IN THE TENNESSEE COURT OF CRIMINAL APPEALS
AT JACKSON FILED
DECEMBER 1998 SESSION
March 15, 1999
Cecil Crowson, Jr.
Appellate C ourt Clerk
STATE OF TENNESSEE, )
)
Appellee, ) C.C.A. NO. 02C01-9711-CC-00449
)
V. ) SHELBY COUNTY
)
TYRONE CHALMERS, ) HON. CAROLYN WADE BLACKETT
)
Appellant. ) (Especially Aggravated Robbery and
) Felony Murder - Death Penalty)
)
For the Appellant: For the Appellee:
Linda Kendall Garner John Knox Walkup
William L. Johnson Attorney General and Reporter
50 North Front Street, Suite 780
Memphis, TN 38103 Amy L. Tarkington
Assistant District Attorney General
450 James Robertson Pkwy.
Nashville, TN 37243-0493
District Attorney General
John W. Pierotti
James J. Challen, III
Assistant District Attorney General
Criminal Justice Center - Third Floor
201 Poplar Avenue
Memphis, TN 38103
OPINION FILED:_______________________
AFFIRMED
GARY R. WADE, PRESIDING JUDGE
OPINION
The defendant, Tyrone Chalmers, was convicted of especially
aggravated robbery and felony murder. The jury imposed the death penalty on the
basis that the defendant had been previously convicted of one or more felonies
whose statutory elements involved the use of violence to the person. Tenn. Code
Ann. § 39-13-204(i)(2). The trial court imposed a concurrent twenty-year sentence
for the robbery conviction. In this appeal of right, the defendant has presented for
our review the following issues:
(I) whether the evidence is sufficient to support the first
degree murder conviction;
(II) whether the trial court erred by admitting an unduly
prejudicial crime scene photograph;
(III) whether the trial court erred by admitting the
defendant's pretrial statement; and
(IV) whether the death penalty is proportionate
punishment under the circumstances of the case.
The judgment of the trial court is affirmed.
The twenty-eight-year-old victim, Randy Allen, resided with his
grandmother, Stella L. Hayes. At 5:00 a.m. on August 20, 1994, Harvey L. Smith,
the victim's cousin, and five or six others in the neighborhood found the victim lying
face down next to a city street. The pants of the victim had been pulled down
around his ankles.
Officer Daryl Taylor of the Memphis Police Department arrived at the
scene a short time later. The body, which had gunshot wounds, had not been
moved. Officer Taylor called for an ambulance but paramedics pronounced the
victim dead. As soon as the police arrived, Ms. Hayes was called to the scene and
2
identified the body of her grandson. Marlon Murphy, the victim's cousin, was also a
victim in this incident.1
Officer R.G. Moore, also with the Memphis Police Department, arrived
after Officer Taylor. He collected four shell casings found near the victim's body. A
weapon was never recovered.
Ten days after the shooting, Sgt. Dewayne Woods and Sgt. James L
Nichols questioned the defendant about his involvement in this crime. Sgt. Woods,
who had taken an earlier statement from the defendant concerning an unrelated
robbery, advised the defendant of his rights. During the course of the investigation,
the defendant admitted that he shot and killed the victim while attempting a robbery:
I met up with "Dre" and "Black" on Orleans and So.
Parkway near the park. "Black" was driving something
like a [sic] Oldsmobile, "Dre" was in the front passenger
seat and I got in the back seat. We were just riding
around looking for somebody to rob. I had some kind of
automatic rifle, it had a clip in it, black and brown color.
"Dre" had a .380 automatic or something, look [sic] black
to me. I think "Black" had a shotgun. "Black" was driving
down Netherwood, and me and "Dre" jumped out on two
boys. We tried to rob them. We made them strip, then I
had hit the one that was killed with the rifle and it went
off, and I couldn't let the rifle go. Then me and "Dre"
jumped in the car and left, with "Black" driving. Then
"Black" dropped me and "Dre" off near a house, close to
Southside School.
