State v. Leslie Brian Willis ( 1999 )

FILED
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
July 15, 1999
APRIL 1999 SESSION
Cecil W. Crowson
Appellate Court Clerk
STATE OF TENNESSEE, )
)
Appellee, ) C.C.A. No. 01C01-9802-CC-00068
)
vs. ) Robertson County
)
LESLIE BRIAN WILLIS, ) Hon. Robert W. Wedemeyer, Judge
)
Appellant. ) (Felony Murder)
)
FOR THE APPELLANT: FOR THE APPELLEE:
MICHAEL R. JONES PAUL G. SUMMERS
District Public Defender Attorney General & Reporter
110 Sixth Ave. West
Springfield, TN 37172 KIM R. HELPER
Assistant Attorney General
WILLIAM UNDERHILL 425 Fifth Ave. N., 2d Floor
Attorney at Law Nashville, TN 37243-0493
512 S. Main St.
Springfield, TN 37172 JOHN WESLEY CARNEY, JR.
District Attorney General
ARTHUR F. BEIBER
B. DENT MORRISS
Asst. District Attorneys General
204 Franklin St., Ste. 200
Clarksville, TN 37040-3420
OPINION FILED:________________
REVERSED & REMANDED
JAMES CURWOOD WITT, JR., JUDGE
OPINION
The defendant, Leslie Brian Willis, appeals from his conviction of
felony murder committed during the perpetration of attempted rape of Jamie
Marable. The defendant received his conviction at the conclusion of a jury trial in
the Robertson County Criminal Court. The same jury acquitted the defendant of
premeditated first degree murder. The defendant is presently serving a life
sentence in the Department of Correction. In this appeal, Willis raises numerous
issues for our review:
1. Whether the trial court improperly allowed evidence that
Willis had raped another woman in order to prove his
intent to commit attempted rape of the victim.
2. Whether the trial court should have granted his motion for
judgment of acquittal on Count 1, felony murder.
3. Whether the evidence sufficiently supports a finding of guilt
beyond a reasonable doubt of felony murder.
4. Whether the trial court should have granted a mistrial
based upon various allegations of prosecutorial
misconduct.
5. Whether the trial court should have granted the defense a
continuance because the state failed to provide discovery
information pertaining to two potential witnesses.
6. Whether the trial court improperly admitted photographs
of the victim's body in the location where it was
discovered.
7. Whether the trial court should have excluded the
testimony of an expert witness from the FBI based upon
the state's failure to provide the defense with the
witness' written report.
8. Whether the trial court should have excluded testimony
of a TBI agent that Willis threatened to snap his neck,
that Willis was shaking and trembling when he was
shown a screwdriver the agent believed to be the
murder weapon, and that Willis "lawyered up" during
interrogation.1
Having reviewed the record, the briefs and the oral arguments of the parties, and
1
Our discussion of the issues in this opinion is in a different order than
their presentation in the parties' briefs.
2
the law, we reverse Willis' felony murder conviction due to insufficient evidence of
the underlying felony of attempted rape and remand for a new trial on the lesser
offense of second degree murder.
The state presented evidence at trial2 that on September 8, 1990, 19-
year-old Jamie Marable embarked upon an evening of socializing with friends in
various Clarksville bars. At the Golden Jukebox, she encountered Willis, with whom
she was previously acquainted. Willis purchased mixed drinks for Marable and a
friend. Sometime around midnight, Willis and Marable left the Golden Jukebox to
go to another establishment, Joe B.'s. At Joe B.'s, Willis paid the cover charge for
both himself and Marable. After fifteen to twenty minutes, the two departed Joe B.'s
together and returned to the Golden Jukebox.
Around 2:00 a.m., Marable was outside the Golden Jukebox talking
with acquaintances when four women arrived who spoke with Marable. Teresa
Carpenter testified that when the defendant pulled out of the parking lot, Marable
said, "There goes my ride." Tracey Presley heard Marable express distress that
"Brian" left her and announce she was waiting on a ride. Cindy McClure heard
Marable say she was waiting on her ride and assumed this was someone named
Brian about whom Marable had spoken earlier in the conversation.
Teresa Carpenter went inside the Golden Jukebox for a short period
of time. When she returned to the parking lot, she saw Willis’ truck pulling out of the
parking lot a second time. She could not see whether Marable was in the vehicle;
2
The evidence is summarized here in the light most favorable to the state.
The trial of this case was lengthy. Approximately 40 witnesses testified, and
some of the testimony, particularly of the factual witnesses, cannot be
reconciled. To the extent that other evidence is relevant to issues on appeal,
such evidence is discussed with the issue to which it pertains.
3
however, she did not see Marable in the parking lot.
The following day, a Sunday, Marable’s mother became concerned
that her daughter had not come home. She notified law enforcement. That same
Sunday morning, William Alley, a farmer whose property straddles the Montgomery
and Robertson County borders in the Port Royal area, noticed tire tracks from a full-
sized vehicle on his property near an area of road construction. The tire tracks
appeared to have come from the direction of Clarksville. Mr. Alley had not seen the
tracks the previous day.
On Tuesday evening, Mr. Alley drove by the same site and noticed a
foul odor. The following day, he again noticed the odor and decided to investigate,
which led him to the discovery of Jamie Marable’s decomposing body.
Doctor Gretel Harlan, a forensic pathologist, testified that Jamie
Marable died close in time to her disappearance around 2:20 or 2:30 a.m. on
September 9, 1990. The cause of death was puncture type stab wounds to the
neck and chest. Two of the wounds penetrated the third cervical vertebra, leaving
an impression of the murder weapon. The impressions had a distinctive, six-pointed
star shape. Doctor Harlan opined that these two stab wounds were an "excellent
match" with a size 10 torque screwdriver. Doctor Harlan also testified that when she
received the victim's body for examination, the clothing was in the correct locations,
including the underwear, although the crop top might have been pulled up slightly.
