Opinion
No. W1999-01866-CCA-R3-CD.
Decided October 2, 2000. June 2000 Session
Appeal from the Criminal Court for McNairy County, No. 1160, Jon Kerry Blackwood, Judge.
Affirmed.
C. Michael Robbins, Memphis, Tennessee (on appeal), and Gary F. Antrican, District Public Defender, Somerville, Tennessee (at trial), for the appellant, Eugene A. Turner.
Paul G. Summers, Attorney General and Reporter; Kim R. Helper, Assistant Attorney General; Elizabeth T. Rice, District Attorney General; James W. Freeland, Jr. and Jerry W. Norwood, Assistant District Attorneys General, for the appellee, State of Tennessee.
Joe G. Riley, J., delivered the opinion of the court, in which Joseph M. Tipton and John Everett Williams, JJ., joined.
OPINION
Defendant was convicted by a McNairy County jury of the premeditated first degree murders of his wife and stepdaughter, for which he received two concurrent life sentences. In this appeal as of right, he presents the following issues:
whether the evidence was sufficient to support the convictions;
whether the trial court erred in disallowing impeachment evidence against a state witness;
whether the trial court erroneously admitted evidence of defendant being a beneficiary of life insurance policies on one of the victims;
whether the trial court erroneously admitted inflammatory evidence relating to the crime scene;
whether the trial court erred in allowing evidence of alleged threats made by the defendant;
whether the trial court erred in allowing evidence of a prior argument between the defendant and one of the victims; and
whether the trial court erred in disallowing evidence of defendant's failure to flee and avoid arrest.
After a careful review of the record, we find no reversible error and affirm the judgments of the trial court.
FACTS
On December 3, 1997, at 12: 41 a.m. the defendant placed a 911 call to the McNairy County Sheriff's Office. He told the dispatcher someone had broken into his home and shot his wife. Officers later discovered the bodies of defendant's wife and stepdaughter at the residence. Both had been shot in the head with a .9mm handgun. The wife had multiple near gunshot wounds to the head, and the stepdaughter had one near gunshot wound to the head. The family dog had also been shot and killed. However, there was no evidence of forced entry into the mobile home and no evidence of a struggle inside.
Several witnesses testified that they saw the defendant with a .9mm handgun a few weeks prior to the murder. Dewayne Scott testified that he loaned the defendant a .9mm Ruger approximately six months prior to the murder, and the defendant never returned the weapon. Analysis of the clothing defendant was wearing on the night of the murders revealed the presence of gunpowder residue.
Additionally, two different individuals heard the defendant threaten to kill his wife prior to the murders. One witness testified that the couple fought over the family dog on several occasions. Approximately one week before the murder, the defendant stated that "if the dog gets put to sleep, the whole damn family will get put to sleep." Another witness testified that the defendant warned his wife on two separate occasions that if she tried to leave him, he would kill her. Furthermore, the couple's babysitter stated that she witnessed a drunken altercation between the couple. She stated the two were "fussing," and the defendant placed an unloaded gun to his wife's head and pulled the trigger several times.
Thomas Kiracofe, the defendant's cellmate, testified that the defendant told him he shot his wife during an argument over the dog. Kiracofe stated defendant then told him that he shot his stepdaughter because she was a witness to his wife's murder. Kiracofe further testified that he and the defendant planned to escape from prison.
The defendant did not testify at trial but his statement to authorities was read to the jury. In that statement the defendant stated that he had been out drinking on the night in question, did not own a gun, and did not kill his wife and stepdaughter. Defendant also endeavored to show through other witnesses that he was cooperative with authorities throughout the investigation and voluntarily surrendered himself for questioning.
The jury convicted the defendant of two counts of premeditated murder, and he received two concurrent life sentences.
SUFFICIENCY OF THE EVIDENCE
The defendant alleges the evidence is insufficient to support his conviction for first degree murder. Specifically, the defendant claims the state failed to prove he was the perpetrator and further failed to establish premeditation. We disagree.
A. Standard of Review
In Tennessee, great weight is given to the result reached by the jury in a criminal trial. A jury verdict accredits the state's witnesses and resolves all conflicts in favor of the state. State v. Bigbee, 885 S.W.2d 797, 803 (Tenn. 1994). On appeal, the state is entitled to the strongest legitimate view of the evidence and all reasonable inferences which may be drawn therefrom. Id.; State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). Moreover, a guilty verdict removes the presumption of innocence which the appellant enjoyed at trial and raises a presumption of guilt on appeal. State v. Grace, 493 S.W.2d 474, 476 (Tenn. 1973). The appellant has the burden of overcoming this presumption of guilt. Id.
Where sufficiency of the evidence is challenged, the relevant question for an appellate court is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime or crimes beyond a reasonable doubt. Tenn. R. App. P. 13(e); Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); State v. Abrams, 935 S.W.2d 399, 401 (Tenn. 1996). The weight and credibility of the witnesses' testimony are matters entrusted exclusively to the jury as the tries of fact. State v. Sheffield, 676 S.W.2d 542, 547 (Tenn. 1984); State v. Brewer, 932 S.W.2d 1, 19 (Tenn.Crim.App. 1996).
B. Premeditation
The applicable definition of first degree murder is, "[a] premeditated and intentional killing of another." Tenn. Code Ann. § 39-13-202(a)(1). Premeditation necessitates "a previously formed design or intent to kill," State v. West, 844 S.W.2d 144, 147 (Tenn. 1992) (citations omitted), and "an act done after the exercise of reflection and judgment . . . [meaning] that the intent to kill must have been formed prior to the act itself." Tenn. Code Ann. § 39-13-202(d). It also requires that the accused be "sufficiently free from excitement and passion as to be capable of premeditation." Id.
