State v. Dicks

615 S.W.2d 126, 1981 Tenn. LEXIS 436

• Court: Tennessee Supreme Court
• Decided: February 2, 1981
• Status: Published

Opinions

OPINION

COOPER, Justice.

This case is before us pursuant to T.C.A. § 39-2406, which provides for review by this court of every case in which a death penalty is imposed.

Appellant, Jeffrey Stuart Dicks, was found guilty of murder in the first degree for the killing of James Keegan in the course of the robbery of the Budget Shop in Kingsport, Tennessee. The Budget Shop is a second-hand clothing store. Mr. Keegan, the owner, was known to carry a substantial sum of money on his person to be used in the business. On February 16, 1978, Mr. Keegan’s body was found on the floor of his place of business. His throat had been cut and there was evidence of a severe blow to his head. Death was due to the throat wound which, according to medical testimony, was inflicted while Mr. Keegan was unconscious from the head injury. A search of Mr. Keegan’s person and his business establishment revealed that Mr. Kee-gan’s money had been taken. Appellant and Donald Wayne “Chief” Strouth subsequently were arrested and indicted on a charge of murder in the first degree (murder in the perpetration of a robbery.) The defendants were tried separately, to avoid the possibility of a Bruton¹ violation inherent in the fact that each of the defendants had given investigating officers a statement implicating the other. Appellant also was granted a change of venue from Sullivan County, where the crime was committed, to Greene County. On trial, appellant was found guilty of murder in the first degree. In a subsequent hearing to determine the sentence to be imposed on the defendant, the jury found the following statutory aggravating circumstances:

The murder was especially heinous, atrocious or cruel in that it involved torture and depravity of mind; and

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

The jury also found that “there [were] no mitigating circumstances sufficiently substantial to outweigh the statutory aggravating circumstance or circumstances,” and sentenced appellant to death.

Appellant does not specifically question the sufficiency of the convicting evidence. He does question rulings by the trial judge on the admissibility of evidence in the guilt-determination phase of the trial, evidently on the bases that photographic evidence admitted tended to inflame the jury, and that statements by Donald Strouth and testimony of a psychologist, which were excluded, tended to show that appellant did no more than accompany the killer of James Keegan. Appellant also insists (1) that the sentencing to death of a defendant who did no more than “accompany the killer on the underlying felony” is grossly disproportionate to the defendant’s moral guilt and is cruel and inhuman punishment, and (2) that sections of T.C.A. § 39-2404, dealing with punishment for first degree murder, are unconstitutional.

The photographic evidence admitted over the objection of the appellant consisted of “before and after” photographs of Mr. Keegan, and a photograph of the defendant. Appellant insists the photographs of Mr. Keegan created a vivid picture of life and death for the jury, were without evidentiary value, and were clearly prejudicial. We find no prejudicial error in the admission of the photographs, though it would have been better had the “before” picture of Mr. Keegan been excluded since it added little or nothing to the sum total of knowledge of the jury. The other two pictures, however, were relevant to material issues in the trial and were not inflammatory. The picture of Mr. Keegan taken at the scene of the homicide, and which does not show the neck wound, was .a necessary predicate to proof that Mr. Keegan was unconscious at the time his throat was cut. The physician, who so testified, did so partly on the photographic evidence showing the position of Mr. Keegan’s body and the absence of blood on Mr. Keegan’s hand as shown in the photograph, and partly on the description of the wound.

The photograph of the defendant was relevant to the issue of identification. Barry Willis identified the coat shown in the photograph as the one appellant was wearing when he was seen by Willis on February 14, 1978, in the vicinity of the Budget Shop. Further, there was evidence that relatives of appellant had burned a long, green coat in the “dead of night,” after police officers had come to their home seeking information concerning the appellant. It was the coat shown in the picture and the coat appellant admittedly was wearing at the time of the homicide.

Appellant sought to call Donald Strouth as a witness in his behalf. When the trial judge excused Strouth from testifying, appellant sought to have admitted into evidence, through Barbara Davis, statements by Strouth which appellant contends were against penal interest. These statements were excluded by a ruling of the trial judge in a jury-out hearing. These rulings by the trial judge are assigned as error.

