State v. Joyce Lindsey

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
AUGUST 1999 SESSION
FILED
October 28, 1999
Cecil Crowson, Jr.
STATE OF TENNESSEE, )
Appellate Court Clerk
)
Appellee, ) C.C.A. No. 02C01-9804-CR-00110
)
vs. ) Shelby County
)
JOYCE M. LINDSEY, ) Hon. James C. Beasley, Jr., Judge
a/k/a JOYCE WADE, )
)
Appellant. ) (Second Degree Murder,
) Aggravated Kidnapping,
Theft, Forgery)
FOR THE APPELLANT: FOR THE APPELLEE:
MARTI L. KAUFMAN PAUL G. SUMMERS
WILLIAM N. MONROE Attorney General & Reporter
CHRIS HAMILTON
Attorneys at Law J. ROSS DYER
5350 Poplar Ave., Ste. 102 Asst. Attorney General
Memphis, TN 38117 425 Fifth Ave. North
2d Floor, Cordell Hull Bldg.
Nashville, TN 37243-0493
WILLIAM L. GIBBONS
District Attorney General
THOMAS L. HENDERSON
JENNIFER S. NICHOLS
Asst. District Attorney General
201 Poplar Ave., Third Fl.
Memphis, TN 38103
OPINION FILED:________________
AFFIRMED
JAMES CURWOOD WITT, JR., JUDGE
OPINION
The defendant, Joyce M. Lindsey a/k/a Joyce Wade, appeals from the
second degree murder, aggravated kidnapping, forgery and theft convictions she
received at a jury trial in the Shelby County Criminal Court. The defendant is
presently serving an effective 33-year sentence in the Department of Correction for
her crimes. In her direct appeal, she raises these issues for our consideration:1
1. Whether the trial court properly denied the motion for judgment
of acquittal on the second degree murder and aggravated
kidnapping convictions.
2. Whether the trial court properly denied the defendant’s motion
for change of venue.
3. Whether the trial court properly admitted evidence of the
defendant’s hard feelings towards her sister as evidence of the
defendant’s motive.
4. Whether the trial court properly declined to give the
defendant’s proposed special jury instructions on DNA
evidence and corpus delicti.
5. Whether the trial court properly imposed consecutive
sentences.
Having reviewed the record, the briefs and oral arguments of the parties, and the
applicable law, we affirm the judgment of the trial court.
The case before the court has been the subject of intense local
interest in Shelby County and has received national media exposure on the
television programs Unsolved Mysteries and The Maury Povich Show. It is a tragic
case involving crimes against children and the division of a family against itself.
The state’s evidence at trial established the following. The murder
victim, Ashley Lashay Jones, was the defendant’s four-year-old niece. The
aggravated kidnapping victim, Erica Nicole “Niki” Manning, is the defendant’s then
twelve-year-old niece. The theft and forgery victim, Vicky Lee Morris, is the
1
Our presentation of the issues employs different wording and order than
that contained in the defendant’s brief.
defendant’s sister. Ms. Morris is the mother of the murder and kidnapping victims.
In September 1996, the defendant’s life was in disarray. She was
living in North Carolina, where she was in a troubled marriage. The defendant
contacted her mother, who lived in Memphis, about going to Memphis to get her life
together. Arrangements were made, and on Saturday, September 14, 1996, the
defendant checked into a Memphis motel. The defendant called her sister Vicky
Morris. The defendant was very intoxicated, and she did not want to see her sister
until the following day. At the appointed hour that next day, Ms. Morris went to the
motel. Ms. Morris found the defendant drunk and apparently pregnant. Ms. Morris
inquired whether the defendant was pregnant, and the defendant affirmed that she
was. The defendant agreed to come to the Morris home, where Vicky Morris lived
with her husband, Carl Morris, and her children, four-year-old Ashley and twelve-
year-old Niki.
When they arrived at the Morris home, Ms. Morris tried to sober up the
defendant by giving her food and coffee. Later that evening, Niki and Ashley spent
time getting to know their Aunt Joyce. This was the first time Ashley had ever seen
her Aunt Joyce, and the little girl was instantly enamored of the defendant. The
defendant made plans to take her nieces shopping the following day after Niki got
home from school and obtained Ms. Morris’ permission. The defendant also
obtained permission for Ashley to stay home from her babysitter the following day
so that she and the child could spend time together. Ms. Morris called the
babysitter and informed her that Ashley would be staying home on Monday.
On the morning of Monday, September 16, Niki left for school. The
Morrises left the house for work, and Ashley and the defendant were left alone in
the Morris home. Around 9:00 or 9:30 a.m., Ms. Morris called home to check on the
3
defendant and Ashley, and the defendant told Ms. Morris about what Ashley had
been doing. Ms. Morris thought she heard Ashley in the background. Following the
Morrises’ departure from home that morning and Ms. Morris’ phone call, Ashley was
never seen nor heard from again.
Around 3:15 p.m., Niki arrived home from school and found her Aunt
Joyce under the influence of alcohol. When Niki inquired where her sister was, the
defendant told her that the babysitter had picked up Ashley. Niki phoned a friend,
but the defendant was anxious to leave the house and insisted that Niki finish her
phone call quickly.
The defendant told Niki that they were going shopping. The pair went
in the defendant’s vehicle to a gas station, where the defendant used a pay
telephone outside Niki’s presence. The defendant phoned Ms. Morris and inquired
whether she could cash a check at Ms. Morris’ bank. Ms. Morris had another call
and had to place the defendant on hold before the conversation was complete, and
the defendant hung up before Ms. Morris was able to return to the call.