Although the jury may not engage in speculation, it may infer premeditation from the manner and circumstances of the killing. State v. Bland, 958 S.W.2d 651, 660 (Tenn. 1997); State v. Bordis, 905 S.W.2d 214, 222 (Tenn.Crim.App. 1995). Our Supreme Court delineated several circumstances that may be indicative of premeditation, including declarations by the defendant of an intent to kill, evidence of procurement of a weapon, the use of a deadly weapon upon an unarmed victim, the fact that the killing was particularly cruel, the making of preparations before the killing for the purpose of concealing the crime, and calmness immediately after the killing. See State v. Nichols, ___ S.W.3d ___, ___ (Tenn. 2000); Bland, 958 S.W.2d at 660.
C. Analysis
Viewing the evidence and the inferences therefrom in a light most favorable to the state, we conclude the evidence is sufficient to sustain the jury's finding of premeditation. Some of the circumstances enumerated by the Supreme Court in Nichols are present in the instant case.
Several witness testified the defendant threatened to kill his wife prior to her murder. Ray Lipford, the defendant's neighbor, testified that on at least two occasions the defendant threatened to kill his wife. He stated these altercations occurred about one month prior to her murder. Deborah Floyd, a family friend, testified that the couple fought about the dog. She testified that about one week prior to the murders, the defendant stated, "if the dog gets put to sleep, the whole damn family will be put to sleep." The evidence revealed that the dog was shot and killed by the defendant along with the two victims. Thomas Kiracofe, the defendant's former cellmate, testified the defendant told him the couple argued over the dog and he shot his wife. Kiracofe stated that the defendant claimed he then shot his stepdaughter because she had witnessed her mother's murder.
Testimonial evidence revealed the defendant possessed a .9mm handgun. Dewayne Scott testified that he loaned the defendant his .9mm Ruger handgun about six months prior to the murders, and both Smith and Lipford testified that they had seen the defendant in possession of the weapon less than a month before the murders. Additionally, Wanda Cobb testified that she observed the defendant aim an unloaded gun at the victim's head and pull the trigger. Testimony from crime scene investigators revealed that neither victim was armed, and there was no sign of forced entry into the mobile home or any sign of a struggle on the interior. Furthermore, analysis of the clothing worn by the defendant revealed the presence of gunpowder residue.
Finally, in addition to taking steps to destroy evidence of his crime, the defendant exhibited calmness immediately after the killing. He called his brother and told him that he was leaving for Louisiana to visit another brother, and asked him to check on his family the next day. Furthermore, he drove to a local gas station and obtained a receipt for cigarettes in order to establish a purported alibi. He then changed his clothes and called 911. The officers who arrived on the scene stated that once the defendant was placed in the patrol car, he fell asleep.
We conclude there was ample evidence to support defendant's convictions. This issue is without merit.
IMPEACHMENT EVIDENCE
The defendant argues the trial court erred in sustaining the state's objection to the introduction of extrinsic evidence to impeach Thomas Kiracofe. He claims the proper foundation was laid under Tenn. R. Evid. 613 (b).
On cross-examination of Thomas Kirakofe, defense counsel asked the witness if he ever asked Steven Barker to "go with him and snitch," in order to get a "time cut". Kirakofe replied that he did not. To rebut Kiracofe's assertion, the defendant sought to introduce the testimony of Steven Barker. Barker's proffered testimony involved an alleged incident in which Kirakofe requested Barker "snitch" on another inmate so that Kirakofe could receive a reduction in his federal sentence. The state objected to this testimony, arguing Kirakofe had not been given ample opportunity to admit or deny making the statements. Therefore, the state argued the defense failed to lay a proper foundation for extrinsic impeachment evidence under Tenn. R. Evid. 613(b). The objection was sustained as to the specific statements regarding this incident, but the trial court stressed that defense counsel was free to inquire into Kiracofe's reputation for truth and veracity.
The trial court erred in disallowing Barker's testimony about Kiracofe's request that he aid him in obtaining a sentence reduction by "snitching" on a fellow inmate. The defendant laid a proper foundation for this inquiry, and Kiracofe had an opportunity to admit or deny the statement. Once Kiracofe denied asking Barker to corroborate his story so that he could receive a sentence reduction, the defendant should have been given an opportunity to introduce Barker's testimony to impeach Kiracofe. However, we find that this error is harmless.
Barker was allowed to testify that Kiracofe told him about sentence reductions based on cooperation with the prosecuting authorities. Barker was also allowed to testify about Kiracofe's reputation for truthfulness and responded by testifying that Kiracofe was a "liar" and a "lying snitch." In light of this testimony, the thorough cross-examination of Kiracofe and the overwhelming evidence of guilt, the error was harmless. See Tenn. R. App. P. 36(b).
This issue was addressed in the trial court and in the briefs in this court under Tenn. R. Evid. 613(b). The parties have not addressed the admissibility of this evidence under Tenn. R. Evid. 404(b) or 616. Likewise, we do not address the admissibility of the evidence under these two rules. However, if the trial court erred in refusing to admit this evidence under these rules, we conclude the error would be harmless for the same reasons stated above.
LIFE INSURANCE
The defendant contends the trial court erred in allowing the wife's mother to testify about two insurance polices in which the defendant had a financial stake. He argues that there was no evidence presented to demonstrate that he had knowledge of these policies. Thus, he claims this evidence did not relate to motive and, therefore, was irrelevant under Tenn. R. Evid. 401. In addition, he claims the prejudice resulting from the admission of this evidence outweighed any probative value it might have. See Tenn. R. Evid. 403.
