IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON FILED APRIL 1997 SESSION November 5, 1997
Cecil Crowson, Jr. Appellate C ourt Clerk
STATE OF TENNESSEE, ) No. 02C01-9603-CC-00085 ) Appellee ) ) LAUDERDALE COUNTY V. ) ) HON. JON KERRY BLACKWOOD, KELVIN ANTHONY LEE, ) JUDGE ) Appellant. ) (Felony Murder) ) )
For the Appellant: For the Appellee:
Gary F. Antrican John Knox Walkup District Public Defender Attorney General and Reporter P.O. Box 700 Somerville, TN 38068 Ruth Thompson (At trial and of counsel on appeal) Assistant Attorney General 450 James Robertson Parkway C. Michael Robbins Nashville, TN 37243-0493 Assistant Public Defender P.O. Box 700 Elizabeth T. Rice Somerville, TN 38068 District Attorney General (At trial) 302 Market Street Somerville, TN 38068
Jan R. Patterson James W. Freeland 225 W. Baltimore Street Assistant District Attorney Jackson, TN 38301 (On appeal)
OPINION FILED: ___________________
AFFIRMED
William M. Barker, Judge OPINION
The appellant, Kelvin Anthony Lee, appeals as of right the sentence he
received in the Lauderdale County Circuit Court following his plea of guilty to the
offense of felony murder. The appellant was sentenced by a jury to life in prison
without the possibility of parole upon its finding that the murder of W illiam Daniels, Jr.
was especially heinous, atrocious, or cruel.
On appeal, the appellant alleges that the following errors occurred in the
sentencing process:
(1) the trial court committed plain error in permitting a jury to sentence appellant after accepting appellant’s waiver of jury sentencing;
(2) the trial court erred in permitting the introduction of inflammatory and cumulative photographs;
(3) the verdict forms did not correctly state the law regarding mitigating factors;
(4) the trial court failed to exercise its duty to act as thirteenth juror; and
(5) the evidence was insufficient to support the application of the heinous, atrocious or cruel aggravating circumstance.
After a complete review of the record, we find that the trial court committed no
reversible error. Accordingly, the appellant’s sentence of life without the possibility of
parole is affirmed.
FACTUAL BACKGROUND
On the afternoon of September 17, 1994, Ricky Daniels drove to his family’s
farm in Lauderdale County to check on his aging father, William Daniels, Jr., who had
been working on the farm that day. He drove to a clearing and spotted his father’s
truck sitting in the midst of a field, near a small pond. As he drove closer, he realized
that his father was pinned underneath the truck and seriously injured. He first thought
that an accident had occurred and he called his sister. After surveying the situation,
2 however, he concluded that his father’s condition was not accidental, and he
contacted an investigator with the Lauderdale County Sheriff’s Department.
Authorities conducted an extensive examination of the scene, working
throughout the night. Their investigation revealed that Daniels had suffered numerous
gunshot wounds and that his body had been run over and crushed by the pickup truck.
Evidence at the scene indicated that Daniels’ body had been dragged approximately
148 feet while underneath the truck. It also appeared that the body had become
dislodged at one point and that the truck backed up and ran over the body again
before coming to a stop on the victim. Investigators noticed that the victim’s pants
pockets were turned inside out and his wallet was missing. Authorities also
discovered bicycle tracks at the scene which led to a nearby house where the
appellant lived with his family. After questioning several of the appellant’s brothers,
appellant was brought in for questioning. The appellant made a full confession,
admitting that he had robbed and killed Daniels.
Based upon information in appellant’s statement, authorities found a gun and
bicycle belonging to the appellant in nearby Fisher Pond. The gun contained four live
rounds and two spent casings. Authorities also found one of the victim’s shoes
floating in the pond. Some of the tracks found at the crime scene matched the tires
on the bicycle removed from the pond.
The appellant’s brother, Michael Lee, gave a statement to police which
incriminated the appellant. He said that he was present in a group of people on the
night before the murder and had heard the appellant say that he was going to rob
Daniels of $400. The next morning, the appellant again told Lee that he was going to
rob Daniels, and he took a .22 caliber, western-style, blue steel, six-shot pistol from a
car at the Lee home. The appellant left on his bicycle, saying he was going to get
$400 from Daniels. He returned home several hours later, “all shook up and
sweating.” He told Lee that he killed Daniels.