The defendant, who robbed Murphy and the victim of $3.00, told the officers that the
gun "kept shooting, 'bout six (6) times." The defendant stated that he was "sorry it
ever happened. If I could go through it again, I wouldn't."
Dr. Jerry Thomas Francisco, County Medical Examiner for Shelby
1
The c harges against th e defen dant for th e assa ult upon M urphy, wh o survive d the incide nt,
were dropped due to Murphy's unavailability as a witness for the prosecution.
3
County, performed the autopsy on the victim. The victim died as a result of five
gunshot wounds. One entered the back of the head, one entered the back just
above the hipbone, one struck the left forearm, one entered the back of the left leg,
and one passed through the victim's thigh. All five bullets passed through the body
of the victim. Dr. Francisco testified that either the wound to the head or the back
could have caused death. The blood and urine screens on the victim's body
revealed traces of alcohol and cocaine.
At the sentencing phase of the trial, Juline Young, Deputy Clerk for the
Shelby County Criminal Court Clerk's Office, testified that the defendant had been
previously convicted of attempted especially aggravated robbery and attempted first
degree murder for a criminal episode occurring on the same date as this murder.
Joseph William Hunter, the victim of those prior crimes, testified that as he was
driving his vehicle at approximately 3:00 a.m., the defendant stopped in front of his
car, pointed a rifle at him, and directed him to "give it up G." Hunter testified that he
accelerated past the defendant, who then fired fifteen rounds at his car. Hunter was
struck by two of the bullets; one broke his leg and the other struck his arm.
The defendant's mother, Clytee Beatrice Chalmers, testified that the
defendant was a good child and had never given her any problems. She related
that the defendant had graduated from high school and was employed at the time of
this crime. She testified that she suffered from diabetes and that the defendant took
care of her when she had complications with her disease.
At the time of trial, the defendant had five brothers and one older
sister. Clytis Chalmers, the defendant's sister, testified that she had visited the
defendant every week during his incarceration. She described the defendant as her
4
best friend, a "very caring person." The defendant's sister testified that the
defendant had been in juvenile court only once when he was younger.
The defendant, twenty-one years old at the time of these offenses,
testified at the sentencing phase of the trial that he smoked crack cocaine for the
first time and had consumed alcohol only hours before he committed these
offenses. He claimed that he blacked out and could not remember all of the events
from that night but did recall that the gun he used belonged to one of his
accomplices. The defendant testified that he was unfamiliar with the operation of
the weapon. While conceding that he had been in juvenile court on a prior
occasion, he testified that he had not committed any offenses since reaching
adulthood, other than those on the night of the murder. The defendant apologized
for his actions.
I
Initially, the defendant argues that the evidence was insufficient to
support his conviction for felony murder. He contends the state's case is based
solely on his "questionable" statement and that his guilt has not been established
beyond a reasonable doubt. We cannot agree.
A guilty verdict by the jury, approved by the trial court, accredits the
testimony of the witnesses for the state and resolves all conflicts in favor of the
state's theory. State v. Hatchett, 560 S.W.2d 627, 630 (Tenn. 1978); State v.
Grace, 493 S.W.2d 474, 476 (Tenn. 1973). On appeal, "the state is entitled to the
strongest legitimate view of the trial evidence and all reasonable or legitimate
inferences which may be drawn therefrom." State v. Cabbage, 571 S.W.2d 832,
835 (Tenn. 1978). This court does not reweigh or reevaluate the evidence. Id. The
5
jury's verdict, therefore, will only be disturbed if, after a consideration of the
evidence in the light most favorable to the state, a rational trier of fact could not
have found the essential elements of the crime beyond a reasonable doubt.
Jackson v. Virginia, 443 U.S. 307 (1979); State v. Williams, 657 S.W.2d 405, 410
(Tenn. 1983); Tenn. R. App. P. 13(e).