Betty Smith testified that there was a credit life insurance policy on her daughter relating to the mobile home she and the defendant co-owned. In addition, she stated her daughter had a life insurance policy of $42,000 naming the defendant as primary beneficiary. However, on cross-examination she admitted she did not know whether or not the defendant was aware either policy existed, and stated the defendant had made no claim on either policy.
Tenn. R. Evid. 401 states that evidence is relevant if it "tends to make the existence of any fact of consequence to the determination of the action more probable or less probable than it would be without the evidence." The existence of life insurance can certainly be relevant to prove motive. See State v. Stephenson, 878 S.W.2d 530, 541 (Tenn. 1994). In Stephenson, however, there was proof the defendant knew about the policy and offered the amount of the policy as payment for killing the victim. Id. In the instant case the state failed to show the defendant was motivated by financial gain. In fact, this appears to be contrary to the state's theory that the defendant simply carried out his previous threats to kill his wife for reasons unrelated to money.
The testimony regarding the life insurance policies was brief. In light of the extensive evidence introduced against the defendant, we find this error to be harmless. See Tenn. R. App. P. 36(b).
CRIME SCENE EVIDENCE
The defendant alleges the trial court abused its discretion by allowing the state's forensic pathologist, Dr. Smith, and T.B.I. Agent Romanek to describe crime scene photographs of the victims. He argues this evidence was cumulative and prejudicial. Furthermore, the defendant argues the trial court erred by allowing the jury to view the video of the crime scene.
A. Description of Photographs
Although the photographs were not introduced, the defendant argues the descriptions of the photographs by Dr. Smith and Agent Romanek were irrelevant and just as prejudicial as the photographs. The defendant asserts Dr. Smith was allowed to give his opinion about cause of death and the type of injuries suffered. Thus, he argues the descriptions of the blood splatters and gruesome details of the wounds were unnecessary and highly inflammatory. Additionally, the defendant claims Agent Romanek could have described the position of the bodies without further details about the "gruesome scene."
The admissibility of photographs lies within the sound discretion of the trial court whose ruling will not be overturned on appeal except upon a clear showing of an abuse of discretion.State v. Banks, 564 S.W.2d 947, 949 (Tenn. 1978); State v. Lacy, 983 S.W.2d 686, 694 (Tenn.Crim.App. 1997). We conclude testimony describing crime scene photos should be analyzed under this same standard. Nevertheless, the testimony must be relevant to an issue at trial with its probative value outweighing any prejudicial effect that it may have upon the trier of fact. State v. Braden, 867 S.W.2d 750, 758 (Tenn.Crim.App. 1993). Relevant evidence is evidence "having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." Tenn. R. Evid. 401.
The testimony about the photographs was necessary to corroborate the medical testimony and to give the jury a proper description of the crime scene. The description given by Dr. Smith was elicited in the context of corroboration for his medical conclusions. In addition, Agent Romanek gave only a brief description with regard to the location of the wife's body. Thus, we conclude the trial court did not abuse its discretion in allowing Dr. Smith and Agent Romanek to discuss the content of the photographs.
B. Videotape
The defendant argues the videotape of the crime scene depicting the stepdaughter's body was particularly gruesome and inflammatory. The video was edited as to the wife, but did not exclude the stepdaughter. The defendant argues both victims should have been excluded. Additionally, he argues the video was needlessly cumulative. He contends the medical testimony and the testimony of crime scene investigators was sufficient to depict the injuries to the victims, placement of the bodies, and the condition of the crime scene.
At trial, a color videotape of the crime scene was shown to the jury. Upon defendant's objection, the court ordered all images of the wife be edited out of the video. However, the court found the images of the stepdaughter "were not so gruesome as to substantially outweigh their relevance." The video showed the exterior and interior of the mobile home, including images of her body as she was found by investigators.
The admissibility of a videotape of the crime scene is within the sound discretion of the trial court, and we will not overturn its ruling on the admissibility of this evidence without a clear showing of abuse of that discretion. State v. Hall, 976 S.W.2d 121, 151 (Tenn. 1998); State v. Bigbee, 885 S.W.2d 797, 807 (Tenn. 1994).
The defense claimed someone broke into his house and committed the murders. Therefore, the state argues the video was probative because it showed there was no sign of forced entry into the dwelling and no sign of a struggle within the dwelling. We agree that the video is relevant to the issues of identification and premeditation. In addition, the video aided the jury in understanding the testimony of medical examiners and crime scene investigators. Furthermore, the portion of the video depicting the stepdaughter was brief and was merely shown to document the position of the body in relation to the bullet path and the shell casings that were found at the scene. Furthermore, our review of the video does not reveal that it was inflammatory. Thus, we conclude the probative value of the video is not outweighed by its prejudicial effect. The trial court did not abuse its discretion in allowing the edited video to be shown to the jury.
THREATS
The defendant contends the testimony of Ray Lipford and Debbie Floyd regarding threats allegedly made prior to the murders was irrelevant and should have been excluded. He argues the threats were conditional, and the state did not present evidence that the conditions were ever satisfied. Therefore, he claims the testimony was not relevant to prove motive or state of mind.
In State v. Smith, 868 S.W.2d 561 (Tenn. 1993), the Tennessee Supreme Court held that evidence of a defendant's prior acts of violence and threats against the victim is admissible under Tenn. R. Evid. 404(b) in a murder case because the prior bad acts are relevant to showing the defendant's hostility toward the victim, the settled purpose to harm the victim, and the intent and motive for the killing. Id. at 574. Declarations of an intent to kill are particularly relevant to establishing premeditation.State v. Pike, 978 S.W.2d 904, 914 (Tenn. 1998). Furthermore, evidence of a threat is relevant and admissible even though the threat is conditional in form. 1 Wharton's Criminal Evidence § 141 (14th ed. 1985).