3 Investigators also obtained statements from Simmie Rice and Tyrone Maclin,
friends of the appellant. These statements indicated that the appellant had told them
about the crime, admitting he robbed and killed Daniels. The appellant was
subsequently indicted for premeditated murder, felony murder, and especially
aggravated robbery. The State filed notice that it would seek life without the possibility
of parole.1 In support, it alleged that the murder was especially heinous, atrocious or
cruel in that it involved torture or serious physical abuse beyond that necessary to
produce death. See Tenn. Code Ann. §39-13-204(i)(5) (Supp. 1996). 2
On the morning of trial, the trial court granted the appellant’s request for a one-
day continuance because of notice of a new State’s witness. Later that afternoon, the
parties advised the trial court that a plea agreement had been reached. The appellant
agreed to plead guilty to felony murder and the State would dismiss the charges of
premeditated murder and robbery. After hearing the State’s factual summary of proof,
the trial court conducted a full examination of appellant and accepted his guilty plea.
The trial court also accepted the appellant’s waiver of jury sentencing.
Two days later, on the morning of the sentencing hearing, the appellant’s
counsel advised the trial court that the appellant wished to withdraw his guilty plea and
was requesting new counsel. The trial court questioned the appellant, during which he
claimed that he pled guilty only because his attorneys forced him to do so. He insisted
he was not guilty and alleged that his attorneys were not “doing what they’re supposed
to.” The trial court recessed to permit appellant to discuss the matter with his family.
When the appellant returned to court, he announced that he desired to preserve the
guilty plea. However, he informed the court that while he was guilty of robbing
Daniels, he did not kill him. He professed to know who killed the victim. The court
1 The appellant was seventeen at the time of the offense and was properly transferred from juvenile court. As a result, however, the State was prohibited from seeking the death penalty. Tenn. Code Ann. §37-1 -134(a)(1) (Supp. 1994).
2 An a dditio nal ag grav ator w as or iginally n oted , but la ter wit hdra wn b y the d istrict attorn ey.
4 again explained the plea process to the appellant and accepted the appellant’s guilty
plea, ruling that it was voluntary and knowing.3 However, due to the developments in
the case and the statements which the appellant made to the court, the trial court
declined to accept appellant’s waiver of jury sentencing and decided that a jury should
be impaneled to decide punishment. The appellant chose to retain his appointed
counsel.
At the sentencing hearing, the State, through the testimony of TBI agent Jack
Van Hooser, Jr., introduced the appellant’s statement confessing to the crime. In the
statement, the appellant explained that he had been fishing at the pond on Daniels’
farm the morning of the murder. Daniels arrived in his truck and told the appellant he
did not have permission to be on his property and asked him to leave. The appellant
pulled out a pistol, ordered Daniels out of the truck, and asked for the keys to the
truck. The appellant also commanded Daniels to write him a check for $350. Daniels
replied that he did not have a check, but he could get one for the appellant. The
appellant shot Daniels twice in the head, causing him to fall in the front of the truck,
hitting his head on the bumper. The appellant then shot him four more times,
reloaded the six-shot revolver, and fired three or four more shots into Daniels.
According to his statement, the appellant walked to the body and removed eight
$100 bills from Daniels’ right front pants pocket and $200 in mixed bills out of his left
front pocket. Next, the appellant got in the truck and ran “back and forth” over the
body. He threw the gun and his bicycle into Fisher Pond and ran home. He later went
out and met his friend Simmie Rice. In the statement, he admitted telling Rice that he
robbed and killed Daniels and showed him the money. Later that night, the appellant
3 Although the appellant does not challenge his guilty plea in this appeal, we have reviewed the plea and find that it is valid under North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970); and Dortch v. State, 705 S.W.2d 687, 689 (Tenn. Crim. App. 1985). The appellant proclaimed that he planned and participated in the robbery of Daniels, but that he did not kill him. Nevertheless, after advic e fro m h is fam ily and h is def ens e cou nse l, the a ppe llant re que sted the tria l cour t to ac cep t his plea of guilt to felony murder so that he could “get on” and “pay his dues.” The trial court fully explained to the appellant that if he pled guilty to the felony murder count, the State would drop the counts of first deg ree m urde r and espe cially ag grav ated robb ery. T he re cord reflec ts tha t the a ppe llant w as fu lly inform ed of the plea proc ess an d had re ason to believe tha t the guilty plea wa s in his bes t interest.
5 and Rice used some of the money to buy beer and the appellant also gave some of
the money to his friends and to his brother, Michael Lee.
