IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE FILED
NOVEMBER 1998 SESSION
June 1, 1999
Cecil W. Crowson
STATE OF TENNESSEE, * C.C.A. No. 01C01-9803-CC-00118 Clerk
Appellate Court
Appellee, * ROBERTSON COUNTY
VS. * Honorable John H. Gasaway, III, Judge
PAUL CARR MOSS, JR., * (Second degree murder)
Appellant. *
For Appellant: For Appellee:
Gregory D. Smith John Knox Walkup
Contract Appellate Defender Attorney General and Reporter
One Public Square, Suite 321
Clarksville, TN 37040 Kim R. Helper
(on appeal) Assistant Attorney General
425 Fifth Avenue, North
Michael R. Jones Cordell Hull Building, Second Floor
Public Defender Nashville, TN 37243-0493
113 6th Avenue West
Springfield, TN 37172 Dan Alsobrooks
(at trial and on appeal) District Attorney General Pro Tem
William J. Bradley Lockert, III
and
James W. Kirby
Assistant District Attorneys General
105 Sycamore Street
Ashland City, TN 37015-1806
OPINION FILED:__________________
AFFIRMED
GARY R. WADE, PRESIDING JUDGE
OPINION
The defendant, Paul Carr Moss, Jr., was indicted for the first degree
murder of his wife, Peggy Ann Moss. He was convicted of second degree murder, a
Class A felony. Tenn. Code Ann. § 39-13-210. The trial court imposed a Range I
sentence of twenty-five years. The defendant was fined $50,000.00.
In this appeal of right, the defendant presents the following issues for
review:
(I) whether the trial court erred by permitting the state to
present prior acts of misconduct between the defendant
and his minor daughter;
(II) whether Tenn. Code Ann. § 40-38-205, which
provides for consideration of victim impact statements by
the sentencing judge, is unconstitutional; and
(III) whether the sentence imposed is excessive.
We affirm the judgment of the trial court. We also affirm the twenty-
five year sentence, the maximum possible.
On the morning of January 14, 1995, Samuel Mattie (Matt) Moss
visited the house of his brother, the defendant. At the time of his arrival, none of the
defendant's four children were present and the defendant asked him to return later
in the day, explaining that he intended to discuss a divorce with the victim. Upon his
return sometime later, he and the defendant built a fire behind the house and then
watched television in a nearby workshed. Meanwhile, the defendant walked back
and forth from the workshed to the residence several times. On one of those
occasions, the defendant took some items from his tool box before returning to the
residence. The defendant appeared to be nervous and was sweating. On his final
trip to the workshed, the defendant left the door ajar. Soon afterward, Matt Moss
2
heard a "pop" and, at first, thought the noise was caused by the fire. The defendant
checked at the residence and called for his brother, telling him that the victim had
shot herself. At that point, Matt Moss called 9-1-1 and heard the defendant kick the
bathroom door. At trial, he testified that the "pop" sounded like either homemade
fireworks or the defendant's .45 handgun.
Brian Lee Biggs, a paramedic with the Robertson County EMS,
responded to the 9-1-1 call. When he arrived at the scene, a police officer directed
him to a first-floor bedroom where he found the victim lying face-up on the floor.
Biggs located a gunshot wound to the victim's left earlobe, determined that she had
no pulse, and, due to the devastating nature of her injuries, did not administer CPR.
Detective Donald Bennett of the Robertson County Sheriff's
Department found a .45 caliber semi-automatic pistol, a magazine, one spent
cartridge, and one live round of ammunition above and to the right of the victim's
head. The pistol holster was nearby. A piece of string knotted in a three-inch circle
was found entangled in the victim's hair. Wires found at the scene were similarly
tied. Detective Bennett found a piece of a Mellow Yellow pop bottle near the victim's
body. The remainder of the bottle, a Christmas light, and additional wiring had been
concealed under the mattress of the bed. Detective Bennett, who testified at trial
that the pop bottle appeared to have been detonated, found that the door leading
from the hall to the master bathroom had apparently been broken in order to gain
entry to the bedroom. A second spent cartridge was located near the bed. He
found a "tubular shaped," rolled piece of quilting circled by wires on the bathroom
floor which he believed to be a noise suppressor. Additional wire was found in the
bathroom wastebasket and in the bedroom. Quilted material of the same pattern
and appearance was also located in the workshed. Detective Bennett searched the
3
workshed and found Christmas lights, live rounds of .45 caliber ammunition, and a
spool of insulated wire.
Detective Bennett recalled that on the night of the shooting, Matt Moss
appeared upset. He described the defendant as "quite calm" throughout the
evening. Over the course of the evening, the detective began to increasingly
suspect that the shooting was not a suicide. He questioned the defendant, who
claimed that he had discussed divorce with the victim earlier in the day after which
she had requested some time to herself. The defendant claimed to the detective
that he and his brother were outside talking when they heard a noise and that when
he checked, he found that the bedroom and bathroom doors had been locked. The
defendant told Detective Bennett that when he called to the victim and received no
answer, he punched a hole in the door, unlocked it, and found the victim lying on the
floor after which his brother telephoned 9-1-1. The defendant explained that he
then saw the .45 caliber pistol, disarmed it, and placed it on the floor. The
defendant told Detective Bennett that he spoke to the 9-1-1 operator and attempted
CPR until the authorities arrived.