It is immaterial whether the condition is in such form that the victim can avoid the threatened harm by refraining from doing a specified act, or that the victim must do a specified act in order to avoid the harm. Thus, a conditional threat is admissible without regard to whether the victim did or did not do the act specified in the condition.
Id.
Like the analysis required under Tenn. R. Evid. 403, the trial court must weigh, under Rule 404(b)(3), the probative value of the evidence against the danger of unfair prejudice. However, the test for making such a determination is more stringent under Rule 404 than under Rule 403. State v. DuBose, 953 S.W.2d 649, 654 (Tenn. 1997). Nevertheless, a trial court's determination pursuant to Rule 404(b) will not be overturned on appeal absent an abuse of discretion. State v. Vann, 976 S.W.2d 93, 102 (Tenn. 1998).
A. Ray Lipford
Ray Lipford, the defendant's neighbor, testified that on two different occasions he heard the defendant warn the victim that if she ever tried to leave him, he would kill her. He stated the incidents happened approximately three months prior to the murders. The trial court held the evidence was relevant to motive and the defendant's state of mind.
The issue of motive and the defendant's state of mind were critical to proving premeditation, a required element of the charged offense. We conclude the trial court did not abuse its discretion in allowing this testimony.
B. Debbie Floyd
Debbie Floyd, a friend of the wife, testified that the defendant stated that, "if the dog gets put to sleep, the whole damn family gets put to sleep." Again, the trial court allowed the evidence as proof of motive and to demonstrate the defendant's state of mind.
The defendant argues this is a conditional statement, and there is no evidence the condition was fulfilled. The evidence revealed the dog was killed by the defendant along with the two victims. Thus, the statement by the defendant that the family would be put to sleep if the dog was put to sleep has direct correlation to the murders. Therefore, we conclude the trial court did not abuse its discretion in allowing the jury to hear this testimony.
REMOTENESS OF PRIOR CONFRONTATION
The defendant asserts the trial court erred in allowing Wanda Cobb to testify about an incident she witnessed one year prior to the murder. He argues the incident was so removed in temporal proximity to the murders as to make any relevance it might have with regard to motive or intent too remote; thus, its prejudicial effect outweighed its probative value.
Wanda Cobb cared for the stepdaughter when the couple was out of town or at work. At trial, she testified that approximately one year prior to the murders, she witnessed the defendant and victim in a drunken argument. She stated the defendant pointed an unloaded gun at his wife's head and pulled the trigger several times. The trial court found this evidence was relevant and further found the probative value of the evidence was not outweighed by the danger of unfair prejudice.
Although evidence may appear to be relevant, it may relate to a time so remote from the date of the alleged crime that it ceases to have probative value. 1 Wharton's Criminal Evidence § 92 (14th ed. 1985). No rigid rule can be stated to determine when the time interval is so great that a given fact has no probative value. Id. However, objections to remoteness are ordinarily regarded as affecting the weight and not the admissibility of the evidence.Smith, 868 S.W.2d at 575; see also 41 C.J.S. Homicide § 204(d) (1991).
The incident occurred approximately one year before the murders. However, "threats, even though remote, are competent when it appears that they were repeated from time to time, or the hostility continued, until shortly before the commission of the offense alleged." 41 C.J.S. Homicide § 204(d) (1991). Here, two other witnesses testified they heard the defendant threaten to kill his wife shortly before the murder. Lipford testified the defendant threatened the victim one month prior to the murders, and Floyd testified that she heard the defendant threaten the victim the week before the murders. Therefore, we conclude the trial court did not abuse its discretion by allowing Cobb's testimony.
FAILURE TO FLEE
The defendant argues he should have been allowed to rebut Thomas Kiracofe's testimony that he and defendant intended to escape. He claims the state attempted to introduce evidence that he had a "consciousness of guilt," and he should have been allowed to challenge that assertion.
At trial, the defendant sought to introduce testimony from Agent McLean of the T.B.I. that the defendant was not arrested until approximately two months after the murders, and that he voluntarily surrendered. He claimed this testimony negated Kirakofe's assertion that he intended to escape. The state objected and the trial court held that the defendant could establish that he was cooperative and that he did not flee the jurisdiction. However, the trial court held that the length of time between the event and arrest was irrelevant and, therefore, disallowed testimony regarding the actual date of defendant's arrest.
We conclude that the failure of the defendant to flee for the two months prior to his arrest was relevant in light of the state's evidence. However, the defendant was given ample opportunity to establish that he was cooperative during the investigation, and that he did not attempt to flee the jurisdiction prior to his arrest. The fact that the jury was unaware that the actual time between the crime and defendant's arrest was two months did not prejudice the defendant. We, therefore, conclude the error was harmless. See Tenn. R. App. P. 36(b).
CONCLUSION
In summary, we conclude:
(1) the evidence was sufficient to sustain the defendant's convictions for premeditated murder;
(2) the trial court's error in disallowing the defendant to present impeachment evidence against a state witness was harmless;
(3) the trial court's error in admitting evidence pertaining to life insurance policies was harmless;
(4) the crime scene evidence was properly admitted;
(5) the evidence of alleged threats made by the defendant against his wife was properly admitted;
(6) the evidence of a prior violent argument between the defendant and his wife was properly admitted; and
(7) the trial court did not commit reversible error by limiting the defendant's testimony regarding the date of his arrest.
Thus, we AFFIRM the defendant's convictions for premeditated first degree murder.