In response to specific questions from law enforcement, the appellant indicated
in his statement that the gun belonged to his father and that he had possessed it for
about three or four days prior to the murder. He further declared that he ran over
Daniels’ body “to make sure he was dead.” He stated that he was wearing a white T-
shirt at the time, which he later burned because it had blood on it.4 Finally, he said
that Rice was holding $400 of the money for him “so [he] wouldn’t get busted with it.”
Pictures of the victim’s injuries and a videotape of the crime scene were
introduced through the testimony of Gaston Garrett, the investigator with the
Lauderdale County Sheriff’s Department. Garrett, the first official at the crime scene,
described what he observed upon arrival. The victim’s body was lodged underneath
the right front of the truck. The right front wheel was resting on the victim’s arm. The
left door of the truck was spattered with blood, as well as the front bumper and grill.
There were blood stains on both of the front tires. He observed several puddles of
blood in different places on the ground, and he also discovered skin tissue and flesh
on the bolts and metal framework under the truck.
The State also presented testimony from Michael Lee and Tyrone Maclin.
Initially, Lee denied telling authorities that the appellant admitted murdering Daniels.
However, after the court instructed him about perjured testimony, Lee testified that the
appellant had told him he was going to rob and kill Daniels. He also remembered that
the appellant told him he shot the victim.
Tyrone Maclin testified that he saw the appellant the day of the murder.
According to Maclin, the appellant had a lot of money and told him that he killed
Daniels. The appellant further told Maclin that he shot Daniels eleven or twelve times
and ran over him with the truck before throwing the gun and bike into the pond.
4 Agent Van Hooser testified that ashes and ribbing from a T-shirt were found in a barrel behind appellan t’s house . No blood was de tected in the ashes .
6 Lisa Moore, a deputy from the Lauderdale County Sheriff’s Department testified
that she overheard a disagreement between the appellant and the jail doctor when the
doctor visited the appellant on one occasion. She testified that when she returned the
appellant to his cell, he commented about the doctor, saying: “He don’t know what
he’s doing. I should kill him like I did [Daniels].”
Dr. O’Brien C. Smith, the deputy chief medical examiner for West Tennessee,
performed an autopsy on the victim and testified at the hearing. He stated that
Daniels died as a result of numerous gunshot wounds and crushing injuries to the
chest and abdomen. He described to the jury fourteen gunshot wounds; eleven in
head and neck region, two in the chest, and one in the back. Despite extensive
damage to the top of the victim’s head and his skull, none of the bullets penetrated the
brain. As such, those wounds caused only bruising and bleeding on the brain. The
two gunshot wounds to the heart were very serious, but Dr. Smith testified that the
victim could have survived for several minutes afterwards with pain and suffering.
As a result of being crushed, all of the victim’s ribs were broken with a total of
fifty-four fractures which in turn caused bruising of the lungs. Additionally, Dr. Smith
indicated that the liver was bruised and the right abdomen surrounding the liver had
red abrasions indicative of pressure and force. The victim also suffered crushing
injuries to the lower part of his body. The victim’s left leg was broken, and he had
bruises on his knees and feet, as well as tears and lacerations on his legs. Dr. Smith
opined that all of these injuries occurred while the victim was still alive.
The autopsy indicated that the victim was lying down when he was run over by
the truck. A heavy abrasion on his back was consistent with the body being dragged
underneath a vehicle. Injuries to the front of the body were also consistent with
entrapment under a vehicle. Dr. Smith testified that the victim would have
experienced pain from the soft tissue injuries and bone fractures. In addition, bleeding
7 from the head and facial wounds would have obstructed the victim’s airway and
interfered with his ability to breathe.
The gunshot wound to the back struck the spinal cord and caused some
paralysis. On cross-examination, Dr. Smith stated that the spinal wound would have
caused loss of feeling from the mid-chest downward. Assuming the wound occurred
prior to the crushing injuries, the victim would not have felt the lower rib fractures or
the broken leg. However, he still would have felt at least nineteen of the rib fractures,
as well as the head and neck wounds. Although Dr. Smith was unable to determine
whether the gunshot wounds or the crushing injuries were inflicted first, he believed
that the crushing injuries occurred while the victim was still alive because of active
bleeding around the fracture sites. Moreover, he admitted that the victim may have
been unconscious during those injuries, but he explained that there was no brain
damage which would have caused unconsciousness.