Special Agent Steve Scott of the Tennessee Bureau of Investigation,
an expert in the field of firearm examination, identified the .45 caliber semi-
automatic pistol taken from the crime scene. He testified that a bullet from the
weapon, which holds eight rounds, had caused the death of the victim. He
explained that in order to fire, the weapon's safety must be disabled, a magazine
inserted, a cartridge loaded in the chamber, and the hammer cocked. Agent Scott
testified if the weapon were already loaded, the slide would have to be pulled to the
rear of the chamber and a cartridge inserted before the gun would fire. According to
Agent Scott, a third possibility was that if the gun had a cartridge already in the
4
chamber with the safety disabled and the hammer cocked, it could be discharged by
squeezing the grip safety and pulling the trigger. Agent Scott also stated that if the
gun were already cocked, something should be placed between the hammer and
the firing pin in order to avoid firing a shot.
Dr. Charles Warren Harlan, the medical examiner for Robertson
County, performed the autopsy and determined the cause of death was a gunshot
wound to the head. He testified that the bullet traveled in a downward direction
through the right ear lobe and the head and exited at the base of the skull. It was
Dr. Harlan's opinion that the wound was most likely caused by a gunshot inflicted
from a distance of more than twenty-four inches. In his view, death occurred within
eight to ten minutes.
MM,1 the defendant's seventeen-year-old daughter, lived in Niceville,
Florida and was called as a witness for the state. She testified that when she was
ten or eleven years old, her father made her "really uncomfortable" with his
flirtations. She recalled that when she was twelve, her father told her that he wanted
to help her lose her virginity and that he fantasized that she would ask him to show
her how to have sex. At age thirteen, she secretly met a boyfriend one night. She
recalled that the defendant had reacted with jealousy when she admitted that she
had been intimate with the boy. She testified that after that incident, the defendant
began "messing with [her]" in her bedroom, expressing his desire for sex, touching
her breasts, and telling her that he did not know if he could stop himself from raping
her. She recalled that on one occasion, the defendant entered her room and placed
a rag smelling of chemicals over her face before she was able to escape. She
remembered that on another occasion, he entered her room and left angrily when
1
It is the policy of this court no t to use the nam es of m inor victim s of sex ual abus e.
5
she struggled and screamed; when the defendant threatened "it was going to
happen that night," she ran from the house. MM also testified that her father had
watched from a closet while she bathed and that he threatened her about telling
anyone, especially the victim, who would "flip out and send him to jail," ruining
everyone's life. MM recalled that when she informed the victim about the
defendant's behavior, the victim had insisted that the defendant install a deadbolt
lock on MM's bedroom door and a telephone in her room. She stated that the
incidents involving the defendant had stopped in July of 1993.
MM also testified that she and her brother spent a month in Florida
during the summer of 1994 with their maternal aunt, Cheryl McSwain. When MM
told the victim that she wanted to remain in Florida, the defendant insisted that she
return to Tennessee. She returned to Florida less than a week after being returned
to Tennessee. She explained that she did not want to live in Tennessee because
the defendant was "too controlling."
Audiotapes of journals maintained by the defendant were played for
the jury. Generally, the journals include statements about his financial problems, his
marriage, and MM. Pertinent portions are as follows:
September 6, 1994
After five or six years, I realized that [the victim] wasn't
ever going to change. By that time, I was tolerating it ...
and I have given up on her. Sex between us has
dwindled to nearly nothing, to nothing, to absolutely
nothing. ... But I am the sick one, she says. She just
won't admit it. The fact that she won't admit it frustrates
me to no end and I can't help but wonder if she does that
on purpose? Boy, she does. It really pushes my buttons
but I am doing my damnest [sic] to control myself.
***
It is time for me to take hold and do something, but I just
don't know what to do. Biding my time is -- I don't have
time. ... Everyday that this goes on, it's going to make it
worse for [my children]. ... [S]omething has to be done, I
just don't know what. I am about to get desperate
6
though, and desperation will make a man do things he
never believed he could. I know that. It will be
interesting to see just what it is that I finally come up with,
because as it gets worse and as the pain gets worse, I
am pushed so close to doing something desperate, it is
scary. Because whatever it is, I am going to have to live
with it or die with it, and essentially what that means is
life as I know it will end, or as I knew it, back when it was
happier. Hell, this is life and it wouldn't be so bad if the
life I am enjoying now would end. That wouldn't be bad
at all. ... [L]ife is just getting ridiculous and it is mostly
because of that damned woman, something must
happen, something has got to happen.
September 20, 1994
I hate to think of all the time I have spent lately, thinking
of illegal ways to get money because of the fact that
many of the day-to-day problems that I have to deal with
are monetarily based and would be solved with the
application of funds, many of them. ... [I]f I had a way
right now that I could steal a hundred thousand dollars, if
I thought that I would get away with it, I would do it. ...
September 26, 1994
[The victim] is going to ... build a wardrobe now and let
me worry about paying the bills. It tell you what, I am
really getting tired of it. I cannot tell you how tired of it I
am getting. She has never been the type to steal money
from us before, but it seems that that is what she is doing
now.
October 6, 1994
[My counselor] said that ... I have ... a lot of repressed
anger to [the victim] which is absolutely true. ... I think
that everything I did to [MM], that she did not deserve,
came from my repressed feelings towards [the victim].
October 8, 1994
Plus I found out that they questioned [my other children]
while they were at school. No wonder people in the
office have been treating me differently lately. No
wonder they have. I swear to God a man could be
innocent and this shit come down and ... [e]verybody is
going to believe it. ... Well, I tell you what, this is just real
damn aggravating. ... I am really, really aggravated about
this. I am tired of the way everything is going ... It makes
me want to do something drastic. I don't know what ....