At the time of this offense, felony murder was defined as the "reckless
killing of another committed in the perpetration of, or attempt to perpetrate any first
degree murder, arson, rape, robbery, burglary, theft, kidnapping or aircraft piracy."
Tenn. Code Ann. § 39-13-202(a)(2) (1991). 2 "'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." Tenn.
Code Ann. § 39-11-106(31). Especially aggravated robbery is "the intentional or
knowing theft of property from the person of another by violence or putting the
person in fear" accomplished with a deadly weapon and where the victim suffers
serious bodily injury. Tenn. Code Ann. §§ 39-13-401(a), -403(a) (1991).
In our view, the defendant's confession established all of the elements
of the offense. The defendant acknowledged that he robbed the victim and that his
gun went off, fatally injuring the victim. A defendant, however, cannot be convicted
solely upon the evidence of his inculpatory statement. See Ashby v. State, 139
S.W. 872, 875 (Tenn. 1911). Under our law, the "corpus delicti [of the crime] cannot
be established by a confession alone." Taylor v. State, 479 S.W.2d 659, 662 (Tenn.
Crim. App. 1972). A confession may sustain a conviction when "there is other
2
In 1995, about one year after this offense, the "reckless" requirement was deleted from the
felony m urder sta tute. See Tenn . Code A nn. § 39-1 3-202(a )(2) (199 5 Supp .).
6
evidence to show the commission of the crime by someone." State v. Stapleton,
638 S.W.2d 850, 854 (Tenn. Crim. App. 1982). The slightest corroborating
evidence of the confession to the crime is sufficient, however. See State v. Ervin,
731 S.W.2d 70, 72 (Tenn. Crim. App. 1986). Furthermore, while a confession may
be corroborated by independent proof, the corroborating evidence need not connect
the defendant with the crime. Buckingham v. State, 540 S.W.2d 660, 663 (Tenn.
Crim. App. 1976). Similarly, the corroborating evidence necessary to support the
corpus delicti need not be sufficient, in and of itself to support the conviction, but
need only provide "the essential facts . . . to justify a jury inference of their truth."
Opper v. United States, 348 U.S. 84, 93 (1954).
Here, the defendant acknowledged that he and his accomplices had
driven around the city on the night in question looking for someone to rob. There
was no other direct evidence to support the defendant's confession that he robbed
and killed the victim. Yet the evidence introduced at trial was adequate for a rational
jury to find beyond a reasonable doubt that the defendant committed murder during
the perpetration of armed robbery. The defendant told others the location of the
body. The victim was found at that location lying face down on the ground. The
pants of the victim had been pulled down to his ankles. That would have prevented
the victim from escaping on foot. Finally, the coroner confirmed that the victim had
been shot in the back five times.
Because the corroborative evidence need not be sufficient in and of
itself to support the conviction and need only justify a jury inference of the truth of
the corpus delicti, the evidence here is more than enough to corroborate the
defendant's confession that he committed the murder. These same facts would also
permit an inference that the victim was being robbed at the time of his death. The
7
pants at the ankles would indicate that the robbers not only intended to restrict the
movement of the victim but also had access to the clothing article most likely to
contain the money of the victim.
II
Next, the defendant contends that the trial court erroneously admitted
a photograph of the victim as he was found on the street. The photo depicts the
victim lying face down. His pants had been lowered to ankle level. The defendant
insists that "the photo in question was void of probative weight and packed full of
impermissible and inflammatory content."
Evidence is relevant if it has "any tendency to make the existence of
any fact that is of consequence to the determination of the action more probable or
less probable than it would be without the evidence." Tenn. R. Evid. 401. Rule 403,
Tenn. R. Evid., however, provides that relevant evidence may be excluded in certain
situations:
Exclusion of Relevant Evidence on Grounds of Prejudice,
Confusion, or Waste of Time. Although relevant,
evidence may be excluded if its probative value is
substantially outweighed by the danger of unfair
prejudice, confusion of the issues, or misleading the jury,
or by considerations of undue delay, waste of time, or
needless presentation of cumulative evidence.