The first defense witness was the appellant’s friend, Simmie Rice. Despite
detailed questioning about his activities on the day of the crime, Rice denied any
involvement in the crime. He also denied saying that he killed the victim and then
“pinned it” on the appellant. On cross-examination, Rice revealed that the appellant
had told him the day before the murder that he was going to rob and kill somebody.
Rice saw the appellant the next day and the appellant said he had killed Daniels. The
appellant showed him the money and Rice also witnessed the appellant give money to
various people. In addition, Rice said the appellant gave him $800 to hold, which Rice
turned over to police when he was questioned.
Dr. Luis Wong, a physician who treated inmates at the Lauderdale County jail,
was called by the defense to rebut the testimony of Lisa Moore. Dr. Wong testified
that he visited the appellant only once at the jail for a routine physical exam. He
denied having a confrontation or argument with the appellant during this visit. He
further stated that he did not hear the appellant make a remark about killing the victim.
8 On cross-examination, Dr. Wong conceded that he might not have heard the appellant
make a remark to the jailer because he was in a different room and he does not pay
attention to situations that arise between jailers and inmates.
The appellant’s testimony at the sentencing hearing varied substantially from
his statement to law enforcement. According to the appellant, he and Rice had
planned to rob someone for about a week prior to the murder. The day before the
murder, he and Rice decided to rob Daniels. In preparation, the appellant said that he
telephoned Daniels and told him that he wanted to buy some watermelons. Daniels
told the appellant he would be at the farm around 11:00 a.m. the next day.
The appellant testified that on the day of the murder, he, Simmie Rice, and
someone named Jeff Smith met at the appellant’s aunt’s house and walked toward the
pond on Daniels’ farm. The threesome waited for Daniels at the pond, during which
time the appellant gave the gun to Rice. When Daniels arrived, they confronted him
and asked for his money. As Daniels reached into his pocket, the appellant testified
that Jeff Smith shot Daniels three or four times. The appellant and Rice then ran to
Daniels and took the money from his pockets. As they were taking the money, the
appellant testified that Daniels struggled and pulled off Rice’s mask.5 The appellant
allegedly told Smith not to kill Daniels, but Smith and Rice said they had to kill Daniels
because he could identify them. Smith then fired three more shots and Rice got into
the truck and drove over the body. Fleeing the scene, the appellant claimed that
Smith threatened to kill him and his family if he did not confess to the police. He
explained that this was the reason for the first statement he gave to the authorities. In
corroboration of his testimony, the appellant introduced a letter that he wrote to the
Lauderdale County Sheriff in February of 1995. In the letter, appellant denied robbing
or killing Daniels. He claimed to know who did it and said the “real killer [was] still out
there.”
5 Appellant explained that they were all wearing masks.
9 The appellant also testified about his home life and education. He stated that
he got into a lot of trouble in high school, mostly for fighting and stealing. However, he
stated that he never hurt anybody. He was in special education classes at school and,
despite being seventeen years of age, had only completed the ninth grade. The
appellant further testified that his father is a share cropper and that he and his family
live in a four room house. Five brothers sleep together in one bedroom that has two
beds, and there are no bathrooms in the house. He also stated that the house has no
underpinning and that ten to fifteen dogs live under the house. Under these living
conditions, the appellant stated that he robbed Daniels to “get some stuff I ain’t had.”
He admitted he was wrong and that he deserved to be punished.
On cross-examination, the appellant admitted to twenty-three infractions over
the course of the last school year. These included sexual harassment of a teacher,
assault, profanity, and disobeying authority. He claimed that his brother’s testimony
was false and also denied the admission to Maclin. In addition, the appellant claimed
that part of his statement to authorities was true, but that part of it was not. In contrast
to Dr. Smith’s testimony, the appellant stated that the gun was fired no more than
seven times. Furthermore, he testified that the shooter was twelve to fifteen feet from
the victim and could not explain Dr. Smith’s testimony that the wounds were inflicted at
close range. The appellant admitted that his testimony at the sentencing hearing was
the first time he had ever alleged Jeff Smith to be the shooter. He was unable to say
where Jeff Smith could be found. Finally, the appellant stated that all shots were fired
before dragging the body, which he agreed was a distance of about 140 feet.
Dr. Wyatt Lee Nichols, a clinical psychologist who examined the appellant, also
testified for the defense. The records he reviewed indicated that the appellant had a
consistent IQ of seventy-one, which indicates borderline intellectual functioning. He
stated that the appellant functions intellectually as a twelve year old. Dr. Nichols
testified that school was not a place where the appellant felt very successful. In order
10 to compensate for this, he acted out to enhance his self-esteem, which increased as
he got older, eventually manifesting in criminal behavior.