October 13, 1994
Well, this has really got me frustrated. [The victim] can't
handle her sisters. ... They take the train of thought, the
man needs to be punished and that they are the ones to
do it, and they are trying to get [the victim] to do that, and
that's pointless. ... I have been so close to the edge for
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so long, that very much more and the responsibility that I
feel towards my three children is going to begin to take
less than a first priority in my life and when it does,
whatever takes priority first is really going to get my
attention and if revenge is it, I don't know that it won't be,
it may be revenge becomes the driving force in my life.
Assuming that it does, boy those bitches better say out of
my way, all the fucking three of them ....
October 20, 1994
But fortunately, me and [the victim] won't be together
much longer. I have a feeling that come December, that
the dam is going to break because I also decided that
[MM] can't stay with Cheryl any longer. December will be
the limit.
Patricia Diane Frazier, who had known the defendant and the victim
for more than three years, visited the defendant at the jail before the trial. When
she later testified, she revealed that he had passed her a note at the jail asking her
find and destroy chloroform and gunpowder; on another occasion, he asked her to
find some wire at his residence and keep it for him. Ms. Frazier, who testified that
she destroyed the notes he had passed, recalled that the defendant claimed access
to one hundred thirty thousand dollars. She stated that their friendship deteriorated
when the defendant was released from jail because he informed her that he
intended to force MM to live with him.
John Steven King, a co-worker of the defendant for nearly ten years,
testified that in the summer of 1994, the defendant claimed to have purchased an
additional life insurance policy on the victim, thereby increasing the death benefits of
the two policies to over $150,000.00. King recalled that the defendant said "he
wouldn't mind giving up twenty thousand to solve his problem." King was aware that
the defendant had previously referred to the victim as "his problem." Although King
did not think the defendant to be serious, he interpreted the defendant's remarks to
mean that he wanted to eliminate the victim. King testified that the defendant often
8
discussed MM and appeared to be jealous when he learned she had secretly met
with a boyfriend. He also recalled that the defendant had occasionally made bombs
from pop bottles, using tissue paper, gun powder, and a firecracker fuse or
Christmas tree light. King stated that when the defendant detonated the bombs at
their workplace, they made a "loud boom." King recalled seeing these bombs at the
defendant's home on one occasion. He also remembered that the defendant once
said that chloroform could be used to "put somebody unconscious" because it was
heavier than air. King stated that he was aware that the defendant was very
unhappy about MM living in Florida.
Kenneth Hudgens, Clerk of Court for Robertson County, testified that a
lawsuit had been filed by the Administratrix of the estate of the victim against
American General Life Insurance Company. Hudgens reported that the settlement
of $100,800.83 was paid to the defendant's mother, Norma Gammon. There was
also a lawsuit against New York Life Insurance Company by Monica Cano, the
trustee of the victim's minor children, Hudgens testified that approximately
$61,000.00 had been paid to Ms. Cano.
Diana Fields, a claims investigator with American General Life
Insurance, testified that the policy on the victim's life, issued in February of 1988,
had a face value of $100,000.00. She stated that the defendant was named the
primary beneficiary on the policy and that the defendant's mother was named the
secondary beneficiary. She recalled that the defendant contacted her December 14
and 15, 1994, to change the residence address and bank account from which the
monthly payment was drawn. None of the requested changes affected the amount
of the policy or the designated beneficiaries. Ms. Fields testified that in December
of 1988, American General Life Insurance issued a life insurance policy covering the
9
defendant with the victim as the designated beneficiary and his mother as
secondary beneficiary.
Dr. Steve Chauncy, an expert in firearms identification and trace
evidence examination, testified on behalf of the defendant. Dr. Chauncy performed
tests on a piece of the quilted material, the same as that the state argued the
defendant had used to suppress the noise caused by the discharge of the .45
caliber pistol. After cutting a piece of the quilted material in the same dimensions as
that found near the victim's body, he wrapped and wired it around the pistol. Dr.
Chauncy test fired the weapon using the same type of ammunition found at the
crime scene. When he removed the material from the weapon, there were
gunpowder marks on the inside and the material was singed on one end. By
comparison, the material found by the police near the body did not have burns or
black marks. Dr. Chauncy also testified that there was no significant difference in
the noise created by firing the pistol whether or not it was wrapped in the material.
Dana Robert Sudberry, who worked with the defendant, recalled that
the defendant had back problems, frequently displayed pain, and carried a special
pillow in his car. Buford Sudberry, the defendant's employer, testified that the
defendant was a talented cabinet maker. He had observed the defendant wearing a
back brace and had often heard him complain of back pain. Sudberry remembered
that on one occasion, the defendant had dropped a sander during a back spasm.
He recalled meeting the victim and the defendant's children. Sudberry observed
that the defendant controlled them "like Hitler" and that the children appeared to be
afraid to speak unless directed to do so.
Phillip Scott Mason testified that he and Don Yount saw the defendant
10
on the day before the murder in some woods near Smiley Hollow Road.
Paul C. Moss, III, the defendant's son, acknowledged that his father
suffered from back problems. He stated that at times his father had to take time off
from work and sometimes required the help of his children to move from the couch.
He recalled on that the day of the shooting, the defendant drove him to town to do
community service work. On cross-examination, Paul Moss, III, acknowledged that
he was aware that his parents were having marriage difficulties and was aware that
the defendant had "bugged" the telephones and certain rooms of the house. Paul
Moss III had seen the defendant use the .45 caliber pistol but was not allowed to
touch the pistol. He recalled that on one occasion a friend had stolen some of the
defendant's marijuana crop; he remembered that his father fired his weapon in his
direction after learning of the incident.