Simply because evidence is prejudicial does not mean the evidence must be
excluded as a matter of law. See State v. Gentry, 881 S.W.2d 1, 6 (Tenn. Crim.
App. 1993). Courts must still determine the relevance of the photograph and weigh
its probative value against any undue prejudice.
In State v. Banks, 564 S.W.2d 947, 951 (Tenn. 1978), our supreme
court recognized "the inherently prejudicial character of photographic depictions of a
8
murder victim...." In adopting Federal Rule of Evidence 403 as its test for
admissibility, the court suggested a variety of factors for consideration by the trial
judge. The "value of photographs as evidence, ... their accuracy and clarity ...
whether they were taken before the corpse was moved ... [and] the inadequacy of
the testimonial evidence in relating the facts to the jury" are appropriate factors. Id.
The admissibility of relevant photographs of the victim is within the
sound discretion of the trial judge, and his or her ruling on admissibility will not be
disturbed on appeal absent a clear showing of an abuse of that discretion. Banks,
564 S.W.2d at 949. See also State v. Bigbee, 885 S.W.2d 797, 807 (Tenn. 1994);
State v. Van Tran, 864 S.W.2d 465, 477 (Tenn. 1993).
The photograph at issue is clearly relevant. The state had to prove,
notwithstanding the defendant's confession, that the defendant killed the victim
during an attempt to commit an especially aggravated robbery. The photograph
suggests that the victim was shot in the back causing him to fall face down. As the
state argued at trial, the victim's pants could have been dropped to his ankles to
prevent him from fleeing or otherwise resisting during the robbery. Although a
portion of the body is nude, neither the wounds nor blood are highlighted in the
photo at issue. The photograph is particularly relevant as corroborative of the
details of the incriminating statement made by the defendant. In our assessment,
the probative value outweighs any undue prejudicial effect.
As a collateral claim, the defendant also contends that the admission
of the photograph into evidence violated his right to due process and his right to be
free from cruel and unusual punishment. See U.S. Const. amend. VIII, XIV. We do
not agree. The photograph is not so inflammatory as to cause the jury to convict out
9
of passion or caprice. The facts, in this context, do not form any basis for a claim of
cruel or unusual punishment.
III
The defendant also claims the statement he gave to the police was the
result of coercion and force and should not have been admitted at trial. We
disagree.
At the hearing on the motion to suppress, Lt. James L. Nichols of the
Memphis Police Department testified that he assisted Sergeant D. E. Woods in the
August 20, 1994, interrogation of the defendant. Lt. Nichols recalled that the
defendant was informed of his Miranda rights before any questions were submitted.
According to Lt. Nichols, the defendant understood his rights and wished to make a
statement to the police. Lt. Nichols stated that neither he nor Sergeant Woods
coerced or threatened the defendant in any way and never promised him anything in
exchange for his statement. He described the statement as freely and voluntarily
given. The statement, which was made during a forty-five minute interview, was
reduced to writing and signed by the defendant. Lt. Nichols, who described the
defendant as reasonably intelligent, did not remember whether the defendant signed
a separate "advice of rights" document.
Elise Flowers, who transcribed the statement as Lt. Nichols and Sgt.
Woods conducted the interview, testified that the defendant was advised of his
rights before the interrogation. She testified that the defendant acknowledged his
rights, agreed to talk, and was not threatened, coerced, or promised anything in
return for his answers. Ms. Flowers did not remember whether the defendant had
singed a separate "advice of rights" form or whether he had read the transcript of
10
the interview in her presence.
At the suppression hearing, the defendant claimed that he had been
questioned previously by the officers and had informed them that he did not want to
give a statement. He asserted that he had not been advised of his rights and did
not understand why he was being forced to give a statement. The defendant
testified that Sgt. Woods and two other officers struck him on the head several times
with a telephone book. The defendant alleged that the officers forced the
confession and written transcript. He insists that Ms. Flowers gave false testimony.