TBI Agent Steve Scott, whose area of expertise includes tool mark
identification, examined the impressions in the victim's vertebra with sizes 10 and
15 torque screwdrivers. He could not definitely conclude that one of the two
screwdrivers made the impressions; however, the injury was more consistent with
4
a size 10 than a size 15.
Shortly after the discovery of the victim's body, searches were
conducted of the defendant’s truck, apartment and room at his parents’ home.
Among the items recovered from the defendant's apartment was a size 15 torque
screwdriver. Likewise, physical evidence was collected from the victim’s body and
her clothing. The evidence at trial revealed that nylon fibers found on the victim’s
clothing, including a fiber taken from her panties, was consistent with the
microscopic characteristics and optical properties of a carpet standard sample from
the defendant’s truck.
The officers interviewed the defendant about his interaction with the
victim on the night of her death. His statements were, to some extent, contradictory.
In pertinent part, in a statement given September 13, 1990, the defendant denied
that the victim had accompanied him from the Golden Jukebox to Joe B.'s and back
to the Golden Jukebox on September 8. He claimed he had gone home alone
around 2:30 a.m. In a statement given September 20, 1990, W illis specifically
denied that Marable had been in his truck on the night of her disappearance.
Former District Attorney General Patrick McCutchen testified that he interviewed the
defendant on March 11, 1993. On that date, Willis acknowledged that Marable had
been in his truck on the evening in question.
According to Mike Greenfield, the defendant's employer in September
1990, the defendant had worked at the road construction site near the area where
the victim’s body was discovered. Greenfield recalled that the job was begun on a
Wednesday evening and was completed on a Monday. Although he was not sure
of the date, September 10 sounded "reasonable" to him. Furthermore, Greenfield
testified that the defendant was allowed to use the shop equipment at Greenfield
5
Trucking, which included various torque screwdrivers.
Crystal Bickford, one of the defendant's neighbors at his Clarksville
apartment, testified that the defendant told her in approximately June 1990 that he
took all of his girlfriends to Port Royal. Bickford assumed this was where he would
take them to "park."
Two witnesses testified that Willis made statements indicating he had
killed the victim. Kelly Jenkins, who was Willis’ co-worker in 1990, testified that he
and Willis were drinking beer together when the subject came up of Willis being a
suspect in the Marable murder. Willis told Jenkins that they would never prove
anything and get a conviction. Jeff Fletcher, a friend of Willis, testified that he and
Willis went riding around to smoke marijuana and drink alcohol in the spring of
1994. He testified that Willis would get agitated and angry when he was drinking,
and on that occasion Willis got mad for no reason. Willis told Fletcher that he had
killed one and was not scared to kill another. When Fletcher inquired who Willis
had killed, Willis responded that he had killed the girl in Clarksville. Willis also told
Fletcher he would stab his guts out, too, from which Fletcher inferred that Willis had
also stabbed the girl in Clarksville.
Barbara Williams, who worked with Willis’ sister Robin in a Piggly
Wiggly store, testified that she was present when Peggy Shemwell, the defendant’s
girlfriend, came into the store in May 1991 to show Robin the ring the defendant
gave her. Williams described the ring as gold, with black onyx and a little diamond.
When she was shown a photograph of Marable wearing a ring given to her by her
grandmother, she said the ring she had seen on Shemwell's hand looked like the
one in the photograph. Other evidence established that Marable always wore the
black onyx ring, but it was not recovered with her body.
6
To contradict the state's case, the defense offered evidence that
Marable had a verbal altercation in the Golden Jukebox parking lot at approximately
2:30 a.m. with a woman who got out of a Pinto station wagon and began yelling and
cursing Marable. After this altercation, the witness who had observed it went inside
the Golden Jukebox to get a cup of coffee. When she returned seconds later, both
the Pinto and Marable were gone.3 The defense also offered evidence that Marable
had been involved with Raven "Snake" Frazier and that Frazier's live-in girlfriend,
Brenda Huggins, confronted Marable in the parking lot of the Golden Jukebox on
September 8 and threatened to hurt her if the behavior continued.4 The defense
also offered the testimony of Robin Wheeler, the defendant's sister, and Peggy
Shemwell to contradict Barbara Williams' testimony that the defendant had given
Shemwell a black onyx ring.5
At the conclusion of the proof, the jury retired to consider the
defendant's guilt of count one, felony murder during the attempt to commit rape, and
count two, first degree premeditated murder. After deliberating, the jury returned
a verdict of guilty on count one and not guilty on count two. The trial court imposed
a life sentence.
3
Apparently, the state effectively diminished the credibility of this witness.
The witness testified that TBI Agent Mike Breedlove took her to a residence to
see a Pinto station wagon, which she identified as the one she had seen. Agent
Breedlove testified that he had not taken this witness to identify a vehicle.
4
The state offered evidence that Huggins had confronted Marable, but that
it had been on another date at another location. Huggins testified for the state
and denied having been in the Golden Jukebox parking lot on September 8. A
second individual who the defense alleged had been present with Huggins
during the confrontation testified for the state on rebuttal. She admitted being at
the Golden Jukebox on the night in question, but she denied being in the parking
lot with Huggins, Frazier and Marable.
5
Shemwell also testified that law enforcement officers had offered her
money in exchange for testimony inculpating the defendant. These officers took
the stand on rebuttal and denied this allegation.
7
Against this factual backdrop, the defendant appeals.