With Niki’s assistance, the defendant located Ms. Morris’ bank, but
she was unable to cash the check she presented. According to Niki, the defendant
tried to get money “out of my mother’s bank account.” The defendant tried to locate
another bank, but she was unsuccessful.
Eventually, the defendant went to a gas station and made some calls
on a pay phone. The defendant inquired of Niki whether Ms. Morris would be at
home or at work at that time, which was around 4:30 p.m. When Niki told the
defendant her mother would be at work, the defendant had Niki call the Morris home
and leave a message that they were out shopping. The defendant also told Niki to
4
say that she was trying to talk the defendant into staying in a motel that evening,
and the defendant would take Niki to school the following day.
After this phone call, the defendant and Niki began traveling toward
Nashville. During this ride, as well as earlier in the afternoon, Niki observed her
aunt drinking several bottles of Zima, an alcoholic beverage.
Near Dickson, the defendant’s vehicle had a flat tire. An off-duty
highway patrol officer stopped to offer assistance. The defendant told him she did
not have a spare tire. The officer called a tow truck for the defendant. While they
were waiting for the tow truck driver, Niki asked the defendant if she could call her
mother, but the defendant told her no.
When the tow truck driver arrived, the defendant told him she did not
have a spare tire. Therefore, the driver had to tow the defendant’s car. While the
driver was getting the defendant’s car on the back of his truck, the defendant stood
outside on the narrow shoulder of a bridge on Interstate 40 watching the driver. The
driver found this unusual, as most women for whom he performs this service wait
inside the cab of the truck.
Once inside the truck, the defendant and Niki told the tow truck driver
a story concocted by the defendant that the two were mother and daughter and
were escaping from an abusive home. One of the two showed the driver some
photographs of the defendant with bruises and told him the defendant’s husband
had inflicted the injuries. This story apparently aroused sympathy in the tow truck
driver, and he assisted the pair by taking them to a bank, where the defendant
withdrew money with an ATM card, taking them to a fast food restaurant to
purchase dinner, and finding them an inexpensive motel room for the evening
5
because all of the tire stores in Dickson were closed. Furthermore, the tow truck
driver offered to bring the defendant a tire from his uncle’s junk yard the next
morning so that he would not have to charge her for towing her to a tire store.
At the motel, the defendant did not want to go inside to check in. She
gave the money to the driver and asked him to do it for her. When he came outside
and stood at the rear of the defendant’s vehicle to get the licence plate number for
the motel registration, the defendant got out of the truck and asked what the driver
was doing. When the tow truck driver unloaded the defendant’s car in the motel
parking lot, the defendant watched the driver perform the task.
That night, Niki asked the defendant for permission to call Ms. Morris,
but the defendant said, “No, just wait because we’ll be back tomorrow.” When it
was time for bed, the defendant had Niki go outside to get a nightgown from the
trunk of the defendant’s car. The car was backed into a parking space outside the
motel room door so that the trunk was facing the door. There were bags of clothes
in the trunk of the car, and Niki did not look underneath them. The defendant stood
in the doorway and told Niki in which bag to find the nightgown.
Shortly after 7:00 a.m. the next morning, the defendant paged the tow
truck driver, who brought the junk yard tire and mounted it on the defendant’s car.
The defendant had the tow truck driver put the old tire in the back seat on top of
some clothing, rather than in the trunk. The tow truck driver then went with the
defendant and Niki to a tire store, where he spoke with the owner about an
inexpensive tire. When the new tire was mounted, the defendant told the mechanic
to put the old tire in the back seat, rather than in the truck. Before leaving the tire
store, the defendant inquired about the location of a laundromat, and the tow truck
driver pointed out one that was down the street.
6
The defendant and Niki began traveling toward Memphis. In
Somerville, the defendant stopped at a discount store and purchased laundry soap,
rubbing alcohol and two bottles of bleach. She took Niki to a laundromat and told
her to wash the clothes from the back seat of the car. The defendant said she was
going to wash the car and left Niki alone at the laundromat. The defendant left the
laundry soap with Niki, but she took the bleach with her. About an hour later, the
defendant returned to the laundromat, and Niki noticed that the car was not clean.
When she asked about this, the defendant told her the line had been too long. The
defendant washed some more clothes from the car. W hile the clothes were
washing, the defendant began cleaning out the car. When the defendant opened
the trunk, Niki noticed that there was no carpeting inside and there was an odor of
bleach. The defendant told Niki she had accidentally knocked over the bleach. Niki
also saw a spare tire in the trunk and asked her aunt why they had not used it when
they had the flat tire. The defendant said she had forgotten about it. Niki and the
defendant loaded all of the clothes back into the car and returned to Memphis.
When they reached the Morris residence at about 4:00 p.m., the
defendant let Niki out but drove away. When Niki came in the house, Vicky and
Carl Morris, who had by this time alerted the authorities that both Ashley and Niki
were missing, inquired about Ashley. Niki reported what the defendant had told her,
that Ashley had been picked up by the babysitter. Ms. Morris knew this could not
be true, because either she or her husband transported Ashley to and from the
babysitter each day. Ms. Morris instructed her husband to chase down the
defendant, and Ms. Morris called 911.
