State v. Torres

IN THE SUPREME COURT OF TENNESSEE
AT KNOXVILLE
May 1, 2002 Session

STATE OF TENNESSEE v. WILLIAM PIERRE TORRES

Appeal from the Court of Criminal Appeals
Criminal Court for Knox County
No. 56073 Ray L. Jenkins, Judge

No. E1999-00866-SC-DDT-DD - Filed July 19, 2002

The defendant, William Pierre Torres, was convicted of first degree murder by aggravated child
abuse1 for the killing of his son, fifteen- month-old Quintyn Pierre James Wilson. Following a
sentencing hearing, the jury found two aggravating circumstances: (1) “the murder was committed
against a person less than twelve (12) years of age and the defendant was eighteen (18) years of age,
or older” and (2) “the murder was especially heinous, atrocious, or cruel in that it involved torture
or serious physical abuse beyond that necessary to produce death.” 2 Finding that these aggravating
circumstances outweighed mitigating circumstances beyond a reasonable doubt, the jury imposed
a sentence of death for the first degree murder conviction. The Court of Criminal Appeals affirmed
both the conviction and sentence. The case was docketed and argued in this Court, and after
carefully reviewing the record and the relevant legal authorities, we affirm the defendant’s
conviction of first degree murder. Because the trial court erred by giving the jury an instruction
pursuant to Kersey v. State, 525 S.W.2d 139 (Tenn. 1975), rather than accepting the jury’s report
of a deadlock, the sentence of death is reversed and the case is remanded to the trial court for a new
sentencing hearing at which the jury shall only consider the sentences of imprisonment for life
without possibility of parole and imprisonment for life.

Tenn. Code Ann. § 39-13-206(a)(1) Automatic Appeal; Judgment of the Court of Criminal
Appeals Affirmed in Part; Reversed in Part; Case Remanded to the Trial Court

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

William C. Talman and Susan E. Shipley, Knoxville, Tennessee, for the appellant, William Pierre
Torres

1
Tenn. C ode Ann. § 39-13-20 2(a)(4)(1993) (R epealed).

2
Tenn. C ode Ann. §39-1 3-20 4(i)(1) and (5) (199 1).
Paul G. Summers, Attorney General & Reporter; Michael E. Moore, Solicitor General; Amy L.
Tarkington, Deputy Attorney General; Randall Eugene Nichols, District Attorney General; Robert
L. Jolley, Jr., Assistant District Attorney General, for the appellee, State of Tennessee.

OPINION

Guilt Phase Proof
The proof offered by the State at the guilt phase of this trial established that in June of 1994,
twenty-five-year-old William Pierre Torres lived in an apartment in Knoxville with his girlfriend,
Jasma Nishee Wilson, and the couple’s two children: a daughter, Sharise Elizabeth, and the victim,
fifteen-month-old Quintyn Pierre James Wilson.3 Wilson and the defendant met seven or eight years
earlier in New York City. Wilson and the children moved to Knoxville in May of 1993 and lived
with her sister, Marion Carter, and her sister’s boyfriend, Clayton Martin, Jr. In October of 1993,
the defendant joined Wilson and their children, and in May of 1994, Wilson, the defendant, and their
children moved into an apartment of their own. Wilson worked a day shift job at a grocery store.
The defendant worked a night shift job with a janitorial service. The defendant cared for the
children during the day while Wilson worked, and Wilson cared for the children at night while the
defendant worked. This arrangement continued until Wilson placed the children in daycare in early
June of 1994.

However, on the morning of June 29, 1994, Wilson awoke later than normal and did not
have time to drop Quintyn off at daycare. Therefore, Wilson left for work at 8:30 a.m. leaving
Quintyn, asleep in his crib, in the care of the defendant who had just returned home from his night-
shift job.4 Wilson recalled that the defendant had been unusually tired when he arrived home that
morning and had fallen asleep in his clothes. Wilson had cared for Quintyn the previous evening
while the defendant worked, and she said Quintyn was fine when she left, that he had no marks or
bruises on him except a scar from an insect bite on the back of his knee and a birth mark on his
back.

Later that day, between 12:15 and 12:30 p.m., Wilson testified that the defendant telephoned
her at work, asked her to come home, and told her that Quintyn had fallen from his crib and was not
breathing. Wilson rushed home immediately to find Quintyn lying very still on a bed in one of the
apartment’s bedrooms. When she learned the defendant had not sought medical assistance, Wilson
called 911, but she became hysterical and was unable to communicate with the operator. The
defendant took the telephone and reported that Quintyn had fallen from his crib and was not
breathing. Following the instructions of the 911 operator, the defendant performed CPR on Quintyn,
alternately breathing into the child’s mouth and compressing his chest. Soon thereafter, the

3
The record reflects that Quintyn was born March 7, 1993.

4
The record does not ind icate whether the defendant’s other child, Sharise Elizabeth, also was left in his care
that d ay.

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ambulance arrived and transported Quintyn to East Tennessee Baptist Hospital while paramedics
continued efforts to resuscitate him.

An officer with the Knoxville Police Department transported Wilson and the defendant to
the hospital. The officer described Wilson as hysterical and the defendant as calm, but “a little bit
upset.” A nurse working in the emergency room when the couple arrived testified that Wilson was
distraught, that she had her head on the chaplain’s shoulder, crying softly, while the defendant
appeared arrogant and unconcerned, remaining outside in the hall and refusing to give Quintyn’s
medical history to emergency room personnel. The defendant told medical personnel that “the baby
had been crying, and he’d gone to fix him something to eat in the next room and while he was in
there, that he heard a noise, and he went back and the baby–the side of the bed had come loose–a
pin or screw had come out of the bed, and he’d fallen to the floor.”

Dr. Todd Mitchell Rice, the physician on duty in the emergency room when the ambulance
arrived at approximately 1:10 p.m., testified that Quintyn showed “no signs of life, no cardiac
activity, no spontaneous breathing, no spontaneous movement of any kind.” Efforts to resuscitate
the child continued until 1:33 p.m. when he was pronounced dead. While attempting to resuscitate
Quintyn, Dr. Rice noted “several very suspicious marks” on the child’s body including a possible
cigarette burn on the back of his knee6 and an injury resembling a bite mark.7 Dr. Rice also noted
several bruises or abrasions, “some new and some not so new.” The left side of Quintyn’s face and
scalp were extensively bruised and swollen. These bruises appeared to be the most recent injuries
suffered by the victim; but bruises of varying ages were visible on the front of the child’s left
shoulder, on his upper back, including his left posterior shoulder and his right posterior chest, on
his lower back and buttocks, in the area of his right hip and thigh, and in the area of his left groin
and thigh.8

Dr. Rice admitted that some of the discoloration on the child’s lower back and buttocks was
consistent with a birthmark.9 Dr. Rice maintained, however, that the other marks on the child’s
body were bruises and that the bruises on the child’s back and chest were consistent with “someone
grabbing the child and the ends of the fingers actually digging into the ribs of the child . . . as
someone was shaking [him].” Dr. Rice also observed retinal hemorrhaging in both of Quintyn’s

6
Wilson, the child’s mother, explained that this mark was a scar from an insect bite.

7
Dr. Rice also found “suspicious scarring” around the outside of the child’s anus indicating possible sexual abuse.
When questioned by the police, the defendant adamantly denied sexually abusing his son. The resu lts of the child’s
autopsy did not indicate that the victim had been sexually abused.

8
Although he cau tioned that dating bruises is an “extraordinarily inexact science,” Dr. Rice nevertheless opined
that the bruises on Quintyn’s face, scalp, and upper back had been inflicted within twenty-four hours of the time the child
was examined in the emergency room. The bruise on Quintyn’s right hip and thigh could have been hours old or days
old. The bruise on the child’s left groin and thigh appeared two or three days old, and the remaining bruises appeared
one or two days old, “m aybe less.”

9
As stated, Wilson testified that the victim had a birthmark in this area of his body.

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eyes indicative of “shaken baby syndrome,” a condition occurring when a young child is vigorously
and intensely shaken so that blood vessels on the surface of the brain rupture. Based upon his
observations and examination, Dr. Rice opined that Quintyn’s death was caused by a physical
assault, specifically, violent shaking and a severe blow to the left side of his head. According to Dr.
Rice, the child’s injuries were not consistent with the child merely falling out of bed as the
defendant initially reported.