I
First, we consider whether the trial court improperly allowed evidence
that Willis had raped another woman in order to prove his intent to commit
attempted rape of the victim.6 The use of this evidence was limited to proof of the
underlying felony of attempted rape, which was necessary to support a conviction
of felony murder. A discussion of this issue is germane despite our reversal of the
felony murder conviction as discussed in section II below because its erroneous
admission affects our determination that the case should be remanded for a new
trial on the lesser offense of second degree murder.
The evidence in question consists of the testimony of a young woman,
S.C.,7 that she encountered Willis in December 1985. He asked her if she would
like to "get high," and she responded affirmatively. She got into Willis' vehicle, and
the two drove away. The defendant's demeanor changed. When S.C. asked to be
taken back to her car, the defendant said "shut up b----." The defendant drove to
a secluded location. He ordered S.C. to disrobe and said, "well you've f-----
everyone else, so you're going to f--- me now." He forced her at knife point to
perform oral sex on him, although he never became aroused. The defendant told
S.C. that he could not decide whether to kill her. He said he thought he should kill
her because she would talk about the incident. S.C. repeatedly promised she would
never reveal anything. He said that if he killed her and dumped the body no one
6
We consider this issue prior to our discussion of the sufficiency of the
evidence because an understanding of the trial court's admission of prior bad act
evidence pursuant to Rule 404(b) is necessary for an understanding of the
sufficiency analysis that follows. See infra, § II.
7
The victim's name is not relevant to the issue before the court.
8
would ever connect him to the crime because no one would believe he would be
with someone like S.C. The defendant told her that it would be foolish to go to the
police because no one would ever believe a slut like her. The defendant said that
if he were suspected, his father would take care of it for him.
Eventually, the defendant seemed to tire and took S.C. back to her
car. At one point on the return trip, he pushed S.C. down in the seat so she would
not be seen by some people they passed.
As a general proposition, evidence of a defendant's prior crimes,
wrongs or acts is not admissible to prove that he committed the crime in question.
Tenn. R. Evid. 404. The rationale underlying the general rule is that admission of
such evidence carries with it the inherent risk of the jury convicting the defendant
of a crime based upon his bad character or propensity to commit a crime, rather
than the conviction resting upon the strength of the evidence. State v. Rickman,
876 S.W.2d 824, 828 (Tenn. 1994). The risk is greater when the defendant's prior
bad acts are similar to the crime for which the defendant is on trial. Id.; see also
State v. McCary, 922 S.W.2d 511, 514 (Tenn. 1996). Nevertheless, evidence of a
defendant's prior crimes, wrongs or acts may be admissible where it is probative of
material issues other than conduct conforming with a character trait. Tenn. R. Evid.
404(b). In Tennessee, evidence of a criminal defendant’s character may become
admissible when it logically tends to prove material issues which have been divided
into three categories: (1) the use of “motive and common scheme or plan” to
establish identity, (2) to establish the defendant’s intent in committing the offense
on trial, and (3) to “rebut a claim of mistake or accident if asserted as a defense.”
9
McCary, 922 S.W.2d at 514. In order for such evidence to be admitted, the rule
specifies three prerequisites:
(1) The court upon request must hold a hearing outside the jury's
presence;
(2) The court must determine that a material issue exists other
than conduct conforming with a character trait and must upon
request state on the record the material issue, the ruling, and
the reasons for admitting the evidence; and,
(3) The court must exclude the evidence if its probative value is
outweighed by the danger of unfair prejudice.
Tenn. R. Evid. 404(b). A fourth prerequisite to admission is that the court find by
clear and convincing evidence that the defendant committed the other crime. Tenn.
R. Evid. 404, Advisory Comm'n Comment; State v. DuBose, 953 S.W.2d 649, 654
(Tenn. 1997); State v. Parton, 694 S.W.2d 299, 303 (Tenn. 1985).
In reviewing a trial court's decision to admit or exclude evidence, an
appellate court may disturb the lower court's ruling only if there has been an abuse
of discretion. DuBose, 953 S.W.2d at 652; State v. Baker, 785 S.W.2d 132, 134
(Tenn. Crim. App. 1980). Where the trial court has been called to pass upon the
admissibility of evidence other crimes, wrongs or acts under Rule 404(b), its
determination is entitled to deference when, as in the case at bar, it has
substantially complied with the procedural requisites of Rule 404(b). See DuBose,
953 S.W.2d at 652.
In the present case, the trial court specifically ruled that the prior rape evidence
could be admitted as proof on the issue of intent.8 In its brief, the state argues that
8
The supreme court has said that "other crime" evidence of a sexual
nature is not admissible under Rule 404(b) to prove a defendant's intent in
committing various sex crimes, including rape, because intent is not an element
of proof of the crimes. McCary, 922 S.W.2d at 513-14; accord Parton, 699
S.W.2d at 303 (aggravated rape) (prior to enactment of 1989 Criminal Code and
adoption of Tennessee Rules of Evidence); State v. Hooten, 735 S.W.2d 823,
824 (Tenn. Crim. App. 1987) (same as Parton). On the other hand, this case
involves an alleged attempted rape, and intent is an element of criminal attempt.
See State v. Kimbrough, 924 S.W.2d 888, 890 (Tenn. 1996).
10
S.C.'s testimony "was relevant to Willis' intent in driving off with Jamie Marable from
the Golden Jukebox in September 1990 to a location known as a parking or party
spot." However, the state’s argument is diminished by the fact that this is not a
case where intent is suggested by some logical progression between the two cases.
See, e.g., State v. Paul Carr Moss, Jr., No. 01C01-9803-CC-00118, slip op. at 18-19
(Tenn. Crim. App., Nashville, June 1, 1999) (approving use of evidence of sexual
contact between defendant and his minor daughter in order to demonstrate
defendant's intent in killing wife so as to regain access to the daughter); State v.