On cross-examination, the defendant admitted that he was in custody
at that time on an attempted robbery and attempted murder charge stemming from
the separate incident which had occurred earlier on the same night as the murder.
The defendant, who had pled guilty to those charges prior to this hearing, stated that
he gave a statement relating to the earlier incident at about the same time he gave
the statement in this case. The defendant testified that he was beaten and forced to
talk during both interviews. He conceded, however, that he failed to bring these
claims to the attention of the trial judge who accepted the guilty pleas to attempted
murder and attempted especially aggravated robbery. When asked during the
submission hearing, the defendant asserted that he had voluntarily given the
statement without being coerced or threatened. He explained this omission on his
being "stressed out" because his mother was having health problems. Interestingly,
the defendant acknowledged that he had been advised of his rights before he gave
a statement on the prior charges and that he understood and voluntarily waived
those rights.
Sgt. Woods denied having physically or verbally abused the defendant
11
at any time before or during the interview on the felony murder. Sgt. Woods testified
that he advised the defendant of his rights, did not coerce the defendant, and did
not suggest what answers the defendant should provide.
To support his argument that the trial court erred in denying his
motion, the defendant places primary emphasis on his testimony that he was beaten
with a telephone book and that the initial "advice of rights" document has been lost
or misplaced.
It is the duty of the trial judge to determine the voluntariness and the
admissibility of the defendant's pretrial statement. State v. Pursley, 550 S.W.2d
949, 952 (Tenn. 1977). The trial court's determination that a confession was given
knowingly and voluntarily is binding on the appellate courts unless the evidence
preponderates otherwise. State v. Odom, 928 S.W.2d 18, 23 (Tenn. 1996).
"Questions of credibility of the witnesses, the weight and value of the evidence, and
resolution of conflicts in the evidence are matters entrusted to the trial judge as the
trier of fact." Odom, 928 S.W.2d at 23. In addition, "the party prevailing in the trial
court is entitled to the strongest legitimate view of the evidence adduced at the
suppression hearing as well as all reasonable and legitimate inferences that may be
drawn from that evidence." Id. The trial judge did not make explicit findings of fact
in this case, simply stating, "At this time, based on the testimony and based on the
Court's review of the statements and other evidence, the Motion to Suppress by the
defendant will be denied at this time." Nevertheless, the denial of the motion implies
a determination that the defendant did voluntarily and knowingly waive his rights.
See State v. House, 592 S.W.2d 902, 904 (Tenn. Crim. App. 1979).
In Miranda v. Arizona, 384 U.S. 436, 479 (1966), the United States
12
Supreme Court ruled that before a custodial interrogation, police officers must
advise defendants of the right to remain silent and the right to counsel. If these
warnings are not given, any statement elicited from a defendant is not admissible in
trial. Stansbury v. California, 511 U.S. 318, 322 (1994). A defendant's rights to
counsel and against self-incrimination may be waived as long as the waiver is made
"voluntarily, knowingly, and intelligently." State v. Middlebrooks, 840 S.W.2d 317,
326 (Tenn. 1992). The Fifth Amendment right against self-incrimination may be
waived only if done so voluntarily, knowingly, and intelligently. Miranda, 384 U.S. at
479. In order for an accused to effect a waiver, he must be adequately apprised of
his right to remain silent and the consequence of deciding to abandon it. State v.
Stephenson, 878 S.W.2d 530, 544 (Tenn. 1994). In determining whether the
confession was voluntary and knowing, the totality of the circumstances must be
examined. State v. Bush, 942 S.W.2d 489, 500 (Tenn. 1997).
In our view, the trial court properly denied the motion. Implicit in the
conclusion reached by the trial court is that the testimony of the three witnesses for
the state was more credible than that of the defendant. While there is no separate
"advice of rights" form, both the written statement and the testimony at the
suppression hearing specifically demonstrate that the defendant was advised of and
waived his rights before talking to police. "The law does not require a written
waiver," as long as the record demonstrates the defendant was advised of his rights
and did, in fact, waive them. State v. Mann, 959 S.W.2d 503, 530 (Tenn. 1997).