Dr. Frances K. Patterson, a pathologist with the University of Tennessee Medical Center,
described the findings she made on June 30, 1994, during Quintyn’s autopsy. In addition to some
older injuries that were “either healed or partly healed,” Quintyn had a small laceration near his left
eye. Multiple recently inflicted bruises were also visible on Quintyn’s body: in his scalp, on his
cheeks and face, his lower back, buttocks, lower left leg, and right thigh. Bruising on Quintyn’s
cheek in the shape of a hand print indicated that someone had struck the child “very hard.” Dr.
Patterson, like Dr. Rice, conceded that some of the discoloration on Quintyn’s lower back and
buttocks could have been birthmarks, and additionally, she noted that some of the bruising on the
child’s chest likely resulted from the administration of CPR. Regarding circular scarring on
Quintyn’s arms, legs, and upper back, Dr. Patterson testified that these healed or partially healed
marks were “about the size of what you might expect a bite to look like, but we weren’t, you know,
positive.” Other smaller healed or partially healed wounds appeared to be scarring from cigarette
burns.

An internal examination revealed cranial and abdominal hemorrhaging. According to Dr.
Patterson, Quintyn had suffered seven recent injuries: three abdominal hemorrhages and four
separate injuries to the head, all of which appeared to result from “blunt-force trauma” consistent
with the “use of a human hand” but not consistent with a fall. Dr. Patterson rejected the notion that
CPR caused the head and abdominal injuries. Dr. Patterson opined that the cranial hemorrhaging
had been caused by at least two, and probably four, very severe blows to Quintyn’s head. Dr.
Patterson said Quintyn’s abdominal injuries were similar to seat belt injuries sustained by victims
of automobile accidents, which involve a great deal of force. Dr. Patterson opined that the
abdominal injuries had likely been caused by three separate blows, although she conceded that a
single blow could have caused the injuries, “if someone with a very large fist” hit the child very hard
or if someone struck the child with a baseball bat, “very, very hard.” Dr. Patterson opined that the
victim’s death resulted from subdural and subarachnoid hemorrhages with close head injury to the
brain.

Knoxville police officers began questioning the defendant about 4:11 p.m. on June 29. In
his first statement, the defendant again claimed that Quintyn had fallen out of his crib. According
to the defendant, Quintyn awoke around 11:30 a.m. to 12 p.m. The defendant changed his diaper,
gave him a bottle, and left him in his crib. While preparing the child’s cereal, the defendant heard
a “rumble,” ran into the child’s room, and found Quintyn on the floor giving a “cry that he never had
before.” Quintyn screamed, cried, and made unusual breathing noises. Quintyn then became quiet,
and the child’s body stiffened, relaxed, and turned purple. The defendant carried the child into his
daughter’s bedroom and placed him on the bed. Quintyn continued to cry for a short time, but then

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stopped crying and began to breath heavily. Quintyn appeared “weak” and was making “whining
noise[s].” Realizing that “something was wrong,” the defendant called Wilson to come home.
According to the defendant, Wilson arrived about ten to fifteen minutes after he telephoned her.
Although the defendant initially suggested that he had called 911 while awaiting Wilson’s arrival,
he later told the police that he had been frightened and panicked and falsely claimed that he had
called 911 before Wilson reached home.10 The defendant adamantly maintained that he did not
realize Quintyn had stopped breathing prior to Wilson’s arrival at the apartment. The defendant said
that he attempted to administer CPR to Quintyn, following the direction of the 911 operator, by
alternately breathing into the child’s mouth and pushing on his stomach.

The defendant denied abusing Quintyn and gave various explanations for the bruises and
marks on the child’s body. Explaining the bruises, the defendant claimed that his mountain bike
had fallen on Quintyn one or two weeks earlier and that Quintyn had fallen from his crib in the past
because a screw which fastened the side of the crib to the frame frequently became loose, allowing
the crib to fall. Explaining what appeared to be bite marks, the defendant said he and the child often
would lightly bite each other while playing. The defendant also admitted that he had shaken his
son immediately after the child fell out of his crib “to see what was wrong with him,” but he denied
shaking Quintyn violently or severely.

In a second interview beginning at 6:26 p.m., about two hours later, the defendant admitted
that Quintyn did not fall from his crib and gave the following statement describing how his son
received the injuries that ultimately resulted in his death:

He was left with me you know, to take care of him. He was supposed to go to
daycare center and I told them that, I told my girl I could handle him you know,
because he cries a lot so I told them I could handle him, you know? And then she
left him there. She left him with me. And she left. So I slept until about, I don’t
know what time and he, he got up and he, he woke up you know, crying. He had s--t
in his, doo-doo in his pants so I changed him, gave him his milk and stuff and you
know, he kept crying and I kind of losed [sic] it and you know, I shook him and let
him know you know, it was alright, that I didn’t know that I had harmed him. And
you know, I guess when I saw that I had harmed him, I got kind of nervous and stuff
like that and tried to do something but you know, I guess it was too late.

The defendant admitted that he picked the child up under his arms and shook him “about
two times . . . front to back, just told him to, just relax” and “I didn’t know I had harmed him or
nothing until I seen what had happened.” He said that his son was making gestures “like he was
in pain or something” and stopped breathing either after Wilson returned home or “a little bit before
that.” The defendant blamed his failure to call 911 on nervousness, ignorance, and fear of going to
jail, stating:

10
Emergency 911 records revealed only one call from the defendant’s address – the call made by Wilson at
12:43 p.m.

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 I just got nervous, you know? I didn’t know what to do . . . I was nervous. All types
of things just going through my head. I was going to jail, this that and the other. I
didn’t know what to do. All I could do was call her and tell her to come home.

The defendant explained that Quintyn would not stop crying that day because “his mother has him
spoiled to death . . . . His mother has him spoiled. [I]f he sees anybody else, he’ll start crying and
doesn’t want to be around nobody else but his mother. . . .” The defendant maintained that he did
not intend to hurt Quintyn, stating:

I didn’t mean to do nothing to my child. I didn’t mean to hurt him, do nothing wrong
to him, you know? I thought if I shook him you know, he’d be quiet and later on you
know, while I go and make him his food. I didn’t mean to hurt him or nothing.

The State offered two other witnesses. Clayton Houston Martin, Jr., the boyfriend of
Wilson’s sister, testified that he moved Quintyn’s baby bed after the child died and that the bed was
in good condition, with all the screws in place. Karlene Heck, a registered nurse employed by the
Knox County Health Department who examined Quintyn on June 13, 1994, about two weeks prior
to his death, testified that her records do not include any reference to injuries on the child. Heck
explained that state law mandates that she report any suspicious injuries she observes.

Based upon this proof, the jury found the defendant guilty of first degree murder by
aggravated child abuse. The trial proceeded to the sentencing phase on the first degree murder
conviction.

Sentencing Phase Proof
The State presented no further proof in its case-in-chief at the sentencing hearing, relying
upon the proof at trial to establish the aggravating circumstance,
(1)“the murder was committed against a person less than twelve (12) years of age and the defendant
was eighteen (18) years of age, or older;” and (2) “the murder was especially heinous, atrocious, or
cruel in that it involved torture or serious physical abuse beyond that necessary to produce death.”
Tenn. Code Ann. § 39-13-204(i)(1) &(5).

The defendant presented several witnesses. The first was Dr. Peter B. Young, a psychologist
who had performed a neuropsychological evaluation of the defendant in April and May of 1997.
Dr. Young diagnosed the defendant as suffering from paranoid schizophrenia and concluded that
the defendant was psychotic. Dr. Young conceded that the defendant did not exhibit the criteria for
paranoid schizophrenia found in the Diagnostic and Statistical Manual of Mental Disorders (“DSM-
IV”) and also conceded that the results of the Rorschach test did not support this diagnosis. While
the defendant’s score on the Minnesota Multiphasic Personality Inventory, Second Edition (MMPI
II) supported the diagnosis of paranoid schizophrenia, the portion of the test designed to detect
malingering indicated that the overall results had “questionable validity.” Dr. Young also testified
that the defendant had been hit in the head twice with a baseball bat and opined that there was a

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“high probability of some negative effect” from these incidents. Dr. Young further testified that the
defendant had difficulties in visual processing and abstract reasoning.