Hayes, 899 S.W.2d 175 (Tenn. Crim. App. 1995) (approving use of the defendant’s
unindicted acts of kissing daughter-victim in order to show element of intentional
touching of victim’s breast for purpose of sexual arousal or gratification). Here, the
state asked the jury to believe that the defendant intended to rape the victim
because five years earlier he raped a female victim in Kentucky. There is no logical
progression nor any cause-and-effect relationship, only the extrapolation that, if the
defendant intended rape of a female in 1985, he must be the sort of person who
intended to rape Jamie Marable. Propensity evidence by any other name is still
propensity evidence, and evidence that is propensity evidence only is inadmissible.
Tenn. R. Evid. 404(a), (b); see also Tenn. Rule Evid. 404(b)(2) (character evidence
must be relevant to a material issue “other than conduct conforming with a character
trait”). The prior rape has no connection to the present case without applying the
convention “if he did it before, he probably did it this time.” The character trait
provides the basis for inferring intent.
Even though the trial court did not rely upon nor did the state argue
identity as an alternative basis for admission of the evidence, we have examined
identity because the killer’s intent to rape is only meaningful if the identity of the
killer is established. With identity at issue, prior-crime proof that pointed to the
defendant in order to show the defendant’s intent also served to implicate the
11
defendant as the perpetrator. Under a common scheme or plan theory, identity may
be suggested through proof of crimes with similar, but distinctive features. McCary,
922 S.W.2d at 514. Indeed, in the present case, both crimes involved a young
woman being transported to a remote location. In 1985, the defendant threatened
his victim with a knife, and in 1990, Jamie Marable was stabbed to death with a
screwdriver.
However, the problem with recognizing and using identity as a basis
for admitting the prior rape evidence in the present case is that the similarities
between the two incidents are very meager. In State v. Davis, 706 S.W.2d 96(Tenn. Crim. App. 1985), the defendant was convicted of raping a young blonde
female. Because his identity as the rapist was at issue, the state utilized evidence
that Davis committed a previous rape of a young blonde female in Florida. Id. at 99-
100. In each case, the perpetrator abducted the victim by grabbing her hair and
forcing her into his vehicle, and then he drove her to a remote location where
vaginal rape, at least, was preceded by the rapist forcing the victim to perform
fellatio to facilitate his erection. See id. Each victim testified that she saw a jar of
Vaseline in the vehicle in which she was abducted. Id. Despite these similarities,
this court held, “[T]here was nothing so unique about the method of commission of
the two crimes as to stamp them as the work of the same individual.” Id. at 100.
The admission of the evidence of the prior rape was reversible error. Id. A fortiori,
there are no distinctive features about the two incidents in the present case which
would “stamp them as the work of the same individual.”9 Id.
9
When the state advances the use of evidence of a prior crime committed
by the defendant that is similar in nature to the crime on trial and yet there are no
similarities of “distinctive” methods shared by the two crimes, see Davis, 706
S.W.2d at 99, the error is exacerbated because the similar nature of the crimes
only heightens the prejudice to the defendant on trial. See Rickman, 876
S.W.2d at 828; McCary, 922 S.W.2d at 514.
12
The evidence of the 1985 rape was inadmissible because it essentially
was probative of no material issue other than showing the defendant acted "in
conformity with the character trait." Tenn. R. Evid. 404(b). Additionally, the danger
of unfair prejudice was substantial. See id. The narration of the rape incident was
highly prejudicial in and of itself, and this prejudice was only exacerbated in the
1985 victim's narration of the defendant's post-rape comments in which he mulled
whether to kill the 1985 victim. This part of the evidence is not relevant to the
defendant's asserted proclivity to rape and needlessly increased the prejudicial
effect of the testimony.
For all of the above reasons, we conclude that the trial court erred
when it admitted the evidence of the prior rape. The question which remains is what
effect the erroneous admission of this evidence had on the jury. The extremely
prejudicial character of this evidence coupled with the jury's finding of guilt of felony
murder despite legally insufficient evidence of attempted rape, as discussed in
section II below, leads us to conclude that the error more probably than not affected
the verdict. See Tenn. R. App. P. 36(b); cf. State v. Ron Puglisi, No. 01C01-9205-
CC-00166 (Tenn. Crim. App., Nashville, July 21, 1994) (admission of sexually
oriented material for purpose of demonstrating defendant's intent to commit
aggravated sexual battery was reversible error). As such, the defendant should
receive a new trial on the lesser offense of second degree murder10 at which this
evidence is excluded. Accord State v. Bordis, 905 S.W.2d 214 (Tenn. Crim. App.
1995) (remand for new trial on lesser grade offense where evidence insufficient to
support conviction of greater offense and prejudicial trial error committed).
II
10
See infra, § II.
13
We move next to consideration of two related issues, whether the trial
court should have granted the motion for judgment of acquittal and whether the
evidence is sufficient to sustain the defendant's conviction of felony murder.
A motion for judgment of acquittal is a question of the sufficiency of
the state's evidence of the defendant's guilt of the crime charged. State v. Hall, 656
S.W.2d 60, 61 (Tenn. Crim. App. 1983). Accordingly, the standard for determining
whether a motion for judgment of acquittal should be granted is analogous to the
standard employed in reviewing the sufficiency of the convicting evidence after a
conviction has been imposed. See State v. Jerry Burke, No. 02C01-9510-CR-
00319, slip op. at 10-11 (Tenn. Crim. App., Jackson, Dec. 12, 1996), perm. app.
denied (Tenn. 1997); State v. Adams, 916 S.W.2d 471, 473 (Tenn. Crim. App.