The defendant testified that he and the victim had lived together
sixteen years and had four living children. He recalled that he and the victim
purchased life insurance policies in 1988 and that, the summer of 1994, the victim
acquired an additional policy through her employer. The defendant denied having
had a conversation with King in which he discussed using twenty thousand dollars of
the life insurance proceeds to get rid of his "problem." He claimed that the changes
to the policies in December of 1994 were routine.
The defendant testified that when he learned that MM refused to return
to Tennessee from Florida, he had placed his .45 caliber pistol to his head in the
presence of the victim in contemplation of suicide. The defendant stated that MM
returned to Tennessee but that five days later, he permitted her to return to Florida.
11
The defendant stated that in the fall of 1994 he started a journal,
sought counseling, and began taking Prozac to treat depression. He spoke to an
attorney about a divorce and discussed the topic with the victim on several
occasions. He claimed that he and the victim had agreed that the children would be
permitted to choose the parent with whom to live. The tenants of their rental
property had been asked to vacate so that the victim could reside there. He had
contacted the attorney again around Christmas of 1994 and he noted in his journal
that "[the victim] will be able to step right into her new life without me." At trial, the
defendant explained that he had meant that she would have a nice house, a nice
neighborhood, and affordable expenses.
The defendant acknowledged that he had made homemade bombs or
fireworks since the age of thirteen and he had often exploded pop bottles using
gunpowder and a Christmas tree light. He admitted that on the weekend of the
shooting, he had been making fireworks with copper tubing, steel wool, and
gunpowder. He claimed that he had used the quilted materials found in his
workshed as shop rags. He had wrapped the quilted material around the copper
tubing and secured it with wire because the explosion caused the tubing to heat up,
preventing him from handling it. He contended that he set off the firework for the
victim's enjoyment upon her return from work. When she did not comment and
walked inside the house, he followed her, holding the firework. He testified that
when the victim asked if he didn't have "anything better to do" with his time, he
became angry, dismantled the firework as he left, and dropped the cut wires on the
floor. He claimed that he threw the quilted material to the floor near the garbage
can in the bathroom.
The defendant testified that on the day before the victim's death, he
12
had gone to Smiley Hollow Road to shoot his .45 pistol. He recalled that when two
men drove up and stopped, he was about half way through the clip. The defendant
stated that he then uncocked the pistol, placed it in his jeans, and covered it with his
shirt. He stated that there would have been one or two bullets in the clip and one in
the chamber. After talking with the two men for a few minutes, the defendant left
because it had become too dark to shoot. He explained that as he left, he took
several bullets from his shirt pocket, placed them in the magazine, and put the
magazine in the pistol. He stated that when he arrived home, he placed the pistol in
a holster in the bedroom. The victim was about to leave for work. He had arranged
for his youngest daughters to spend the night elsewhere so he could talk further with
the victim about divorce. He explained that the next morning he left his son, Paul, in
town to do some community work.
The defendant testified that on the day of the shooting, he and the
victim were in the bedroom to discuss divorce. He claimed that both were sitting on
the floor when the victim pointed to the defendant's pistol and said, "[W]hat's that
thing doing in the house?" He stated that when she directed him to move the
weapon from the house, he removed the pistol from the holster, cocked it, and
pulled the trigger so as to guide the hammer down slowly with his finger. He
claimed that as he did so, he was aiming the pistol toward the television and away
from the victim. The defendant contended that he then suddenly experienced a
back spasm and instinctively clenched his hand, causing the pistol to discharge in
the direction of the victim. He contended that as soon as he was able to move, he
crawled to her side to help but found no pulse. The defendant stated that his
attempts at CPR were in vain. He acknowledged his failure to call 9-1-1 and
claimed that he decided to try to make the death look like a suicide. The defendant
decided to detonate a homemade bomb to attract Matt Moss to the room to discover
13
the body but before doing so, he threw an empty cartridge to the floor and rolled the
victim onto her side, as she had originally fallen. The defendant then attached an
alarm clock as a timer to delay the detonation. The defendant testified that he left
the pistol on the floor, loaded and cocked and closed the victim's eyes, apologized,
and kissed her forehead. He admitted that as he left, he barred one bedroom door
and locked the other behind him. The defendant stated that he wrapped his bloody
clothes in newspaper, walked outside, and burned them.
When the bomb exploded, he and his brother walked to the house. He
then went to the barred door and yelled for the victim before walking through the
bathroom to the other door and breaking inside. The defendant acknowledged that
he had a key in his pocket at the time and that he threw his keys on the bed after he
entered the room. Because the room was smoky from the bomb explosion, he
opened a window, turned on a fan, and unbarred the main door to the bedroom. As
his brother called 9-1-1, the defendant placed the alarm clock in a drawer, threw
electric wire used to detonate the device in the clothes basket, and shoved the
remains of the homemade bomb between the mattress and the box springs. When
questioned by the authorities, the defendant claimed that the victim committed
suicide. At trial, he admitted that he had lied.
I
The defendant contends that the trial court erred by permitting the
state to present prior acts of misconduct between the defendant and his minor
daughter. In response, the state contends that evidence of sexual misconduct
between the defendant and his daughter was probative of his motive and intent to
commit the crime of murder.
14
Rule 404(b) provides as follows:
Other Crimes, Wrongs, or Acts. Evidence of other
crimes, wrongs, or acts is not admissible to prove the
character of a person in order to show action in
conformity with the character trait. It may, however, be
admissible for other purposes. The conditions which
must be satisfied before allowing such evidence are:
(1) The court upon request must hold a hearing outside
the jury's presence;
(2) The court must determine that a material issue
exists other than conduct conforming with a character
trait and must upon request state on the record the
material issue, the ruling, and the reasons for admitting
the evidence; and
(3) The court must exclude the evidence if its probative
value is outweighed by the danger of unfair prejudice.
