal warrant, or by indictment or
presentment. State v. Bush, 942 S.W.2d 489 (Tenn. 1997) (citing Mitchell v. State,
593 S.W. 2d 280, 286 (Tenn.), cert. denied, 449 U.S. 845 (1980)).
23
accepted a second offer at the conclusion. The defendant did not ask to leave, and,
other than the one question concerning an attorney, the record contains no indication
that the defendant expressed any further desire to talk to an attorney or that he was
coerced in any way.
At the conclusion of the suppression hearing, the trial court found that the
defendant made an equivocal request for an attorney, that the detectives made no
attempt to clarify the intent of the defendant’s statement, and that the defendant
proceeded to give his statement without duress or intimidation. Based on the totality
of the circumstances, the trial court concluded that the defendant gave his statement
knowingly and voluntarily after a valid waiver of his constitutional rights.
The standard of review applicable to suppression issues is well
established. When the trial court makes a finding of facts at the conclusion of a
suppression hearing, the facts are accorded the weight of a jury verdict. State v.
Stephenson, 878 S.W.2d 530, 544 (Tenn. 1994). These facts are binding upon this
court unless the evidence in the record preponderates against the findings of the trial
court. State v. Odom, 928 S.W.2d 18, 23 (Tenn. 1996); see also Stephenson, 878
S.W.2d at 544.
Questions of credibility of witnesses, the weight and value
of the evidence and resolution of conflicts in evidence are
matters entrusted to the trial judge as the trier of fact. The
party prevailing in the trial court is entitled to the strongest
legitimate view of the evidence adduced at the suppression
hearing as well as all reasonable and legitimate inferences
that may be drawn from the evidence. So long as the
greater weight of the evidence supports the trial court’s
findings, those findings shall be upheld.
Odom, 928 S.W.2d at 23. The only question we must address is whether the police
officers’ failure to clarify the defendant’s ambiguous request violated his right to the
assistance of counsel, as recognized by Miranda and Edwards v. Arizona, 451 U.S.
24477, 101 S. Ct. 1880 (1981).
It is undisputed that when a defendant clearly requests an attorney during
custodial interrogation, further questioning by the police in the absence of an attorney
is constitutionally prohibited. Edwards, 451 U.S. at 485, 101 S. Ct. at 1885. Our
supreme court has previously held that, “when a suspect makes an ambiguous or
equivocal request for counsel, further questions by officers must be limited to clarifying
the suspect’s desire for an attorney.” Stephenson, 878 S.W.2d at 548. However,
several months after Stephenson was decided, the United States Supreme Court
addressed the issue of ambiguous requests for counsel. The Court stated that
Of course, when a suspect makes an ambiguous or
equivocal statement it will often be good police practice for
the interviewing officers to clarify whether or not he actually
wants an attorney . . . . but we decline to adopt a rule
requiring officers to ask clarifying questions. If the
suspect’s statement is not an unambiguous or unequivocal
request for counsel, the officers have no obligation to stop
questioning him.
Davis v. United States, 512 U.S. 452, ____, 114 S. Ct. 2350, 2356 (1994) (emphasis
added). The declared effect of Davis is that “[u]nless the suspect actually requests an
attorney, questioning may continue.” Davis, 512 U.S. at ____, 114 S. Ct. at 2357.
In State v. Huddleston, 924 S.W.2d 666 (Tenn. 1996), our supreme court
revisited the issue. In Huddleston, the defendant claimed that his refusal to sign the
waiver of rights form constituted an invocation of his Fifth Amendment right to counsel.
Id. at 669. The Huddleston court cited Davis for the proposition that when a suspect
does not make a clear and unambiguous request for an attorney, the police need not
terminate the interrogation. Huddleston, 924 S.W.2d at 669-670. The Tennessee
Supreme Court stated as follows:
In Miranda, the Supreme Court did not adopt a rigid
formula for invocation of the Fifth Amendment right to
counsel. Recently in Davis v. United States, 512 U.S. 452,
25
114 S. Ct. 2350, 129 L.Ed.2d 362 (1994), however, the
Court stated that “[i]nvocation of the Miranda right to
counsel requires, at a minimum, some statement that can
be construed to be an expression of a desire for the
assistance of an attorney.” Id. ___ U.S. at ___, 114 S. Ct.
at 2355. (internal quotations omitted). “Although a suspect
need not speak with the discrimination of an Oxford don”
the Court emphasized that a suspect “must articulate his
desire to have counsel present sufficiently clearly that a
reasonable officer would understand the statement to be a
request for an attorney.”
Huddleston, 924 S.W.2d at 669-70 (emphasis added). Therefore, the court concluded
that if a defendant knowingly and voluntarily waives his Miranda rights, the police may
continue questioning the suspect until and unless the suspect clearly requests an
attorney. Id.We note that Huddleston was decided under the Fifth Amendment to the
United States Constitution. The opinion does not mention Article 1, Section 9 of the
Tennessee Constitution. W e are also aware that our supreme court has held that
Article I, Section 9 of the Tennessee Constitution provides similar but broader
protection for an accused than does the Fifth Amendment. See State v. Crump, 834
S.W.2d 265, 268 (Tenn.), cert. denied, 506 U.S. 905, 113 S. Ct. 298 (1992); see also
State v. Farmer, 927 S.W.2d 582, 593-594 (Tenn. Crim. App. 1996). 7 Crump,
however, was a case in which the defendant had invoked his right to be silent rather
than the right to counsel and was decided before the United States Supreme Court’s
decision in Davis.
7
State v. Farmer was decided prior to the supreme court’s decision in
Huddleston. The opinion does not mention the United States Supreme Court’s
decision in Davis. Farmer, 927 S.W.2d at 593-594. The court cited Stephenson for
the proposition that when a suspect makes an equivocal request for counsel, the
officers must limit future questions to those needed to clarify the request. However,
the court remanded the case to the trial court for determination of whether the
defendant made a request for counsel, equivocal or not. Farmer, 927 S.W.2d at
594.
26
The right to counsel under the Fifth Amendment as established by
Miranda is a procedural safeguard and, unlike the privilege against self-incrimination
itself, is not independently a constitutional right. Michigan v. Tucker, 417 U.S. 433,
443-444, 94 S. Ct. 2357, 2363, 2364 (1974). We cannot say that our supreme court’s
statement that the Tennessee Constitution is more protective of the privilege against
self-incrimination than the Fifth Amendment is applicable in the context of a procedural
safeguard.
In State v. Jack Jay North, Jr., No. 02C01-9512-CC-00369 (Tenn. Crim.
App., Nashville, Dec. 9, 1996), perm. app. denied (Tenn. 1997), the proof indicated that
the defendant asked the detective if he needed an attorney. Jack Jay North, Jr., slip
op. at 31. The court considered the request to be equivocal and, based on the
holdings in Huddleston and Davis, held, under the state and federal constitutions, that
“because the appellant knowingly and voluntarily waived his Miranda rights, [the police]
could continue questioning the appellant ‘until and unless [the appellant] clearly
request[ed] an attorney.’” State v. Jack Jay North,Jr., slip op. at 32. The Tennessee
Supreme Court denied North’s application for permission to appeal.8
8
In State v. John M. Ake, No. 01C01-9603-CC-00094 (Tenn. Crim. App.,
Nashville, June 6, 1997), app. denied (Tenn. 1998), the lead opinion written by
Judge Joe G. Riley followed the lead of North and concluded that our supreme court
approved the holding of Davis in Huddleston and that the court gave no indication
that Article I, Section 9 of the Tennessee Constitution would require a different
result. John M. Ake, slip op. at 6. Therefore, Judge Riley found that the detectives
had no obligation to clarify the defendant’s ambiguous request and that neither his
federal nor state constitutional rights had been violated. Judge Thomas T. Woodall
concurred in the results but stated that the defendant’s request was sufficiently clear
that a reasonable police officer should have understood his statement to be a
request for an attorney. Id., slip op. at 4 (Woodall, J., concurring). Judge Joseph M.
Tipton wrote separately to dissent in the conclusion drawn in the lead opinion. He
did not agree that the defendant’s remarks were an unequivocal request for counsel
but argued that Stephenson remains binding authority with respect to Article I,
Section 9 of the Tennessee Constitution. John M. Ake, slip op. at 7 (Tipton, J.,
dissenting). However, all three panel members agreed that admission of the
defendant’s confession was, at most, harmless beyond a reasonable doubt. The
supreme court denied Ake’s petition for permission to appeal.
27
Although our supreme court did not tacitly overrule the Stephenson rule
requiring the police to clarify an equivocal request for attorney, it adopted the Davis rule
in the context of Huddleston. Moreover, even though the court agreed that “courts
should give a broad interpretation to a suspect’s request for counsel,” this statement
refers to the fact determination of whether a given request is equivocal and not to any
broader interpretation of a defendant’s rights to counsel under Article 1, Section 9 of
the Tennessee constitution than those that flow from the Fifth Amendment.9 Nothing
in either Huddleston or Stephenson implies that the Tennessee constitution provides
greater protection of a defendant’s right to counsel during questioning than does the
Fifth Amendment. Crump, as noted above, does not involve the right to counsel. The
supreme court declined to review the decision in North in which this court concluded
that Davis applied to the Tennessee Constitution as well the Fifth Amendment. Our
intermediate court is bound by the decisions of our supreme court.