Dr. Nichols believed that asking Daniels to write a check during the robbery was
consistent with the behavior of a twelve year old. The request indicated that the
appellant did not understand the ramifications of his actions. Also, the evidence
indicating that the appellant had given away a lot of the money was consistent with
this profile. Because the appellant had such a strong desire to belong and have
friends, Dr. Nichols opined that he would try to buy friends. Furthermore, Dr. Nichols
stated that the appellant would not have the capacity to challenge his own actions as
right or wrong. Dr. Nichols characterized the appellant as more impulsive under stress
due to his low intellectual capacity. Finally, Dr. Nichols indicated that the appellant
was capable of planning a robbery, but was more likely to follow someone else’s plan.
The appellant’s brother, Joseph Lee, and his friend, Greg Hankins, testified for
the defense as well. According to Joseph Lee, two to three days after the murder,
Simmie Rice told him “we killed that nigger and your brother took the blame.” Hankins
testified that he was present and heard Rice make that statement. The appellant’s
father, grandmother, and a cousin also testified on his behalf.
Based upon the foregoing, the jury sentenced the appellant to life in prison
without the possibility of parole, finding that the murder was heinous, atrocious or
cruel. Tenn. Code Ann. §39-13-204(i)(5) (Supp. 1996).
WAIVER OF JURY SENTENCING
The appellant contends that the trial court erred in refusing to honor his waiver
of jury sentencing. He argues that the trial judge questioned his own impartiality in the
matter and should have recused himself or sought interchange with another judge.
We do not agree.
Initially, we note that the appellant failed to raise this issue in his motion for new
trial. We recognize that issues regarding sentencing are ordinarily not required to be
11 preserved through their presentation in a new trial motion. See State v. Draper, 800
S.W.2d 489, 497 (Tenn. Crim. App. 1990). However, when sentencing occurs through
a bifurcated trial process that includes the use of the jury to decide sentencing issues
by a reasonable doubt standard, we believe that the sentencing hearing is part of the
case being “tried by a jury” as contemplated by Rule 3(e), Tenn. R. App. P., to require
a motion for new trial. Thus, the appellant’s failure constitutes a waiver of the issue.
Tenn. R. App. P. 3(e).
We also note that the appellant cites no authority in support of his argument,
which provides additional grounds for waiver. Tenn. Ct. Crim. App. R. 10(b); State v.
Killebrew, 760 S.W.2d 228, 231 (Tenn. Crim. App. 1988). Moreover, the issue was
not preserved by a motion to recuse or an objection at the hearing. Tenn. R. App. P.
36(a); Killebrew, 760 S.W .2d at 235. Despite these multiple grounds for waiver, we
will address the merits of the issue due to the serious nature of the offense and the
penalty imposed.6
As discussed above, the trial judge initially accepted appellant’s waiver of jury
sentencing at the same time that he accepted appellant’s plea of guilty. On the day of
sentencing, upon learning that the appellant wanted to withdraw his plea, the trial
court examined him under oath. During this examination by the court, the appellant
made equivocal statements concerning his role in the crime, but expressed a desire to
preserve his plea. The trial court accepted the plea, but withdrew his consent to the
waiver of jury sentencing.7 The trial court remarked:
However, in light of all the developments in this case; especially in light of the last statements that the defendant has made in this case
6 W e do not, h oweve r, addres s this issue on the ba sis of plain e rror, as the appellant u rges us to do. See Tenn. R. Crim. P. 52(b). Appellant fails to explain why this should be considered plain error and our review of the rec ord reve als no ration ale supp orting con sideration on that ba sis. W e are un able to conclude that the trial court committed an egregious error affecting the appellant’s substantial rights and thus, it does not rise to the level of plain er ror. See State v. Adkisson, 899 S.W.2d 626, 639-40 (Tenn. Crim . App. 199 4).
7 Waiver of jury sentencing in first degree murder cases is permitted when the defendant has the advice of his attorney and both the trial court and district attorney consent. Tenn. Code Ann. §39-13- 205(b) (1991).
12 regarding his motivation and his involvement in this case, the Court finds that the Court will not accept that waiver, and has determined that the Court will not consent to it, and that a jury should be impaneled to hear this case with regard to the proper sentence that will be imposed in the case. ...