Appellant insists the trial judge erred in not forcing Strouth to testify or, at least, forcing him to claim his Fifth Amendment privilege in the presence of the jury. At the time of appellant’s trial, Strouth stood convicted of the robbery and murder of James Keegan and was under a sentence of death. His case was on appeal to this court. In a jury-out hearing, the trial judge determined that Strouth had not testified in his own trial, and was going to exercise his Fifth Amendment privilege not to testify in appellant’s trial. As a consequence, the trial judge excused Strouth from taking the stand. We see no basic error in the trial judge’s action.

The calling of a witness who will refuse to testify does not fill the purpose of compulsory process, which is to produce testimony for the defendant. United States v. Roberts, 503 F.2d 598, 600 (9th Cir. 1974). But if it did, where there is a conflict between the basic right of a defendant to compulsory process and the witness’s right against self-incrimination, as in this case, the right against self-incrimination is the stronger and paramount right. Frazier v. State, 566 S.W.2d 545, 551 (Tenn.Crim.App.1978). See United States v. Johnson, 488 F.2d 1206 (1st Cir. 1973); United States v. Wyler, 487 F.2d 170 (2nd Cir. 1973); United States v. Beye, 445 F.2d 1037 (9th Cir. 1971). Further, a jury is not entitled to draw any inferences from the decision of a witness to exercise his constitutional privilege against self-incrimination, whether those inferences be favorable to the prosecution or the defense. Bowies v. United States, 439 F.2d 536, 541 (D.C.Cir.1970). See also United States v. Johnson, 488 F.2d 1206, 1211 (1st Cir. 1973), wherein the court points out that:

If it appears that a witness intends to claim the privilege as to essentially all questions, the court may, in its discretion, refuse to allow him to take the stand. Neither side has a right to benefit from any inferences the jury may draw simply from the witness’ assertion of the privilege either alone or in conjunction with questions that have been put to him.

The court also noted in Johnson that the cases saying it was not always reversible error to call such a witness to the stand fall short of establishing that the practice is either desirable or mandatory. 488 F.2d at 1211 n. 5. See generally, Annot., 86 A.L.R.2d 1443 (1962).

Appellant also insists that the trial judge, having excused Strouth from testifying, erred in excluding testimony of Miss Davis relative to her conversations with Strouth. This court has recognized in principle that declarations against penal interest, made by an unavailable declarant, are admissible in criminal cases where the declarations are proven trustworthy by independent corroborative evidence that bespeaks reliability. Smith v. State, 587 S.W.2d 659, 661 (1979). But, appellant did not seek to have Miss Davis testify as to statements made by Strouth, but sought to have her testify as to impressions she formed from conversations she had had with Strouth. These impressions do not come within the exception carved out of the hearsay exclusion rule to permit the introduction of declarations against penal interest, and the trial judge properly excluded such testimony.

Appellant also insists the trial judge erred in refusing to allow Dr. David McMillan, a clinical psychologist, to testify in the first phase, the guilt and innocence phase, of the trial. Dr. McMillan had administered a battery of tests including the Wexler Adult Intelligence Scale, Gender Gestalt Test, Rorschak Ink Blot Test, Thematic A Perception Test, Incomplete Sentence Blank and the Minnesota Multiphasic Personality Inventory. From these tests, Dr. McMillan proposed to testify that appellant “is a weak, moody, fearful person, and is a follower instead of a leader.” No contention was made in behalf of appellant, nor could Dr. McMillan testify, that appellant was insane or incompetent under the test set forth in Graham v. State, 547 S.W.2d 531 (Tenn.1977). The trial judge concluded this evidence would be admissible in the punishment phase of the trial, being relevant to mitigating circumstances, but that it was not related to any issue in the guilt-determination phase of the trial. We see no error in these rulings.