Carl Morris was able to locate the defendant and bring her back to the
house. A police officer arrived, and he observed the defendant make attempts to
get to her car. Because emotions were high, the officer had to separate the
7
Morrises and Niki from the defendant by placing the defendant in the back seat of
his patrol car. Later, the officer discovered a loaded .45 semi-automatic pistol which
was cocked and in a locked position inside the defendant’s purse, which had been
inside the defendant’s car. The defendant was arrested that evening for kidnapping
Niki. The defendant’s car was towed to a secure location that evening. The officer
recalled having opened the trunk of the car and smelled a very strong bleach odor.
A subsequent search of the defendant’s car revealed a box of checks
which belonged to Ms. Morris, a check book belonging to Ms. Morris, a check
written on Ms. Morris’ account made payable to the defendant and bearing Ms.
Morris’ name in the signature field in the defendant’s handwriting, 2 and Ms. Morris’
class ring. More significantly, blood spatters were discovered in the trunk of the
vehicle. Subsequent DNA testing of samples taken from the spatters was
performed in conjunction with testing of samples of Ashley Jones’s mother’s and
father’s blood. According to the state’s expert from the Tennessee Bureau of
Investigation, the probability that the blood spatters came from a biological child of
Ashley Jones’s mother and father was 99.9 percent.3 Ashley was the only child of
Ms. Morris and Brian Jones, the father.
While the defendant was in pre-trial detention, she wrote letters to a
male inmate. In a letter dated May 15, 1997, she wrote, “I just came from being
charged with 2nd degree murder, there was a blood spots the size of a quarter where
Ashley cut her fingers.” In a letter dated June 25, 1997, the defendant wrote,
2
In a statement to a detective of the Shelby County Sheriff’s Department,
the defendant said she had called Ms. Morris to see if she could write a check
and sign Ms. Morris’ name on it. The defendant admitted she and Niki went to
the bank to cash the check, but the bank would not cooperate.
3
Because Ashley Jones’s body was never recovered, a direct sample of
her blood was not available.
8
You See the 4 year old & I went to the store & she cut her hand on
Broken Glass behind my seat I took & wrap her hand in a Blanket
Until it stop Bleeding & then put the Blanket in the trunk Ashley kept
pushing the trunk Button in the glove Box & it was raining and
storming Bad the Blanket Flapped against the trunk lid leaving Blood
spot that you can’t see with your eyes its microscopic. Because they
could not find her & she was abducted Alan they charged me with
murder.
In an undated letter, the defendant wrote, “The liner of my trunk (Rubber Seal) has
Spots of blood on it. Can they charge me with murder without a body? I haven’t
murder Any one Ashley cut her hand on Glass in my car & she was swing her arms
every which way.”
At trial, Vicky Morris testified about a possible motive for the crimes.
According to Ms. Morris, she was a single parent in the summer of 1989 when she
was asked by the Department of Human Services to accept temporary custody of
Tammy, the defendant’s five or six-year-old daughter. Ms. Morris was promised
financial assistance from DHS for Tammy, but she never received any. Because
maintaining both Niki and Tammy and paying for their day care on her meager
income was impossible, she surrendered Tammy back to DHS after about a month.
Tammy was placed in a foster home, and eventually, her father was awarded
custody through judicial proceedings. In February 1996, the defendant was in
Memphis to transport her sister Teresa to Asheville, North Carolina. She and Ms.
Morris saw each other, and the defendant was very cold to Ms. Morris. Two months
later, in April 1996, the defendant told Ms. Morris during a phone conversation that
her behavior in February had been occasioned by Ms. Morris having ruined her life
by assisting Tammy’s father in gaining custody of the child. The defendant became
very emotional during this conversation. Ms. Morris tried to explain why she had
surrendered temporary custody of Tammy back to DHS and that she had not
assisted Tammy’s father in pursuing custody. Finally, Ms. Morris testified that when
Tammy was four, she bore a strong resemblance to Ashley at the same age.
9
In response to the state’s proof, the defense offered the testimony of
an expert in interpretation of DNA autoradiograms who challenged the state’s DNA
evidence. This expert conceded that DNA from the blood found in the defendant’s
trunk was consistent with the offspring of Ashley’s mother and father; however, he
opined that the probability of this DNA being consistent with “a lot of people” was
much higher than was advanced by the state’s expert. He opined the DNA pattern
was found in one in forty unrelated people, and he opined that the frequency would
be even greater among related individuals. Furthermore, he found other samples
which the state contended were consistent with the offspring of Ashley’s parents
either inconclusive or too degraded for use.
With this evidence before it, the jury convicted the defendant of
second degree murder of Ashley Jones, aggravated kidnapping of Niki Manning,
theft of property under $500 for the personal checks belonging to Vicky Morris, and
forgery for the check written on Vicky Morris’ account that the defendant attempted
to cash.
At a subsequent sentencing hearing, the trial court imposed a 24-year
sentence for second degree murder, nine years for aggravated kidnapping, one
year for forgery, and six months for theft. Finding the defendant a dangerous
offender, the court imposed consecutive sentences for second degree murder and
aggravated kidnapping, to be served concurrently to the theft and forgery
sentences.
Following the trial court’s denial of a motion for judgment of acquittal
and motion for new trial, the defendant filed this appeal.
I
10
The defendant’s first issue is whether the trial court should have
granted her motion for judgment of acquittal on the second degree murder and
aggravated kidnapping convictions. 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). Thus, we employ the familiar sufficiency of the evidence
standard in resolving this issue.
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
criminal offense based upon circumstantial evidence alone, the facts and
11
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.
A. Second Degree Murder
As relevant to this case, second degree murder is “[a] knowing killing
of another . . . .” See Tenn. Code Ann. § 39-13-210(a)(1) (1997).