Therefore, we examine the trial court’s denial of the defendant’s motion
to suppress his statements according to the rule adopted in Huddleston. The trial judge
found that the defendant’s request was ambiguous and that the police officers who
were interrogating the defendant did not attempt to clarify the statement. The record
does not preponderate against these findings. In fact, the defendant apparently
9
The entire statement reads:
Because we agree that courts should give a broad
interpretation to a suspect’s request for counsel, we
conclude that the defendant’s question herein constituted
an equivocal invocation of the right to counsel that limited
further interrogation to questions clarifying his desire for
an attorney. Agent Davenport clarified the defendant’s
ambiguous statement by informing him that an attorney
was immediately available if he wished to consult with
him. . . As a result there was no violation of either the
defendant’s federal or state constitutional right to
counsel.
State v. Stephenson, 878 S.W.2d at 548.
28
decided that he did not want an attorney because he proceeded to talk to the officers
for the next several hours without again requesting counsel.10 The trial judge also
found that the defendant knowingly and voluntarily waived his constitutional rights and
that the police did not coerce or intimidate him. The record supports these conclusions
as well.
It would certainly be better practice for the interviewing officers to clarify
whether or not a defendant actually wants an attorney. Clarifying questions help
protect the rights of the suspect and will minimize the chances that a subsequent
judicial determination will suppress the confession. See Davis, 512 U.S. at ____, 114
S. Ct. at 2356. The static on the tape following the defendant’s comment is troubling;
however, both the detective and the defendant gave the same account as to what
followed, and the taped interview confirms the trial court’s finding that the defendant
was willing and even eager to unburden himself of the weighty guilt associated with the
events that led up to this homicide. The defendant, a well-educated, articulate adult,
never mentioned an attorney again during the four-hour interview. The defendant
knowingly and voluntarily waived his Miranda rights, and, absent a clear request for an
attorney, under Huddleston, the police were not required to clarify his statement nor to
cease questioning. The trial court did not err in denying the defendant’s motion to
suppress his statements.
B. Failure to Give Jury a Curative Instruction
The detectives who questioned the defendant frequently asked compound
questions and interjected their own personal comments into their questions. For
10
At the suppression hearing, the defendant testified that he thought his
statement had offended Detective Cunningham, but he does not say that he was
intimidated, coerced, or even cajoled into giving his statement without an attorney
present.
29
example, at one point, the following colloquy took place:
Detective Gage: Now, I am just,
I’m just totally
wanting to know
what happened
on these fingers.
You put him,
wait, well we’ll
get ba ck to
those. When did
you realize that
he was dead?
He’s kicking, he’s
squirming, he’s
fighting, he’s
grunting and all
of a sudden it
stops. Now it’s
going to get
slower. It’s going
to take less than
five seconds for
him to die or for
him to pass out
where he’s not
struggling
anymore. Ten,
fifteen tops.
Young: Yeah.
Before the taped interview was played for the jury, defense counsel requested that the
trial court instruct the jury that the comments and statements made by the detectives
during the interrogation to which the defendant made no direct response were not to
be taken as evidence. The prosecutor objected to the defense request because when
a witness responds “yes” to a question, the witness has adopted the statement. The
trial court did not give the instruction. On appeal, the defendant contends that the lack
of a curative instruction denied him a fair trial.
The defendant correctly points out that the detective’s interviewing
techniques often failed to elicit clear responses. There were frequent interjections of
conclusory statements. On the other hand, courts frequently admit into evidence tape
30
recordings of telephone calls, drug transactions, and interrogations involving not just
the defendant but other parties as well. Tennessee law does not require that a trial
court advise the jury to ignore all parts of a taped conversation other than the
defendant’s statements. The jury is to sort out the context of the recorded conversation
and judge the weight of what it hears. See State v. Beasley, 699 S.W.2d 565, 569
(Tenn. Crim. App. 1985); State v. Harris, 637 S.W.2d 896, 898 (Tenn. Crim. App.
1982); State v. Lee, 618 S.W.2d 320, 322-323 (Tenn. Crim. App. 1981); State v. Smith,
612 S.W.2d 493, 498 (Tenn. Crim. App. 1980).
In this case, however, the trial court’s disinclination to redact the police
officers’ conclusory statements from the defendant’s confession or, in lieu of a
redaction, its failure to provide the jury with a curative instruction, was erroneous. In
State v. Jones, 598 S.W.2d 209, 223 (Tenn. 1980), abrogated by State v. Shropshire,
874 S.W.2d 634 (Tenn. Crim. App. 1993), superseded by statute State v. Latham, 910
S.W.2d 892 (Tenn. Crim. App. 1995), a taped conversation between a special agent
and the defendant was admitted at trial; the defendant’s statements were deemed
admissions and thus exceptions to the hearsay rule. The trial court classified as non-
hearsay the agent’s statements because they were not admitted for their truth. In fact,
the trial court found that the agent’s statements were actually false and no error
resulted from their admission. The supreme court cautioned that jury instructions and
redaction were necessary to avoid undue prejudice:
Applying these rules to the instant case, we hold that the
tape recordings and compared transcripts are admissible
and may be presented in evidence by any witness who was
present during their recording or who monitored the
conversations, if he was so situated and circumstanced
that he was in a position to identify the declarant with
certainty, and provided his testimony in whole, or in part,
comports with other rules of evidence.
In all such cases the jury should be instructed that
only the statements, admissions and declarations of the
declarant may be considered in the question of guilt or
31
innocence. Further any statement made by a nontestifying
party to the conversation which tends to be prejudicial to
the defendant must be redacted, unless admissible under
some other rule of law.
Jones, 598 S.W.2d at 223 (emphasis added).
In State v. Bowling, 649 S.W.2d 281 (Tenn. Crim. App. 1983), a panel of
our court held that admission of transcripts of the defendant’s confession that also
contained hearsay by police officers alleging that the defendant had committed other
acts of child abuse was erroneous. Id. at 283. In Bowling, this court ruled that the
“irrelevant and prejudicial comments and questions should have been redacted
because they were denied by [the defendant], not included in the indictment, and not
established in any manner by the State’s evidence.” Id. This court found the error to
be harmless because of the defendant's confession and the other proof presented by
the state:
We do not condone in any fashion the manner in which the
defendant’s confession was admitted into evidence. If the
case against him had not been made out so positively by
his own confession and the testimony of other witnesses,
we think admission of his unredacted interview with the
police officer, riddled with hearsay and innuendos ... would
warrant reversal.
Id. at 284 (emphasis added).
By the use of the standard established in Jones, a curative instruction
would have been warranted in this case. In our view, the following types of comments
made by police officers during the interview of the defendant should have been
redacted:
Officer 1: The second incident his fingers. He’s
handcuffed. I want you to look at that finger right there.
That’s going to be his right hand. All four fingers of that
hand is ground off. Okay. Or rubbed off. This didn't
happen on the pavement. This didn’t happen on the
carpet. Where did this happen [be]cause you had to clean
this off. This happened in your apartment? He was
32
grabbing the chink in between the walls?
Defendant: No he couldn’t have. We were in the middle of
the floor.
Officer 1: Where did this happen on his fingers? Where
did you clean this mess up at in your apartment? He did do
this on carpet. This is not the best photo that we’ve got but
this stuff is gone. [Officer 2], this isn’t, this isn’t, this isn’t
worn rub on a carpet.
Officer 2: Ends of his finger is gone.
Officer 1: This is meats missing.
Defendant: I don’t know, I really don’t. I mean, I didn’t, I
didn’t clean anything up upstairs, I didn’t....
***
Officer 1: Was there any oral sex?
Defendant: [no]
Officer 1: There was no oral sex between the two of you at
all?
Defendant: [no]
Officer 1: There was just an[a]l sex. Are you not into the
oral sex?
Defendant: No, no, no....
***
Officer 1: Now, I, I am just totally wanting to know what
happened on these fingers. You put him, wait, we'll get
back to those. When did you realize that he was dead.
He’s kicking, he’s squirming, he’s fighting, he’s grunting
and all of a sudden it stops. Now it’s going to get slower.
It’s gonna take less than five seconds for him to die or for
him to pass out where he’s not struggling anymore. Ten,
fifteen tops.
Defendant: Yeah.
***
Officer 1: And you, now did you roll him down onto the
sleeping bag or did you then get the sleeping bag. Now,
I’m sure in between there, there’s things like, oh, my God
what am I going to do and there’s some panic times and I
know you’re not going to say well, five minutes later I put
the sleeping bag, got the sleeping bag and put him in it, but
so we won’t, we won’t worry about what you were thinking
about in between.
***
Officer 1: You got him out of the upstairs cause you didn’t
want to look at him? Tired of him lying around.
Defendant: No.
Officer 1: Not making fun now, I’m trying to lighten this up
a little bit, we’ve had a rough night.
***
Officer 1: You wanted to, you wanted to tell somebody
maybe not Warren but you wanted to get this off your chest
but you didn’t have time. You were still in a panic about
what you were going to do with him. You got off work at
11:00 P.M.? Where did you go?
Defendant: I went back home.
***
33
Officer 1: W hat did you do for Joey anything?
