State v. Bane

57 S.W.3d 411, 2001 Tenn. LEXIS 540, 2001 WL 746622
CourtTennessee Supreme Court
DecidedJuly 3, 2001
DocketW1997-02158-SC-DDT-DD
StatusPublished
Cited by327 cases

This text of 57 S.W.3d 411 (State v. Bane) is published on Counsel Stack Legal Research, covering Tennessee Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Bane, 57 S.W.3d 411, 2001 Tenn. LEXIS 540, 2001 WL 746622 (Tenn. 2001).

Opinions

OPINION

E. RILEY ANDERSON, C.J., delivered the opinion of the court, in which FRANK F. DROWOTA, III, JANICE M. HOLDER, and WILLIAM M. BARKER, JJ., joined.

The defendant, John Michael Bane, was convicted of felony murder in the perpetra[416]*416tion of a robbery for an offense committed in November of 1988. The jury originally imposed a sentence of death after it found that evidence of two aggravating circumstances — (1) the murder was especially heinous, atrocious, or cruel in that it involved torture or depravity of mind and (2) the murder was committed during the perpetration of a felony — outweighed evidence of any mitigating factors. See Tenn.Code Ann. § 39-2-203(i)(5), (7) (1982). On appeal, this Court affirmed the conviction, but remanded for a new sentencing hearing because the jury’s application of the felony murder aggravating circumstance duplicated the offense of felony murder in violation of article I, section 16 of the Tennessee Constitution. See State v. Bane, 853 S.W.2d 483 (Tenn.1993). After a new sentencing hearing, the jury again imposed a sentence of death after it found that evidence of two aggravating circumstances — (1) the murder was “especially atrocious or cruel in that it involved torture and depravity of mind” and (2) the murder was committed for the purpose of avoiding, interfering with, or preventing a lawful arrest or prosecution of the defendant or another — outweighed evidence of any mitigating factors. See Tenn.Code Ann. § 39—2—203(i)(5), (6) (1982).

After the Court of Criminal Appeals affirmed the death sentence, the case was docketed in this Court. See Tenn.Code Ann. § 39-13-206(a) (1997) (“The affir-mance of the conviction and the sentence of death shall be automatically reviewed by the Tennessee supreme court.”). After reviewing the record, the briefs, and applicable authority, we designated seven issues for oral argument.1 We now hold as follows: (1) the trial court did not err in refusing to instruct the jury that a witness for the prosecution, Brian Lovett, was an accomplice whose testimony had to be corroborated in order to find an aggravating circumstance; (2) the trial court did not err in refusing to admit Bryan Lovett’s medical and psychological records; (3) the trial court did not err in refusing to allow the defendant’s expert witness to remain in the courtroom; (4) the trial court did not err in allowing the prosecution to argue a “non-statutory” aggravating circumstance; (5) the evidence was sufficient to support the jury’s application of the aggravating circumstance set forth in Tenn.Code Ann. § 39-2-203(i)(5) (1982); (6) the evidence was sufficient to support the jury’s application of the aggravating circumstance set forth in Tenn.Code Ann. § 39-2-203(i)(6) (1982); and (7) the sentence of death was not arbitrary or disproportionate as applied in this case to the defendant. We also agree with the Court of Criminal Appeals’ conclusions with respect to the remaining issues, the relevant portions of which are included in the appendix to this opinion. Accordingly, we affirm the judgment of the Court of Criminal Appeals.

BACKGROUND

On November 19, 1988, police found the body of the victim, Royce D. Frazier, age 60, lying in a bathtub full of water in his home near Memphis, Tennessee. Frazier had been gagged; a plastic bag had been placed over his head; and an electrical cord was tied around his neck. A plunger had been placed over his face apparently to keep his head submerged. Frazier’s house had been ransacked: several lamps and ashtrays had been overturned and numerous items were scattered in disarray.

Brian Lovett, who was 16 at the time of the offense, testified that his mother, Don[417]*417na Lovett, and the defendant, John Michael Bane, had discussed a plan to rob the victim several days before he was killed. The plan was for Donna Lovett to visit Frazier, whom she knew, and render him unconscious by putting Visine eye drops in his beer. Bane would then enter Frazier’s home and carry out the robbery with Donna Lovett. According to Brian Lovett, Bane said that Frazier would have to be killed because he “knew [Lovett] and would tell on her.” Brian Lovett said that he and Bane discussed choking or stabbing the victim.

On the day after the robbery plan discussion, Donna Lovett and the defendant Bane experimented by giving Brian Lovett a beer containing eye drops to see whether it would render him unconscious. Brian Lovett testified that it caused him to fall asleep within five minutes of drinking the beer. Thomas Lovett, Brian’s younger brother, also testified that he recalled Brian drinking a beer containing eye drops.

Sometime in the late afternoon of November 17, 1988, Bane, accompanied by Donna Lovett and her two sons, Brian and Thomas Lovett, drove his car past Frazier’s home several times, but no one appeared to be home. Bane explained that he was going to borrow money from the occupant. When they saw Frazier’s car at the home, Donna Lovett got out of the car and went into the house alone. Bane then left and drove Brian and Thomas to Brian’s girlfriend’s home. A short time later, Bane picked up the boys and took them to the Lovetts’ trailer in Ripley, Tennessee. Thereafter, Bane, along with Brian Lovett, returned to Frazier’s home. When Donna Lovett signaled by “flickering” the porch light on two occasions, Bane entered Frazier’s home, leaving Brian Lovett in the car.

According to Brian Lovett’s testimony, approximately thirty minutes later Bane and Donna Lovett ran to the car carrying several items of Frazier’s property. Bane had blood on his gloves and Donna Lovett was crying and upset. While driving from the scene, Bane told Brian that he had beaten the victim several times because he kept getting up and that he had “cut [the victim’s] nuts off.” Bane also said that he had taken $726 and that he “had done such a good job he deserved a beer.” Bane was arrested two days later when Donna Lo-vett reported the events of November 17, 1988 to the police.2

Brian Lovett testified that his sister committed suicide several months before the killing of the victim and that he himself had attempted suicide on two occasions before November 17, 1988. He admitted that he had been treated at Charter Lakeside and Memphis Mental Health Institute and that he had a history of using cocaine, speed, marijuana, and alcohol. Lovett also admitted that he had made conflicting statements about the murder. In one statement, he had told authorities that he had looked in Frazier’s window and saw Bane holding a knife to the victim’s groin while Donna Lovett placed a bag over the victim’s head. He did not recall why he had made the statement and conceded that he had never left Bane’s car. Lovett testified that he had been arrested for theft after Bane was convicted and that he had been placed in the same prison cell as the defendant. He conceded that he signed a statement that he had lied at trial because he feared the defendant.

Dr.

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Cite This Page — Counsel Stack

Bluebook (online)
57 S.W.3d 411, 2001 Tenn. LEXIS 540, 2001 WL 746622, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-bane-tenn-2001.