The defendant’s contention on appeal is that the corpus delicti was not
established beyond a reasonable doubt; therefore, the conviction cannot stand.
Corpus delicti, meaning literally “the body of the crime,” consists of two elements in
a homicide case: (1) that there has been a death of a human being, and (2) that the
12
death was produced by criminal agency. See, e.g., State v. Shepherd, 862 S.W.2d
557, 564 (Tenn. Crim. App. 1992). Corpus delicti must be established beyond a
reasonable doubt. Id.
In her argument, the defendant makes numerous allegations which
she says point to insufficiency of evidence of the corpus delicti. The heart of her
complaint, however, relates to conviction in the absence of the victim’s body.
Recently, this court held in another second degree murder case, “The failure to
recover a victim’s body should not be fatal to the prosecution of a homicide.
Requiring a body would afford absolute immunity to defendants who are cunning
enough to destroy the body or otherwise conceal its identity.” State v. Kenneth
Patterson (Pat) Bondurant, No. 01C01-9501-CC-00023, slip op. at 15 (Tenn. Crim.
App., Nashville, May 24, 1996), perm. app. denied (Tenn. 1996). Thus, the
absence of a body, standing alone, is not fatal to the prosecution of this case. See
generally Charles E. Torcia, 1 Wharton’s Criminal Law (15th ed.1993) (note 36 and
accompanying text).
We predicate our analysis of the evidence by reiterating that we review
the evidence in the light most favorable to the state. Many of the specific
challenges the defendant raises would require us to do otherwise. To be sure, the
evidence in the light most favorable to the state demonstrates that four-year-old
Ashley had been missing for approximately fourteen months at the time of trial.
There had been extensive publicity of her disappearance and diligent police pursuit
of all credible leads. The defendant had recently expressed her ill will towards her
sister, the victim’s mother, over a child custody order involving the defendant’s
daughter. On the day of Ashley’s disappearance and the following day, the
defendant behaved peculiarly. She told Niki that the babysitter picked up Ashley,
but this proved false. Furthermore, the defendant, who had not met the babysitter
13
and was aware that the babysitter had been notified she would not be responsible
for Ashley that day, did not call Ms. Morris when Ashley allegedly got into a vehicle
on the street. The defendant was anxious to leave the Morris home when Niki
arrived home from school. The defendant went to pay telephones, looked for
banks, and drove east until she had a flat tire in Dickson, despite the fact she was
supposed to be taking Niki shopping at a mall and K-Mart store near the Morris
home in Shelby County. The defendant was evasive with Ms. Morris by having Niki
leave a message on the home recorder, rather than calling Ms. Morris at work. She
continued this evasiveness by taking Niki out of town overnight without permission,
telling the people she encountered that she did not have a spare tire when there
was one inside her trunk, and dropping Niki off at the Morris residence and driving
away even though an explanation was owed to the Morrises about the overnight trip
and Niki’s absence from school that day. The defendant was very watchful of the
tow truck driver, particularly when he was around the trunk of her car. She had the
tow truck driver and the mechanic at the tire store place dirty tires on clothing in the
back seat of the car, rather than in the trunk. When the defendant had Niki get a
nightgown out of the trunk of the car, she watched the girl from a short distance and
told her exactly where to look. Before returning to Memphis, the defendant went
alone to clean her car and returned with it still dirty but the trunk smelling strongly
of bleach and absent of its carpeting. Blood which was, in all reasonable
probability, Ashley’s was found spattered inside the trunk of the defendant’s car.
An expert in blood spatter interpretation opined that some of the stains in the trunk
were inconsistent with the defendant’s theory that they were made by a bloody
blanket. One of the stains was consistent with a hair transfer pattern. Ashley’s dolls
were found in the passenger compartment of the defendant’s car.
Furthermore, the record is devoid of any indication Ashley died by
accidental means, self-inflicted injury or natural causes. See Shepherd, 902
14
S.W.2d at 901. The finger cut described in the defendant’s letters to her jailhouse
pen pal does not raise any reasonable suspicion of a fatal, accidental injury. No
other evidence raises any suspicion of accidental injury. The mere absence of the
four-year-old’s body under these circumstances indicates foul play. Further, it is
beyond belief that a four-year-old is capable of committing suicide. There is no
indication whatsoever that Ashley was terminally ill; indeed, such would be
exceedingly rare in a child of tender years.
All of this evidence leads to only one reasonable end, albeit
unfortunate, that Ashley Jones is dead and that she met her death through the
defendant’s criminal act. Thus, the evidence sufficiently supports the defendant’s
conviction of second degree murder, and the trial court properly denied the motion
for judgment of acquittal.
B. Aggravated Kidnapping
Next, we examine the sufficiency of the aggravated kidnapping
conviction. As relevant to the facts of this case, “[a]ggravated kidnapping is false
imprisonment, as defined in § 39-13-302, committed . . . [w]hile the defendant is in
possession of a deadly weapon or threatens the use of a deadly weapon.” Tenn.
Code Ann. § 39-13-304(a)(5) (1997). False imprisonment is committed by one “who
knowingly removes or confines another unlawfully so as to interfere substantially
with the other’s liberty.” Tenn. Code Ann. § 39-13-302(a) (1997).