1995).
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, 324, 99 S. Ct. 2781, 2791-92 (1979); State v. Duncan, 698 S.W.2d
63, 67 (Tenn. 1985); Tenn. R. App. P. 13(e). This rule applies 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).
Moreover, a criminal offense may be established exclusively by
circumstantial evidence. Duchac v. State, 505 S.W.2d 237 (Tenn. 1973); State v.
Jones, 901 S.W.2d 393, 396 (Tenn. Crim. App. 1995); State v. Lequire, 634 S.W.2d
608 (Tenn. Crim. App. 1987). However, before an accused may be convicted of a
14
criminal offense based upon circumstantial evidence alone, the facts and
circumstances "must be so strong and cogent as to exclude every other reasonable
hypothesis save the guilt of the defendant." State v. Crawford, 225 Tenn. 478, 470
S.W.2d 610 (1971); Jones, 901 S.W.2d at 396. In other words, "[a] web of guilt
must be woven around the defendant from which he cannot escape and from which
facts and circumstances the jury could draw no other reasonable inference save the
guilt of the defendant beyond a reasonable doubt." Crawford, 470 S.W.2d at 613;
State v. McAfee, 737 S.W.2d 304, 305 (Tenn. Crim. App. 1987).
In determining the sufficiency of the evidence, this court should not
reweigh or reevaluate the evidence. State v. Matthews, 805 S.W.2d 776, 779
(Tenn. Crim. App. 1990). Questions concerning the credibility of the witnesses, the
weight and value of the evidence, as well as all factual issues raised by the
evidence are resolved by the trier of fact. State v. Cabbage, 571 S.W.2d 832, 835
(Tenn. 1978). Nor may this court substitute its inferences for those drawn by the
trier of fact from the evidence. Liakas v. State, 199 Tenn. 298, 305, 286 S.W.2d
856, 859 (1956); Farmer v. State, 574 S.W.2d 49, 51 (Tenn. Crim. App. 1978). On
the contrary, this court must afford the State of Tennessee the strongest legitimate
view of the evidence contained in the record as well as all reasonable and legitimate
inferences which may be drawn from the evidence. Cabbage, 571 S.W.2d at 835.
On the date the victim was killed, first degree felony murder was
defined as "[a] reckless killing of another committed in the perpetration of, or
attempt to perpetrate any first degree murder, arson, rape, robbery, burglary, theft,
kidnapping or aircraft piracy[.]" Tenn. Code Ann. § 39-13-202(a)(2) (1991)
(amended 1995).
On the relevant date, the definition of rape included "unlawful sexual
15
penetration of a victim by the defendant or of the defendant by a victim . . . [where]
[f]orce or coercion is used to accomplish the act." Tenn. Code Ann. § 39-13-
503(a)(1) (1997).11 With respect to criminal attempt, the Code provides
A person commits criminal attempt who, acting with the kind of
culpability otherwise required for the offense:
(1) Intentionally engages in action or causes a result that would
constitute an offense if the circumstances surrounding the conduct
were as the person believes them to be;
(2) Acts with intent to cause a result that is an element of the
offense, and believes the conduct will cause the result without further
conduct on the person's part; or
(3) Acts with the 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)-(3) (1997).
In the light most favorable to the state, there is sufficient circumstantial
evidence that Willis knowingly killed the victim. The victim referred to the defendant
as her "ride." She had been in the parking lot of the Golden Jukebox around 2:30
a.m., and after the defendant's truck was seen leaving the parking lot, the victim
was not seen again. The victim's body was found in a remote location near the
defendant's worksite. Moreover, the worksite was in the Port Royal area, where the
defendant had told a neighbor he took all his girlfriends. Tire tracks from a full-size
vehicle were seen in this location the morning after the victim's disappearance, and
the defendant drove a Chevrolet Silverado pickup truck. The defendant had access
11
The trial court instructed the jury that rape could be accomplished by
force and coercion. The court also included as an alternative means of
committing the crime "that the sexual penetration was accomplished without the
consent of the alleged victim and the defendant knew, or had reason to know, at
the time of the penetration that the alleged victim did not consent." The latter
means of committing the crime was not added to the rape statute until 1995,
several years after the victim's death. See Tenn. Code Ann. § 39-13-503(a)(2)
(1997); see also Tenn. Pub. Acts 1995, ch. 484, § 3. Because, for the reasons
discussed below, we find the proof of an attempted rape insufficient to support a
conviction of felony murder, it is not necessary for us to determine whether the
erroneous instruction was prejudicial.
16
to torque screwdrivers. Initially, the defendant was untruthful with investigators
about whether the victim had been in his truck on the night of her disappearance;
however, later he admitted she had been in the truck. The defendant made
statements to acquaintances indicating he had killed the victim. His girlfriend was
seen wearing a ring like the victim’s that had not been recovered from the victim's
body. The girlfriend was overheard telling the defendant's sister that the ring had
been a gift from the defendant.
However, even in the light most favorable to the state, there is
insufficient evidence that the defendant recklessly killed the victim in the attempt to
perpetrate a rape. The state offered proof that carpet fibers were found on the
victim's clothing, including a fiber found on her panties. These fibers were
consistent with the carpet in the defendant's truck. There was evidence the victim's
shoes were removed, her denim mini skirt had a horizontal wrinkling pattern and her
crop top was at least somewhat out of place. There was no forensic proof of an
attempted sexual assault; in fact, there was, at best, minimal evidence from which
the occurrence of a struggle might be inferred.