The social history taken by Dr. Young revealed that the defendant was born October 7, 1968,
in New York City. His mother was Sonia Clark; his father’s identity was unknown. Either while
pregnant with the defendant or soon after his birth, Clark became involved with Wilfredo Torres,
Sr., by whom she had a second son. Shortly after her second child’s birth, Clark disappeared and
the two children were left first with Wilfredo and then with Wilfredo’s mother and stepfather. After
the stepfather left, the two boys were raised by Wilfredo’s mother, the defendant’s de facto
grandmother, and “things seemed to stabilize” until 1978, when his grandmother became ill with
cancer and returned to Puerto Rico. The defendant cared for his grandmother during her illness, and
according to Dr. Young, he “came to the attention of mental health authorities” in Puerto Rico in
1979 and 1980. After his grandmother’s death in 1982, the defendant and his brother lived with the
grandmother’s husband, who seemed to have no interest in the boys and let them do whatever they
wanted. Florencio Cirino, the defendant’s pastor and neighbor in Puerto Rico during this time,
testified that the grandmother’s husband would lock the defendant out of the house and that he,
Cirino, would feed the defendant when he was hungry. Cirino described the defendant as “a very
nice boy” and said the defendant frequently attended church with the Cirino family and played with
the Cirino children.

In June of 1983, according to Dr. Young, the defendant and his brother were sent to relatives
in New York; and in 1984 the boys began living with Wilfredo Torres, Sr., again. During this time,
the defendant and his brother pleaded guilty to sexually abusing Wilfredo’s five-year-old son and
were placed in a juvenile detention center. Upon release from the center, the two boys lived first
with an uncle and then for two years with a foster parent, who took good care of them. When their
foster parent died suddenly of a heart attack, the two young men were left on their own, and the
defendant became involved in “the gangs and the violence that was going on in New York.” In 1990
the defendant was convicted of possession of a firearm and sent to prison. Upon his release in 1992,
the defendant became involved with Jasma Wilson, and within a year, the defendant, Wilson, and
their children moved to Knoxville.

The defendant also presented testimony that he was a good prisoner. Deanna Lamb, an
officer at the Knox County Jail, testified that, despite some write-ups, the defendant had been “a
very good inmate” while in jail. On cross-examination Lamb agreed that the defendant had been
involved in altercations with two other inmates and that an incident report had recently been filed
concerning the defendant because he told a guard that “as soon as he gets life, he’s going to set it
off, . . . ‘you know what I mean.’” Lamb also testified that, as a participant in the Legal Lives
Program, the defendant spoke with junior high students about avoiding jail. On cross-examination,
Lamb stated that she had seen nothing indicating that the defendant had any type of mental disease
or defect.

Jurors watched a videotape of a local television news report on the Legal Lives Program.
The defendant appeared in the news report and briefly described his participation in the Program.

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A parent who had attended the Legal Lives Program testified that the defendant’s remarks made a
significant impression on the students.

Another witness, Judicial Commissioner Brenda Lindsay-McDaniel, testified that the
defendant had served capably as a Spanish interpreter in at least thirty arraignments in Knox County
and that he always had a good attitude and never complained, even when called upon in the middle
of the night or at other inconvenient times. Lindsay-McDaniel described the defendant as articulate,
very nice, and extremely polite. Like Lamb, Lindsay-McDaniel testified on cross-examination that
she had never seen any indication that the defendant suffers from a mental illness or mental defect.

The State presented two witnesses in rebuttal. The first, Salvador Ruiz, was an inmate at
the Knox County Jail who briefly shared a cell with the defendant. Ruiz testified that the defendant
told him that the defendant was using the Legal Lives Program “to juke [i.e., mislead] the people,
whoever was charging him.” The defendant had also described himself to Ruiz as a “chameleon.”
The second witness, Dr. Sharon Arnold, a psychiatrist at the Helen Ross McNabb Center, testified
that she had evaluated the defendant on November 13, 1997, for one hour and found no evidence
that he was suffering from mental illness, including paranoid schizophrenia or psychosis. She
confirmed that the DSM-IV is a standard diagnostic manual for mental health professionals and that
the defendant did not exhibit the criteria listed in the DSM-IV as supporting a diagnosis of paranoid
schizophrenia.

Based upon this evidence, the jury concluded that the State had proven the following two
aggravating circumstances beyond a reasonable doubt: (1) “[t]he murder was committed against a
person less than twelve (12) years of age and the defendant was eighteen (18) years of age, or older”
and (2) “the murder was especially heinous, atrocious, or cruel in that it involved torture or serious
physical abuse beyond that necessary to produce death.” 11 Finding that these aggravating
circumstances outweighed mitigating circumstances beyond a reasonable doubt, the jury imposed
a sentence of death for the first degree murder conviction.

The Court of Criminal Appeals affirmed both the conviction and sentence. Thereafter, the
case was docketed in this Court, and an order was entered particularly requesting argument on seven
issues.12 Having fully reviewed the record, the briefs, and applicable authority, we affirm the
defendant’s conviction of first degree murder. However, the sentence of death is reversed and the
case is remanded for a new sentencing hearing at which the jury shall only consider the sentences
of life imprisonment and life imprisonment without possibility of parole.

I. Sufficiency of the Indictment
The defendant alleges that the indictment charging him with first degree murder by
aggravated child abuse is defective because the State failed to charge aggravated child abuse as a

11
Tenn. C ode Ann. §39-1 3-20 4(i)(1) and (5) (199 1).

12
See Tenn. Sup . Ct. R . 12.2

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separate offense in a separate count of the indictment. The State contends that the Court of
Criminal Appeals correctly rejected this issue. We agree. While the law in Tennessee generally
permits dual convictions for felony murder and the underlying predicate felony, 13 we are not aware
of, nor does the defendant point to, any authority requiring the prosecution to seek dual convictions.
Not only is there no authority requiring the State to seek dual convictions, in this particular case,
dual convictions likely would not have been permissible. In State v. Ducker, 27 S.W.3d 889 (Tenn.
2000), this Court noted that the general rule permitting dual convictions did not appear to apply to
a statute nearly identical14 to the statute under which the defendant was indicted and convicted,
stating:
a legislative intent to permit dual convictions and sentences for both felony murder
and the predicate felony does not appear to be present under the reckless killing of
a child provision in Tenn. Code Ann. 39-13-204(a)(4) (1994).

Id. at 893; See also State v. Godsey, 60 S.W.3d 759, 776 (Tenn. 2001) (confirming this analysis of
the 1994 statute but holding that dual convictions are permissible under the 1995 statutory
amendment which repealed Tenn. Code Ann. § 39-13-204(a)(4) and simply added aggravated child
abuse to the list of felonies capable of supporting a conviction for first degree felony murder). This
issue is without merit.

Moreover, the Court of Criminal Appeals correctly concluded that the indictment in this case
provided adequate notice to the defendant of the charged offense. This indictment15 tracks not only
the language of the statute proscribing first degree murder by aggravated child abuse, Tenn. Code
Ann. § 39-13-202(a)(4) (1993), but also the language of the relevant child abuse statutes, Tenn.
Code Ann. § 39-15-401 and -402 (1993). Additionally, the indictment includes the name and
approximate age of the victim and the month and year the offense was committed. This indictment
fully satisfies constitutional and statutory notice requirements. See, e.g. State v. Wilson, 31 S.W.3d
189, 192 (Tenn. 2000); Ruff v. State, 978 S.W.2d 95, 100 (Tenn. 1998).

13
State v. Godsey, 60 S.W.3d 759, 777 (Tenn. 2001); State v. Blackburn , 694 S.W.2d 93 4, 936 (Tenn. 1985).

14
The only difference between the 1994 statute at issue in Ducker and the 1993 statute under which the
defendant stands convicted is the 1994 statute increased the age of the child element from 13 to 16.