See also State v. Elrod, 721 S.W.2d 820, 823 (Tenn. Crim. App. 1986) (absence of
written waiver does not per se require suppression if waiver can be found from the
surrounding circumstances). The evidence simply does not preponderate against
the trial court's ruling. See Odom, 928 S.W.2d at 23. Thus, the issue is without
merit.
13
IV
Pursuant to Tenn. Code Ann. § 39-13-206(c), this court must review
the sufficiency of the aggravating evidence against the mitigating evidence offered,
determine whether the sentence of death was imposed in an arbitrary fashion, and
assess whether the sentence is excessive or disproportionate to the penalty
imposed in similar cases. We should point out that the defendant failed to address
these issues in his original appellate brief. During oral argument, this court granted
counsel additional time to file a supplemental brief. In State v. Bland, 958 S.W.2d
651, 667 (Tenn. 1997), our supreme court held that both parties on appeal must
fully brief the proportionality issue.
The testimony at trial established that several hours before he
committed the robbery and murder of Randy Allen, the defendant attempted to
commit an armed robbery of Joseph William Hunter. As Hunter attempted to
escape in his vehicle, the defendant opened fire. Several shots struck the vehicle
and the victim was struck by the bullets. Before the trial in this case, the defendant
pled guilty to attempted especially aggravated robbery and attempted murder.
These qualified as prior violent felonies and constituted the sole basis for the
application of the single aggravating circumstance applicable to the defendant. At
trial, the defendant did not contest the evidence of the prior criminal conduct. Thus,
the evidence introduced at the sentencing phase was clearly sufficient to support
the statutory aggravating circumstance relied upon by the state.
During the sentencing phase of the trial, the defendant, his mother,
and his sister testified for leniency. His mother testified that the defendant made
decent grades in school and never gave her any problems as a child. She was
unaware the defendant had been arrested as a juvenile. The sister testified that the
14
defendant was a caring person, but that he had some trouble with the law as a
juvenile. The defendant expressed his remorse for his actions in this case and
implied that his conduct on that evening was the result of drug and alcohol abuse.
While the defendant testified that he did not remember many of the events due to a
black out, his statement to the police is significantly more detailed; there is no
mention of drug or alcohol use.
The statute requires only one aggravating circumstance. Upon review
of the entire record, this court must conclude the jury's determination that this sole
aggravating circumstance outweighs the minimal mitigating evidence offered by the
defendant is supported by the evidence.
We should point out that no expert testimony was introduced at the
penalty phase of the trial. The evidence of mitigating circumstances that the
defense did offer was minimal. In Goad v. State, our supreme court emphasized the
importance of the preparations for the sentencing phase of a trial:
The Eighth and Fourteenth Amendments to the United
States Constitution mandate that a death sentence be
based on a "particularized consideration of relevant
aspects of the character and record of each ...
defendant." In this respect, "evidence about the
defendant's background and character is relevant
because of the belief ... that defendants who commit
criminal acts that are attributable to a disadvantaged
background, or to emotional and mental problems may
be less culpable than defendants who have no such
excuse." Thus, although there is no requirement that
defense counsel present mitigating evidence in the
penalty phase of a capital trial, counsel's duty to
investigate and prepare for a capital trial encompasses
both the guilt and sentencing phases. [There is a]
"greater duty of inquiry into a client's mental health
imposed for the penalty phase of a trial."
938 S.W.2d 363, 370 (Tenn. 1996) (citations omitted).
15
The final question is whether the death sentence was imposed in an
arbitrary fashion or is disproportionate to the penalty imposed in similar cases. In
State v. Bland, 958 S.W.2d 651 (Tenn. 1997), the supreme court outlined the
process appellate courts should employ when conducting a comparative
proportionality review. The review required is not a rigid, objective test. Id. at 668.