In our review of the evidence in the light most favorable to the state,
we have not overlooked the evidence that the defendant committed a rape in his
vehicle in 1985, even though we have concluded in section I of this opinion that
such evidence was erroneously admitted. See State v. Longstreet, 619 S.W.2d 97,
100-01 (Tenn. 1981); State v. Bernard T. Anderson, No. 02C01-9710-CR-00394,
slip op. at 22 (Tenn. Crim. App., Jackson, Apr. 23, 1999). As noted above, the facts
and circumstances of a case built entirely upon circumstantial evidence "must be
so strong and cogent as to exclude every other reasonable hypothesis save the guilt
of the defendant." Crawford, 225 Tenn. at 484, 470 S.W.2d at 613; Jones, 901
S.W.2d at 396. The proof presented at trial, even giving the state the benefit of the
17
improperly admitted evidence, fails to rise to that level.12 The evidence supports a
logical inference that the defendant attempted to rape the victim before killing her.
Equally, the evidence supports a logical inference that there was no sexual
encounter at all. What the evidence does not support is an inference of the
defendant's guilt beyond a reasonable doubt, to the exclusion of every other
reasonable hypothesis. Thus, the felony murder conviction, based upon a reckless
killing in the attempt to perpetrate a rape, cannot stand.
The question of whether the evidence was sufficient to support a
verdict of guilt of premeditated murder is beyond our realm because the jury
acquitted the defendant of that charge. However, we may consider whether the
evidence is sufficient to support a conviction of second degree murder as a lesser
offense of first degree felony murder. In that regard, we find the evidence sufficient
12
Initially, the question of how to utilize the improperly admitted evidence
in evaluating the sufficiency of the evidence appears to hinge on the question of
whether the evidence is relevant. Prior misconduct evidence that suggests the
defendant had a propensity to commit the offense on trial has been
characterized as irrelevant. See, e.g., Rickman, 876 S.W.2d at 827 (“evidence
that the defendant had committed some other crime wholly independent of that
for which he is charged, even though it is a crime of the same character, is
usually not admissible because it is irrelevant”) (quoting Bunch v. State, 605
S.W.2d 227, 229 (Tenn. 1980)) (emphasis in Bunch); State v. Tizard, 897
S.W.2d 732, 744 Tenn. Crim. App. 1994) (in sexual battery prosecution evidence
of defendant’s possession of pornographic materials which depicted sexual acts
similar to the acts for which the defendant was on trial held to be “not rationally
related to the issue of the defendant’s criminal intent”); State v. Dies, 829
S.W.2d 706, 709 (Tenn. Crim. App. 1991) (“evidence of other crimes is irrelevant
and inadmissible”). To the contrary, other authorities have seen relevance in
evidence of this nature. See Otis v. Cambridge Mut. Fire Ins., 850 S.W.2d 439,
442 (Tenn. 1992) (frequent rejection of inquiry into character not due to
irrelevance, but to likelihood of jury's over reliance on this evidence); Neil P.
Cohen, et al., Tennessee Law of Evidence 161-62 (3d ed. 1995) (“Evidence of a
person’s character can be helpful to a trier of fact. If someone has the character
“of a thief,” the trier of fact could use this to determine whether the person
shoplifted on a certain afternoon.”); Robert Banks, Jr. & Melissa Maravich,
Relevance: The Tennessee Balancing Act, 57 Tenn. L. Rev. 33, 41-42 (1989)
(policy underlying Tenn. R. Evid. 404 is not that character evidence is precluded
based upon relevance, but that such evidence results in jury prejudicing
defendant on the charged offense because of his bad character). However,
resolution of the tension between these opposing viewpoints is not necessary in
the case at bar because appraisal of all of the evidence, including the evidence
of the prior rape, fails to exclude every possibility other than the guilt of the
defendant.
18
to support a finding of the defendant's guilt beyond a reasonable doubt.
Often this court will modify a conviction of a greater offense of which
the evidence is insufficient to a lesser offense of which the evidence is sufficient.
See, e.g., State v. George Blake Kelly, No. 01C01-9610-CC-00448 (Tenn. Crim.
App., Nashville, Oct. 13, 1998) (second degree murder conviction dismissed for
insufficient evidence and lesser grade conviction of vehicular homicide imposed).
The present case is complicated, however, by the erroneous admission of highly
prejudicial prior bad act evidence as discussed above. In addition, although second
degree murder is a lesser grade of felony murder, it would require a finding of a
knowing killing, whereas the jury here, under the then applicable felony murder
statute, found the defendant guilty of a reckless killing. We believe the better
course is to reverse the defendant's conviction of felony murder and remand for a
19
new trial on the lesser offense of second degree murder. Accord Bordis, 905
S.W.2d 214.
III
Next, Willis claims that the trial court improperly admitted photographs
of the crime scene. Generally, these four photographs13 depict the decaying body
of the victim in the brushy location where it was discovered. Willis argues that these
photographs do not show the position of the body at the time of the crime,
demonstrate the circumstances surrounding the offense, or illustrate the struggle
of the victim or the ferocity of the attack. Rather, he claims, their sole value to the
prosecution was to inflame the jury. On the other hand, the state defends the trial
court's admission of these photographs as probative of (1) the time of death as
demonstrated by the level of decomposition present and (2) whether an attempted
rape occurred as demonstrated by the positioning of the victim's clothing.
Technically, consideration of this issue has been pretermitted by our
finding that the evidence was insufficient to support the defendant's conviction of
felony murder. However, because there will be a new trial on second degree
murder, we take this opportunity to address the guidelines for admission of crime
scene photographs.