15
The indictm ent specifically provided as follows:
The Grand Jurors for the State of Tennessee, upon their oaths, present that William
Pierre Torres, . . . heretofore, to-wit: On or abou t th e __ d ay of June, 1994, in the
State and County aforesaid, did unlawfully and recklessly kill QUINTYN PIERRE
JAMES WILSON , a child under thirteen (13) years of age, said QUINTYN
PIERRE JAMES WILSON’S death resulting from aggravated child abuse; that is,
said defendant WILLIAM PIERRE TORRES, . . . knowingly and other than by
accidental means treated Q UINTYN PIERR E JAM ES W ILSON in such a man ner
as to inflict serious bodily injury on QUINTYN PIERRE JAMES WILSON and
caused the death of QUINTYN PIERR E JAM ES W ILSON in violation of T.C.A.
§ 39-13-202 . . . .

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 II. Constitutionality of Tenn. Code Ann. § 39-13-202(a)(4)
At the time this offense was committed, Tenn. Code Ann. § 39-13-202(a)(4) (1993 Supp.)
proscribed first degree murder by aggravated child abuse as follows:

A reckless killing of a child less than 13 if the child’s death results from aggravated
child abuse as defined by Tenn. Code Ann. § 39-15-402, committed by the defendant
against the child.

Briefly summarized, Tenn. Code Ann. § 39-13-401 and -402 provided at the time this offense was
committed, that a person is guilty of aggravated child abuse who knowingly, other than by
accidental means, treats a child under eighteen years of age in such a manner as to inflict injury or
neglects such a child so that the act of abuse results in serious bodily injury to the child. As in the
trial court and the Court of Criminal Appeals, the defendant challenges the constitutionality of the
murder by aggravated child abuse statute. We address each argument in turn.

A. Vagueness
First, he asserts that the statute is unconstitutionally vague under the Fifth and Fourteenth
Amendments to the United States Constitution and Article I, § 8, of the Tennessee Constitution
because it contains two conflicting culpable mental states. The defendant specifically complains
that the statute simultaneously requires a “reckless” killing and “knowing” child abuse. The State
responds that the Court of Criminal Appeals correctly held that the statute is not vague on its face
or as it has been applied to the defendant’s case. We agree.

Due process requires that a statute be sufficiently precise to provide both fair notice to
citizens of prohibited activities and minimal guidelines for enforcement to police officers and the
courts. State v. Burkhart, 58 S.W.3d 694, 697, 699 (Tenn. 2001); Grayned v. City of Rockford, 408
U.S. 104, 108-109, 92 S. Ct. 2294, 2298, 33 L. Ed.2d 222 (1972); Davis-Kidd Booksellers, Inc. v.
McWherter, 866 S.W.2d 520, 532 (Tenn. 1993). The fair warning requirement, however, does not
demand absolute precision in drafting criminal statutes, and, generally, a statute is unconstitutionally
vague only “[i]f people of common intelligence must necessarily guess at the meaning of a statute
and differ as to its application.” State v. Boyd, 925 S.W.2d 237, 243 (Tenn. Crim. App. 1995); see
also Burkhart, 58 S.W.3d at 697; Davis-Kidd Booksellers, Inc., 866 S.W.2d at 532. A party who
engages in conduct that is clearly proscribed by the statute cannot successfully challenge the statute
for vagueness. Burkhart, 58 S.W.3d at 699.

Applying these principles, we conclude that the defendant’s constitutional challenge must
fail. There is nothing inconsistent or vague about a statute which defines as first degree murder a
reckless killing that is committed in the course of knowing aggravated child abuse. See State v.
Roberson, 988 S.W.2d 690, 693 (Tenn. Crim. App. 1998), perm. app. denied, (Tenn. 1999). In fact,
when analyzing the 1994 version of this statute in Ducker, this Court explained:

The child murder statute criminalizes the reckless killing of a child less than sixteen
if the child’s death results from aggravated child abuse, which is the knowing

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 treatment or neglect of a child so as to cause injury or adversely affect the child’s
health. In other words, the more serious charge simply requires an additional
element that, along with the knowing act of [aggravated] child abuse or neglect, the
person consciously disregards a substantial and unjustifiable risk that death could
occur.16

Ducker, 27 S.W.3d at 895 (emphasis added). The statute clearly defines first degree murder by
aggravated child abuse as any death that results when a person knowingly treats a child under
thirteen in a manner to inflict serious bodily injury and consciously disregards a substantial and
unjustifiable risk that death could occur. This statute clearly provides more than ample fair warning
to the defendant that his conduct was prohibited.

B. Merger
The defendant also argues that the statute is unconstitutional because it permits imposition
of the death penalty for a killing during the perpetration of a felony that is incidental to the killing.
Construing this argument as a reference to the merger doctrine, the Court of Criminal Appeals
rejected this assertion. We agree. Recently, this Court explained that the merger doctrine does not
implicate any principle of constitutional law and instead

developed . . . as a shorthand explanation for the conclusion that the felony-murder
rule should not be applied in circumstances where the only underlying (or
“predicate”) felony committed by the defendant was assault. The name of the
doctrine derived from the characterization of the assault as an offense that “merged”
with the resulting homicide.

Godsey, 60 S.W.3d at 774, quoting People v. Hansen, 885 P.2d 1022, 1028 (Cal. 1994) (emphasis
in original). Nonetheless, “[w]here a legislature explicitly states that a particular felony is a
predicate felony for felony-murder, no merger occurs.” Godsey, 60 S.W.3d at 775 (citations and
internal quotations omitted). Here, as in Godsey, the General Assembly expressed an unmistakable
intent to permit a conviction for first degree murder by aggravated child abuse. Under these
circumstances, the merger doctrine does not preclude the conviction for first degree murder even
though the victim’s death resulted from aggravated child abuse. Godsey, 60 S.W.3d at 775. This
issue is without merit.

16
The definition of reckless at the time of the instant offense was identical to the definition of reckless in 1994.
Specifically, the mental state of reckless was defined as follows:
“Reckless” refers to a person who acts recklessly with respect to circumstances
surrounding the conduct or the result of the conduct when the person is aware of but
consciously disregards a substantial and unjustifiable risk that the circumstances exist
or the result will occur. The risk must be of such a nature and degree that its
disregard constitutes a gross deviation from the standard of care that an ordinary
person wou ld exercise un der all the circumstances as viewed from the accused
person’s standpoint.
Tenn. C ode Ann. § 39-11-30 2(c) (19 93) & (1994).

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 III. Evidence of Old Injuries
The defendant also complains that during the guilt phase of the trial the State was allowed
to introduce testimony and photographic evidence of healed scars and “old” bruises on the victim’s
body. Relying on State v. Hale, 840 S.W.2d 307 (Tenn. 1992), the defendant says that the
introduction of this evidence of prior abuse for which he had not been convicted deprived him of
his constitutional right to due process under Article I, § 8, of the Tennessee Constitution and the
Fifth and Fourteenth Amendments to the United States Constitution. The defendant also contends
that the admission of this evidence deprived him of his right to an impartial jury under Article I, §9
of the Tennessee Constitution.

The State responds that the Court of Criminal Appeals correctly held that this issue was
waived when the defendant failed to contemporaneously object to the admission of this evidence
and that the plain error doctrine does not apply because the record reflects that the defendant’s
failure to object was a tactical choice. The State alternatively asserts that, even if the issue is
evaluated on its merits, the defendant is not entitled to relief because the evidence was relevant and
admissible under established Tennessee authority to demonstrate Quintyn’s condition at the time
of his death.

As the State points out, it is difficult to determine exactly what evidence the defendant is
complaining about since he does not include specific references to the record and since he did not
contemporaneously object to the admission of the evidence. Dr. Rice, the emergency room
physician, testified that he saw a “variety” of bruises on the victim, some new some not so new; an
area that appeared to have been caused by a cigarette burn; another area “suspicious” for a bite
mark; scarring around the anus; and an older bruise on the victim’s thigh. Dr. Patterson, the
pathologist, referred to “some old scars . . . that looked like they were either healed or partly
healed,” healed circular wounds on the victim’s arms and legs resembling bites and cigarette burns,
and older bruises and an old scar on the victim’s back and buttocks.