Once again, the defendant’s argument in large part asks us to reweigh
the evidence. As stated above, this we cannot do. The evidence in the light most
favorable to the state proves that the defendant exceeded the scope of her
supervisory authority over Niki Manning. Rather than taking Niki shopping for the
afternoon at a nearby mall and K-Mart store, the defendant took Niki half-way
15
across the state on an overnight trip that lasted through the following day, when Niki
should have been at school. The defendant induced the child to leave the Morris
home with her by promising a shopping trip, and the defendant’s status as “Aunt
Joyce” concealed from the child that she was being taken from her home without
her mother’s and step-father’s consent and for some other purpose than shopping.
The defendant did not allow Niki to call home despite the child’s repeated requests.
Finally, the defendant had a gun in her purse during the ordeal. 4
The evidence is sufficient to support a conviction of aggravated
kidnapping. The fact that the child was deceived by her aunt does not remove
criminal liability. Clearly, what Niki thought was an afternoon shopping trip turned
into a long-distance flight of approximately 24 hours’ duration. During this time, Niki
was unable to call or return home. The defendant was in possession of a gun
throughout the incident.
In finding the evidence sufficient to support the aggravated kidnapping
conviction, we have considered and rejected the defendant’s argument that she was
unable to form the requisite knowing mens rea for false imprisonment, an element
of the crime, due to her voluntary intoxication. See Tenn. Code Ann. § 39-11-503
(1997) (voluntary intoxication). There is evidence that the defendant consumed
copious quantities of alcohol. However, there is also evidence that the defendant
was able to present a forged check. She had the ability to deduce that she should
have Niki leave a message at the Morris home that they might be out overnight,
4
The defendant spent a great deal of effort at trial attempting to question
whether there was opportunity for the gun to have been placed inside the
defendant’s purse after the episode was over. However, a detective testified that
Niki reported having seen the gun inside the defendant’s purse when they were
at the bank attempting to cash a check. Further, the defendant acknowledged to
a detective that she had the gun with her before leaving North Carolina and
coming to Memphis.
16
rather than calling Ms. Morris at work, which might result in resistance to the plan.
The defendant was able to communicate with a highway patrol officer and a tow
truck driver. She had the presence of mind to keep the tow truck driver from
opening the trunk. She was able to concoct a scheme and instruct Niki in it so that
they could gain the sympathy of the tow truck driver with their story of mother and
daughter escaping an abusive home. Obviously, the jury rejected the defendant’s
claim that voluntary intoxication negated her ability to form the culpable mental state
of the crime. This was its prerogative as the trier of fact.
The evidence sufficiently supports the defendant’s convictions of
second degree murder and aggravated kidnapping. The trial court did not err in
denying the motion for judgment of acquittal.
II
Next, we consider whether the trial court properly denied the
defendant’s motion for change of venue. The defendant claims she was deprived
of a fair trial because of prejudicial pretrial publicity surrounding her case. It is
beyond dispute that this case received a great deal of publicity. During voir dire, it
was apparent that many of the prospective jurors were familiar with the facts of the
case.
Initially, the defendant was not charged with the murder of Ashley
Jones. Much of the publicity of which the defendant complained in her pretrial
motion dealt with the pending charges for the kidnapping, theft and forgery and the
ongoing investigation of Ashley’s disappearance. Several newspaper articles
appended to the motion for change of venue cast the shadow of suspicion upon the
17
defendant for Ashley’s disappearance.5 Prior to trial, the defense moved the court
for a change of venue based primarily upon the unfair prejudice to the defendant in
her kidnapping, theft and forgery cases from the suspicion that she was involved in
Ashley’s disappearance. The trial court denied the motion but indicated it would
reconsider if there was difficulty selecting a jury. After the motion was heard, the
defendant was charged with second degree murder, and she went to trial on the
murder charge along with the other charges. At trial, the defense renewed the
motion for change of venue after the jury was selected. The trial judge denied the
motion, stating that although some of the jurors were familiar with the case, he was
satisfied they could set aside their pre-trial knowledge and render an impartial
verdict.
A change a venue may be granted “if it appears to the court that ,due
to undue excitement against the defendant in the county where the offense was
committed or any other cause, a fair trial probably could not be had.” Tenn. R.
Crim. P. 21(a). In determining whether a change of venue should be granted,
relevant factors include
1. Nature, extent, and timing of pretrial publicity.
2. Nature of publicity as fair or inflammatory.
3. The particular content of the publicity.
4. The degree to which the publicity complained of has
permeated the area from which the venire is drawn.
5. The degree to which the publicity circulated outside the area
from which the venire is drawn.
5
Not all of the articles are dated; however, those bearing dates are from
September, October and November 1996, all a year or more before the trial. In
the most egregious of these articles, an officer of the Sheriff’s Department is
quoted, “Joyce knows the circumstances of where that baby is and she just won’t
tell. She knows what happened.” The other articles are more innocuous by
comparison, stating that the defendant’s vehicle was searched, identifying the
defendant as a suspect, and reciting facts of the crimes from official records.
18
6. The time elapsed from the release of the publicity until the trial.
7. The degree of care exercised in the selection of the jury.
8. The ease or difficultly in selecting the jury.
9. The veniremen’s familiarity with the publicity and its effect, if
any, upon them as shown through their answers on voir dire.
10. The defendant’s utilization of his p[er]emptory challenges.
11. The defendant’s utilization of challenges for cause.
12. The participation by police or by prosecution in the release of
publicity.
13. The severity of the offense charged.
14. The absence or presence of threats, demonstrations or other
hostility against the defendant.