In determining whether photographs should be admitted, the trial court
must determine, first, whether the photograph is relevant. State v. Banks, 564
S.W.2d 947, 949 (Tenn. 1978); Tenn. R. Evid. 401. "'Relevant evidence' means
any evidence having any tendency to make the existence of any fact that is of
13
The defendant complains of exhibits 5a, 5b, 5c, 5d and 5e; however, the
record on appeal contains no exhibit 5e.
20
consequence to the determination of the action more probable or less probable than
it would be without the evidence." Tenn. R. Evid. 401. If the trial court deems the
photograph to be relevant, it may then allow its admission if its probative value is not
"substantially outweighed by the danger of unfair prejudice." Tenn. R. Evid. 403.
In this regard, photographic depictions of murder victims carry the danger of
inherent prejudice. See Banks, 564 S.W.2d at 951. In order to assess the
prejudicial effect of the admission of such photographs, the supreme court has said
the trial judge is to consider
the value of the photographs as evidence, that is, their accuracy and
clarity, and whether they were taken before the corpse was moved,
if the position and location of the body when found is material; the
inadequacy of testimonial evidence in relating the facts to the jury;
and the need for the evidence to establish a prima facie case of guilt
or to rebut the defendant's contentions.
Id. On appeal, a trial court's decision to admit a photographic exhibit is reviewable
for abuse of discretion. Id. at 949.
The photographs in question are unpleasant. They show evidence of
decomposition of the body. There is also evidence of significant entomological
activity. Three of the photographs are not clearly focused, so their unpleasant
character is diminished. The more focused photograph shows the victim's body
from the waist down. Decomposition, entomological activity, and possible animal
activity affected the medical examiner's ability to render opinions regarding the
condition of the body at the time of death as well as her ability to estimate the time
of death itself. The time of death was particularly relevant to the question of the
defendant's guilt of the victim's murder. These photographs serve to illustrate the
condition of the body with precision and corroborate the testimony of the medical
examiner. See State v. Zirkle, 910 S.W.2d 874, 888-89 (Tenn. Crim. App. 1995)
(photograph admitted to corroborate other evidence); State v. Stephenson, 878
S.W.2d 530, 542 (Tenn. 1994) (photograph of corpse admitted to illustrate
21
testimony). The photographs demonstrate the location of the victim's clothing. The
state offered testimony that the victim's crop top was slightly out of place and her
shoes were missing. The photographs define the condition of the victim's clothing
with much more precision than the spoken word. They were properly admitted. If
the state seeks to introduce these or similar photographs at the defendant's retrial
on second degree murder, the trial court will be obliged to renew its inquiry in accord
with these principles.
IV
Next, Willis challenges the propriety of Agent Breedlove's testimony
that Willis threatened to snap his neck, that Willis was shaking and trembling when
he was shown a screwdriver the agent believed to be the murder weapon, and that
Willis "lawyered up" during interrogation. We address these issues to provide
guidance on remand.
The first portion of this testimony relates to the defendant's statement
to then-District Attorney General Patrick McCutchen and an encounter the
defendant had with Agent Breedlove outside the defendant's apartment complex.
The gist of the complaint appears to be that the state elicited testimony from Agent
Breedlove that he surreptitiously observed an interview between Willis and General
McCutchen via hidden camera. Agent Breedlove testified that during the course of
the interview, Willis recounted a previous conversation between himself and
Breedlove in which Breedlove asked Willis how he killed the victim. According to
Breedlove, Willis said "he wouldn't have done it that way, he would have taken me
and if he wanted to kill me, he would have taken me and snapped my neck." This
testimony led the prosecution to ask Agent Breedlove about a heated verbal
confrontation between the defendant and himself, a high point of which was the
defendant's exhortation to Breedlove that "he was going to break [his] f------ neck
22
. . . ."
The admission of the "snapped neck" statement was not raised in the
motion for new trial. Hence, appellate review has been waived. Tenn. R. App. P.
3(e) ("no issue presented for review shall be predicated upon error in the admission
or exclusion of evidence . . . unless the same was specifically stated in the motion
for a new trial; otherwise such issues will be treated as waived"). For purposes of
retrial, however, we note the evidence is relevant as a portion of the defendant's
prior statements to law enforcement officers. The defendant was advised of his
rights before he made the statement to General McCutchen in which he recalled the
earlier conversation with Agent Breedlove. We disagree with the defendant's
characterization of the "snapped neck" statement as a threat and view it as an
abstract statement of how the defendant would kill someone if he were so inclined.
The statement was properly admitted and was not unfairly prejudicial. See Tenn.
R. Evid. 401, 403, 803(1.2).
On the other hand, there can be no doubt that the statement the
defendant made outside his apartment complex was a direct threat to Agent
Breedlove's physical well-being. In Tillery v. State, 565 S.W.2d 509, 511 (Tenn.
Crim. App. 1978), this court held, "[a]ny attempt by an accused to conceal or
destroy evidence, including an attempt to suppress the testimony of a witness, is
relevant as a circumstance from which guilt of the accused may be inferred." In
Tillery, the defendant threatened an eyewitness several months after the crime.
Id. at 510. Although Tillery does not present precisely the same factual scenario,
we believe it is sufficiently analogous to lend support to the case at bar. Here, the
defendant knew he was the subject of an on-going investigation. Agent Breedlove
left his business card with a note indicating his desire to talk to the defendant on the
defendant's windshield. Later the same day the defendant saw Agent Breedlove
23
and motioned for him to step out of his car. The defendant then initiated a verbal
assault which included the threat to break the agent's neck. Obviously, the
defendant's goal was to intimidate, if not physically harm, a law enforcement officer
whom he knew was investigating his involvement in the victim's death. Accordingly,
we believe this evidence was circumstantially probative of the defendant's guilt.
Furthermore, we find greater probative value in this evidence than prejudicial effect.