In any event, we agree with the Court of Criminal Appeals that this issue was waived and
that consideration of this issue under the plain error doctrine is not appropriate because the record
indicates that defense counsel waived this issue for tactical reasons. See State v. Smith, 24 S.W.3d
274, 282-83 (Tenn. 2000). As the intermediate court pointed out, the trial court conducted a pre-
trial hearing at which the defense argued that a jury-out hearing should be held under Tenn. R. Evid.
404 before any evidence was admitted showing injuries inflicted on the victim on occasions other
than the date of his death. The State argued that this evidence was relevant to show that the victim’s
injuries were inflicted “other than by accidental means.” The trial court did not rule on the motion
at the pre-trial hearing but specifically requested that the defendant renew the motion when the trial
“got to that point.”

Defense counsel did not renew the motion but instead cross-examined the physicians and
other prosecution witnesses about these older injuries, apparently attempting to undermine the
reliability of the medical testimony. For example, Dr. Rice described a mark on the back of the
victim’s knee as resembling a cigarette burn, but the victim’s mother said, during cross-examination

-12-
by defense counsel, that this mark was a scar from an insect bite. The victim’s mother also said that
the victim had a birthmark on his back and buttocks: the physicians had described these marks as
bruises, although conceding they could be a birthmark. See Smith, 24 S.W.3d at 283 (“When the
State places objectionable evidence before the jury and defense counsel inquires at length about the
evidence on cross-examination, any error in admitting the evidence is generally cured.”)

Defense counsel also repeatedly referred to these older injuries during closing argument.
In so doing, defense counsel was attempting to convince the jury that the victim’s mother, rather
than the defendant, abused the child. Defense counsel pointed out the uncertainty of the physicians
as to the precise timing of the fatal injuries and the discrepancy between the expert testimony, that
some of the injuries were older, and the mother’s testimony that the child had no bruises or injuries
when she left for work on the morning of June 29, 1994.

In sum, the record indicates that the defense allowed this evidence to be admitted without
objection so that the defense could later attempt to show both that the medical testimony was
unreliable and that the victim’s mother rather than the defendant committed this offense. Under
such circumstances, the defendant will not be allowed to complain on appeal that the trial court
erred in admitting the evidence. Smith, 24 S.W.3d at 284.

Our holding in this regard should not be construed as a determination that the evidence was
not admissible. As the State asserts, there is Tennessee authority suggesting that the evidence was
properly admitted. See Tenn. R. Evid. 401 and 403; See State v. Dubose, 953 S.W.2d 649, 653
(Tenn. 1997). The evidence did not show the identity of the person or persons causing these prior
bruises and scars. The evidence generally described the victim’s appearance when he was brought
to the emergency room and generally explained the autopsy findings. The prosecution did not rely
upon or emphasize this evidence to prove the defendant’s guilt or the (i)(5) aggravating
circumstance. Moreover, contrary to the defendant’s assertion, Hale is not controlling or relevant
to this evidentiary issue. In Hale this Court struck down the 1988 statute as unconstitutional because
it required the jury deciding the defendant’s guilt or innocence of first degree murder to also decide
the defendant’s guilt or innocence of uncharged misdemeanor offenses. The statute under which
the defendant was convicted did not require or allow the State to offer prior instances of uncharged
misdemeanor offenses to establish guilt of first degree murder.

IV. Erroneous Exclusion of Videotape: Harmless Error
During the guilt phase of the trial Investigator Ron Humphrey of the Knoxville Police
Department testified for the State about two separate statements the defendant gave to law
enforcement authorities. The audio tape recordings of these statements were played for the jury.
As previously noted, in the first statement the defendant claimed that Quintyn had fallen from his
crib while in the second statement, given almost two hours later, the defendant admitted that he had
shaken the child. During cross-examination, defense counsel asked Humphrey about other
interviews with the defendant and if any video interrogation had been done. The State objected that
the defense was improperly referring to the defendant’s videotaped polygraph examination, which
had been suppressed. The defense, however, indicated that it was referring to a video, redacted to

-13-
avoid any mention of the polygraph test, depicting a separate interrogation, not yet presented to the
jury, that occurred after the polygraph examination but before the second interview.17 The defense
argued that the tape was relevant to the jury’s assessment of the weight to be given the defendant’s
second statement and to show how the defendant was “coerced and pushed into making [the] last
statement” and that information about this interrogation was necessary under the rule of
completeness. The State responded that, if part of the tape was admissible, then the rule of
completeness required the admission of the entire tape including the polygraph test. The State
alternatively argued that the tape was inadmissible because it contained only self-serving and
irrelevant hearsay.

Refusing the defendant’s request to view the tape before ruling on its admissibility, the trial
court allowed the redacted and unredacted tapes to be introduced for identification only and forbade
the defense from asking Humphrey general questions about talking with the defendant on occasions
other than the two interviews already admitted. The trial court, however, permitted the defendant
to ask whether Humphrey had ever made specific statements to the defendant. Humphrey testified
that he did not recall making any such statements.18

The redacted videotape shows officers making statements to the defendant similar to those
that Humphrey denied recalling when asked on cross-examination. In general, the tape shows the
officers assuring the defendant that they did not believe he had intentionally harmed his child, that
the evidence indicated it had been an accident, that if he told the truth he likely would be able to
avoid the death penalty, that the officers would inform the district attorney general and the judge

17
The record reflects four separate encounters between the defendant and police: (1) defendant’s initial statement
at 4:11 p.m. den ying any wrongdoing; (2) defendant’s voluntary polygraph examination; (3) an interview after the
polygraph exam; and (4) defendant’s second statement at 6:26 p.m. admitting that he had shaken Quintyn.

18
The following exch ange occu rred after the trial court’s ruling:
Defense counsel: Detective, you told M r. Torres that you wou ld call the District Attorney on his behalf if he
would just say that he shook this child.
Hump hrey: I don’t recall ever saying that.
Defense counsel: You don’t recall ever saying that?
Hump hrey: I do not recall ever saying that.
Defense counsel: And you told Mr. Torres that all the evidence was that this was an accident.
Hump hrey: Th at’s - - I don’t believe that’s in my statement that I have here. I don’t recall saying that.
This is a case that you’re taking something out that I have a copy of.
Defense counsel: In fact, you - - you told Mr. Torres that you didn’t want him to spend the rest of his life in
prison.
Hump hrey: Again, I don’t ever recall ever saying that to M r. Torres.
....
Defense Counsel: In fact, at one point, you told Mr. Torres, “I don’t think you intended to kill him. Nobody
here do es.”
Hump hrey: Again, Ms. Shipley, I don’t recall saying that to M r. Torres.
Defense counsel: You’re not denying that you said it, though, are you?
Hump hrey: I’m not saying that I didn’t say it; I’m not saying I did say it. I said I do not recall if I ever
said that to him.
Follo wing this exchange, defense counsel concluded her cross-examination of the investigator.

-14-
of the defendant’s remorse and cooperation, and that cooperation would be the defendant’s
“salvation.” The defendant appeared to be crying through much of the interview. He asserted that
he never intended to harm Quintyn and that he was fearful of going to prison for the rest of his life.
The defendant expressed skepticism at the officer’s offers of help, saying he had prior experience
with the criminal justice system in New York. Eventually, the defendant agreed to provide another
statement to the police, and the videotape concludes with the group leaving for another office to
record the defendant’s statement.19

The defendant contends that the court’s ruling that the redacted tape was inadmissible was
erroneous for three reasons. First, he says that the trial court erred by refusing to review the
videotape before ruling it inadmissible and by denying the defense request to make an offer of proof.
Relying upon Tenn. R. Evid. 103, the defendant asserts that “mere summaries” are disfavored, that
the proof itself should be presented in a legitimate proffer, and that the trial court could not have
made a full and fair ruling without viewing the tape or having a more detailed description of its
contents. The State responds that the trial court was entitled to rely on the verbal summary of the
videotape provided by the parties’ during the jury-out hearing and that the trial court was not
required to review the tape before ruling on its admissibility. The Court of Criminal Appeals held
that the question of whether the trial court erred in refusing to view the tape before ruling was
“necessarily submerged in the question of whether the trial court properly excluded the recording”
and therefore did not rule on this question.