15. Size of the area from which the venire is drawn.
16. Affidavits, hearsay or opinion testimony of witnesses.
17. Nature of the verdict returned by the trial jury.
State v. Hoover, 594 S.W.2d 743, 746 (Tenn. Crim. App. 1979). The mere
exposure of jurors to pretrial publicity does not constitute constitutional error;
indeed, “in this age of mass media it is quite likely that jurors may have had some
level of pre-trial exposure to the facts and issues involved in a case.” State v.
Kilburn, 782 S.W.2d 199, 203 (Tenn. Crim. App. 1989). Whether to allow a motion
for change of venue is a matter left to the sound discretion of the trial court, whose
decision will not be reversed on appeal absent a clear abuse of that discretion.
See, e.g., State v. Vann, 976 S.W.2d 93, 114 (Tenn. 1998) (citation omitted), cert.
denied — U.S. —, 119 S. Ct. 1467 (1999).
We have considered each of the Hoover factors with an eye toward
the facts of this case. It is true that many of the prospective jurors, some of whom
ultimately served as jurors, had been exposed to pretrial publicity. The publicity was
generally unfavorable to the defendant, and unfortunately, a member of law
19
enforcement chose to make disparaging comments about the defendant which
added to the media speculation about the defendant’s guilt. There is reference in
the record to media presence in the courtroom during the trial, indicating ongoing
interest in the case. On the other hand, the parties and the court took great care
in selecting the jury. Of the three prospective jurors whose comments the
defendant specifically references in her brief, only one ultimately served on the jury.
With respect to that juror, we view her comments, taken in their totality, as an
unequivocal indication she could set aside the pretrial information she had received
and consider the case solely on the evidence at trial.6 Review of the voir dire
reveals many prospective jurors with some knowledge of the case but few with
strong prejudice against the defendant. The jury returned a verdict on a lesser
offense on one of the charges – the defendant was charged with especially
aggravated kidnapping, and the verdict was for aggravated kidnapping. This
indicates the jury was not unduly inflamed by pretrial publicity; rather, it considered
the evidence before it in reaching its verdict. The crimes and the trial took place in
Shelby County, which this court judicially knows is the most populated metropolitan
area of the state. As the district attorney pointed out during arguments on the
motion to change venue, news of one crime in Shelby County is unfortunately
quickly replaced with news of another. The defendant’s complaint about the
publicity at the time of the original hearing on the motion was that the defendant
was being prejudiced by extensive media speculation about her involvement in
Ashley Jones’s disappearance, which was at that time an uncharged crime. By the
time of trial, the defendant faced trial for Ashley’s murder in addition to the other
charges. The concern that the jury would unfairly convict the defendant of
kidnapping, theft and forgery charges in order to punish her for her suspected role
6
Moreover, we see no abuse of discretion in the trial court’s refusal to
excuse any of these three prospective jurors for cause. See State v. Burns, 591
S.W.2d 780, 782 (Tenn. Crim. App. 1979).
20
in Ashley’s disappearance should have been lessened when the jury had the option
of convicting the defendant for a crime directly related to Ashley’s disappearance.
On balance, we find no abuse of discretion in the trial court’s denial of the motion
for change of venue.
III
The defendant’s next issue concerns the admission of Vicky Morris’
testimony about the defendant’s hard feelings toward Ms. Morris because the father
of the defendant’s daughter was awarded custody of the child. The trial court
limited the evidence to the basic facts of the defendant having behaved coldly
toward Ms. Morris in February 1996, the phone conversation between Ms. Morris
and the defendant in April 1996, and Ms. Morris’ account of her brief tenure as
Tammy’s custodian and the subsequent judicial award of custody to Tammy’s father
in 1989. The trial court specifically ordered that any facts related to why the
defendant lost custody of Tammy, such as evidence of the defendant’s bad
character as a mother, was not admissible. The court allowed evidence, however,
that Tammy and Ashley resembled each other at the age of four.
On appeal, the defendant presents this issue as one cognizable under
Rule 404(b) of the Tennessee Rules of Evidence, which pertains to character
evidence through proof of other crimes, wrongs or acts. However, the trial court’s
order excluded proof in the nature of character evidence. Accordingly, we believe
the issue is more properly viewed as a Rule 403 question of whether the danger of
unfair prejudice from admission of this evidence outweighed its probative value.
See Tenn. R. Evid. 403.
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
21
of discretion. State v. DuBose, 953 S.W.2d 649, 652 (Tenn. 1997); State v. Baker,
785 S.W.2d 132, 134 (Tenn. Crim. App. 1980).
In this case, the defendant’s recent actions and expressions of ill will
toward her sister from a prior family-related incident were highly relevant to crimes
committed by one family member against other members of the family. The
defendant’s sister, Vicky Morris, is both the mother of the child victims and a victim
herself of the theft. “The motive and intent of the defendant in the commission of
a murder are almost always critical issues.” State v. Gentry, 881 S.W.2d 1, 7 (Tenn.
Crim. App. 1993). The murder of Ashley Jones is the centerpiece of the
defendant’s criminal episode. Four-year-old Ashley’s resemblance to Tammy at
the age of four was additional, relevant and probative evidence from which the jury
could have inferred a motive for the crimes. Although this evidence is prejudicial to
the defendant in the sense that it points the finger of guilt at her, we fail to see that
it is unfairly prejudicial. See id. at 6 (defendant not entitled to exclusion of evidence
merely because it is particularly damaging). The trial court carefully limited the
proof to exclude any evidence which might create unfair prejudice through proof of
the defendant’s prior bad acts which led to the defendant losing custody of her child.