Defendant: What did I do for him?
Officer 1: Uh-hum. Okay, you’ve just put Joey down this
embankment and you’ve covered him up with the sleeping
bag. Did you just jump back up that hill and run back to the
car and leave? Did you say a prayer?
Defendant: I [pause] cried from all of this.
These types of comments impermissibly suggest directly to the jury the conclusions
made by the investigating officers who did not testify at trial. There is neither a
confirmation nor a denial by the defendant to many of the suggestive questions. The
compound nature of the officers’ statements make the responses particularly difficult
to interpret. The better practice would have been to redact the statements, editing
the accusations of the police while, at the same time, making a special effort to
preserve the nature and content of the defendant’s statements, admissions, and
declarations.
Some of the factual conclusions reached by the officers, however, were
in some form or fashion supported by the defendant’s verbal and written statements or
circumstances otherwise made known to the jury. The only exceptions are the officer's
comments about the injuries to the victim’s fingertips, the precise cause of which state
experts could not determine, and the length of time it took for the victim to die. In the
context of the entire trial, this error, standing alone, would most likely qualify as
harmless. See Tenn. R. App. P. 36(b).
While the pretrial statements of the defendant were critical, much of the
circumstantial evidence tended to discredit the veracity of the defendant and tended to
corroborate the state's theory of guilt. The circumstances of the killing presented a
difficult proposition for a rational, dispassionate resolution of the issues. Neither the
accusatory remarks of the officers nor the implications of condemnation fairly
substituted for actual statements of the accused.
34
C. Allowing the Tape-recorded Statement to go to Jury Room
The defendant contends that, because Rule 30.01 of the Tennessee
Rules of Criminal Procedure provides that depositions may not be sent to the jury room
during deliberation, the trial court erred by sending the audio-tape of his statement
along with other trial exhibits. He argues that the tape-recorded statement is “just like
a deposition” and that he was unduly prejudiced by its submission to the jury.
The rule states that “[u]pon retiring to consider its verdict, the jury shall
take to the jury room all exhibits and writings which have been received in evidence,
except depositions, for their examination during deliberations, unless the Court, for
good cause, determines that an exhibit should not be taken to the jury room.” Tenn.
R. Crim. P. 30.1 (emphasis added). The accompanying comments state that this rule
is mandatory in criminal cases and that a judge must send with the jury all exhibits
unless the judge determines that there is good cause for excluding them. Tenn. R.
Crim. P. 30, advisory commission comments. Therefore, absent a finding of good
cause, the rule clearly contemplates that a trial court will send all exhibits and writings
except depositions to the jury room during deliberations.
We are not convinced by the defendant’s contention that a tape-recorded
statement is the equivalent of a deposition for the purposes of this rule. Depositions
are transcripts of sworn testimony given with the assistance of counsel and in the
presence of a court reporter. When a deposition is entered into evidence, it becomes
part of the body of testimony as though it had been presented at trial. If the deposition
were taken to the jury room during deliberations, a danger exists that the jury might
place too great an emphasis on this one portion of the testimony. A tape-recorded
statement is more akin to a videotape of a crime scene. The rule requires its presence
35
in the jury room during deliberation unless the trial judge has good cause for excluding
it.
Nonetheless, the defendant has, for the reasons stated herein,
demonstrated that good cause exists. The advisory committee proposed three reasons
under Rule 30.1 which might qualify as good grounds for the exclusion of an exhibit:
1. The exhibit may endanger the health and
safety of the jurors; 11
2. The exhibit may be subjected to improper
use by the jury; or
3. A party may be unduly prejudiced by the
exhibit’s submission.
Id. As indicated, the unredacted audiotape contained several accusations by the
police. The compound nature of many of the questions precluded unambiguous
responses. The tape qualifies as prejudicial. Absent any other error in the record, the
error may have been harmless.
IV. Expert Testimony
Dr. Charles Harlan, the state medical examiner, conducted the autopsy.
The defendant complains that much of the doctor’s testimony was based on
speculation and conjecture and should have been excluded because the doctor failed
to give his opinion based upon a reasonable degree of medical certainty or probability.
The defendant also contends that the trial court erred in allowing Dr. Harlan to respond
to a hypothetical question proposed by the prosecutor and by refusing to allow his
answer to a hypothetical proposed by defense counsel. We first consider the general
standards applicable to the admission of expert testimony in Tennessee.
11
We note that the trial judge declined to send the blood-stained sleeping bag
because it might be a hazard to the jurors’ health.
36
A. Admissibility of Expert Testimony
The specific rules of evidence that govern the issue of admissibility of
scientific proof in Tennessee are Tennessee Rules of Evidence 702 and 703 that state:
If scientific, technical, or other specialized knowledge will
substantially assist the trier of fact to understand the
evidence or to determine a fact in issue, a witness qualified
as an expert by knowledge, skill, experience, training, or
education may testify in the form of an opinion or
otherwise.
Tenn. R. Evid. 702.
The facts or data in the particular case upon which an
expert bases an opinion or inference may be those
perceived by or made known to the expert at or before the
hearing. If a type reasonably relied upon by experts in the
particular field in forming opinions or inferences upon the
subject, the facts or data need not be admissible in
evidence. The court shall disallow testimony in the form of
an opinion or inference if the underlying facts or data
indicate lack of trustworthiness.
Tenn. R. Evid. 703.
The Tennessee Supreme Court has recently considered the standard for
determining the admissibility of scientific evidence in two recent cases. See State v.
Shuck, 953 S.W.2d 662 (Tenn. 1997), and McDaniel v. CSX Transportation, Inc., 955
S.W.2d 257 (Tenn. 1997). Although the McDaniel court was considering whether
Tennessee would adhere to the admissibility standards of Frye v. United States, 293
F.1013 (D.C. Cir. 1923) or adopt the holding in Daubert v. Merrell Dow
Pharmaceuticals, 509 U.S. 579, 113 S. Ct. 1286 (1993), the analysis in McDaniel is of
assistance in resolving the issues before us.
In McDaniel, the supreme court concluded that to determine “the standard
of admissibility of scientific evidence requires an analysis of the unique language found
in Rules 702 and 703 of the Tennessee Rules of Evidence.” McDaniel, 955 S.W.2d at
264. Rule 702, the court noted, requires that the evidence “substantially assist the trier
37
of fact,” while the federal rule requires only that the evidence “assist the trier of fact.”
Id. Therefore, the court concluded that the probative force of expert testimony must
be stronger before it is admitted in a Tennessee court than under the federal rules. Id.Similarly, according to Rule 703, a Tennessee court “‘shall disallow testimony in the
form of an opinion or inference if the underlying facts or data indicate a lack of
trustworthiness.’” Id. (quoting Tenn. R. Evid. 703). Even if expert testimony tends to
provide substantial assistance to the jury, the testimony is admissible only if it is based
upon reliable facts or data. Shuck, 953 S.W.2d at 668.
Generally, the admission of expert testimony is largely entrusted to the
sound discretion of the trial court. State v. Ballard, 855 S.W.2d 557, 562 (Tenn. 1993).
The trial court’s decision may be overturned on appeal upon a showing that the trial
court abused its discretion. Id. Our supreme court has concluded that “an appellate
court should find an abuse of discretion when it appears that a trial court applied an
incorrect legal standard or reached a decision which is against logic or reasoning that
caused an injustice to the party complaining.” Shuck, 953 S.W.2d at 669 (citing Ballard
v. Herzke, 924 S.W.2d 652, 661 (Tenn. 1996)).
With these standards in mind, we have addressed the defendant’s issues
separately below.
B. Speculation and Conjecture
The defendant argues that much of the medical examiner’s testimony was
inadmissible because he was not required to state his opinion based upon “a
reasonable degree of medical certainty.” Specifically the defendant objects to the
following:
Q: Were there any other marks, doctor, that in
your opinion could have been caused by
38
struggle?
Q: Will that type of mark be consistent with a
struggle against that bond?
Q: Sometime prior to death, could that blood
alcohol level have been higher?
Q: Based on the autopsy results, the blood
alcohol level, would it be possible for Mr.
Ladd to have been rendered unconscious
from alcohol sometime prior to his death?
We find that the trial court did not abuse its discretion in admitting responses to the first
two questions. Responses to the remaining questions should have been excluded.
In both criminal and civil cases, medical doctors have traditionally been
asked to give an opinion as to the cause of an illness or injury based on “a reasonable
degree of medical certainty.” However, the test adopted in Lindsey v. Miami
Development Corp., 689 S.W.2d 856 (Tenn. 1985), is more properly stated as requiring
proof “that it is more likely than not” that the actions caused the results. 689 S.W.2d
at 861. In Kilpatrick v. Bryant, 868 S.W.2d 594 (Tenn. 1993), the Tennessee Supreme
Court specifically affirmed the holding of Lindsey which requires a reasonable basis for
a conclusion concerning causation. Kilpatrick v. Bryant, 868 S.W.2d at 602. Causation
in fact, the court stated, is a matter of probability, not possibility. Id. (citing White v.