Appellant insists that the sentencing to death of a defendant who did no more than “accompany the killer on the underlying felony” is grossly disproportionate to the defendants moral guilt and is cruel and inhuman punishment. “Felony murder” can be the aggravating circumstance which justifies the imposition of the death penalty. See Presnell v. Georgia, 439 U.S. 14, 99 S.Ct. 235, 58 L.Ed.2d 207 (1978); Jurek v. Texas, 428 U.S. 262, 268, 96 S.Ct. 2950, 2955, 49 L.Ed.2d 929 (1976); Cozzolino v. State, 584 S.W.2d 765 (Tenn.1979). However, if the evidence in this case showed that appellant merely accompanied Strouth to the Budget Shop and waited outside in the get-away automobile as insisted by appellant, we would give serious consideration to holding, as did Justice White in Lockett v. Ohio, 438 U.S. 621, 98 S.Ct. 2981, 57 L.Ed.2d 1000 (1978), “that death may not be inflicted for killings consistent with the Eighth Amendment without a finding that the defendant engaged in conduct with the conscious purpose of producing death.... ” 98 S.Ct. at 2985. But the evidence indicates that appellant’s activities exceeded the mere accompanying of Strouth and driving of the get-away automobile. After the robbery and murder, two sets of footprints were found outside the rear entrance of the Budget Shop. Both sets of footprints were spaced so that they clearly indicated the persons making the prints “were running” as they left the shop. At the approximate time of the robbery and homicide, appellant and Strouth were observed on the roadway near the mouth of the alley leading from the Budget Shop running toward the home of appellant. Immediately on reaching his home, appellant collected his girlfriend and left Kingsport, taking no possessions with him. Further, appellant admits taking a “few” dollars from the robbery proceeds and used them in getting away from Kings-port. We think a jury reasonably could find from this evidence that appellant was an active participant in the robbery and murder of Mr. Keegan and was not, as appellant claimed, waiting for Strouth in an automobile.

In the remaining assignment of error, appellant insists that T.C.A. § 39-2404(g)² is unconstitutional in that it “creates the presumption of death if one or more aggravating circumstances are proved, creating an unlawful shift in the burden of proof to the defendant.” T.C.A. § 39-3404(g) is also attacked on the ground it makes death mandatory under certain conditions and does not allow the jury the opportunity to show mercy. Appellant also insists that T.C.A. § 39 — 2404(i)(5)—one of the aggravating circumstances found by the jury — is unconstitutionally vague and overbroad. We see no merit in either instance.

In this state, a trial on a charge of first degree murder is a bifurcated proceeding, with the jury first determining the defendant’s guilt or innocence of the charge. Where 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. T.C.A. § 39-2404(a). 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. T.C.A. § 39-2404(g). The burden of proof rests upon the state to establish the aggravating circumstances beyond a reasonable doubt and the jury must specifically find that these outweigh any mitigating circumstances before they are justified in imposing the death penalty. T.C.A. § 39-2404(f). These separate determinations must be put in writing and given to the trial judge along with the sentence of death, thus assuring that the jury has gone through the correct analysis in arriving at a death sentence. T.C.A. § 39-2404(g). This direction to the jury by the legislature of this state meets the requirement set forth in Gregg v. Georgia, 428 U.S. 153, 192, 96 5.Ct. 2909, 2934, 49 L.Ed.2d 859 (1976) that a jury be given guidance in - determining punishment when the death penalty is a possible punishment.

Since the members of a jury will have had little, if any, previous experience in sentencing, they are unlikely to be skilled in dealing with the information they are given [in the sentencing hearing] .... It seems clear, however, that the problem will be alleviated if the jury is given guidance regarding the factors about the crime and the defendant that the State, representing organized society, deems particularly relevant to the sentencing decision. Gregg v. Georgia, supra, at 192, 96 S.Ct. at 2934.