Tenn. R. Evid. 404(b).
Generally, this rule is one of exclusion but there are, as stated,
exceptions. See State v. Parton, 694 S.W.2d 299 (Tenn. 1985); Bunch v. State,
605 S.W.2d 227 (Tenn. 1980); Carroll v. State, 370 S.W.2d 523 (Tenn. 1963); see
also State v. Rickman, 876 S.W.2d 824 (Tenn. 1994) (favorably citing both Parton
and Bunch). Most authorities suggest trial courts take a "restrictive approach of
404(b) ... because 'other act' evidence carries a significant potential for unfairly
influencing a jury." See Cohen, Paine and Sheppeard, Tennessee Law of
Evidence, § 404.7 at 131. That perhaps best explains the traditional posture of the
courts that any testimony of prior bad acts by a defendant, when used as
substantive evidence of guilt of the crime on trial, is not usually permissible. Parton,
694 S.W.2d at 302-03. The exceptions to the rule are when the evidence is offered
to prove the motive of the defendant, his identity, his intent, the absence of mistake,
opportunity, or as a part of a common scheme or plan. Bunch, 605 S.W.2d at 229.
Our supreme court recently spoke on the procedure used to determine whether a
prior crime or bad act fell within an exception to the rule:
15
[I]f evidence that the defendant has committed a crime
separate and distinct from the one on trial is relevant to
some matter actually in issue in the case on trial, and if
its probative value as evidence is not outweighed by its
prejudicial effect upon the defendant, then such evidence
may be properly admitted.
State v. Howell, 868 S.W.2d 238, 254 (Tenn. 1993) (citing Bunch, 605 S.W.2d at
229). In Howell, the court applied the balancing test to determine whether prior
convictions for other crimes were admissible, as an exception to the general rule, for
purposes other than the character of the defendant. See also State v. Zagorski, 701
S.W.2d 808 (Tenn. 1985); State v. Taylor, 669 S.W.2d 694 (Tenn. Crim. App.
1983). When the trial court substantially complies with the requirements of Rule
404(b), we review the trial court's determination for an abuse of discretion. State v.
DuBose, 953 S.W.2d 649, 652 (Tenn. 1997).
At an extensive pretrial hearing, MM testified to incidents of
inappropriate sexual conduct by the defendant. That testimony was nearly identical
to her testimony at trial. Other witnesses testified to additional prior bad acts on the
part of the defendant. While the trial court chose to exclude much of the prior bad
acts evidence, it ruled that MM's testimony was probative of motive and intent,
"given the theory of the State that this killing ... was committed by [the defendant]
specifically to receive proceeds of an insurance policy and also to regain access to
his daughter, which the State contends he was obsessed with and had a sexual
attraction for." The trial court determined that the probative value was "significant"
because the incidents related by MM were corroborated by the defendant's
admissions in his journal. In consequence, the trial court ruled that the probative
value of MM's testimony was not outweighed by the danger of unfair prejudice.
The trial court provided the following instruction to the jury:
[Y]ou have heard evidence that the defendant ... may
16
have committed some act or wrong or crime other than
that for which he is on trial. For example, there has been
specific reference made to [MM] and improper conduct
towards her or suggestive behavior with her. There has
been some reference about obtaining insurance
proceeds. There has been some reference about
making explosive devices. There has been some
reference about using chloroform to induce sleep on
someone.
Now, you may not consider such evidence of other
acts or wrongs or even crimes in your determination of
whether the defendant is guilty of first-degree murder.
The evidence of other acts or wrongs or crimes may be
considered only for the specific purpose of determining
whether that evidence provides motive;... that evidence
may be considered by you if it tends to show motive of
the defendant for the commission of first-degree murder
or you may consider it for determining whether or not
there was some intent on the part of the defendant[.] In
other words, the evidence may be considered by you if it
tends to establish that the defendant actually intended to
commit the crime of first-degree murder. But again, I
remind you, you must remember that evidence about
other things must not be considered by you for any
purpose other than the limited purpose of determining
motive or intent.
The trial court complied with the requirements of Tenn. R. Evid.
404(b). The record supports the trial court's determination that the evidence was
material to a matter in issue at trial, that being the defendant's motive and intent to
shoot the victim. The state's theory was that the defendant shot his wife in order to
collect insurance proceeds and to regain access to his minor daughter.
The defendant argues that the 404(b) evidence was not relevant to
prove motive or intent because the victim also wanted MM to return. He contends
that if he were going to kill the victim in order to get access to his daughter, he would
have done so in August of 1994, when MM left, rather than in January of 1995. In a
November 1994 journal entry, however, the defendant made statements to the
contrary:
I am excited about the weeks going by. I realize that next
17
month, I am going to be taking care of some of my
problems. I am going to do something about it. I don't
know what exactly, that depends on [the victim] and the
other circumstances, but [MM] is coming home whether
she wants to or not, whether [the victim] wants her to or
not. It doesn't matter, she's coming home or at least to
Nashville. She doesn't have to stay with me. She is
going to be close though. She is going to be in town.
(Emphasis added). Just four days before the shooting, the defendant contemplated
bringing MM back to Tennessee against her will:
If [MM] gives me trouble, if she doesn't want to come
back with me or anything like that and gives me trouble,
he suggested maybe just say hey -- let's go to
McDonald's and once she is in the car, don't stop until I
hit the state line. He said I needed to get out of the state
of Florida as quickly as I could.
So anyway, that's what -- I guess that's what I
need to worry about, what I need to work on. ... I have
already had an idea to put a solenoid lock on the rider's
side door so that I can lock the door from over here to
where it cannot be opened. ...