As the defendant correctly points out, generally, an offer of proof should be allowed, and
refusing to allow an offer of proof generally is considered error. Tenn. R. Evid. 103 (a)(2) and (b);
State v. Alley, 882 S.W.2d 810, 815 (Tenn. Crim. App. 1994). An offer of proof serves two primary
purposes: (1) informing the trial court about the proof the party is seeking to offer; and (2) creating
a record so that an appellate court can review the trial court’s decision. Alley, 882 S.W.2d at 815.
The second purpose clearly has been satisfied in this case. The redacted and unredacted videotapes
are included in the record on appeal. As to the first purpose, the record indicates that the parties
verbally summarized the nature of the evidence on the videotape. Given the apparent confusion as
to the context and timing of the interview on the videotape,20 however, the trial court probably
would have been better situated to make an informed ruling on the admissibility had he reviewed
the videotape rather than relying upon the verbal summaries. Nevertheless, we agree with the Court
of Criminal Appeals that the failure of the trial court to view the videotape is not dispositive but

19
The officers may not have been aware that this encoun ter was bein g reco rded by the video camera. Th is
interview occu rred in th e room where the defendant had voluntarily taken a polygraph examination. The defendant and
the examiner left that room for a short time. When they returned, the examiner advised the defendant that he had failed
the examination. Investigator Humphrey and another officer soon joined the defendant and the examiner. The
approximately thirty minute interview th at followed was recorded, and it was this interview that the defense sought to
introduce.

20
At one point the trial court asked, “So you have three separate – at this point, you have three separate
statements, only two of which have been introduced by the State?”

-15-
rather is intertwined with the primary issue – the propriety of excluding the redacted videotape.
While reviewing videotape evidence before ruling on its admissibility is the better practice, the
defendant in this case is not entitled to relief simply because the trial court failed to do so.

With respect to the primary issue of admissibility, the defendant contends that the redacted
tape should have been admitted under the “rule of completeness,” found in Tenn. R. Evid. 106
which provides:

When a writing or recorded statement or part thereof is introduced by a party, an
adverse party may require the introduction at that time of any other part or any other
writing or recorded statement which ought in fairness to be considered
contemporaneously with it.

The Court of Criminal Appeals agreed, finding that the interview on the tape and the second
statement were “one continuous period of interrogation by police,” even though the interrogation
occurred in different rooms, different officers participated, and different means were used to record
the interview. The Court of Criminal Appeals held that the redacted video, in large part, would
have been “ultimately” admissible during the defendant’s case-in-chief upon proper authentication
of the recording to demonstrate the coercive atmosphere surrounding the defendant’s second
statement; to allow the jury to assess the reliability and credibility of the confession under Crane v.
Kentucky, 476 U.S. 683, 106 S. Ct. 2142, 2145-2147, 90 L. ED. 2d 636 (1986); and to explain or
qualify the confession. The Court of Criminal Appeals, however, held that the defendant was not
entitled to relief because he had not taken whatever action was reasonably available to prevent or
nullify the harmful effect of the error and alternatively, because, in light of the evidence at trial, the
error did not appear to have affirmatively affected the jury’s verdict. See Tenn. R. App. P. 36(b);
Tenn. R. Crim. P. 52(a).

In this Court, the State concedes that the Court of Criminal Appeals correctly held that the
trial court erred in excluding the videotape. The State argues, however, that the Court of Criminal
Appeals also correctly concluded that the error does not entitle the defendant to relief because he
did not attempt to prevent, nullify or ameliorate the harmful effect of the error and because, given
the evidence, the error was harmless.

Like the Court of Criminal Appeals, we conclude that the trial court erred in excluding the
redacted videotape. As the intermediate appellate court determined, the interview on the tape and
the second statement were “one continuous period of interrogation by police,” even though the
interrogation occurred in different rooms, different officers participated, and different means were
used to record the interview. The defendant was entitled to introduce the redacted videotape to
demonstrate the circumstances surrounding the defendant’s second statement and to allow the jury
to assess the reliability and credibility of the confession. See, e.g., State v. Burns, 29 S.W.3d 40,
48 (Tenn. Crim. App. 1999) (“We recognize the longstanding rule in Tennessee that once a
confession is admitted into evidence, a jury may hear evidence concerning the circumstances under

-16-
which the confession was procured in order to determine whether the defendant made the confession
and whether it is true.”).

Moreover, as this Court recently explained, Tenn. R. Evid. 106, the rule of completeness,
reflects a concern for fairness and allows the trier of fact to assess related information at the same
time rather than piecemeal. State v. Keough, 18 S.W.3d 175, 182-83 (Tenn. 2000). “[W]here the
prosecution introduces a statement made by the defendant, the trial court may in the interest of
fairness order that the remainder of the statement be admitted as well under Rule 106.” Id. at 182;
See also Crane v. Kentucky, 476 U.S. 683, 106 S. Ct. 2142, 2145-2147, 90 L. Ed. 2d 636 (1986);
State v. Robinson, 622 S.W.2d 62, 71 (Tenn. Crim. App. 1980); Espitia v. State, 288 S.W.2d 731,
733 (Tenn. 1956).21

Nonetheless, after carefully reviewing the record in this case, we have no hesitation in
concluding that the error was harmless as to the guilt-innocence stage of the proceeding. The
evidence of the defendant’s guilt is overwhelming. Nothing on the videotape even remotely implies
that the defendant was innocent of the crime. Accordingly, as to guilt, we conclude that the error
was harmless.

The effect of this erroneous ruling on the sentencing phase of the trial is a much closer
question. The State offered proof and argued at sentencing that the defendant appeared arrogant,
uncaring, and unremorseful about the victim’s death. The excluded videotape, showing the
defendant crying and stating that he did not mean to hurt his son, arguably tells a different tale.22
The jury did not see this video, but still deliberated seven hours before returning a sentence of death.
Clearly, had the trial court not erroneously excluded the videotape when the defense sought its
admission, the jury could have considered it at sentencing. Nonetheless, the State argues that this
issue is waived because the defense did not seek to introduce the videotape at the sentencing
hearing.
We need not address this waiver argument or determine whether the erroneous exclusion of
the videotape prejudiced the defense at sentencing. As hereafter explained, we conclude that the
defendant is entitled to a new sentencing hearing because the trial court erred in giving a Kersey
instruction rather than accepting the jury’s report of a deadlock. At the new sentencing hearing,
defense counsel may introduce the redacted videotape.

21
In so holding, we also agree with the Cou rt of Criminal Appeals’ d eterm ination that the results of the
polygraph test and the circumstances surrounding the taking of that test which preceded the interview on the videotape
were not admissible into eviden ce. Polygraph results are inherently unreliable and inadmissible. See State v. Hartm an,
42 S.W.3d 44 , 61-62 (Tenn. 2001).

22
At oral argument the State conceded that this Court can consider the video tape in con ducting its
propo rtionality review; however, the State minimized the videotape’s importan ce to the sentencing jury, commenting that
the jury does not m ake a finding o n remorse. While that statem ent is undo ubtedly true - the jury does not make a finding
on remorse – a sen tencing jury may consider remorse as a mitigating circumstance in determining whether death is the
appropriate punishm ent.

-17-
 V. Kersey Instruction
The defendant next asserts that the trial court erred during the sentencing phase of his trial
by instructing the jury in accordance with Kersey v. State, 525 S.W.2d 139 (Tenn. 1975).
Specifically, the defendant maintains that, when a jury is undecided concerning the imposition of
a sentence of death, Tenn. Code Ann. § 39-13-204(h) precludes the giving of a Kersey charge and
requires the trial court instead to instruct the jury to choose between the punishments of life
imprisonment without possibility of parole and life imprisonment. Even assuming the statute does
not generally prohibit the giving of a Kersey charge, the defendant asserts that the instruction was
unduly coercive given the circumstances of this particular case.