I feel like it would be improper at this time to -- One of the reasons, among the many reasons, that the Court finds that the jury should hear this case, as opposed to the Court, the Court has observed this defendant here, and I’ve ruled that his plea was knowing and voluntarily made, but there’s obviously some emotions that are going through his head at this particular time about what is going on. He’s made various statements here to the Court that, upon reflection and consideration, at a sentencing hearing he might not have made, and, therefore, to assure that he’s going to have the issue of sentencing impartially determined by a jury, as opposed to this Court now, I think the prudent measure would be to bring a jury in to determine the appropriate sentence to be imposed in this case, and will do so.
We cannot agree with the appellant that these comments indicate that the trial
judge had a duty to recuse himself.8 There is no indication in the record of the trial
judge’s inability to be impartial. Moreover, the appellant has failed to demonstrate any
improper rulings, remarks or conduct by the judge that could be attributed to partiality.
See State v. Hurley, 876 S.W.2d 57, 64 (Tenn. 1993), cert. denied, 513 U.S. 933, 115
S.Ct. 328, 130 L.Ed.2d 287 (1994). We find no evidence that the trial court was
predisposed to any particular result or that it had already made a decision on key
issues. See Alley v. State, 882 S.W.2d 810, 822 (Tenn. Crim. App. 1994). The
sentencing issue was tried before an impartial jury who determined punishment based
upon the evidence presented. In sum, the record is devoid of any evidence of bias or
prejudice.
We find that the trial court acted with extreme caution to empanel a jury for
sentencing in light of the appellant’s statements made during his examination by the
court. We are unable to say the appellant was prejudiced by the trial court’s action.
The appellant is entitled to no relief on this issue.
8 App ellant neve r requ este d rec usa l.
13 ADMISSIBILITY OF PHOTOGRAPHS
The appellant next contends that the trial court erred in admitting into evidence
several photographs of the crime scene depicting the victim’s injuries. He argues that
their admission was duplicative of evidence contained within a videotape of the crime
scene and that their inflammatory and cumulative nature outweighed their probative
value. See Tenn. R. Evid. 403.
The admissibility of photographs lies within the sound discretion of the trial
court and generally enjoys a liberal admission policy. See State v. Banks, 564 S.W.2d
947, 949 (Tenn. 1978). On appeal, we will not reverse a decision to admit evidence
absent a clear showing of abuse of discretion. Id. The record before us demonstrates
no such abuse.
A videotape of the crime scene was played for the jury during the testimony of
the investigating officer for the Lauderdale County Sheriff’s Department. The
videotape portrayed the geography of the crime area and depicted the relative
locations of the truck, pond, and the body at the time it was found. This was relevant
in light of the appellant’s testimony, which included a hand-drawn map of the crime
scene indicating the beginning and ending locations of the truck and the victim’s body.
In addition, the video was the most effective method of showing the jury the distance
the body was dragged under the truck, as evidenced by blood smears and stains on
the ground.
Still photographs taken at the crime scene were also introduced by the State.
The appellant objected to their admission, but the trial court ruled they were relevant
to prove the heinousness and atrociousness of the crime, and that their relevancy
outweighed any unfair prejudice to the appellant. We agree that these photos were
relevant and important in depicting the heinous, atrocious and cruel nature of the
injuries. See State v. Cazes, 875 S.W.2d 253, 263 (Tenn. 1994), cert. denied 513
U.S. 1086, 115 S.Ct. 743, 130 L.Ed.2d 644 (1995) (holding that graphic post-mortem
14 photographs were relevant to establish the heinous, atrocious, or cruel aggravating
circumstance). While it is true that the videotape and the pictures did contain some of
the same material, we cannot say their admission was an abuse of discretion. See
State v. Bigbee, 885 S.W.2d 797, 807 (Tenn. 1994) (holding that it was not an abuse
of discretion to admit a videotape of the crime scene although it depicted images
similar to those in photographs also admitted). The videotape and the photographs
served different purposes and were highly probative of the issues to be decided by the
jury.
ERROR IN JURY VERDICT FORM
The appellant next argues that the verdict forms submitted to the jury
improperly stated the law on mitigation. According to the appellant, those forms did
not instruct the jury that it could find that the mitigating factors outweighed the
aggravating circumstance. Therefore, he asserts that the forms did not appropriately
instruct the jury on a sentence of life with the possibility of parole. The relevant portion
of the jury instructions reads as follows:
If you do not unanimously determine that the statutory aggravating circumstance has been proved by the State beyond a reasonable doubt, the sentence shall be life imprisonment. You will write your verdict upon the enclosed form attached hereto and made a part of this charge.