The procedure described above is the suggested procedure of the Model Penal Code § 210.6, Comment 3, at 72 (Tent. Draft No. 9,1959), noted with approval by the United States Supreme Court in Jurek v. Texas, 428 U.S. 262, 271 n. 6, 96 S.Ct. 2950, 2956 n. 6, 49 L.Ed.2d 929 (1976). And, it has been held by this court to satisfy the requirements of the Constitution of the United States and the Constitution of Tennessee. See Houston v. State, 593 S.W.2d 267 (Tenn.1980), cert. denied, - U.S. -, 101 S.Ct. 251, 66 L.Ed.2d 117, petition to rehear denied, - U.S. -, 101 S.Ct. 797, 66 L.Ed.2d 612 (1980); Cozzolino v. State, 584 S.W.2d 765 (Tenn.1979).

This procedure was followed in the instant case with the jury finding three aggravating circumstances and no mitigating circumstances.

The argument by appellant that T.C.A. § 39-2404(g) makes death mandatory under certain circumstances and does not allow the jury the opportunity to show mercy, and as a result is unconstitutional, does not comport with our assessment of the effect of the statute. We pointed out in Houston v. State, supra, that:

T.C.A. § 39-2404(i) and (j) set forth the aggravating and mitigating factors to be considered by the jury in the sentencing hearing, with the admonishment that any factor, not just the specified statutory factors, may be considered in mitigation. These circumstances are presented for the jury to consider and “weigh” in exercising its “controlled” discretion in determining what sentence should be imposed. The jury is not required to return a mandatory verdict of death. It must consider mitigating factors. As to the charge that the statute is vague because [it allows] the jury to “weigh” aggravating and mitigating circumstances, it must be borne in mind that the weighing of evidence is the normal function of the jury. And, where the jury is given adequate guidance as to what to consider, the requirements that the jury weigh aggravating and mitigating factors shown by the evidence does not make the statute vague and, consequently, unconstitutional. See State v. Pierre, 572 P.2d 1338, 1347-1348 (Utah 1977), cert. denied, 439 U.S. 882, 99 S.Ct. 219, 58 L.Ed.2d 194 (1978). (emphasis supplied)

Appellant also urges that T.C.A. § 39-2404(i)(5), one of the two aggravating circumstances found by the jury, is unconstitutionally vague and overbroad. The section of the statute under attack is as follows:

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

In Proffitt v. Florida, 428 U.S. 242, 255-56, 96 S.Ct. 2960, 2968, 49 L.Ed.2d 913 (1976), the Supreme Court of the United States considered a similar attack on the constitutionality of an identical aggravating circumstance set forth in the Florida death sentence statutes. The Court held that the aggravating circumstance, as construed by the Florida Supreme Court, was not impermissibly vague. The Florida Supreme Court had construed the provision to be directed at “the conscienceless or pitiless crime which is unnecessarily torturous to the victim.” State v. Dixon, 283 So.2d 1, 9 (Fla.1973). In Tedder v. State, 322 So.2d 908 (1975) the Florida court recognized that the provision was directed by its legislature at something “especially” heinous, atrocious or cruel, 322 So.2d at 910. The trial court’s instructions to the jury in this case are compatible with these constructions by the Florida court, which we approve. Further, as pointed out by the state in its brief, “the factual circumstances which the jury found in the instant case, the nature of the slitting of the victim’s throat, support such an interpretation.”

Having again concluded that the Tennessee Death Penalty Act is constitutional and finding no prejudicial error committed in the trial, the judgment entered in the trial court of death by electrocution is affirmed. The date of the execution is set for July 15, 1981.

FONES and HARBISON, JJ., concur. BROCK, C. J., dissents.

1 . Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968).

2 . If the jury unanimously determines that at least one statutory aggravating circumstance or several statutory aggravating circumstances have been proved by the state beyond a reasonable doubt, and said circumstance or circumstances are not outweighed by any mitigating circumstances, the sentence shall be death. If the death penalty is the sentence of the jury, the jury shall (1) reduce to writing the statutory aggravating circumstance or statutory aggravating circumstances so found and (2) signify that there were no mitigating circumstances sufficiently substantial to outweigh the statutory aggravating circumstance or circumstances so found. These findings and verdict shall be returned to the judge upon a form provided by the court ....