The evidence was relevant, and its probative value far outweighed the danger of
unfair prejudice. It was properly admitted.
IV
The defendant alleges the trial court improperly denied her request for
special jury instructions on DNA evidence and corpus delicti.
“The Judges shall not charge juries with respect to matters of fact, but
may state the testimony and declare the law.” Tenn. Const. art. VI, § 9. A criminal
accused is entitled to a complete and correct charge of the law, State v. Teel, 793
22
S.W.2d 236, 249 (Tenn. 1990), including the law governing the issues raised by the
evidence. State v. Zirkle, 910 S.W.2d 874, 892 (Tenn. Crim. App. 1995). A court
commits no error by refusing a special charge if the instructions given impart a
correct, full and fair statement of the applicable law. Id.
A. DNA Evidence
At trial the defendant urged the court to instruct the jury in accord with
a concurring opinion from the Minnesota Supreme Court, in which three of the
court’s seven members opined
At the very least, jurors should know:
(1) A given DNA profile may be shared by two or more people;
(2) The random match probability statistic is not the equivalent of
a statistic that tells the jury the likelihood of whether the
defendant committed the crime;
(3) The random match probability statistic is the likelihood that a
random person in the population would match the
characteristics that were found in the crime scene evidence
and also in defendant’s DNA;
(4) Where the known DNA sample from the defendant matches
the unknown sample obtained from the crime scene, it does
not necessarily mean the defendant is the source of the
sample found at the crime scene; and
(5) That jurors alone have the final responsibility to decide the
weight to be given to DNA random match probability statistics.
State v. Bloom, 516 N.W.2d 159, 171 (Minn. 1994) (en banc) (concurring opinion
of Page, J., joined by Gardebring and Tomljanovich, JJ.). The trial court declined
to give the instruction; however, the trial court did give the pattern instruction on
expert testimony.
We believe the trial court gave a correct, full and fair statement of the
law. Moreover, the defense ably challenged the state’s DNA proof through intense,
probing cross-examination of the state’s expert and presentation of its own expert
proof. The expert testimony elicited by the defense included evidence on the Bloom
factors. Much of the special instruction concerns what are essentially matters of
asserted scientific fact. As such, commentary in the form of a special instruction
23
would be constitutionally impermissible. See Tenn. Const. art. VI, § 9. The trial
court’s charge was proper.
B. Corpus Delicti
The defendant also claims the trial court should have given a special
instruction on corpus delicti because the case involves an entirely circumstantial
homicide case in which no body was recovered. The defendant’s proposed
instruction reads
Corpus delicti must be proven beyond a reasonable doubt and corpus
del[i]cti in a homicide case consists of competent proof of the death
of a human being which was caused by a criminal act or agency of
another. In homicide cases it must be proven beyond a reasonable
doubt that the death in question was not occasioned by natural
causes, accident, or by the deceased in person. Therefore, to find
that the defendant, Joyce Lindsey, is guilty of homicide, you must find
that the state has proven beyond a reasonable doubt that Ashley
Jones is in fact dead, you must also find that Joyce Lindsey did some
act that caused the death of Ashley Jones. Finally, you must also find
that the State has proven that the death of Ashley Jones was not
occasioned by natural causes, accident, or some act of Ashley Jones
herself.
Instead, the court charged
The law presumes that the defendant is innocent of the charges
against her. You enter upon this investigation with the presumption
that the defendant is not guilty of any crime and this presumption
stands as a witness for her until it is rebutted and overturned by
competent and credible proof.
It is therefore incumbent upon the state, before you can convict the
defendant, to establish, to your satisfaction, beyond a reasonable
doubt the corpus del[i]cti or “body of the crime” that is:
As to the Murder Charge:
1. That Ashley Jones has been killed.
2. That the defendant killed her, and that the killing was done in
such a manner, by such means, and under such
circumstances as would make her guilty under the law of one
of the grades of felonious homicides heretofore defined and
explained to you.
3. The venue; that is that Ashley Jones was killed in Shelby
24
County, Tennessee before the finding of the indictment.
The defendant’s primary complaint on appeal is that the court did not
instruct the jury that it must find that Ashley’s death was not the result of natural
causes, accident or self-inflicted injury. See Shepherd, 902 S.W.2d at 901.
Although this is a necessary prerequisite to a finding of guilt in a homicide case, see
Davis v. State, 1 Tenn. Crim. App. 479, 483, 445 S.W.2d 933, 935 (1969), a
conclusion that a defendant has, with a culpable mens rea, killed another is
necessarily antithetical to the possibility that the victim’s death was from natural
causes, accident or suicide. In the present case, the jury was properly instructed
on the definition of second degree murder and the lesser grade homicide offenses.
By finding that the defendant knowingly killed the victim, logic required that the jury
first eliminate the possibilities of natural death, accident or suicide. The additional
instruction the defendant requested was surplusage. Accordingly, the charge the
judge gave on corpus delicti was a correct, full and fair statement of the law. We
find no error.
V
Finally, the defendant questions whether the trial court properly
imposed consecutive sentences for the second degree murder and aggravated
kidnapping convictions. When there is a challenge to the length, range, or manner
of service of a sentence, it is the duty of this court to conduct a de novo review of
the record with a presumption that the determinations made by the trial court are
correct. Tenn. Code Ann. §40-35-401(d) (1997). This presumption is “conditioned
upon the affirmative showing in the record that the trial court considered the
sentencing principles and all relevant facts and circumstances.” State v. Ashby, 823
S.W.2d 166, 169 (Tenn. 1991). “The burden of showing that the sentence is
improper is upon the appellant.” Id. In the event the record fails to demonstrate the
25
required consideration by the trial court, review of the sentence is purely de novo.