The State responds that Tenn. Code Ann. § 39-13-204(h) does not prohibit the giving of a
Kersey instruction and only requires the trial court to remove the death penalty from the jury’s
consideration when the jury cannot “ultimately” agree on the imposition of the death penalty. The
State asserts that the statutory provision affords trial courts the discretion to determine whether
“there is an ultimate disagreement on punishment.” Additionally, the State disagrees with the
defendant’s assertion that the instruction was coercive in this case, arguing that “[n]othing in the
Kersey instruction is directed at the minority, nor does it force any person to abandon his or her
convictions.”

We begin our analysis of this issue with Kersey in which this Court reconsidered the
“dynamite” charge that previously had been approved in Tennessee. After, deliberating for
sometime, the jury in Kersey reported that it “had not reached a verdict and (i)t looks like we are
not going to.” 525 S.W.2d at 140. The trial court inquired and was advised by the foreperson that
the jury was split on the question of guilt or innocence eleven to one. Id. At this point, the trial
court provided the following instruction:

While the verdict must be the verdict of each individual juror, and not a mere
acquiescence in the conclusion of your fellows, yet you should examine the
questions submitted with candor and with a proper regard and D[eference] to the
opinions of each other. It is your duty to decide the case if you can conscientiously
do so. You should listen with a disposition to be convinced to each other’s
arguments. If the larger number are for conviction or acquittal, dissenting juror
should consider whether his doubt was a reasonable one which made no impression
on the minds of so many other men, equally honest, and equally intelligent with
himself. The jury should not go contrary to their convictions, but they should
properly give heed to the opinions of their fellow jurors and by reasonable
concessions reach a conclusion which although not originally entertained by any of
them, nevertheless, may be one to which all can scrupulously adhere. In other
words, the minority should listen to the views of the majority with the disposition of
being convinced. Now, with that addition we will work a few minutes longer.

-18-
Kersey, 525 S.W.2d at 140. This instruction was referred to as the Allen-Simmons instruction
because it was originally derived from Allen v. United States, 164 U.S. 492, 17 S. Ct. 154, 41 L. Ed.
528 (1896), with variations approved by Simmons v. State, 281 S.W.2d 487 (Tenn. 1955).

In reviewing this instruction, this Court first observed that the trial court’s inquiry as to the
division of the jury was “not a proper practice.” Kersey, 525 S.W.2d at 141. To remedy this
improper procedure, the Kersey Court, invoking its inherent and statutory supervisory power,
directed trial judges to admonish jurors not to disclose their division or personal view when
returning to open court to report an inability to reach a verdict. However, the Kersey Court
emphasized that trial courts may ask jurors about their progress and whether they believe further
deliberations will enable them to reach a verdict. Id. Explaining that supplemental instructions may
be given, “[i]f the trial judge feels that further deliberations might be productive,” the Court rejected
the Allen-Simmons charge, concluding that it “operate[s] to embarrass, impair and violate” the right
of trial by jury guaranteed by the Tennessee Constitution. Kersey, 525 S.W.2d at 141 and 144.
Discounting “any suggestion that might necessarily makes right,” the Court explained:

[a]ny undue intrusion by the trial judge into this exclusive province of the jury, is an
error of the first magnitude. We recognize that the trial judge has a legitimate
concern in the administration of justice and that he labors under a duty to lend
guidance to the jury through instructions as to the governing principles of the law.
However, when the effort to secure a verdict reaches the point that a single juror may
be coerced into surrendering views conscientiously entertained, the jury’s province
is invaded and the requirement of unanimity is diluted.

Id.

Having rejected the Allen-Simmons charges, the Court in Kersey again exercised its statutory
and inherent supervisory power and directed trial courts to comply with Section 5.4 of the American
Bar Association Standards relating to trial by jury. Id. at 144. Under these standards, trial courts
“may require the jury to continue their deliberations and may give or repeat an instruction or provide
a supplemental instruction . . . .” Id. Trial courts “shall not require or threaten to require the jury
to deliberate for an unreasonable length of time or for unreasonable intervals.” Id. “The jury may
be discharged without having agreed upon a verdict if it appears that there is no reasonable
probability of agreement.” Id. The Court concluded that if a trial court determines upon inquiry
that further deliberations may result in a verdict, trial courts may give the following instruction:

The verdict must represent the considered judgment of each juror. In order to return
a verdict, it is necessary that each juror agree thereto. Your verdict must be
unanimous. It is your duty, as jurors, to consult with one another and to deliberate
with a view to reaching an agreement, if you can do so without violence to individual
judgment. Each of you must decide the case for yourself, but do so only after an
impartial consideration of the evidence with your fellow jurors. In the course of your
deliberations, do not hesitate to re-examine your own views and change your opinion

-19-
 if convinced it is erroneous. But do not surrender your honest conviction as to the
weight or effect of evidence solely because of the opinion of your fellow jurors, or
for the mere purpose of returning a verdict.

Kersey, 525 S.W.2d at 145. “If given as a part of the main charge, it may be repeated should a
deadlock develop. Judicial economy and uniformity demand these results. Strict adherence is
expected and variations will not be permissible.” Id.

Nine years later, in State v. Caruthers, 676 S.W.2d 935 (Tenn. 1984), this Court considered
the propriety of giving the Kersey charge in the context of a capital sentencing hearing. After
deliberating on the sentence for approximately three hours, the jury in Caruthers sent the following
note to the trial court:

No unanimous decision has been reached in our determining punishment for Walter
Lee Caruthers. As of now the jury stands at eleven to one, with no foreseeable
change. Please advise.

Caruthers, 676 S.W.2d at 942. Over the defendant’s objection, the trial judge called the jury into
open court and gave the Kersey charge. Just over two hours later, the jury returned with a
unanimous verdict of death. The Kersey charge had been included in the jury instructions given at
the conclusion of the guilt phase of the trial, but it had not been included in the instructions given
at the conclusion of the sentencing phase. Id. As in this case, the defendant argued that the trial
court erred in refusing to accept the jury’s initial report that it was unable to agree on punishment.
Caruthers, 676 S.W.2d at 942.

This Court rejected the defendant’s claim that the instruction was coercive in the
circumstances of Caruthers’s case and, in addition, addressed, generally, the propriety of giving a
Kersey instruction in a capital sentencing hearing. At that time, Tenn. Code Ann. § 39-2-203(h)
provided that if a jury in a capital case “cannot ultimately agree as to punishment, the judge shall
dismiss the jury and . . . shall impose a sentence of life imprisonment.” Caruthers, 676 S.W.2d at
942 (quoting the statute). Explaining that “[t]he use of the adverb “u[l]timately” indicates the
Legislature anticipated a jury’s tentative inability to agree on punishment,” this Court concluded that
a trial judge should exercise discretion “in determining whether there is an ultimate disagreement
as to punishment. . . .” Id. Finding that the trial court in Caruthers had not abused its discretion by
refusing to accept the jury’s initial report and giving the Kersey charge, this Court affirmed the
sentence of death. Id.

Having summarized the governing law, we proceed to the circumstances of this case. Here,
after the sentencing hearing concluded, the jury was charged and deliberations began at 4:06 p.m.
on February 24, 1999. Shortly after 4:50 p.m. that same day deliberations ceased. Deliberations
resumed at 9 a.m. the next morning. At 11:21 a.m. the jury sent the trial court a question about what
the jury described as a “contradiction” in the instructions regarding the requirement for unanimity
on aggravating circumstances when deciding on a life sentence. At 11:56 a.m. the trial court gave

-20-
a supplemental instruction on this issue, and the jury retired at noon to continue deliberations. At
2:35 p.m. the jury sent the following message to the trial court: “We are at a deadlock, 11 for death
and 1 for life imprisonment. What do we do at this point? The one for life imprisonment has stated
that he will not change his mind.”

Defense counsel immediately asked that the trial court instruct the jury to choose between
sentences of life imprisonment without possibility of parole and life imprisonment. The State, in
turn, requested a Kersey charge. Over the defendant’s objections, at 2:47 p.m. the trial court called
the jury into open court and gave the following instruction:

It is your duty as jurors to consult with one another and to deliberate with a view to
reaching an agreement, if you can do so without violence to your own individual
judgment. Each of you must decide the case for yourself, but you should do so only
after an impartial consideration of the evidence with your fellow jurors. In the
course of your deliberations, do not hesitate to re-examine your own views and
change your opinion if convinced it is erroneous, but do not surrender your honest
conviction as to the weight or effect of the evidence solely because of the opinion
of your fellow jurors or for the mere purpose of returning a verdict. All right. Please
continue your deliberations.