Methodist Hospital South, 844 S.W.2d 642, 648-49 (Tenn. App. 1992)).12 Expert
testimony that a certain thing is possible is no evidence at all, and speculation by an
expert is no more valid than the jury’s own speculation as to what is or what is not
12
Both Lindsey and Kilpatrick were medical malpractice cases. However, the
same standards have been applied in worker’s compensation claims and in cases
involving automobile accidents. See e.g., Aetna Casualty & Surety Co. v. Long, 569
S.W.2d 444 (Tenn. 1978)(worker’s compensation for exposure to dust); Knoxville
Poultry & Egg Co., Inc. v. Robinson, 477 S.W.2d 515 (Tenn. 1972)(worker’s
compensation for bronchitis); Primm v. Wickes Lumber Co., 845 S.W.2d 768 (Tenn.
App. 1992)(motor vehicle accident); John Carl Reel and Melba Reel v. Itzel M.
Crawley, No. 03A01-9402-CV-0071 (Tenn. App., Knoxville, Aug. 2, 1994)(see
concurrence by J. Susano) (automobile accident).
39
possible. Lindsey, 689 S.W.2d at 862. Medical testimony indicating that a certain
condition is “possible” generally will not satisfy the requirement of Rule 702 that an
expert witness’ testimony “substantially assist the trier of fact.” See Primm v. Wickes
Lumber Co., 845 S.W.2d at 770.
In criminal cases, experts have at times testified to the cause of injuries
or other conditions “to a reasonable degree of medical certainty.”13 However, nothing
in Tennessee law requires that those or any other specific words be recited in order for
expert testimony to be admissible. In State v. Coker, 746 S.W.2d 167 (Tenn. 1987),
the supreme court upheld a trial court’s exclusion of a medical doctor’s testimony as it
fell short of the degree of medical certainty necessary for admissibility required in
Lindsey. Coker, 746 S.W.2d at 174 (citing Lindsey v. Miami Development Corp., 689
S.W.2d 856, 862 (Tenn. 1985)). The true test in Lindsey is whether the given conduct
or circumstances more likely than not caused the injury, condition or other result.
Kilpatrick v. Bryant, 868 S.W.2d at 602; see also State v. Mark Fortson, No. 268, slip
op. at 10 (Tenn. Crim. App., Knoxville, Feb. 2, 1990).
Under the Rules of Evidence, the question is when is the medical
testimony so speculative that it is no longer of substantial assistance to the jury or is in
danger of being misleading or confusing. Tenn. R. Evid. 403, 702, 703. The supreme
court has applied the same standard in criminal cases as in civil cases. See Coker, 746
S.W.2d at 174. We must determine, therefore, whether Dr. Harlan’s responses were
sufficiently certain so that they could provide substantial assistance to the jury in
resolving a disputed question of fact or in understanding the evidence. See Primm v.
13
State v. Maruja Paquita Coleman, No. 01C01-9401-CR-00029 (Tenn. Crim.
App., Nashville, July 31, 1997)(cause of death); Donna Bailey and Darrell Eugene
Helton v. State, No. 03C01-9207-CR-00226 (Tenn. Crim. App., Knoxville, Nov. 22,
1993)(cigarette burns); State v. James P. Anderson, No. 22 (Tenn. Crim. App.,
Knoxville, Nov. 9, 1990)(enlarged vaginal orifice).
40
Wickes Lumber Co., 845 S.W.2d 768, 770-772.
With respect to those questions in which the prosecutor asked whether
there were any other marks that could have been caused by a struggle and whether a
type of mark was consistent with a struggle against a bond, we find the doctor’s
responses were both sufficiently certain and of substantial assistance to the jury.
Although the prosecutor used the words “could have been,” the doctor’s responses
were clear and unequivocal. He described the various wounds in detail and responded
affirmatively that the marks found around the wrists and ankles were consistent with a
struggle against a bond. The testimony was relevant to the issues of intent, consent,
and other questions of material fact. The testimony was not so speculative that it was
not of substantial assistance to the jury. Although the doctor did not specifically state
that it was more likely than not that the wounds were the result of a struggle, we cannot
say that the trial court applied an incorrect legal standard or reached a decision which
is against logic or used reasoning that caused an injustice to the defendant. Melvin
Eugene Shuck, slip op. at 16 (citing Ballard v. Herzke, 924 S.W.2d 652, 661 (Tenn.
1996)).
The medical examiner’s responses to the two questions concerning the
victim’s blood alcohol level are more problematic. In the first, the prosecutor asked,
“Sometime prior to death, could that blood alcohol level have been higher?” The doctor
responded, “It might have been.” In the second, the prosecutor asked, “Based on the
autopsy results, the blood alcohol level, would it be possible for Mr. Ladd to have been
rendered unconscious from alcohol sometime prior to his death?” The response was,
“If he had, prior to his time of death, at any time reached an alcohol level of .21 or
greater, as I previously testified, then he would be subject to nausea, vomiting, and a
comatose state or passing out.”
41
First, the state’s questions lacked certainty as to the time frame covered.
Although the context of the case implies that the prosecutor is speaking of the night in
question, “sometime” is usually insufficient to limit the expert’s consideration to any
specific occasion. Second, a mere possibility, without more, is insufficient to qualify as
an admissible expert opinion. Lindsey, 689 S.W.2d at 852. In this instance, the
prosecutor’s questions invited speculation, and the expert’s responses, not surprisingly,
were indefinite and vague. Evidence that merely makes it possible for a fact in issue
to be alleged or which raises a mere conjecture or suspicion is an insufficient
foundation upon which to base a verdict. Fine v. State, 193 Tenn. 422, 428-429, 246
S.W.2d 70, 72 (Tenn. 1952). Such testimony cannot provide substantial assistance to
the jury and should not be admitted into evidence. The admission of such evidence is
contrary to the reasoning and logic of Rules 702 and 703. Standing alone, however,
these errors may have been harmless.
42
C. Hypothetical Questions
The defendant contends that the trial court improperly allowed the state
to ask a hypothetical question that assumed facts that were not in evidence and that
the trial court also erred in refusing to allow the defense to ask a hypothetical
concerning the effect of alcohol on the deceased and the defendant. We find that
neither question was a proper hypothetical question, and that Dr. Harlan’s responses
should have been excluded in both instances.
It has long been the law in Tennessee that it is not proper for hypothetical
questions to assume facts that are not supported by the evidence. Pentecost v. Anchor
Wire Corp., 662 S.W.2d 327, 328 (Tenn. 1983); Bailey v. State, 479 S.W.2d 829, 835
(Tenn. Crim. App. 1972); Moon v. Johnson, 47 Tenn. App. 208, 222, 337 S.W.2d 464,
470 (1959); Griffin v. State, 578 S.W.2d 654, 658 (Tenn. Crim. App. 1978); Nix v. State,
530 S.W.2d 524, 530 (Tenn. Crim. App. 1975). An appellate court, however, is not
required to search the entire record to determine whether every possible fact is listed
in the question or whether every hypothetical fact is supported by the evidence
presented by the opposing party. Pentecost v. Anchor Wire Corp., 662 S.W.2d at 328-
329. The issue is resolved “by determining whether the question contained enough
facts, supported by evidence, to permit an expert to give a reasonable opinion which
is not based on mere speculation or conjecture and which is not misleading to the trier
of fact.” Id. at 329.
Tennessee’s traditional rule is not inconsistent with the requirements of
the Tennessee Rules of Evidence. Neil P. Cohen, et al., Tennessee Law of Evidence,
§ 705.1, at 477 (3rd Ed. 1995). Although Rule 705 abolishes the requirement of using
a hypothetical question, the rule does not disallow them. Tenn. R. Evid. 705, advisory
commission comments. Rule 703 allows an expert to base an opinion on facts not in
43
evidence if they are of a “type reasonably relied upon by experts in the particular field”
and are trustworthy. Tenn. R. Evid. 703. A trial court may disallow opinions and
inferences if the underlying facts or data are untrustworthy, incomplete, or misleading.
Cohen, Tennessee Law of Evidence, § 705.1 at 477. Of course, an expert’s response
to a hypothetical question “must substantially assist the trier of fact to understand the
evidence or to determine a fact in issue. . .” Tenn. R. Evid. 702. A question based on
untrustworthy or incomplete data or that is misleading will not be of any assistance to
the trier of fact.
In this case, two hypothetical questions were proposed, one by the state
and one by the defense. The trial court allowed the former and disallowed the latter.
After Doctor Harlan had testified to the rate at which alcohol metabolizes in the human
body, the prosecutor asked the following question:
Just hypothetically, then, Doctor, say a period of five hours
passes from the time that a person quits drinking till the
time they die and you receive a result like you did in this
case, based on that, a person weighing approximately 200
pounds, could you estimate what their blood alcohol
content would have been at the point of equilibrium after
they quit drinking?
Defense counsel objected that there were not enough facts in the hypothetical.14 The
trial court overruled his objection, and Dr. Harlan was allowed to testify that a person
whose blood alcohol level at death was .19 and who stopped drinking five hours prior
to death would have a attained a blood alcohol level of .265 grams after consuming the
last drink.
The state’s hypothetical question is based on three facts: (1) that the
14
In his objection, defense counsel noted that the hypothetical did not include
information about the kind of liquor being consumed but made no mention of the
time when the last drink was consumed. The state did not raise the issue of waiver,
and we have decided to address the issue on its merits in the interests of justice.