I must respectfully dissent because, while I agree that the appellant's confession to the police should have been suppressed, I do not believe that the trial court's admission of the confession at trial constituted reversible error. Our supreme court has previously noted that "the existence of a constitutional error does not automatically entitle a defendant to a reversal."State v. Howell, 868 S.W.2d 238, 252 (Tenn. 1993). Specifically, constitutional error does not warrant reversal if the State establishes "beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained." Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 828 (1967). InDelaware v. Van Arsdall, 475 U.S. 673, 681, 106 S.Ct. 1431, 1436 (1986) (citations omitted), the United States Supreme Court explained the rationale of this "harmless error doctrine":
The harmless error doctrine recognizes the principle that the central purpose of a criminal trial is to decide the factual question of the defendant's guilt or innocence, . . . and promotes public respect for the criminal process by focusing on the underlying fairness of the trial rather than on the virtually inevitable presence of immaterial error. . . . `Reversal for error regardless of its effect on the judgment, encourages litigants to abuse the judicial process and bestirs the public to ridicule it'. . . .
Of course, the court in this case is applying the harmless error doctrine to the admission at trial of a confession by the appellant obtained in violation of Miranda v. Arizona, 384 U.S. 436, 445, 86 S.Ct. 1602, 1612 (1966). Nevertheless, in Arizona v. Fulminante, 499 U.S. 279, 306-312, 111 S.Ct. 1246, 1263-1266 (1991), the Court approved the application of the harmless error doctrine even to the admission at trial of involuntary confessions. The Court stated:
When reviewing the erroneous admission of an involuntary confession, the appellate court, as it does with the admission of other forms of improperly admitted evidence, simply reviews the remainder of the evidence against the defendant to determine whether the admission of the confession was harmless beyond a reasonable doubt.
Id. at 310, 1265.
In sum, even in cases of erroneously admitted confessions, whether involuntary or obtained in violation of Miranda, "the goal of harmless error analysis is to identify the actual basis on which the jury rested its verdict." Momon v. State, 18 S.W.3d 152, 168 (Tenn. 1999). Thus, in applying the harmless error doctrine to this case, I would preliminarily note that the primary issue at trial was not whether the appellant committed the offense of aggravated sexual battery but rather whether the appellant was insane at the time of his offense. Indeed, the focus of the appellant's defense is apparent from the direct testimony by the appellant's psychologist, Dr. John Victor Ciocca, relating the appellant's statements to him concerning the offense and remarking that the statements were substantially identical to the appellant's confession to the police. In this context, the court's application of harmless error analysis should address three separate inquiries: (1) whether the trial court's admission of the appellant's statements to the police affected the jury's resolution of the issue of insanity; (2) whether the admission of the statements otherwise affected the jury's verdict of guilt; and (3) whether the appellant could have asserted a more successful defense had the statements been suppressed.
With respect to the first inquiry, the appellant had the burden at trial of proving his insanity by clear and convincing evidence. Tenn. Code Ann. § 39-11-501(a) (1997); see also State v. Perry, No. 01C01-9710-CC-00467, 1999 WL 233522, at *16 (Tenn.Crim.App. at Nashville, April 22, 1999), perm. to appeal denied, (Tenn. 1999) (upholding the constitutionality of the statutory provision requiring the defendant to prove insanity by clear and convincing evidence). In other words, the appellant was required to prove by clear and convincing evidence that, as a result of a severe mental disease or defect, he was unable to appreciate the nature or wrongfulness of his conduct at the time of his offense.Id.; see also State v. Holder, No. 03C01-9812-CC-00439, 1999 WL 771550, at **7-8 (Tenn.Crim.App. at Knoxville, September 27, 1999), perm. to appeal denied, (Tenn. 2000) (upholding the constitutionality of the current statutory definition of insanity). "`Clear and convincing evidence means evidence in which there is no serious or substantial doubt about the correctness of the conclusions drawn from the evidence.'"Holder, No. 03C01-9812-CC-00439, 1999 WL 771550, at *5 (quotingHodges v. S.C. Toof Company, 833 S.W.2d 896, 901 n. 2 (Tenn. 1992)).
A more detailed review of the evidence adduced at the appellant's trial is essential in assessing the impact of the admission of the appellant's confession to the police upon the jury's resolution of the above issue and, more broadly, the issue of guilt or innocence. Initially, the State presented the testimony of the victim, who was six years old at the time of the appellant's trial. She testified that the appellant lived next door to her home. On July 24, 1997, she was riding her bicycle past the appellant's home when he invited her inside. The victim stated that, while she was visiting the appellant's home, she went into his bedroom where "something bad happened." She further testified that she was later examined by a nurse "[b]ecause of what Mr. Ronnie did." She was unable to otherwise describe the events inside the appellant's bedroom.
The victim's mother also testified on behalf of the State at the appellant's trial. She recounted that, on July 24, 1997, the victim left their home at 10: 30 a.m. to visit a friend who lived in the neighborhood. Approximately one hour later, the victim returned home and was "extremely upset." Seconds later, the appellant arrived at the front door in "red satin-type boxer shorts" and stated that he had seen the victim riding her bicycle and had asked her to come inside his house. He further stated,
I'm sorry . . . I was asleep. The phone rang three times. I woke up. I got mad. I'm sorry. I was asleep. I didn't know what I was doing. I'm sorry.
After reassuring the appellant, the victim's mother spoke with the victim. The victim "was so upset that she was, at that point of almost throwing up." According to the mother, the victim stated,
Mama, mama. He forced me, mama. He forced me. . . . He forced me to take off my shorts and my panties, mama. . . . He laid on top of me, mama, and he peed on me, mama.
The victim's mother reported the assault to the police and drove her daughter to the Memphis Sexual Assault Resource Center. Steven Weichman, a special agent forensic scientist with the Tennessee Bureau of Investigation Crime Laboratory in Jackson, Tennessee, testified that subsequent testing of the underwear worn by the victim at the time of the offense revealed the presence of sperm and semen.