The verdict shall be as follows:
“We, the jury, unanimously find that the punishment shall be life imprisonment.”
If you unanimously determine that a statutory aggravating circumstance has been proven by the State beyond a reasonable doubt, and you determine that such a statutory aggravating circumstance has been proven beyond a reasonable doubt to outweigh any mitigating circumstance or circumstances, you shall, in your considered discretion, sentence the defendant either to imprisonment for life without possibility of parole or to imprisonment for life. In choosing between the sentences of imprisonment for life without possibility of parole and imprisonment for life, you shall weigh and consider the statutory aggravating circumstance proven by the State beyond a reasonable doubt and any mitigating circumstance or circumstances. In your verdict you shall reduce to writing the statutory aggravating circumstance so found and shall return your verdict upon the enclosed form attached hereto and made a part of this charge.
15 The verdict should be as follows:
“We, the jury, unanimously find that the State has proven the following listed statutory aggravating circumstance beyond a reasonable doubt.” And here you will list the statutory aggravating circumstance. And,
“We, the jury, unanimously find that such statutory aggravating circumstances outweigh any mitigating circumstance or circumstances beyond a reasonable doubt,” therefore:
You shall then indicate on the enclosed verdict form either:
“We, the jury, unanimously agree that the defendant shall be sentenced to imprisonment for life without the possibility of parole;” or
“We, the jury, unanimously agree that the defendant shall be sentenced to imprisonment for life.”
The jury verdict forms reflected the instructions given by the trial court. However, the
appellant requested the trial court to instruct the jury that it must weigh the aggravating
and mitigating circumstances before imposing a sentence of life or life without the
possibility of parole.
Pursuant to Tennessee Code Annotated, section 39-13-207 (Supp. 1996), 9 if
the jury unanimously determines that the State has proven beyond a reasonable
doubt one or more of the statutory aggravating circumstances, the jury shall, in its
considered discretion, sentence the defendant either to imprisonment for life or life
without the possibility of parole. The statute does not direct the jury to find that the
aggravating circumstance outweighs the mitigating circumstances before choosing
between those possible sentences Therefore, the instruction requested by the
appellant was not in conformity with the law and was properly rejected by the trial
court.
Nevertheless, we do find that the trial court improperly instructed the jury in this
case. The jury instructions and verdict form in the appellant’s case required the jury to
find that the aggravating circumstance outweighed any mitigating circumstances.
9 The compiler’s notes to this statute indicate that it is applicable to all offenses committed on or after July 1, 1993. The statute is applicable to the instant offense, which was committed on September 17, 1994.
16 Because this weighing language is not required by statute, the jury forms incorrectly
instructed the jury.
However, we do not find that the error requires reversal. Requiring the jury to
make such a determination held the State to a higher burden than our legislature
dictates and thus, provided a heightened protection for the appellant. The appellant
suffered no prejudice and, therefore, the error was harmless beyond a reasonable
doubt. See Tenn. R. App. P. 36(b).
THIRTEENTH JUROR
The appellant next contends that the trial court failed to properly exercise its
role as thirteenth juror in the proceedings because the order denying the motion for
new trial does not specifically contain a thirteenth juror finding. He argues that the
omission of such a finding requires a new trial. We disagree.
Under Tennessee Rule of Criminal Procedure 33(f), the trial judge must act as
a thirteenth juror and grant a new trial if he or she disagrees with the jury about the
weight of the evidence. In every criminal trial, the trial judge has a mandatory duty to
serve as the thirteenth juror. State v. Carter, 896 S.W.2d 119, 120 (Tenn. 1995).
Contrary to appellant’s assertion, however, the trial court is not required to explicitly
state on the record that this duty has been performed. See id.; see also State v.
Moats, 906 S.W.2d 431, 434 (Tenn. 1995); State v. Burlison, 868 S.W.2d 713, 719
n.2 (Tenn. Crim. App. 1993). Instead, “when a trial judge denies a motion for new
trial, an appellate court may presume, in the absence of evidence to the contrary, that
the trial judge approved the jury’s verdict as the thirteenth juror.” See Carter, 896
S.W.2d at 120.
Although the trial court’s order denying appellant’s motion for new trial does not
explicitly state that it exercised its role as thirteenth juror, we presume from the denial
of the motion that the trial court discharged its duty. The record contains no evidence
17 that the trial court disagreed with the jury’s verdict. Therefore, the appellant’s issue is
without merit.