Tenn. R. App. P. 2.
44
person quit drinking five hours prior to death, (2) that at death the person’s blood
alcohol level was .19 grams, and (3) that the person in question weighed approximately
200 pounds. The victim’s weight and his blood alcohol level are included in the autopsy
records and no one questions their trustworthiness. Dr. Harlan testified to the
metabolization rate of alcohol, a fact usually relied upon by experts in the field.
However, the fact that this hypothetical person quit drinking five hours prior to his death
is unsupported by the record. The defendant testified that the two men continued to
drink throughout the night. Nothing contradicts this statement. Moreover, the record
does not clearly establish the time of death. We must determine whether the question
contained enough facts, supported by evidence, to permit Dr. Harlan to give a
reasonable opinion which was not based on mere speculation and which would be of
“substantial assistance to the trier of fact.” Id. at 329.
This court has previously held that a trial court erred in allowing an expert
to answer a similar question when a vital factual component was not supported by the
evidence. Griffin, 578 S.W.2d at 658-659. In Griffin, the state asked an expert witness
to relate the minimum number of beers persons weighing 115 pounds and 160 pounds
respectively would require before reaching a specific blood alcohol level. The weight
of the defendants, however, was never placed in evidence, and this court held that the
expert’s response was inadmissible. Id.In this instance, a necessary fact to the resolution of a hypothetical
question was unsupported by the evidence. To answer the question, Dr. Harlan was
required to speculate both as to the time the last drink was taken and the time of death.
It is unlikely that the answer to such a hypothetical question would assist the jury in
understanding the evidence or in resolving any disputed factual issues. While the trial
court might have erred in permitting the doctor to respond, this error would not have
45
warranted a reversal. The gravamen of Dr. Harlan’s testimony, in this regard, was to
establish the rate at which the victim was able to metabolize the alcohol.
During cross examination, Dr. Harlan testified that intoxication reduces
one’s judgment, alters the ability to perceive changes in the environment, and increases
the time to react. Defense counsel then proposed the following question:
So it’s entirely possible, isn’t it, Doctor, that if in this case
we have two intoxicated men performing or engaging in
bondage sex, it’s entirely possible for the one who is not in
bondage at a given point in time not to appreciate the
discomfort of his sexual partner since he is intoxicated.
The state objected because the doctor lacked “the information to base that conclusion
on.” When defense counsel conceded that “the information” was not yet in the record
but would come in later, the trial court sustained the objection. We cannot say that the
trial court abused its discretion in refusing to allow the doctor to respond. Although the
jury would ultimately hear the defendant’s statement concerning bondage sex, nothing
concerning the defendant’s degree of intoxication would ever be placed in evidence.
The defendant did not have a blood test during the early morning hours when Joey
Ladd died, and his level of intoxication is a matter of speculation and conjecture. The
trial court did not err in sustaining the state’s objection.
V. Lay Witness Testimony
Over the defendant’s objection, the trial court allowed one of the
investigating officers to give his impression of the defendant’s demeanor during the
interview and to express his opinion as to the nature of the stains on the sleeping bag.
The defendant now argues that the admission of this testimony denied him a fair trial.
After carefully reviewing the record and the applicable law, we conclude that some of
Warf’s responses were improperly admitted.
46
Opinion testimony is generally limited to witnesses who qualify as experts
in the subject matter of their respective testimony. Tenn. R. Evid. 702. Lay witnesses
may express opinions when certain prerequisites are established. Tenn. R. Evid. 701.
This rule, as adopted on January 1, 1990, essentially incorporated existing Tennessee
law. State v. Sparks, 891 S.W.2d 607, 613 (Tenn. 1995). Ordinarily, in order to
preserve the fact-finding function of the jury, a witness should state the evidentiary facts
and allow the jury to draw such conclusions as the facts warrant. Blackburn v. Murphy,
737 S.W.2d 529, 532 (Tenn. 1987). When lay opinion is admissible, Tennessee law
traditionally has required that an opinion be based upon a factual predicate found in
facts admissible in evidence. Sparks, 891 S.W.2d at 613.
As the Advisory Commission to the Tennessee Rules of Evidence notes,
The rule rather specifically circumscribes the area where a
lay witness can testify to opinions as opposed to facts. The
Commission believed that the instances would be rare
where a witness could not convey thoughts to the jury by
enumerating facts, leaving it to the jurors to draw
inferences.
Tenn. R. Evid. 701, advisory commission comments. Before a lay witness may express
an opinion or an inference, the party presenting the witness must establish:
(1) The witness has “personal knowledge” of the facts or
subject matter that forms the basis for the opinion or
inference, Tenn. R. Evid. 602;
(2) The opinion or inference does not require a special
knowledge, skills or training, Tenn. R. Evid. 701(a)(1);
(3) The witness cannot readily and with equal accuracy
and adequacy communicate what the witness has
perceived to the trier of fact without testifying in terms of
opinions or inferences, Tenn. R. Evid. 701(a)(2);
(4) The opinions or inferences expressed by the witness
will not mislead the trier of fact to the prejudice of the
adverse party. Tenn. R. Evid. 701(a)(3).
See Sparks, 891 S.W.2d at 613; State v, Catherine Ward, No. 01C01-9307-CC-00224,
slip op. at 19 (Tenn. Crim. App., Nashville, Feb. 2, 1996).
47
Detective Warf testified that the stains on the sleeping bag appeared to
be blood or other bodily fluids. Such a characterization may be proper if there is no
other way to state such an observation clearly. State v. Brown, 836 S.W.2d 530, 550
(Tenn. 1992). The state relies upon State v. Mabon, 648 S.W.2d 271, 274 (Tenn. Crim.
App. 1982) and Schweizer v. State, 399 S.W.2d 743, 745 (Tenn. 1966), to justify the
admission of the detective’s opinion. In Mabon, however, the officer testified that he
observed what appeared to be blood on a door and on a walkway immediately after a
crime was committed, Mabon, 648 S.W.2d at 274, and the officer in Schweizer reported
that he noticed what appeared to be blood under the defendant’s right arm shortly after
the defendant’s arrest. Schweizer, 399 S.W.2d at 745. In the present case, the
prosecutor handed Detective Warf the sleeping bag and asked him what those stains
appeared to be.15 When the defense objected, the prosecutor replied that Warf had
nine years of experience as a police officer, and “in addition to that, that’s just
something that is within everyone’s common experience.”
We agree with the prosecutor’s statement that almost everyone is familiar
with the appearance of blood stains. Therefore, the members of the jury were as
qualified as Detective Warf to determine the possible origin of a stain that appeared on
a tangible object that was admitted into evidence and that was viewed by the entire jury.
Although it may have been necessary for the officers in Mabon and Schweizer to
characterize what they had seen as “blood” because the jury could not see the stains,
such a characterization was not required in this case. Detective Warf’s opinion
regarding the source of the stains on the sleeping bag should not have been admitted.
This error would not warrant a new trial. The jurors could have easily reached the same
conclusions as Detective Warf.
15
The prosecutor also asked the detective to look at a photograph of the
victim’s head, and the detective testified that the marks appeared to be dried blood.
The defendant has not raised any issue regarding this particular response.
48
The detective’s comments regarding the defendant’s demeanor during
questioning present a closer question. During redirect examination, Detective Warf
testified that sometimes the defendant became “vague,” that he “acted as though he
didn’t want to tell us everything,” and that “it seemed he didn’t want to answer a
question.” In a case decided prior to the adoption of the Tennessee Rules of Evidence,
a defendant’s statement was read aloud at trial. State v. Johnson, 743 S.W.2d 154, 158
(Tenn. 1987). The defendant’s attorney was present when the statement was taken,
and twice during the reading, the police officer referred to his notes and testified that
the appellant appeared to be nervous and asked to confer with his attorney prior to
answering the question. Id. Our supreme court held that “[g]enerally where the
answers to questions are admissible, the demeanor and behavior of the person giving
the statement may be commented upon by witnesses who were present.” Id. In a
more recent case, however, the supreme court held that under Rule 701 a police
officer’s statements that the defendant knew the wrongfulness of his conduct and could
conform his conduct to the law were not admissible. Sparks, 891 S.W.2d at 614. The
court found that the officer had only a very limited opportunity to observe the defendant,
and since the observations on which the officer based his conclusions were adequately
communicated to the jury in other evidence, the detective was in no better position to
draw a conclusion than were the members of the jury. Id. In addition the court noted
with approval the Advisory Committee’s note to Federal Rule of Evidence 701 that
“assertions which amount to little more than choosing up sides, should be excluded as
unhelpful to the jury.” Id.Detective Warf’s comments were unnecessary to the extent that he drew
conclusions from the hesitations and ramblings of the defendant’s responses. Warf
testified that “it seemed like he didn’t want to tell us,” that “he didn’t want to answer a
question,” and that “his response would become vague or he would jump to another
49
issue.” These comments should have been disallowed. The detective, however, was
present at the interview and was able to see the defendant’s facial expression, body
movements, and posture. If the prosecutor had asked the detective to describe those
reactions, descriptions of the defendant’s demeanor may well have assisted the jury in
determining the weight and credibility of the defendant’s statements. While some of
the detective’s remarks were neither descriptive nor concerned with the defendant’s
demeanor,16 that the defendant “appeared calm” is admissible as reflective as
demeanor. The supervision of this kind of testimony is largely discretionary with the
trial court. The testimony that should have been excluded might have had minimal
impact on the jury. The subject matter does relate to the question of redaction, which
has been previously addressed. Thus, the failure to redact was exacerbated by some
of Detective Warf’s testimony.