Of course, the State also introduced the appellant's confession, which was obtained by police approximately five hours following the instant offense. In his confession, the appellant stated that, on the morning of his offense, he was attempting to sleep in his bedroom at home. However, he was awakened on several occasions by the ringing of the telephone. Additionally, the appellant was experiencing pain in his back, and he was concerned that he might be developing kidney stones. At approximately 11: 15 a.m., he was still unable to sleep and began looking out a window of his home. At this point, he noticed the victim passing by his home on her bicycle. He invited the victim into the house, where he spoke with her about Disney World and allowed her to see his dog and his bird and play with his cat. The victim was playing with the cat in the appellant's bedroom when the appellant "started losing [his] mind." The appellant recalled that he began to feel hungry, the pain in his back resumed, and he again began to worry about the possibility that he was developing kidney stones. According to the appellant, his discomfort precipitated the sexual assault. The appellant recalled,
I laid down on her and just rubbing and that's where I ejaculated, I told her sorry and then I got the towel and tried to clean her up. I was again checking for kidney stone but uh there was no problem there. But I told her I said I am very sorry. . . . I told her to go on out, but I do feel guilt and decided I would walk over there and knock and tell her mother that I was very apologetic about what I had done and that I was sorry and so.
In support of his defense of insanity, the appellant first introduced the testimony of his wife, Vicki Weeks. Ms. Weeks testified that she and the appellant had been married for twenty-five years and currently had one adult son. Ms. Weeks described the appellant as "outgoing" and "very friendly" and asserted that he had been "a very good husband. . . ." Ms. Weeks further related that her husband had been employed by the United States Postal Service for twenty-four years and enjoyed playing tennis in his free time. In 1997, however, the appellant began to experience stress relating to financial difficulties, appeared "real tired all the time," and bathed and shaved less frequently. Additionally, the appellant was reluctant to take leave from work and was somewhat withdrawn at family gatherings. Finally, Ms. Weeks noted that, at the beginning of July 1997, the appellant stopped playing tennis.
Mae Weeks, the appellant's mother, testified that the appellant has been hearing-impaired since birth, although he can hear some sounds such as the ringing of a telephone. As a child, the appellant initially attended an "oral school for the deaf" where he was taught to speak. Subsequently, he attended Raleigh-Egypt High School, "a hearing school," where he was "the leader in his class." Upon graduating from the high school, he immediately began his employment with the Postal Service. The appellant's mother, like his wife, described the appellant as "real outgoing — real pleasant — funny — clowned a lot." However, she recalled that, in the spring or early summer of 1997, the appellant began to appear depressed, "looked haggard . . . unkempt," and was withdrawn at family gatherings.
The appellant's son, Ronald Weeks, Jr., testified on the appellant's behalf that he has always had a good relationship with his father. He stated that the appellant was "[v]ery outgoing . . . [a]lways cutting up — joking. He was like a friend." However, Mr. Weeks recalled that, in 1997, the appellant began to appear "unkempt" and became "very quiet, reserved." Mr. Weeks particularly noted that, shortly before this offense, the appellant stopped playing tennis with his son.
The appellant's psychologist, Dr. Ciocca, testified that he interviewed the appellant on four occasions following this offense, including August 16, 19, and 22, 1997, and January 27, 1998. During these interviews, the appellant related to Dr. Ciocca his offense. Dr. Ciocca also reviewed the appellant's statements to the police and noted that the two accounts were substantially identical. Additionally, Dr. Ciocca interviewed various family members. Finally, he administered to the appellant various psychological tests, including the Minnesota Multi-Phasic Personality Inventory II (MMPI) and the Millon Inventory II.
Dr. Ciocca diagnosed the appellant with severe depression — major depression and that co-existing with that was a paranoid delusional disorder in which he suffered from the inability to tell reality from fantasy in which his reality testing was impaired, and in which his ability to govern his behavior would be impaired.
Dr. Ciocca conceded that hearing-impaired individuals "have modest additions to . . . all of their MMPI scales," and individuals facing criminal charges are likewise more depressed and suicidal. Nevertheless, he opined that, at the time of this offense, the appellant was in the midst of a
rather long-standing psychological decompensation; that his — his difficulties with reality testing and his difficulties with depression, and his difficulties with distortions of reality had been occurring over an extended period of time.
Dr. Ciocca further testified that, when depression is accompanied by a paranoid delusional disorder, "an individual will, periodically, with and without external stressors, . . . lose contact with reality. . . ." Accordingly, he asserted that the "occurrence of many different kinds of bizarre, unusual behavior in an individual," such as the instant offense, would be consistent with his diagnosis. He concluded that, at the time of the instant offense, the appellant was experiencing a psychotic episode and was unable to comprehend the nature and wrongfulness of his conduct.
The psychologist conceded that the appellant's psychotic episode would have lasted several hours. Indeed, Dr. Ciocca assumed that the appellant's "decline into this [psychotic] state took some time and that his movement out of the state took some time." Dr. Ciocca further conceded that he was unsure how much time elapsed between the appellant's offense and his apology to the victim's mother and was unsure whether or not the appellant was still experiencing the psychotic episode when he apologized to the victim's mother following this offense.
In cross-examining Dr. Ciocca, the State questioned him concerning the appellant's statements to the police, including a portion of the appellant's confession that had been redacted from the statements introduced during the State's case-in-chief. In the redacted portion of his confession, the appellant stated that a similar incident had almost taken place with another child, but he had controlled his conduct because he realized that his impulse was wrong. Again, Dr. Ciocca conceded that the appellant had provided substantially identical information to him during the course of the psychologist's interviews with the appellant and that he had considered this information in forming his opinion on the issue of insanity. With respect to the appellant's statement concerning this prior incident, the trial court instructed the jury that it was to consider this evidence solely for the purpose of evaluating Dr. Ciocca's testimony concerning the appellant's mental state at the time of the offense.