HEINOUS, ATROCIOUS, OR CRUEL AGGRAVATOR
The appellant’s final issue challenges the application of the heinous, atrocious,
or cruel aggravating circumstance. See Tenn. Code Ann. §39-13-204(i)(5) (Supp.
1996). He claims that the evidence is insufficient to support this aggravator as it was
interpreted by our supreme court in State v. Odom, 928 S.W.2d 18 (Tenn. 1996). We
disagree.
In order to support the heinous, atrocious or cruel aggravating circumstance,
the State was required to prove that the murder involved torture or serious physical
abuse beyond that necessary to produce death. See Tenn. Code Ann. §39-13-
204(i)(5) (Supp. 1996). “Torture” is defined as the infliction of severe physical or
mental pain upon the victim while he or she remains alive and conscious. See Odom,
928 S.W.2d at 26 (citing State v. Williams, 690 S.W.2d 517 (Tenn. 1985)). “Serious
physical abuse” is a distinctive and separate element. “Abuse” means an excessive
act or an act which makes improper use of a thing. See id. If proven, the abuse must
be physical, not mental, and it must be serious as a matter of degree. See id. Proof
of either torture or serious physical abuse beyond that necessary to produce death is
sufficient to support the aggravator.
The evidence of Daniels’ physical injuries provided overwhelming proof of both
torture and serious physical abuse. Daniels endured fourteen gunshot wounds which
were fired at close range.10 The primary area affected by these wounds was Daniels’
head and neck, only two wounds were found in the chest area and one in the back.
Although the gunshot wounds were not instantly fatal, they caused severe pain and
suffering and would have caused death within four or five minutes without immediate
10 Dr. Smith characterized all the gunshot wounds as “near” gunshot wounds. He explained that some of the wounds were fired as close as six inches from the body while others were no more than 24 inches f rom the body.
18 medical intervention. In addition to the gunshot wounds, Daniels suffered crushing
injuries as a result of being run over and dragged a distance of 148 feet by a pickup
truck. The active bleeding around the wound sites indicated that the crushing injuries,
including the bone fractures, bruises, lacerations, and abrasions, were inflicted while
Daniels was still alive. Testimony at the sentencing hearing revealed that Daniels
experienced pain from the bone fractures and soft tissue injuries resulting from the
crushing and dragging. Furthermore, the large volume of blood loss from the head
and neck injuries obstructed Daniels airway and caused anxiety or “air hunger.”
In light of this proof, it was reasonable for the jury to conclude that the crushing
and dragging of Daniels’ constituted torture. These actions inflicted severe physical
and mental pain on Daniels while he remained alive and conscious. While suffering
from multiple gunshot wounds and struggling for his life, Daniels was forced to endure
the horror of being run over and then dragged by a pickup truck. He was then left to
die under the weight of the vehicle.
Although Dr. Smith conceded on cross-examination that Daniels may have
experienced partial paralysis as a result of one bullet striking the spinal cord, he stated
that Daniels would have retained feeling from his mid-chest upward. Thus, Daniels
continued to feel the pain from the gunshot wounds. We also recognize that Dr. Smith
was unable to say within a degree of medical certainty that Daniels would have
remained conscious after the gunshot wounds. However, he did state that there was
no medical reason, such as brain damage, which would have caused Daniels to lose
consciousness after the gunshots. Dr. Smith was certain that Daniels was still alive
when the dragging occurred.
It was within the province of the jury to resolve the factual issues concerning
whether Daniels was conscious and capable of feeling the extreme physical pain
during the crime. State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). Considering
the evidence in the light most favorable to the State, a rational trier of fact could have
19 found that Daniels was conscious and experienced the serious physical pain during
the crime. See Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560
(1979).
Moreover, the proof was sufficient to demonstrate that the appellant inflicted
serious physical abuse upon the victim. Running over his body after shooting him
fourteen times is clearly excessive, as required by the definition of abuse. See Odom,
928 S.W.2d at 26. Because the gunshot wounds would have caused Daniels’ death,
the infliction of the crushing injuries was “beyond that necessary to produce death.”
See Tenn. Code Ann. §39-13-204(i)(5) (Supp. 1996). Therefore, we conclude that the
jury was fully justified in finding that the murder of Daniels was especially heinous,
atrocious, or cruel.
We affirm the appellant’s sentence of life without the possibility of parole.
_______________________________ William M. Barker, Judge
____________________________ Joseph M. Tipton, Judge
____________________________ David G. Hayes, Judge