VI. Admissibility of Crime Scene Videotape and Photographs
The defendant next contends that the trial court erred in admitting into
evidence a videotape showing the victim’s body at the site where it was found, various
photographs showing injuries the victim suffered, and a single photograph of the
contents of the defendant’s refrigerator. He alleges that the video tape and
photographs were of little or no probative value and, therefore, should have been
excluded because their probative value is substantially outweighed by their prejudicial
effect.
Photographs and videotapes of the victim of a homicide are generally
admissible in murder prosecutions if they are relevant to issues on trial. Our supreme
court has held that the “admissibility of photographs lies within the discretion of the trial
16
“Demeanor” is defined as behavior toward others, outward manner, and
conduct, or bearing, mien, and facial appearance. Webster’s Third New
International Dictionary 599 (1993).
50
court whose ruling . . . will not be overturned on appeal except upon a clear showing
of an abuse of discretion.” State v. Banks, 564 S.W.2d 947, 949 (Tenn. 1978). In
Banks, the court listed the following factors that trial courts should consider in
determining the admissibility of photographs of murder victims: (1) the accuracy and
clarity of the photographs and their value as evidence; (2) whether the photographs
were taken before the body was moved, if the position and location is material; (3) the
adequacy of testimonial evidence in relating facts to the jury; and, (4) the need for the
evidence to establish a prima facie case or to rebut the defendant’s contentions.
Banks, 564 S.W.2d at 951. The modern trend vests great discretion in a trial court’s
ruling on the admissibility of photographs. Id. Photographic evidence may be excluded
if its probative value is substantially outweighed by the danger of unfair prejudice or
confusion of the issues or if the evidence would mislead the jury or is needlessly
cumulative. State v. Bates, 804 S.W.2d 868, 878-79 (Tenn. 1991); Tenn. R. Evid. 403.
In this case, neither the photographs of the body nor the videotape were
gruesome or horrifying. The videotape contains no police commentary and shows the
scene where the body was found and its condition. The photographs of the body show
the bruising around the victim’s wrists and ankles, the damage to his fingertips, and a
shallow gash in his head.17 This information is relevant to the material issues of
premeditation, intent, and consent. Although the photographs may have been
somewhat cumulative to other testimony we cannot say that they are needlessly
cumulative, that they misled the jury, or that they were unfairly prejudicial to the
17
We recognize that some of the photographs were taken in the morgue after
the body had been moved and that this weighs against their admissibility. See
Banks, 564 S.W.2d at 951; State v. LeRoy Hall, No. 03C01-9303-CR-00065, slip op.
at 26 (Tenn. Crim. App., Knoxville, Dec. 30, 1996). In this instance, however, the
photographs were taken prior to the autopsy, and the victim had not undergone any
treatment that might have changed the appearance of the injuries. The nature of
the injuries was especially probative of lack of consent and the severity of the acts of
the defendant.
51
defendant. Tenn. R. Evid. 403. The trial court did not err in admitting either the
videotape or the photographs of the body.
The picture of the contents of the defendant’s refrigerator, however,
should have been excluded. The photograph shows the bottom shelf of a refrigerator
which held three bottles and five cans of beer, a green bottle which was identified at
trial as Jagermeister, a large container of Coca Cola, and two other bottles which may
contain fruit juice. The officer testified that he took the picture one week after the
homicide occurred. The state has not demonstrated that the contents of the
defendant’s refrigerator seven days after the victim’s death by strangulation has any
relevance to the issues in this case. The photograph could contribute no information
about events that occurred a week earlier and should not have been admitted.
Admission of the photograph was error.
VII. Testimony of James Andrew Starnes
A. “Lifestyle” Evidence
When the state called James Andrew Starnes, the defendant’s close
friend, to testify at trial, the following occurred on direct examination:
Q. In addition to yourself, would you see other
people over at his apartment that you knew?
A: People from work, yes, sir, sometimes, not always.
Q. Other than you and the people at work, did
you see any other persons over at Mr.
Young’s apartment when you were there?
At this point, defense counsel objected. When the trial court excused the jury, the
prosecutor stated as follows:
I am seeking to elicit testimony that other people that
worked with him were over there.
I am also seeking to elicit testimony that all of the
people that went over there, like the alleged victim in this
52
case, were some ten to 12 to 15 years younger. And
through Mr. Waldron’s cross-examination of the previous
witness, he brought out that Mr. Young was concerned
about the drinking habits of the alleged victim in this case,
thought he needed to be counseled, but I want to show
through this witness that he as well as others went over
there on a regular basis at Mr. Young’s apartment and
drank alcohol, and that this was a similar situation to what
the victim in this case found himself in, and that this alleged
counseling or getting him over there to counsel him about
his partying was just a ploy to get him over to the apartment
and to make his acquaintance.
And I think it is relevant to show that this was not an
isolated event in the lifestyle that Mr. Young led.
Defense counsel argued that the testimony concerned prior bad acts and was
inadmissible under Rule 404(b). The trial judge responded that he did not view it as a
prior bad act. Defense counsel then responded that, in any event, the testimony was
irrelevant, and if it were marginally relevant to any issue in the case, the jury could draw
some highly prejudicial inferences from such testimony. The trial court overruled the
objection. The prosecutor then continued:
Q. Now, Mr. Starnes, back to the fall of 1994, I
believe you testified that you had occasion to
go over to Mr. Young’s apartment at least
twice a week?
A: Yes, sir.
Q: Would that be a fair statement?
A: Yes, sir.
Q: Would that be after work?
A: I worked from 6:00 a.m. to 2:00 p.m., so not
usually right after work.
Q: Tell us the time of day that usually you would
go over to Mr. Young’s apartment.
A: Like 7:00 o’clock or something.
Q: And when you went over to Mr. Young’s
apartment, other than you and Mr. Young, did
you see other people over there that you
knew?
53
A: Occasionally, people from work.
Q: And did you see anybody else over there that
you didn’t know?
A: No, sir.
Q: Now what would you do when you were over
at Mr. Young’s apartment back in the fall of
1994.
A: Watch movies and drink beer.
Later the prosecutor continued:
Q: Now, Mr. Starnes, not to embarrass you, but
did you ever get drunk over at Mr. Young’s,
drink to that point?
A: Yes, sir.
Q: Did you ever see Mr. Young drink to the point
that he was intoxicated?
A: Yes, sir.
The defendant contends that this testimony was elicited in violation of
Rule 404(b) of the Tennessee Rules of Evidence. The state argues that Starnes’s
testimony is evidence of habit and admissible under Tennessee Rules of Evidence 406.
We disagree. As discussed below, Starnes’s testimony clearly is not evidence of habit,
and Starnes’s responses regarding the defendant's lifestyle propensities should have
been excluded under Rules 403 and 404(b).
Rule 406, which governs the admissibility of evidence of habit or routine
practices, provides in part:
(a) Evidence of the habit of a person, an animal or of the
routine practice if an organization . . . is relevant to prove
the conduct of the person, animal, or organization on a
particular occasion was in conformity with the habit or
routine practice.
(b) A habit is a regular response to a repeated specific
situation. A routine practice is a regular course of conduct
54
of an organization.
Tenn. R. Evid. 406. Tennessee courts recognize the dangers of such evidence and
generally do not look on it with favor. Bridges v. CSX Transportation, Inc., 845 S.W.2d
760, 765 (Tenn. App. 1992). To be admissible, its relevancy and probative value must
clearly appear. Id. (citations to other sources omitted). Habit or custom is not probative
unless the action is of sufficient regularity to make it probable it would occur in almost
every instance. Cable v. Russell, 2 Tenn. Crim. App. 363, 369, 454 S.W.2d 163, 166
(1969).
Nothing in Starnes’s testimony indicates that the actions he described
occurred with sufficient regularity to be considered habitual activity that would occur in
every instance or even in most instances. Such testimony was not admissible under
Rule 406. Of course, even if such “habit” evidence had been established, its relevance
to any material issue in the case is doubtful.
Rule 404 governs the admissibility of character evidence. Although there
are exceptions, the rule is one of exclusion. State v. Bordis, 905 S.W.2d 214, 227
(Tenn. Crim. App. 1995); Tenn. R. Evid. 404(a). 18 Although usually applied to other
crimes, wrongful acts, or misconduct, the language of the rule does not require that the
18
The rule provides:
(a) Character Evidence Generally.
Evidence of a person’s character or a trait
of character is not admissible for the
purpose of proving action in conformity with
the character or trait on a particular
occasion, except:
(1) Character of Accused.
Evidence of a pertinent character trait
offered by the accused or by the
prosecution to rebut the same.
Tenn. R. Evid. 404(a)(1).