In rebuttal, the State presented the testimony of Kenneth Fulmar, the manager of the Bartlett Men's Single Tennis League. He testified that the appellant was a participant in the tennis league and had won the tennis league tournament on June 16, 1997, approximately one month prior to this offense. The State also presented the testimony of Bob Jackson with the United States Postal Service. Mr. Jackson testified that the appellant was a "general expediter," responsible for ensuring that outgoing mail bags were placed in the correct truck or van. According to Mr. Jackson, the appellant's work evaluation from May 1997 through July 1997 indicated above average job performance by the appellant in all categories, including reliability, appearance, personal conduct and integrity, ability to get along with others, ability to accept criticism, productivity and work habits, attitude toward work, co-workers, and supervisors, ability to understand and follow instructions, willingness to handle all assignments, punctuality, and safety consciousness. Mr. Jackson also noted that, during these three months, the appellant took two days of sick leave and fourteen or fifteen days of "annual leave." Mr. Jackson acknowledged that the period extending from May through July is generally "peak annual leave time."
The State also presented the testimony of Dr. John Whirley, a psychologist and a friend of Dr. Ciocca. He stated that he interviewed the appellant on July 2, 1998, approximately one year following the instant offense, in order to determine if the appellant was competent to stand trial and whether a defense of insanity was viable. Dr. Whirley additionally reviewed numerous records documenting the appellant's treatment and evaluation following this offense by psychologists Dr. Ciocca and Dr. Murphy and psychiatrist Dr. Hoehn. Finally, he examined records pertaining to police interviews with the appellant.
Dr. Whirley initially noted that, prior to the instant offense, the appellant had no history of mental illness or psychological treatment. As to the psychological testing performed by Dr. Ciocca and the results thereof, Dr. Whirley testified that the scoring systems for tests such as the MMPI and the Millon Inventory are based upon "normative or standardized group[s]" representing the general population. According to Dr. Whirley, when a test subject is a member of a sub-group of the population, such as the hearing-impaired, "you can get biased scores." He also noted that the Millon Inventory II test performed by Dr. Ciocca had been "taken off the market. . . . The Millon II apparently was over exaggerating pathology in even normal people — making them look like they had problems. . . ." Finally, Dr. Whirley noted that the results of the psychological testing were inconsistent with all other available information, including the appellant's other psychological records, Dr. Whirley's own observations of the appellant, and information provided by the appellant's family members.
In this regard, Dr. Whirley observed that the results of the psychological testing
describe a severe psychological disorder, florid psychotic process, which includes personality decompensation, social withdrawal, disordered affect, erratic, maybe assaultive behavior, confused, withdrawn, preoccupied with abstract ideas, may feel that others are against him because of his beliefs, apathetic and so forth. In other words, it describes a very disorganized, withdrawn, floridly psychotic individual in the text of this thing.
I find that this description — if a person were as psychotic and disorganized as this description suggests, I cannot imagine how he could sit down and interact in a fashion that is revealed in the interviews — both with Dr. Ciocca and with the police and also in his written responses to Dr. Ciocca's questions. Now, those are inconsistent with what the MMPI says. The MMPI is also inconsistent with my experience with him, but that was certainly one year later. And it was inconsistent with some of the family descriptions as well.
One of the things that both of the — the Millon and the MMPI suggested is that these are, to some extent, long term personality characteristics of him, and that is certainly not consistent with my perception of Mr. Weeks. I found him to be a likeable, pleasant, responsive individual.* * *
[I]t would be extraordinary for a person with a severe case of paranoid schizophrenia to be able to function well in society without medication and have good interpersonal relationships and function well on a job involving working with other people. So that's part of where I get into some concern about what this test is really saying. . . .
Dr. Whirley further noted that if the MMPI were accurate, one would expect the appellant to exhibit "rage and [experience] violent episodes," and there was simply no evidence of such behavior by the appellant. Dr. Whirley concluded that the symptoms described by family members were more consistent with depression than any paranoid psychosis. Indeed, Dr. Whirley noted that the psychiatrist Dr. Hoehn limited his diagnosis of the appellant to "major depression — single episode" and administered anti-depressant medications rather than anti-psychotic medications.
In reference to Dr. Ciocca's testimony that, at the time of this offense, the appellant was experiencing a psychotic episode during which he was unable to appreciate the wrongfulness of his conduct, Dr. Whirley described a "brief psychotic episode":
It includes the presence of delusion — one or more delusions, disorganized speech, or grossly disorganized or catatonic behavior and that this episode should last at least one day but less than one month. . . .
He further stated, "In my experience, it's rare to see something happen and last just a couple of hours." He observed that people may "come out . . . [of a psychotic episode] over days, but to go in and out briefly would be something I haven't seen." He concluded that, at the time of this offense, the appellant was able to appreciate the wrongfulness of his conduct.
The State specifically questioned Dr. Whirley concerning the appellant's statements to the police. Dr. Whirley responded that, in forming his opinion on the issue of insanity, he did rely in part upon the appellant's statement to police that he had immediately apologized to the victim's mother following his offense. He similarly noted the appellant's account of a prior incident with another child during which the appellant controlled his behavior because he understood the wrongfulness of his impulse. Moreover, Dr. Whirley opined that the appellant's reluctance to reveal this prior incident to the police suggested that, at least at the time of his interview with the police, the appellant understood the wrongfulness of his conduct.