At 3:57 p.m., approximately one hour later, the jury returned to open court and announced a verdict
of death. The supplemental instruction given by the trial court omitted three prefatory sentences
that are part of the charge adopted in Kersey: “The verdict must represent the considered judgment
of each juror. In order to return a verdict, it is necessary that each juror agree thereto. Your verdict
must be unanimous.” 525 S.W.2d at 145. The complete Kersey instruction had been given prior
to the jury’s deliberations on the defendant’s guilt or innocence, but the instruction was not repeated
prior to the jury’s deliberations on the appropriate sentence.

The State argues that the decision in Caruthers controls the resolution of the issue in this
appeal. With respect to the general propriety of the Kersey charge at a capital sentencing hearing,
we agree with the State that Caruthers controls. The statute in effect at the time Caruthers was
decided has since been repealed and replaced with Tenn. Code Ann. § 39-13-204(h) (1993), which
provides:
If the jury cannot ultimately agree on punishment, the trial judge shall inquire of the
foreman of the jury whether the jury is divided over imposing a sentence of death.
If the jury is divided over imposing a sentence of death, the judge shall instruct the
jury that in further deliberations, the jury shall only consider the sentences of
imprisonment for life without possibility of parole and imprisonment for life. If,
after further deliberations, the jury still cannot agree as to sentence, the trial judge
shall dismiss the jury and such judge shall impose a sentence of imprisonment for
life.

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Id. As the State correctly points out, the adverb “ultimately,” which was a significant basis of our
decision in Caruthers, has been retained in the amended statute. One rule of statutory construction
provides that courts should presume that the General Assembly is aware and approves of prior
judicial constructions when it re-enacts an earlier statute. See State v. Rhodes, 917 S.W.2d 708, 712
(Tenn. Crim. App. 1995). Thus, this Court should presume that, in enacting Tenn. Code Ann. § 39-
13-204(h), the General Assembly was aware of our decision in Caruthers and approved the
construction given the term “ultimately” in the context of that case.

On the other hand, the rationale for giving the Kersey charge – avoidance of the societal
costs of a retrial – is not as compelling in a capital sentencing hearing because the jury’s inability
to agree on the sentence does not result in a retrial. See Lowenfield v. Phelps, 484 U.S. 231, 238,
108 S. Ct. 546, 551, 98 L. Ed.2d 568 (1988). The jury’s inability to agree merely results in further
deliberations on the punishments of life imprisonment or life imprisonment without the possibility
of parole, and if the jury is unable to unanimously agree on either of these options, the trial judge
imposes a life sentence. See Tenn. Code Ann. § 39-13-204(h) (1993). Nonetheless, we agree with
the United States Supreme Court that “[t]he State has in a capital sentencing proceeding a strong
interest in having the jury express the conscience of the community on the ultimate question of life
or death.” Lowenfield, 484 U.S. at 238, 108 S. Ct. at 551 (internal quotations and citations
omitted). Where a jury returns from deliberations after only a short period of time and informs a
trial court that it has failed to achieve unanimity, the trial court has the authority to give the Kersey
instruction, but trial courts should be “mindful in such cases that the qualitative difference between
death and other penalties calls for a greater degree of reliability when the death sentence is
imposed.” Lowenfield, 484 U. S. at 238-39, 108 S. Ct. at 551. Therefore, we reject the defendant’s
assertion that trial courts may never give a Kersey instruction in a capital sentencing hearing. Trial
courts are afforded discretion to determine whether a jury has been “ultimately” unable to agree on
punishment. However, in exercising this discretion, trial courts must be mindful that the rationale
for giving the instruction is not as compelling in a capital sentencing hearing and the need for
reliability is greater because of the qualitative difference between death and other penalties.

Having decided that trial courts generally are afforded discretion on this issue, we
nonetheless conclude that the trial court erred by giving the Kersey instruction in this particular
case. The jury had deliberated for approximately six hours on the sentencing issue before reporting:
“We are at a deadlock, 11 for death and 1 for life imprisonment. What do we do at this point? The
one for life imprisonment has stated that he will not change his mind.” Over defense objections,
the trial court returned the jury to open court and gave the instruction, despite the fact that the note
expressed an unequivocal deadlock. The note did not request further instructions, and the trial
court did not ask the jurors whether further instructions and deliberations might assist them in
returning a verdict.23 Instead, the trial court simply gave the instruction and ordered the jury to

23
Although Kersey does not explicitly mandate such an inq uiry, the clear implication is that such an inquiry
should generally always precede the giving of supplemen tal instructions. Kersey, 525 S.W.2d at 141 (“[T]he jury may
be asked whethe r it believes it might reach a verdict after further deliberations. If the trial judge feels that further
(contin ued...)

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continue deliberation. Just one hour later the jury returned with a unanimous verdict of death.
While no inquiry was made, the note informed the trial court of the jury’s division on the sentence
of death, and the dissenting juror, who presumably had held out for six hours, likely concluded that
the trial court was instructing “him,” one of only four men on the jury, to reconsider his position.24
See Lowenfield, 484 U. S. at 239-40, 108 S. Ct. at 552; Tucker v. Catoe, 221 F.3d 600, 611-12 (4th
Cir. 2000) (noting factors that militate in favor of finding that the giving of a supplemental charge
in a particular case is coercive).

Contrary to the State’s assertion, the circumstances of this case are distinguishable from
Caruthers in several important respects. The jury in Caruthers had deliberated only three hours, less
than half the time the jury in this case deliberated. The note given the trial court by the Caruthers
jury did not report a deadlock: the note simply reported: “[a]s of now the jury stands eleven to one,
with no foreseeable change. Please advise.” This language is equivocal and indicated that the vote
possibly could change at a later time, as compared to the language in this jury’s note “he will not
change his mind”. Finally, although the note in Caruthers disclosed the jury’s division, it did not
disclose the nature of the split or identify in any manner the dissenting juror, as in this case, thus
decreasing the coercive effect of the instruction.

Considering this case “in its context and under all the circumstances,”25 we conclude that,
unlike Caruthers, the effort to secure a verdict here reached the point that a single juror may have
been coerced into surrendering views conscientiously held, and under such circumstances, “the
jury’s province is invaded and the requirement of unanimity is diluted.” Kersey, 525 S.W.2d at 144.
Therefore, we conclude that the trial court erred in giving the Kersey charge rather than accepting
the jury’s initial report that it was deadlocked. As a result, we remand this case to the trial court for
a sentencing hearing where “the jury shall only consider the sentences of imprisonment for life
without possibility of parole and imprisonment for life. If, after further deliberations, the jury still
cannot agree as to sentence, the trial judge shall dismiss the jury and such judge shall impose a
sentence of imprisonment for life.” Tenn. Code Ann. § 39-13-204(h) (1993).

Conclusion

Having determined that the defendant is entitled to a new sentencing hearing, we need not
address the other issues raised, in particular, issues relating to the appropriateness of a death
sentence in this case. Accordingly, the decision of the Court of Criminal Appeals upholding the

23
(...continued)
deliberations might be pro ductive, he m ay give su pplemental instruction s . . . .”). Indeed, on what basis will the trial judge
evaluate whether further delib erations will be productive unless the ju ry responds to a direct inquiry?

24
We note that the statute requires the trial court to determine “whether the jury is divided over im posin g a
sentence of death.” Nevertheless, the trial court should not inquire as to the division of the jury on the issue, and as stated
in Kersey, the trial court should admonish the jurors not to disclose the division of the jury on this issue.

25
Lowenfield 484 U.S. at 23 7, 108 S. Ct. at 550.

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defendant’s conviction for first degree murder is affirmed. The sentence of death is vacated, and
the case is remanded to the trial court for a new sentencing hearing in accordance with this opinion
at which the jury shall only consider the sentences of imprisonment for life without possibility of
parole and imprisonment for life. Costs of this appeal are taxed to the State of Tennessee, for which
execution may issue if necessary.

_______________________________________
FRANK F. DROWOTA, III, CHIEF JUSTICE

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