Cozzolino v. State

584 S.W.2d 765, 1979 Tenn. LEXIS 469

• Court: Tennessee Supreme Court
• Decided: June 11, 1979
• Status: Published

Opinions

OPINION

COOPER, Justice.

This case is before us pursuant to TCA § 39-2406, which provides for review by this court of all cases in which a death penalty is imposed for first degree murder. We reverse, and remand for a new sentencing proceeding.

The defendant, Ralph Cozzolino, pled guilty to the first degree murder of Clarence Hamler, an officer of the Chattanooga Police Department. A proceeding was then held under the provisions of TCA § 39-2404 to determine the punishment to be imposed. Under this statute, a trial of first degree murder is a bifurcated proceeding, with the jury first determining the defendant’s guilt or innocence of the charge, or, as happened here, with the defendant first admitting his guilt. If it is found that the defendant is guilty of first degree murder, a second proceeding is held before the same jury to determine the sentence — either life imprisonment or death — to be imposed. The jury may impose the death penalty only upon finding that one or more aggravating circumstances, listed in the statute, are present, and further that such circumstance or circumstances are not outweighed by any mitigating circumstance.¹ With respect to the evidence that may be introduced on these issues, the statute provides, in TCA § 39-2404(c), that

[i]n the sentencing proceeding, evidence may be presented as to any matter that the court deems relevant to the punishment and may include, but not be limited to, the nature and circumstances of the crime; the defendant’s character, background history, and physical condition; any evidence tending to establish or rebut the aggravating circumstances enumerated . . below; and any evidence tending to establish or rebut any mitigating factors. Any such evidence which the court deems to have probative value on the issue of punishment may be received regardless of its admissibility under the rules of evidence .

In the course of the defendant’s sentencing proceeding, the State, over the objection of the defendant, introduced evidence of statements by the defendant in which he admitted committing a number of armed robberies during the time between the murder and his capture. The jury imposed a sentence of death.

The defendant has raised several assignments of error, only two of which we need reach. The first of these is his contention that the death penalty constitutes cruel and unusual punishment, and as such may not be imposed by this state either under the 14th amendment of the United States Constitution or under Article 1, § 16 of the constitution of this state. This court has previously held that this state is not prohibited from imposing the death penalty in the manner set forth in TCA § 39-2404 et seq. by the restrictions placed on it by the 14th amendment. Miller v. State, Tenn., 584 S.W.2d 758 (1979). In that case, the question was not raised as to whether the death penalty could stand in the face of the prohibition against cruel and unusual punishment contained in the state constitution. Without detailing the precise scope of the protection afforded by that clause, we hold that it places no greater restriction on the punishments that may be imposed by this state than does the federal constitution.

The defendant has raised another claim that we consider dispositive of the case. He contends that it was error for the trial judge to permit the State to introduce, in its case in chief, evidence that the defendant committed crimes subsequent to the murder, in that this evidence was not relevant to the proof of the presence or absence of any statutory aggravating circumstance or mitigating factor, the only issues properly before the jury. In opposition, the State has argued that TCA § 39— 2404(c) permits the introduction of this evidence regardless of its relevance to those issues. On its face section (c) would seem to permit the introduction of evidence “relevant to the punishment” in addition to that “tending to establish or rebut the aggravating circumstances” or “tending to establish or rebut any mitigating factors.” However, this interpretation is one that we cannot accept. When the statute is considered as a whole, it is clear that the only issues that the jury may properly consider in reaching a decision on the sentence to be imposed are whether the State has established one or more of the aggravating circumstances beyond a reasonable doubt and, if so, whether any mitigating factors have been shown that would outweigh those aggravating circumstances. Any evidence that does not go to the proof of one or the other of those issues is irrelevant to the jury’s deliberation. We cannot believe that the legislature intended that irrelevant evidence be placed before the jury, fraught as such a procedure would be with the “substantial risk that [the death penalty] would be inflicted in an arbitrary or capricious manner,” Gregg v. Georgia, 428 U.S. 153, 188, 96 S.Ct. 2909, 2932, 49 L.Ed.2d 859 (1976), i. e., on the basis of factors other than those deemed by the legislature to be proper predicates for the sentencing determination. We think that a better interpretation of TCA § 39-2404(c), and one more in keeping with both the sense of the entire statute and the mandate of the United States Supreme Court, see, e. g., Gregg v. Georgia, supra; Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978), is that evidence is relevant to the punishment, and thus admissible, only if it is relevant to an aggravating circumstance, or to a mitigating factor raised by the defendant.