Id. If appellate review reflects the trial court properly considered all relevant factors
and its findings of fact are adequately supported by the record, this court must
affirm the sentence, “even if we would have preferred a different result.” State v.
Fletcher, 805 S.W.2d 785, 789 (Tenn. Crim. App. 1991).
In making its sentencing determination, the trial court, at the
conclusion of the sentencing hearing, determines the range of sentence and then
determines the specific sentence and the propriety of sentencing alternatives by
considering (1) the evidence, if any, received at the trial and the sentencing hearing,
(2) the presentence report, (3) the principles of sentencing and arguments as to
sentencing alternatives, (4) the nature and characteristics of the criminal conduct
involved, (5) evidence and information offered by the parties on the enhancement
and mitigating factors, (6) any statements the defendant wishes to make in the
defendant’s behalf about sentencing, and (7) the potential for rehabilitation or
treatment. Tenn. Code Ann. §40-35-210(a), (b) (1997); Tenn. Code Ann. §40-35-
103(5) (1997); State v. Holland, 860 S.W.2d 53, 60 (Tenn. Crim. App. 1993).
Consecutive sentencing may be imposed in the discretion of the trial
court upon a determination that one or more of the following criteria exist:
(1) The defendant is a professional criminal who has knowingly
devoted himself to criminal acts as a major source of
livelihood;
(2) The defendant is an offender whose record of criminal activity
is extensive;
(3) The defendant is a dangerous mentally abnormal person so
declared by a competent psychiatrist who concludes as a
result of an investigation prior to sentencing that the
defendant's criminal conduct has been characterized by a
pattern of repetitive or compulsive behavior with heedless
indifference to consequences;
(4) The defendant is a dangerous offender whose behavior
26
indicates little or no regard for human life, and no hesitation
about committing a crime in which the risk to human life is
high;
(5) The defendant is convicted of two (2) or more statutory
offenses involving sexual abuse of a minor with consideration
of the aggravating circumstances arising from the relationship
between the defendant and victim or victims, the time span of
defendant's undetected sexual activity, the nature and scope
of the sexual acts and the extent of the residual, physical and
mental damage to the victim or victims;
(6) The defendant is sentenced for an offense committed while on
probation; or
(7) The defendant is sentenced for criminal contempt.
Tenn. Code Ann. § 40-35-115(b) (1997). In State v. Wilkerson, 905 S.W.2d 933,
937-38 (Tenn. 1995), the supreme court imposed two additional requirements for
consecutive sentencing of “dangerous offenders” -- the court must find consecutive
sentences are reasonably related to the severity of the offenses committed and are
necessary to protect the public from further criminal conduct. See State v. David
Keith Lane, --- S.W.2d ---, No. 03S01-9802-CC-00013, slip op. at 8-9 (Tenn.
Knoxville, Sept. 27, 1999).
The trial court found that the defendant was a dangerous offender
based upon the lack of regard for human life and high risk from the involvement of
alcohol, particularly during the kidnapping episode when she was drinking and
driving. The court did not explicitly rely upon Wilkerson, basing its decision instead
upon State v. Woods, 814 S.W.2d 378 (Tenn. Crim. App. 1991), modified by State
v. Wilkerson, 905 S.W.2d 933 (Tenn. 1995). Wilkerson represents a modification
of the strict factual findings necessary for consecutive sentencing under Woods.
See, e.g., State v. Moore, 942 S.W.2d 570, 573 (Tenn. Crim. App. 1996). The
findings necessary for consecutive sentencing under Woods are essentially
included within those necessary under Wilkerson. Compare Woods, 814 S.W.2d
at 380 (court must find, inter alia, that “the circumstances surrounding the
27
commission of the offense are aggravated” and that “confinement for an extended
period of time is necessary to protect society from the defendant’s unwillingness to
‘lead a productive life and [his] resort to criminal activity in furtherance of [his] anti-
societal lifestyle’”) with Wilkerson, 905 S.W.2d at 937-38 (court must find that
consecutive sentences are reasonably related to the severity of the offenses
committed and are necessary to protect the public from further criminal conduct).
Thus, the trial court’s Woods findings are a ready surrogate for the required
Wilkerson findings.
With respect to the severity of the offenses, the court commented that
the use of alcohol was involved in both the murder and the kidnapping, and the
defendant had exhibited a lack of regard for human life by drinking and driving
during the commission of the kidnapping. The court also relied upon Niki’s young
age and the impact of the kidnapping on her. With respect to the need to protect
the public from further criminal conduct of the defendant, the court commented that
it was impossible to know what was inside the defendant’s mind in order to know
with certainty whether or not “this is a one-time thing;” however, the defendant had
murdered a child, gone to great lengths in disposing of the body, concealed the
crime and kidnapped Niki. The court considered these facts indicative of the need
to protect the public from further criminal activity. Upon de novo review, we agree.
The facts found by the court support the imposition of consecutive sentences for
second degree murder and aggravated kidnapping.
28
Finding no error requiring reversal, we affirm the judgment of the trial
court.
________________________________
JAMES CURWOOD WITT, JR., JUDGE
CONCUR:
_____________________________
DAVID H. WELLES, JUDGE
_____________________________
JERRY L. SMITH, JUDGE
29