55
acts covered by the rule be either criminal or wrongful. It states that “[e]vidence of
other crimes, wrongs, or acts is not admissible to prove the character of a person in
order to show action in conformity with the character trait.” Tenn. R. Evid. 404(b)
(emphasis added). According to the clear language of the rule, evidence of an act that
may be neither criminal nor overtly wrongful is still subject to the requirements of Rule
404(b) if the state introduces the evidence to prove that a defendant acted in conformity
with a given character trait.19 See Woodson v. Porter Brown, 916 S.W.2d 896, 908
(Tenn. 1996)(evidence relating to carefulness excluded); State v. Christopher David
Wilson, No. 02C01-9502-CC-00045, slip op. at 18 (Tenn. Crim. App., Jackson, Dec.
1, 1997) (rule 404(b) not limited to other crime evidence). The rule excluding such
evidence is based on the recognition that the evidence may lead a jury to convict a
defendant for an apparent propensity or disposition to commit a crime regardless of the
strength of the evidence concerning the offense on trial. Bordis, 905 S.W.2d at 232;
State v. Tizzard, 897 S.W.2d 732, 743-44 (Tenn. Crim. App. 1994). In those instances
where the conduct or acts are similar to the crimes on trial, the potential for such a
result increases. Bordis, 905 S.W.2d at 232.
Lifestyle evidence is character evidence subject to Rule 404(b). Id. The
defendant’s character was not an issue in this case. The defendant made no attempt
to deny that he was a homosexual or that he used alcohol. Although evidence of a
prior act is not admissible to prove propensity or disposition to commit a crime, it may
arguably be relevant to issues such as identity, intent, motive, or rebuttal of accident
or mistake. State v. Parton, 694 S.W.2d 299, 303 (Tenn. 1985); Tenn. R. Evid. 404,
19
Similarly, Rule 405 does not apply solely to negative character traits nor to
specific incidents of wrongful conduct. The rule refers to “evidence of character or a
trait of character,” Tenn. R. Evid. 405(a), and to “specific instances of that person’s
conduct.” Tenn. R. Evid. 405(b).
56
advisory commission comments. 20 Therefore, unless the evidence is relevant to a
material issue such as intent or motive, the testimony should have been excluded.
We find nothing in Starnes’s testimony that is relevant to establishing an
intent, motive or any other relevant fact. Intent and motive should not be confused with
propensity. Parton, 694 S.W.2d at 303. Nor should evidence of what may be
perceived as an unwholesome lifestyle be allowed to cloud the issues that are before
the jury. Bordis, 905 S.W.2d at 214. In State v. Rickman, 876 S.W.2d 824, (Tenn.
1994), our supreme court quoted the Delaware Supreme Court with approval:
We are no more inclined to endorse [the assumption that
a defendant’s propensity for satisfying sexual needs is so
unique that it is relevant to his guilt] than we are to consider
previous crimes of theft as demonstrating a larcenous
disposition and thus admissible to show proof of intent to
commit theft on a given occasion.
Rickman, 876 S.W.2d at 829 (quoting Getz v. State, 538 A.2d 726, 734 (Del. 1988)).
In addition, the evidence in question is not relevant to rebutting the defense of
accident. Although the defendant argued that the death of the victim was accidental,
evidence concerning the defendant’s social activities does not speak to that issue.
Even if the testimony had some minimal relevance to an issue that was
before the jury, Rule 404(b) would require the trial court to exclude the evidence as its
insignificant probative value is outweighed by the danger of unfair prejudice. Tenn. R.
Evid. 404(b)(3). The 404(b) balancing test differs from that in Rule 403 which calls for
the exclusion of relevant evidence if the probative value is substantially outweighed by
20
The rule also requires the trial judge to hold a jury-out hearing, if requested,
and, prior to admitting the evidence, to identify the specific material, disputed issue
for which the evidence is being admitted. Tenn. R. Evid. 404(b)(1), (2). In addition
the trial judge must find that the probative value of the evidence is not outweighed
by any danger of unfair prejudice. Tenn. R. Evid. 404(b)(3). Obviously the trial
judge did not make the requisite findings in this instance because he believed that
the rule was inapplicable if the prior acts were not “bad.”
57
the danger of unfair prejudice. Tenn. R. Evid. 403. Even under Rule 403, the
testimony should have been excluded because of its minimal probative value.
B. Failure to Comply with Rule 26.2
The defendant also contends that the trial court should have stricken from
the record Starnes’s testimony quoting the defendant because the state failed to
comply with Rule 26.2 of the Tennessee Rules of Criminal Procedure. The rule
provides that after a witness has testified, the court shall, on motion, direct the party
calling the witness to produce any statement of the witness in that party’s possession.
Tenn. R. Crim. P. 26.2(a) (emphasis added). Although the Tennessee Supreme Court
has strongly recommended that such statements be provided before trial in order to
expedite trials and avoid lengthy recesses, State v. Caughron, 855 S.W.2d 526, 535
(Tenn. 1993), nothing in the rule requires that either party provide a witness statement
prior to trial. Moreover, the record in this case indicates that the witness arrived in
Murfreesboro the day before he testified. Although the prosecutor admitted that a
statement existed, it could not have been produced much earlier.
Rule 26.2(a) allows a defendant to move for the production of any
witness’s statement in the state’s possession after the witness has testified. If the
defense requests a recess in order to review the statement, the trial court may grant the
request to allow the defense a reasonable opportunity to study the statement and to
prepare for cross-examination. Caughron, 855 S.W.2d at 535; Tenn. R. Crim. P.
26.2(d). The defense never moved for the production of the statement. Instead,
counsel moved to strike Starnes’s testimony. Striking the testimony was neither
necessary nor appropriate under the Rules of Criminal Procedure, and the trial court
did not err in denying that request. See Tenn. R. Crim. P. 26.2.
58
VIII. Comments by the Trial Court
During the cross-examination of Detective Warf, the defense attempted
to impeach the witness by using his testimony given at the preliminary hearing.
Defense counsel referred to a specific page and line in the transcript. After obtaining
a response from the witness, defense counsel began to move on to the next question.
The trial judge turned to the prosecutor and asked, “General, is there any other potion
of that page you want read to put this in context?” The General declined, stating that
he would cover it on redirect. The defense contends that the trial court’s comment
implied that defense counsel was attempting to conceal information or to mislead the
jury. We respectfully disagree.
Obviously a trial judge should take care not to express any thought that
might lead the jury to infer that the judge is in favor of or against the defendant in a
criminal case. Caughron, 855 S.W.2d at 536 (citing Brooks v. State, 187 Tenn. 67, 74,
213 S.W.2d 7, 10 (Tenn. 1948)). If the interjections and comments of a trial judge
clearly violate the mandate of impartiality, they may infringe upon a defendant’s right
to a fair trial. Caughron, 855 S.W.2d at 536-537; State v. Jerry Douglas Franklin, No.
01C01-9510-CR-00346, slip op. at 27-28 (Tenn. Crim. App., Nashville, Feb. 28, 1997).
In this case, however, the trial court’s interjection was not a comment on
the evidence. As the trial judge explained when ruling on the motion for new trial, he
asked the question for the purpose of complying with Tennessee Rule of Evidence 106
which allows a party to read into the record any other portion of a writing or recorded
statement that should be considered contemporaneously with the segment introduced
by an adverse party. 21
21
The defendant’s failure to make a contemporaneous objection to the court’s
question has waived this issue. Tenn. R. App. P. 36(a). However, we have chosen
to consider the issue on its merits. We note that, if a timely objection had been
59
made, the trial court could have given the jury an immediate curative instruction.
60
IX. A Defendant’s Right to Plead Guilty
After the state rested, the trial court granted the defendant’s motion for
judgment of acquittal for premeditated and deliberate murder. The court agreed with
the state that Count I of the indictment was now a charge of second-degree murder.
The next morning, the defense rested without putting on any proof. After the judge
instructed the jury, defense counsel approached the bench and, out of the jury’s
hearing, told the trial court that the defendant wished to plead guilty to second-degree
murder. The state objected on the grounds that the state had not entered into any plea
agreement with the defendant. The trial court then refused to allow the defendant to
plead guilty.
The defendant now contends that he had the right to plead guilty to the
charge of second-degree murder in the amended count of the indictment. The state
argues, first, that a defendant has no absolute right to plead guilty and, second, that
even if the trial court had accepted his guilty plea, the charge of felony murder in Count
2 would still have gone to the jury. Upon conviction on Count 2, the state reasons, the
two convictions would have merged into one conviction for felony murder.
As the state points out, the acceptance of the plea would not have
required the dismissal of the charge of felony murder because a plea to a lesser
offense does not bar the state from trying the accused for the greater. Parham v. State,
885 S.W.2d 375, 380 (Tenn. Crim. App. 1994). Although the double jeopardy
guarantees of the Fifth Amendment to the United States Constitution and Article I,
Section 10 of the Tennessee Constitution protect individuals against a second
prosecution or multiple punishments for the same offense, double jeopardy concerns
are satisfied by either vacating the lesser conviction or merging the lesser into the
greater. State v. Hurley, 862 S.W.2d 57, 69-70 (Tenn. 1993); State v. Zirkle, 910
61
S.W.2d 874, 889 (Tenn. Crim. App. 1995); State v. Sledge, No. 02C01-9405-CR-
00089, slip op. at 17, 18 (Tenn. Crim. App., Jackson, Nov. 24, 1997); State v. Perry A.