Reviewing the above evidence, I would conclude that the trial court's admission of the appellant's statements to the police did not affect the jury's determination that the appellant failed to establish his insanity at the time of the offense by clear and convincing evidence. In reaching this conclusion, I acknowledge that, absent the trial court's erroneous admission of the appellant's statements to the police, the State could not have used the statements to impeach a defense witness other than the defendant himself. See, e.g., James v. Illinois, 493 U.S. 307, 311-312, 110 S.Ct. 648, 651 (1990). Moreover, the State could not have used such statements as substantive evidence to rebut the appellant's defense of insanity. See, e.g., United States v. Hinkley, 672 F.2d 115, 132-134 (D.C. Cir. 1982), overruled in part on other grounds by Hudson v. Palmer, 468 U.S. 517, 525-526, 104 S.Ct. 3194, 3200 (1984); People v. Ricco, 437 N.E.2d 1097, 1101 (N.Y.App. 1982); State v. Hubbard, 693 P.2d 718, 721-722 (Wash. 1985). Cf. State v. DeGraw, 470 S.E.2d 215, 222-224 (W.Va. 1996) (consistent with James v. Illinois, when a defendant offers the testimony of an expert in presenting the insanity defense and the expert's opinion is based, to any appreciable extent, on the defendant's statements to the expert, the State may offer into evidence for impeachment purposes the defendant's contradictory statements to police obtained in violation of Miranda); Wilkes v. United States, 631 A.2d 880, 889-891 (D.C.App. 1993) (enunciating the same principle). However, as noted earlier, the appellant made substantially identical statements to his own, defense-retained psychologist, Dr. Ciocca. By asserting the affirmative defense of insanity and presenting Dr. Ciocca's testimony in support of his defense, the appellant "waived" any constitutional privilege with respect to his inculpatory statements to Dr. Ciocca that enabled the psychologist to form an opinion on the issue of insanity. See, e.g., Isley v. Dugger, 877 F.2d 47, 49-50 (11th Cir. 1989); Noggle v. Marshall, 706 F.2d 1408, 1416 (6th Cir. 1983). The appellant similarly waived his statutory psychologist-client privilege. See Tenn. Code Ann. § 63-11-213 (1997) (privileged communications between licensed psychologists and client are placed upon the same basis as those provided by law between attorney and client); cf. Bryan v. State, 848 S.W.2d 72, 80-81 (Tenn.Crim.App. 1992). Absent these constitutional and statutory bars, the prosecutor could cross-examine Dr. Ciocca concerning the appellant's statements to the psychologist that were a basis of his opinion. Tenn. R. Evid. 705.
Of course, in rebuttal, the State also questioned its own expert concerning the appellant's statements to the police. Moreover, in forming their opinions on the insanity issue, Dr. Ciocca and Dr. Whirley did not rely solely upon the substance of the appellant's statements to the police, echoed in the appellant's statements to Dr. Ciocca, but also upon the fact of the appellant's confession, i.e., his acknowledgment of wrongdoing soon after the offense, and the coherence of the confession. Nevertheless, particularly in light of the appellant's burden of proof on the issue of insanity, I would conclude beyond a reasonable doubt that the psychologists' testimony concerning the appellant's confession did not tip the balance in favor of the State. First, there was other evidence of the appellant's immediate acknowledgment of guilt following the offense. Second, in certain respects, the appellant's confession supported the appellant's claim of insanity. Thus, during closing argument, defense counsel highlighted the appellant's statement to police that he began to lose his mind prior to the offense and the appellant's somewhat bizarre focus in his confession upon the possibility that he was suffering from kidney stones. Finally, there was abundant other evidence controverting the appellant's claim of insanity and raising serious or substantial doubts concerning Dr. Ciocca's conclusions.
As to the impact of the appellant's statements to the police on the broader issue of guilt or innocence, I acknowledge that the impact was not cumulative because the relevance of the appellant's statements to Dr. Ciocca would have been limited to the issue of the appellant's insanity. Noggle, 706 F.2d at 1416. Nevertheless, the remaining evidence of the appellant's guilt was simply overwhelming. Indeed, aside from his assertion of the insanity defense, the appellant's sole argument concerning his guilt or innocence of aggravated sexual battery related to the adequacy of proof that the appellant had touched the victim's intimate parts or clothing covering the immediate area of the victim's intimate parts. In light of the victim's statement that the appellant laid on top of her and "peed" on her and in light of the presence of sperm and semen on the victim's underwear, I am confident in concluding beyond a reasonable doubt that the admission of the appellant's statements to the police did not affect the jury's resolution of this issue.
Finally, I do not believe that the suppression of the statements would have afforded the appellant a more successful defense. On the one hand, had the appellant chosen to forego an insanity defense and instead testify and deny his commission of the offense, he would have been subject to impeachment by his otherwise inadmissible statements to the police. See, e.g.,Oregon v. Hass, 420 U.S. 714, 723-724, 95 S.Ct. 1215, 1221 (1975); Harris v. New York, 401 U.S. 222, 225-226, 91 S.Ct. 643, 645-646 (1971); State v. Harts, 7 S.W.3d 78, 85 (Tenn.Crim.App. 1999); State v. Electroplating, 990 S.W.2d 211, 225-226 (Tenn.Crim.App. 1998) (citing Walder v. United States, 347 U.S. 62, 74 S.Ct. 345 (1954), and United States v. Haven, 446 U.S. 620, 627, 100 S.Ct. 1912, 1916 (1980)). On the other hand, had the appellant chosen neither to testify nor to present an insanity defense, the evidence of his guilt was overwhelming.
For the foregoing reasons, I would conclude that the admission of the appellant's statements to the police was harmless beyond a reasonable doubt and would affirm the judgment of the trial court.