See Tenn. R. Evid. 403. Thus, there was no error in its admission.
Willis also alleges error in Agent Breedlove's testimony that when he
confronted the defendant with a torque screwdriver and told the defendant that he
knew what had been used to kill the victim, Willis began shaking and trembling.
Willis claims this evidence should not have been admitted absent expert testimony
that there was a connection between nervousness and guilt. We disagree. This
court has recently held that a trial court did not abuse its discretion in allowing a law
enforcement officer to testify about personal observations of a defendant's
demeanor during the taking of the defendant’s statements and that such
observations may be of assistance to the jury "in determining the weight and
credibility of the defendant's statements." State v. James Clayton Young, Jr., No.
01C01-9605-CC-00208, slip op. at 49 (Tenn. Crim. App., Nashville, May 22, 1998)
("the defendant 'appeared calm'"). The trial court did not abuse its discretion in
admitting this evidence.
24
The third complaint is that when Agent Breedlove held up the torque
screwdriver and told the defendant he knew what the murder weapon had been, the
defendant "lawyered up, he wanted his lawyer." Immediately upon the agent giving
this testimony, the defense objected and the court instructed the jury to disregard
the statement.
As the state concedes on appeal, this testimony was inappropriate.
We recognize that the prosecution may present evidence that an accused
terminated questioning at some point after being advised of his Miranda rights and
initially electing not to exercise his rights. See, e.g., Ware v. State, 565 S.W.2d
906, 908 (Tenn. Crim. App. 1978). It is apparent, however, that Agent Breedlove's
characterization of the defendant's invocation of his right to counsel as lawyering up
was an inflammatory denigration of the exercise of constitutional rights. On retrial,
the state should insure that this witness does not testify in this inflammatory and
improper manner.
V
In the remaining issues, Willis questions whether prosecutorial
misconduct required a mistrial, whether a continuance was in order when the state
failed to provide information regarding two potential lay witnesses, and whether an
expert's testimony should have been excluded because the state did not provide the
expert's written report prior to trial.
Some of the errors of which the defendant complains hinge on
discovery matters. Although the state was tardy in providing some discovery
information and other information which should have been provided was misplaced
by the state, it appears that the defense has received the statements which were
not misplaced and has heard the testimony of the any witnesses whose statements
25
were misplaced. The defense should be able to proceed with full information and
have proper time for investigation upon retrial. Accordingly, it is not necessary that
we consider the issues which pertain to undisclosed discovery materials.14
The remaining allegations require brief analysis.
First, the defense attacks evidentiary admissions; however, he does
this under the heading of prosecutorial misconduct and does not explain why
admission was error under the rules of evidence. Without some citation
demonstrating that the evidence should not have been admitted, we are at a loss
to understand how the prosecution committed misfeasance in offering the evidence.
We decline to speculate in that regard.15 See Tenn. R. Ct. Crim. App. 10(b) (issues
not supported by citation to authority shall be treated as waived); Tenn. R. App. P.
27(a)(7) (briefs shall contain citation to authority).
14
Specifically, the issues are:
(1) Whether a mistrial should have been granted due to
prosecutorial misconduct:
(a) In calling Crystal Bickford to testify without
providing her prior statement, which the state
knew was lost prior to calling the witness.
(b) In failing to provide the statement of Bo Botts
and in misleading the defense that Rose
Kitchens would be called as a prosecution
witness.
(2) Whether a continuance should have been granted when the
state failed to provide discovery information related to
Pamela Bissette and Ed Cota.
(3) Whether the court erred in allowing Kerry Oein to testify
when his report had not been provided to the defense.
15
These evidentiary issues relate to:
(1) William Alley's testimony that when he saw the tire tracks
near the location where the body was found, he thought to
himself, "[B]oy he sure got mad when she said no."
(2) Judy Kennedy's testimony that the defendant told her his
friend Bill had pneumonia and Kennedy's testimony that she
thought she saw Bill that morning.
(3) Harold McCarver's testimony that the defendant apologized
to him for using him as an alibi.
(4) Unresponsive answers and opinion testimony of Pat
McCutchen.
26
Additional allegations are made regarding the prosecution's
examination of witnesses. Willis claims that one of the prosecutors "testified from
the podium that the reward had been withdrawn." The prosecutor asked a witness
on redirect examination, "Did you know that the reward had subsequently been
withdrawn, did you know that?" The defense objected, and the prosecutor indicated
he was not sure whether evidence had been introduced that the reward had been
withdrawn. In fact, no such evidence had been received. The court instructed the
jury to disregard the question. On retrial, the prosecution should refrain from asking
questions which are premised upon facts not in evidence or which mischaracterize
the evidence.
The defendant also complains that the prosecutor asked Jimmy
Brumfield whether the defendant's girlfriend was "pretty much dog-face ugly."
Apparently, the prosecutor was attempting to discredit evidence that Brumfield and
the defendant's girlfriend had been intimate, which was relevant to potential bias of
Brumfield against the defendant. The state concedes on appeal that "this
statement/question was ill-advised." Accordingly, this court expects the prosecution
to pursue a more prudent line of questioning on remand.
Finally, because we have already granted the defendant a new trial,
it is not necessary that we analyze his claim of cumulative error from his various
allegations of prosecutorial misconduct.
In conclusion, the defendant's conviction of felony murder is reversed. This
matter is remanded to the Robertson County Criminal Court for a new trial on
27
the lesser grade offense of second degree murder.
________________________________
JAMES CURWOOD WITT, JR., JUDGE
CONCUR:
_______________________________
JOHN H. PEAY, JUDGE
_______________________________
DAVID H. WELLES, JUDGE
28