Cribbs, No. 02C01-9508-00211, slip op. at 36 (Tenn. Crim. App., Jackson, Feb. 14,
1997).22 Therefore, even if the trial judge had accepted the defendant’s guilty plea, a
conviction for felony murder was still possible, and the case would have gone to the jury
on the second count of the indictment. The trial court did not abuse its discretion in
refusing to accept a futile guilty plea. See Goosby v. State, 917 S.W.2d 700 (Tenn.
Crim. App. 1995).
X. Prosecutorial Misconduct
A. Improper Comment on Defendant’s Failure to Testify
The defendant argues that the prosecutor improperly commented on his
failure to testify when he argued that only Mr. Ladd and Mr. Young were present that
night, and “we can’t hear from Mr. Ladd anymore. We can’t get his version.” A
prosecutor is strictly prohibited from commenting upon a decision made by a defendant
not to testify at trial. Griffin v. California, 380 U.S. 609, 85 S. Ct. 1229 (1965); Tenn.
Const. Art. I § 9; State v. Shepherd, 862 S.W.2d 557, 572 (Tenn. Crim. App. 1992).
The prosecutor, however, did not comment on the defendant’s failure to testify. The
defendant’s statement conveyed to the jury the defendant’s version of events. The
prosecutor’s remark may have questioned the credibility of the defendant’s version by
pointing out that only one side of the story had been told, but it was not a comment on
the defendant’s failure to testify.
22
We note that these cases are not in agreement as to those circumstances in
which the lesser conviction must be dismissed rather than merged into the greater.
For our analysis, it makes no difference. The result of either merger or dismissal of
the second-degree conviction would have the same result.
62
B. Inflammatory Remarks
The defendant also contends that a number of remarks in the
prosecutor’s closing argument were improper and calculated to inflame the passions
of the jury. As examples of those improper arguments, the defendant cites the
following:
1. The defendant was older than his co-workers
“that would frequent his apartment on a
regular basis to drink and do ‘whatever.’”
2. The defendant provided a place to party and
to drink in order to fulfill “that closet desire
because we have not heard about one young
lady that went over to his apartment. We
have not heard about any relationship with a
female.”
3. “Many other young men have gone to Mr.
Young’s apartment to engage in drinking.”
4. “He was in the habit of entertaining the young
men he worked with.”
5. “You saw a picture of his refrigerator, and
you saw what was in it. Beer, liquor, and this
stuff. And he was glad to do that because
that was a way that he could fulfill part, I
submit to you, the proof would show, of his
closet homosexuality.”
These comments, the defendant argues, are improper comments on the evidence and
were intended to elicit the prejudices of the jury against the defendant as a homosexual
and to infer that he enticed younger men to his apartment “to drink and do whatever.”
The state contends that the defendant’s failure to make a contemporaneous objection
to all but one of these remarks constitutes waiver and that, in any case, the arguments
were not improper as they were based on evidence admitted at trial. Defense counsel
objected only to the second remark described in the list above. When a party fails to
take whatever action is reasonably available to prevent or nullify the harmful effect of
an error, this court is not required to grant relief. Tenn. R. App. P. 36(a). However, in
the interests of justice, we will consider the defendant’s complaints concerning the
63
prosecutor’s closing argument in full. Tenn. R. App. P. 2.
Closing arguments are an important tool for both parties during the trial
process. State v. Clarence C. Nesbit, No. 02C01-9510-CR-00293, slip op. at 24 (Tenn.
Crim. App., Jackson, Apr. 22, 1997). Consequently, attorneys are usually given wide
latitude in the scope of their arguments. See State v. Bigbee, 885 S.W.2d 797, 809
(Tenn. 1994). Trial judges are accorded wide discretion in their control of those
arguments, see State v. Zirkle, 910 S.W.2d 874, 888 (Tenn. Crim. App. 1995), and a
trial court’s finding will not be reversed absent an abuse of that discretion. State v.
Payton, 782 S.W.2d 490, 496 (Tenn. Crim. App. 1989).
Tennessee law requires that a prosecutor’s closing argument “must be
temperate, must be predicated on evidence introduced during the trial of the case, and
must be pertinent to the issues being tried.” Sparks v. State, 563 S.W.2d 564, 569
(Tenn. Crim. App. 1978) (quoting from Russell v. State, 532 S.W.2d 268, 271 (Tenn.
1976)). In this instance, the district attorney general’s remarks were predicated on
evidence introduced during trial. The photograph of one shelf in the defendant’s
refrigerator was in evidence as was the testimony of Mr. Starnes about the occasional
gathering of co-workers at the defendant’s apartment at which they drank and watched
movies. However, the inferences drawn by the prosecutor from that evidence were
neither reasonable nor pertinent to issues before the jury. The statement that young
co-workers “would frequent his apartment on a regular basis to drink and do whatever”
was based on Mr. Starnes’s testimony that occasionally co-workers gathered at the
defendant’s place to drink and watch movies. Although these comments may have
had some minimal relevance to proving the elements of premeditation and deliberation,
those issues were no longer before the jury. Under count 1, the jury had to determine
whether the defendant acted knowingly, recklessly, or with sufficient provocation to
64
justify a voluntary manslaughter conviction. In count 2, the jury had to decide whether
the victim was killed during the perpetration of a rape or an attempted rape and the
major issue was consent. The prosecutor’s comments regarding the defendant’s
lifestyle were completely irrelevant to those issues. The trial court would have acted
properly in sustaining objections to such comments.
CONCLUSION
While this was a complex trial with several important issues, the primary
consideration for the jury was whether the second sexual encounter was consensual.
The state theorized that the defendant took advantage of the unconscious victim and,
when discovered, killed to hide his crime. The level of intoxication of the victim was
especially relevant to the question of consent. The medical testimony was especially
important to the state. Portions of it should have been excluded.
The mens rea of the defendant as to his intent to rape is critical to the
verdict. The entire theory of the state depends upon the interpretation of the
unredacted statements made by the defendant to police. This is, did the totality of the
evidence suggest a forceful rape of a younger victim helpless to resist? Or could this
have been consensual sex between adults involving bondage that, due to the reckless
acts of the defendant, resulted in the unintended death of the victim? In our view, the
possibilities ranged from criminally negligent homicide to first degree murder. It was
the duty of the jurors to assess the various alternatives.
There were, by our calculations, some eight relatively minor errors in the
course of the trial. Two of the errors pertained to the recorded statement of the
defendant, the single most important piece of evidence in the trial. The testimony of
Detective Warf as to the demeanor of the defendant during his interview with police is
65
of concern but, as indicated, not enough, standing alone, to warrant reversal. The trial
court allowed accusatory speculation by the detective. The audiotape of the
statements allowed the jury to assess the defendant’s voice or pauses in speech and
then arrive at its own conclusions. The implications of the officers during the interview,
while perfectly understandable, tainted somewhat the desired neutrality in the
assessment of the facts. The lifestyle testimony, particularly as it related to
drunkenness and homosexuality, invited speculation. During closing argument, the
prosecution linked that lifestyle (entertaining young men, providing them with alcohol,
and doing “whatever”) to the defendant’s intent to fulfill his “closet desires” and “closet
homosexuality.” In essence, the state asked the jury to conclude that this death had
resulted from an intended rape because the defendant had a demonstrated a desire
and propensity to generally engage in this type of risky conduct.
In our view, any one of these errors would not have warranted a new trial.
Their cumulative effect, however, casts doubts upon the reliability of the verdict. See
Taylor v. Kentucky, 436 U.S. 478 (1978); State v. Zimmerman, 823 S.W.2d 220 (Tenn.
Crim. App. 1991). Despite the considerable evidence of guilt, the facts present a close
question between first degree murder and a lesser degree of homicide. The trial court
instruction to the jury implied that. Under these very unusual circumstances, a new trial
is warranted. See State v. McCray, 922 S.W.2d 511 (Tenn. 1996).
We acknowledge that the issues in this case placed incredible demands
upon the skills of the trial judge, who is among the very best in our profession. While
it is difficult to assess the cumulative effect of several relatively minor errors, we are
hesitant to classify them as collectively harmless. In our view, the crucial question for
this jury to answer was the grade of homicide. While there is sufficient evidence to
show a felony murder, there is also evidence of second degree murder, a criminally
66
negligent homicide, or perhaps, other grades of the offense. See Gladson v. State, 577
S.W.2d 686, 687 (Tenn. Crim. App. 1978) (where irrelevant and prejudicial evidence
erroneously admitted, the court could not conclude the evidence did not cause the jury
"to reject the plea of self-defense or ... consider the offense of manslaughter"). A new
trial can provide the best answer to the various possible alternatives.
Upon remand, the trial court must establish the status of count 1.
According to our review, no verdict was entered on count 1 which the trial court reduced
to a charge of second degree murder. It appears that the charge in count 1 is still
pending; the count should be concluded by appropriate order. Our interpretation is that
count 1 has, in effect, been mistried.
Accordingly, the judgment of the trial court is reversed and the cause is
remanded for further proceedings as contemplated by this opinion.
_______________________________
GARY R. WADE, JUDGE
CONCUR:
_______________________________
DAVID H. WELLES, JUDGE
_______________________________
CURWOOD WITT, JUDGE
67