***
Oh man, I will just have to dwell on this for a few
days and see if some kind of cogent plan starts to gel in
my mind. I am a little afraid to talk to [the victim] about
this and tell her about this because if I tell her that I want
the divorce now, then I am afraid if I tell her that, then
she'll know that I want [MM] home, and if she tells them
down there that, then it's quite possible that they will hide
[MM]. If they hide [MM], there wouldn't be any way that I
could find her. ... But then I think about it for a while and I
come up with a plan. So I have to figure out how to tell
[the victim] this. ...
Boy, [MM] is going to hate coming back. ...
(Emphasis added).
The prior bad acts evidence supplies a motive and an intent for the
murder. It was offered to explain the defendant's focus on MM, her reluctance to
return to Tennessee, and an ongoing conflict between the defendant and the victim.
The evidence was unrefuted and the defendant admitted that his daughter had
testified truthfully. In our view, the trial court properly ruled that the evidence had
strong probative value. While there is obviously a risk of unfair prejudice,
18
particularly when allegations of sexual misconduct are involved, the trial court had
provided the jury with limiting instructions immediately following the testimony at
issue and did so a second time in the general charge. It is our conclusion that the
probative value of this evidence was not outweighed by a danger of unfair prejudice
and that the trial court did not abuse its discretion by admitting this evidence.
II
Next, the defendant challenges the constitutionality of Tenn. Code
Ann. § 40-38-205, a section of the Victim Impact Statement Act that provides for
inclusion of written victim impact statements in the pre-sentence report. The
defendant maintains that consideration of written victim impact statements by the
sentencing court violated the Confrontation Clause of the United States Constitution
because the defendant was not permitted an opportunity for cross-examination of
the person who submitted the statement. He does not complain of an intrusion
upon this right under the Tennessee Constitution. See Tenn. Const. art. I, § 9
(providing for the right "to meet witnesses face to face").
Victim impact evidence is not per se improper under statutory or
constitutional law. State v. Nesbit, 978 S.W.2d 872 (Tenn. 1998); State v. Burns,
979 S.W.2d 276 (Tenn. 1998). The Victim Impact Statement Act directs the
preparation of a victim impact statement by the Department of Correction. Tenn.
Code Ann. § 40-38-205. The department must notify victims or their family
members that they have an opportunity to present a victim impact statement. Tenn.
Code Ann. § 40-38-204(a). A uniform victim impact statement form is utilized to
gather information. See Tenn. Code Ann. § 40-38-204(b). Once the statement is
complete, it is incorporated into the pre-sentence report and the trial court is
required to consider the evidence before imposing the sentence. Tenn. Code Ann.
19
§§ 40-38-205, -207, & -202. To provide ample notice to the defendant, the pre-
sentence report must be filed with the clerk of court ten days before the scheduled
sentencing hearing. Tenn. Code Ann. § 40-38-206.
It is well settled in Tennessee that a trial court has statutory authority
to admit trustworthy and probative evidence, including hearsay, for sentencing
purposes. State v. Flynn, 675 S.W.2d 494 (Tenn. Crim. App. 1984); State v.
Chambless, 682 S.W.2d 227 (Tenn. Crim. App. 1984); Tenn. Code Ann. §
40-35-209(b). Reliable hearsay is admissible in a sentencing hearing so long as the
opposing party has a fair opportunity to rebut the evidence. Tenn. Code Ann. § 40-
35-209(b). The Sentencing Act provides, however, that no evidence secured in
violation of the constitution of the United States or of Tennessee may be admitted.
Tenn. Code Ann. § 40-35-209(b).
The Sixth Amendment guarantees an accused the right to be
"confronted with the witnesses against him." U.S. Const. Amend VI. "Confrontation
means more than being allowed to confront the witness physically." Davis v. Alaska,
415 U.S. 308, 315 (1974). It includes the right to an effective cross-examination.
Delaware v. Fensterer, 474 U.S. 15, 20 (1985). Nonetheless, constitutional rights
have a broader reach before a determination of guilt than they do thereafter in a
sentencing hearing. State v. Carico, 968 S.W.2d 280, 287 (Tenn. 1998) (quoting
State v. Newsome, 798 S.W.2d 542, 543 (Tenn. Crim. App. 1990)); cf. State v.
Mackey, 553 S.W.2d 337, 344-45 (Tenn. 1977). The United States Constitution
does not restrict a sentencing judge to consideration of information received in open
court. Williams v. New York, 337 U.S. 241, 251 (1949). In Williams, the United
States Supreme Court reasoned as follows:
We must recognize that most of the information now
relied upon by judges to guide them in the intelligent
20
imposition of sentences would be unavailable if
information were restricted to that given in open court by
witnesses subject to cross-examination. And the modern
probation report draws on information concerning every
aspect of a defendant's life. The type and extent of this
information make totally impractical if not impossible
open court testimony with cross-examination.
Id., 337 U.S. at 250. Based upon this rationale, our conclusion is that consideration
of written victim impact statements pursuant to Tennessee Code Annotated, section
40-38-205 does not violate the Confrontation Clause of the United States
Constitution. Such evidence, however, must be reliable and the defendant must
have a fair opportunity to rebut the statement. Tenn. Code Ann. § 40-35-209(b).
The defendant relies upon State v. Wade, 863 S.W.2d 406 (Tenn.