At the outset, it is apparent that this evidence of subsequent crimes was not admissible to establish any of the aggravating circumstances set forth in TCA § 39-2404(i), for it is relevant to none of them. This was recognized by the trial judge. From the limitations placed on the use of this evidence in the court’s instructions, it appears that the trial judge permitted its introduction on the theory that it was relevant to rebut evidence of mitigating circumstances that might be advanced by the defendant. In this, he was in error. “Rebutting evidence” is that which tends to explain or controvert evidence produced by an adverse party. See, e. g., State v. Anderson, 159 N.W.2d 809 (Iowa 1968); Hutchinson v. Shaheen, 55 A.D.2d 833, 390 N.Y.S.2d 317 (1976). One cannot rebut a proposition that has not been advanced. While this error admittedly might have been made harmless by the later introduction by the defendant of evidence to which the State’s proof of subsequent crimes was relevant in rebuttal, that did not occur in the instant case. The defendant’s proof was limited to an attempt to show the origin, in a troubled childhood, of the defendant’s criminal acts. This proof was not controverted by the State’s demonstration of his present criminal proclivities.

As this evidence was relevant to neither the statutory aggravating circumstances, nor to any mitigating factors raised by the defendant, its admission was error. Given the nature of the issue on trial, we are unable to hold that this error was harmless. Therefore, the verdict of the jury imposing the death penalty is reversed, and the case remanded for a new sentencing hearing. Our decision pretermits the other assignments of error raised by the defendant.

FONES and BROCK, JJ., concur. HARBISON, J„ and ALLISON HUM-PHREYS, Special Justice, concur.

1 . TCA § 39-2404(i) provides:

No death penalty shall be imposed but upon a unanimous finding, as heretofore indicated, of the existence of one or more of the statutory aggravating circumstances, which shall be limited, to the following:

(1) The murder was committed against a person less than twelve years of age and the defendant was eighteen years of age, or older.

(2) The defendant was previously convicted of one or more felonies, other than the present charge, which involve the use or threat of violence to the person.

(3) The defendant knowingly created a great risk of death to two or more persons, other than the victim murdered, during his act of murder.

(4) The defendant committed the murder for remuneration or the promise of remuneration, or employed another to commit the murder for remuneration or the promise of remuneration.

(5) The murder was especially heinous, atrocious, or cruel in that it involved torture or depravity of mind.

(6) The murder was committed for the purpose of avoiding, interfering with, or preventing a lawful arrest or prosecution of the defendant or another.

(7) The murder was committed while the defendant was engaged in committing, or was an accomplice in the commission of, or was attempting to commit, or was fleeing after committing or attempting to commit, any first degree murder, arson, rape, robbery, burglary, larceny, kidnapping, aircraft piracy, or unlawful throwing, placing or discharging of a destructive device or bomb.

(8) The murder was committed by the defendant while he was in lawful custody or in a place of lawful confinement or during his escape from lawful custody or from a place of lawful confinement.

(9) The murder was committed against any peace officer, corrections official, corrections employee or fireman, who was engaged in the performance of his duties, and the defendant knew or reasonably should have known that such victim was a peace officer, corrections official, corrections employee or fireman, engaged in the performance of his duties.

(10) The murder was committed against any present or former, judge, district attorney general or state attorney general, assistant district attorney general or assistant state attorney general due to or because of the exercise of his official duty or status and the defendant knew that the victim occupied said office.

(11) The murder was committed against a national, state, or local popularly elected official, due to or because of the official’s lawful duties or status, and the defendant knew that the victim was such an official.

No limitation is imposed on the mitigating factors that may be raised by the defendant. See TCA § 39-24040. Cf. Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978).