Nor are the courts bound to consider only those cases in which exactly the same
aggravating circumstances have been found. State v. Brimmer, 876 S.W.2d 75, 84
(Tenn. 1994). With respect to the circumstances of the offense, we consider: (1) the
means of death; (2) the manner of death; (3) the motivation for the killing; (4) the
place of death; (5) the similarity of the victims' circumstances including age, physical
and mental conditions, and the victims' treatment during the killing; (6) the absence
or presence of premeditation; (7) the absence or presence of provocation; (8) the
absence or presence of justification; and (9) the injury to and effects on
nondecedent victims. Bland, 958 S.W.2d at 667. With respect to comparing the
character of the defendants, the following factors are relevant: (1) the defendant's
prior criminal record or prior criminal activity; (2) the defendant's age, race, and
gender; (3) the defendant's mental, emotional or physical condition; (4) the
defendant's involvement or role in the murder; (5) the defendant's cooperation with
authorities; (6) the defendant's remorse; (7) the defendant's knowledge of
helplessness of victim(s); and (8) the defendant's capacity for rehabilitation. Id.
Here, the defendant randomly chose his victim, forced him to remove
his pants, and stole $3.00. The defendant struck the victim with his gun and
eventually shot him in the back five times. Another victim of the robbery
successfully avoided serious injury. Although the defendant was accompanied by
two accomplices in the robbery, the evidence at trial demonstrated that the
defendant administered the blows and fired the fatal shots. Despite his assertion
16
that he was unfamiliar with the weapon he utilized in the murder, the defendant also
attempted to rob and shoot Joseph William Hunter earlier that same night. Although
the defendant fired at least five shots into an occupied car, Hunter survived the
ordeal despite two gunshot wounds. The defendant was arrested by the police ten
days later and confessed to the crimes. While the defendant expressed his
remorse, he declined to accept full responsibility for his actions, claiming that he
blacked out from the effects of drugs or alcohol, could not remember the events,
and that police had coerced his detailed confession. The defendant also claimed at
trial that he could not remember any of the events due to his intoxication. The
presentence report indicates that the defendant had a prior conviction as an adult
for possession of marijuana and was involved in instances of misconduct as a
juvenile, including possession of a dangerous weapon, aggravated assault, and
shoplifting. The black male victim, twenty-eight years old, was apparently unknown
to his assailants.
While no two cases are identical, there are several other cases similar
to this in which the death penalty was imposed. In State v. Burns, 979 S.W.2d 276
(Tenn. 1998), the young, black defendant was convicted of felony murder during the
perpetration of robbery and sentenced to death. The youthful defendant and his
accomplices approached four young black men sitting in a car, robbed them, and
killed two of them. The defendant was directly responsible for one of the deaths.
The lone aggravator was that the defendant created a risk of harm to two or more
persons. In State v. Howell, 868 S.W.2d 238 (Tenn. 1993), the white defendant was
convicted of felony murder during perpetration of robbery of a convenient store and
sentenced to death. The sole valid aggravating circumstance was that the
defendant had prior violent felony convictions. On the same night, he had
subsequently killed another person out of state. Howell also had a prior robbery
17
conviction. In State v. Bobo, 727 S.W.2d 945 (Tenn. 1987), the black defendant
and his accomplices robbed and at random killed a victim who was standing near
the street. Bobo was convicted of felony murder and sentenced to death. The
aggravating circumstance was that the defendant had prior violent felony convictions
(while on a spree including two other robberies, one of which resulted in the death of
a victim, the defendant robbed and killed a second individual for which the death
penalty was imposed). The similarity of this case with the penalties imposed in
Burns, Howell, and Bobo convinces us that the result here was neither
disproportionate nor arbitrary. Bland, 958 S.W.2d at 968.
Accordingly, the judgment of the trial court is affirmed.
__________________________________
Gary R. Wade, Presiding Judge
CONCUR:
_______________________________
Thomas T. W oodall, Judge
_____________________________
John Everett W illiams, Judge
18