1993), wherein our supreme court reversed and remanded the revocation of
probation because the only evidence of a probation violation was unreliable
hearsay. In our view, the holding in Wade does not support the defendant's
contention. The court in Wade recognized that the right to confront and cross-
examine an adverse witness is "not absolute and may be relaxed" in a probation
revocation hearing. Id., 863 S.W.2d at 407. The probationer must be guaranteed
due process which may include a limited right to confront and cross-examine
adverse witnesses. Id. Nonetheless, the right to cross-examine witnesses in such a
proceeding may be denied by the trial court upon a finding of good cause. Id. at 408
(quoting Gagnon v. Scarpelli, 411 U.S. 778 (1973)). See also State v. Gregory, 946
S.W.2d 829 (Tenn. Crim. App. 1997). The matter was remanded because the
reviewing court could not determine from the record whether there was good cause
to forgo in-court testimony or whether the hearsay report was reliable. Wade, 863
S.W.2d at 408.
Here, the trial court admitted and considered the written victim impact
21
statements of MM and Ms. McSwain. The trial court made no finding of reliability on
the record but did establish that the statements were obtained by the state through
the normal course of business. The state submits that the statements themselves
were reliable because MM and Ms. McSwain had testified previously and the trial
court had an opportunity to judge their credibility. The record, however, contains no
finding of credibility by the trial judge. The state also contends that the defendant
provided no reason for questioning the reliability of the statements and that the
defendant was permitted an opportunity to rebut the statements. We must disagree.
Initially, defense counsel objected to admission of the statements at the sentencing
hearing as follows:
Your Honor, I can't really tell who has written these?
Some of these are on the victim impact statement form.
Some are just letters, not signed? It may be that all of
these are from one person, I can't really tell? Most of it is
opinion and things that are not reliable hearsay ....
MM submitted her comments on the standard form and attached a letter addressed
to her from the victim's employer; a portion of the newsletter by the victim's
employer describing the victim's work and her contribution to her family and the
community; and a copy of a poster depicting a photograph of a coffin with a spray of
flowers and the words, "He beat her 150 times... [s]he only got flowers once." In
handwriting that does not appear to be MM's, are the words, "Poster on her office
door at Metro Health Dept....[s]ums it up but she never got flowers." (Emphasis in
original). Ms. McSwain submitted the standard form and attached four additional
sheets, only two of which bear her signature.
The statute provides for a statement from a victim or an immediate
family member of a homicide victim. Tenn. Code Ann. § 40-38-203(1). The
statement should address "financial, emotional, and physical effects of the crime ...
and specific information about the victim, the circumstances of the crime, and the
22
manner in which it was perpetrated." Tenn. Code Ann. § 40-38-203(2). In our view,
the statements included on the standard form were properly considered by the trial
court. The source of the information is readily identifiable; the statements bear the
author's signature and are responsive to the questionnaire. The poster with the
handwritten notation, the letter to MM from the victim's employer, and the excerpt
from the employer's newsletter should not have been admitted or considered by the
sentencing court because they are not identifiable statements of the victim's
immediate family. See Tenn. Code Ann. § 40-38-203(1).
Despite of the statutory requirement that the pre-sentence report be
submitted ten days prior to the hearing, the victim impact statements in this case
were not provided to the defendant until the day of sentencing. Defense counsel did
not object on this basis and did not request a continuance. In that regard, any issue
predicated upon the timeliness of the report is waived. Tenn. R. App. P. 36(a).
Although some of the attachments to the victim impact statements were erroneously
admitted, there is no need to remand this matter for re-sentencing because we have
conducted a de novo review of the sentence under Part III of this opinion. In our de
novo review, we will not consider the erroneously admitted evidence.
III
As his final issue, the defendant contends that the sentence imposed
by the trial court is excessive. He maintains that the trial court improperly enhanced
the sentence, failed to make the findings of fact, and erroneously determined the
presumptive sentence to be twenty, rather than fifteen, years.
When there is a challenge to the length, range, or manner of service of
a sentence, it is the duty of this court to conduct a de novo review with a
23
presumption that the determinations made by the trial court are correct. Tenn. Code
Ann. § 40-35-401(d). This presumption is "conditioned upon the affirmative showing
in the record that the trial court considered the sentencing principles and all relevant
facts and circumstances." State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991); see
State v. Jones, 883 S.W.2d 597 (Tenn. 1994). "If the trial court applies
inappropriate factors or otherwise fails to follow the 1989 Sentencing Act, the
presumption of correctness falls." State v. Shelton, 854 S.W.2d 116, 123 (Tenn.
Crim. App. 1992). The Sentencing Commission Comments provide that the burden
is on the defendant to show the impropriety of the sentence.
Here, the trial court applied a presumptive mid-range sentence of
twenty years pursuant to Tenn. Code Ann. § 40-35-210(c) (Supp. 1996). That
provision, however, was not in effect at the time of the offense. Prior law requires
the minimum possible term as the beginning point. The application of the twenty-
year presumptive sentence as a starting point for an offense committed prior to July
1, 1995, would constitute an ex post facto violation of the defendant's constitutional
rights. State v. James Holloway, No. 01C01-9608-CR-00330, slip op. at 2 (Tenn.
Crim. App., at Nashville, June 30, 1997). In consequence, our review must be de
novo without a presumption of correctness.
Our review requires an analysis of (1) the evidence, if any, received at
the trial and sentencing hearing; (2) the presentence report; (3) the principles of
sentencing and the arguments of counsel relative to sentencing alternatives; (4) the
nature and characteristics of the offense; (5) any mitigating or enhancing factors; (6)
any statements made by the defendant in his own behalf; and (7) the defendant's
potential for rehabilitation or treatment. Tenn. Code Ann. §§ 40-35-102, -103, and
-210; State v. Smith, 735 S.W.2d 859, 863 (Tenn. Crim. App. 1987).
24
In calculating the sentence for felony convictions committed before
July 1, 1995, the presumptive sentence is the minimum within the range if there are
no enhancement or mitigating factors. Tenn. Code Ann. § 40-35-210(c) (1990)
(amended July 1, 1995 to provide that the presumptive sentence for a Class A
felony as the midpoint in the range). If there are enhancement factors but no
mitigating factors, the trial court may set the sentence above the minimum. Tenn.
Code Ann. § 40-35-210(d). A sentence involving both enhancement and mitigating
factors requires an assignment of relative weight for the enhancement factors as a
means of increasing the sentence. Tenn. Code Ann. § 40-35-210. The sentence
may then be reduced within the range by any weight assigned to the mitigating
factors present. Id.
The 1989 Act was designed to ensure that every sentence is justly
deserved in relation to the seriousness of the offense. Fair and consistent treatment
is paramount. The potential for rehabilitation or treatment is an important
consideration. All sentences should be "the least severe measure necessary to
achieve the purposes of a sentence." Tenn. Code Ann. § 40-35-103.
At the sentencing hearing, Monica Cano, sister of the victim, testified
that she and the defendant had "ill-feelings" because she had confronted him about
abusing his children. She believed that the defendant was a poor provider for the
family and described him as a "loud, very abrasive" husband who "put [the victim]
down a lot." Ms. Cano thought the defendant to be a "very abusive" father. She
testified that the defendant was controlling, manipulative and dangerous.
Richell Fontana, a friend to the victim, had known the victim and the
defendant for nine years. She testified that she had observed them together often
25
and she thought that they had a good relationship. She never saw the defendant
abuse his children or the victim. She acknowledged, however, that the victim had
mentioned obtaining a divorce.
Bradley Wayne Moss, uncle to the defendant, testified that he had
seen the defendant interact with his children regularly over the years and thought
the defendant to be more focused on teaching them and less focused on control.
He recalled that the defendant was a "workaholic" who always worked two jobs.
The defendant, forty-three at the time of sentencing, has a high-school
diploma. He attended Tennessee Technical University but did not obtain a degree.
He claimed a birth defect in his lower back and reported past marijuana use but
maintained he had not used alcohol or illegal drugs since August 1994. At the time
of his arrest, the defendant was attending counseling and taking Prozac. He has
four children. He had been employed at Sudberry Millwork since August of 1985.
As part of her victim impact statement, MM wrote that she and her
siblings had been orphaned, that she feared the defendant, and that he had never
told her he was sorry for shooting the victim. Ms. McSwain described financial and
emotional difficulties experienced by her and the victim's children. She asked for
the maximum sentence.
At the sentencing hearing the defendant stated that his own suffering
had been ignored and that he was convicted of a crime that he never committed.
He also stated that he was sorry for "what happened" and asked the forgiveness of
his children for his carelessness and stupidity.
26
The defendant qualifies as a Range I offender. The sentencing range
is fifteen to twenty-five years. Tenn. Code Ann. § 40-35-112(a)(1). The defendant's
potential for rehabilitation is poor. The record demonstrates that he lied to
authorities, lied to the 9-1-1 operator who tried to assist him, and solicited Ms.
Frazier to destroy incriminating evidence.
The record supports the application of two enhancement factors.
Initially, the defendant utilized a .45 caliber semi-automatic pistol to kill the victim.
Tenn. Code Ann. § 40-35-114(9). Secondly, the defendant has a history of criminal
behavior. Tenn. Code Ann. § 40-35-114(1). MM testified to at least one incident of
inappropriate touching by the defendant. He also attempted to subdue her with
chloroform or some other chemical. The defendant also admitted to manufacturing
marijuana for personal use, which we also consider to be prior criminal behavior.
The defendant argues that these acts toward MM should not be considered to
enhance his sentence because the state relied upon those facts to establish motive.
By the terms of the Tennessee Code Annotated, § 40-35-114, however, the
sentencing court may rely upon the past criminal behavior a defendant to enhance
the sentence so long as that enhancement factor is not an essential element of the
crime. In Jones, our supreme court explained that "[f]acts which establish the
elements of the offense charged may not also be the basis of an enhancement
factor increasing punishment." 883 S.W .2d at 601. Second degree murder is
merely "a knowing killing of another." Tenn. Code Ann. § 39-13-210(a)(1).
"Knowing" refers to a person who acts knowingly with
respect to the conduct or to circumstances surrounding
the conduct when the person is aware of the nature of
the conduct or that the circumstances exist. A person
acts knowingly with respect to a result of the person's
conduct when the person is aware that the conduct is
reasonably certain to cause the result.
Tenn. Code Ann. § 39-11-302(b). In our view, the defendant's prior acts are not
27
essential elements of a knowing killing. Motive is not an essential element. We
afford significant weight to each of these factors.
As for mitigating evidence, the defendant relies upon his work history,
lack of a criminal record, and testimony relating a positive relationship between the
defendant and his children. Tenn. Code Ann. § 40-35-113(13). The defendant is
entitled to only slight mitigation under these factors. See State v. McKnight, 900
S.W.2d 36, 55 (Tenn. Crim. App. 1994).
In our view, the two enhancements outweigh considerably any
mitigation and warrant a high-range sentence. We begin at fifteen years and apply
the enhancement factors. Because the enhancement factors weigh so heavily, a
sentence of twenty-five years, the maximum possible, is deemed appropriate.
Accordingly, the judgment of the trial court is affirmed.
_________________________________
Gary R. Wade, Presiding Judge
CONCUR:
________________________________
John H. Peay, Judge
________________________________
Jerry L. Smith, Judge
28