IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE
MARCH 1997 SESSION
FILED
July 14, 1997
Cecil Crowson, Jr.
Appellate C ourt Clerk
TERRY LYNN KING, )
) C.C.A. NO. 03C01-9601-CR-00024
Appellant, )
) KNOX COUNTY
VS. )
) HON. MARY BETH LEIBOWITZ,
STATE OF TENNESSEE, ) JUDGE
)
Appellee. ) (Post-conviction: capital case)
FOR THE APPELLANT: FOR THE APPELLEE:
CHARLES W. B. FELS JOHN KNOX WALKUP
WADE V. DAVIES Attorney General & Reporter
606 W. Main St., Suite 300
Knoxville, TN 37901 JOHN P. CAULEY
Asst. Atty. General
KENNETH F. IRVINE, JR. 450 James Robertson Pkwy.
606 W. Main St., Suite 350 Nashville, TN 37243-0493
Knoxville, TN 37901
RANDALL E. NICHOLS
District Attorney General
ROBERT L. JOLLEY, JR.
WILLIAM CRABTREE
JOHN W. GILL
Asst. District Attorneys General
City-County Bldg.
Knoxville, TN 37902
OPINION FILED:____________________
AFFIRMED
JOHN H. PEAY,
Judge
OPINION
The petitioner was convicted by a jury on February 1, 1985, of first-degree
(felony) murder and armed robbery.1 He was sentenced to death for the first-degree
murder offense and to one hundred twenty-five (125) years for the robbery offense. His
convictions and sentences were affirmed on direct appeal. State v. King, 718 S.W.2d
241 (Tenn. 1986). The petitioner subsequently filed for post-conviction relief which was
denied after a hearing. He now appeals, raising the following issues:
I. The aggravating factors used in imposing the death sentence were
either constitutionally flawed or impermissibly tainted by inadmissible
evidence;
II. The trial court’s failure to grant a severance violated Bruton v.
United States and Cruz v. New York at trial and violated his due
process rights at sentencing;
III. Trial and appellate counsel were ineffective;
IV. The trial court’s failure to instruct the jury on second degree
murder and voluntary intoxication violated his constitutional rights;
V. The trial court’s instruction on reasonable doubt violated his due
process rights;
VI. The prosecution violated his due process rights by offering
inadmissible, irrelevant and inflammatory evidence during both the
guilt and penalty phases of his trial; and
VII. He is entitled to a new trial and/or a new sentencing hearing
based on cumulative error.
Finding no reversible error in the lower court’s rulings on these issues, we affirm the
judgment below.
FACTS
A brief recitation of the facts established at the petitioner’s trial is sufficient
for the purposes of this proceeding. On the afternoon of July 31, 1984, the petitioner and
his cousin, Don King, were driving around Cherokee Lake together when they met the
1
The petitioner was also convicted of aggravated kidnapping. This conviction was set aside by
the trial court on March 8, 1985.
2
victim, Diana K. Smith. The three left and drove to Don King’s trailer, the petitioner riding
with the victim in her car. The petitioner subsequently obtained some LSD. He and the
victim both took some of the LSD. The petitioner had also taken one or more Quaalude
tablets and had been drinking beer all day. The victim had been drinking wine and
continued to do so after arriving at Don King’s trailer.
The proof established that the petitioner engaged in sex with the victim and
that they went driving around in her car. At some point she asked him, “Why did you all
rape me?”2 The petitioner subsequently made her get into the trunk of her car and drove
to the house where his friend, co-defendant Randall Joe Sexton lived. Here, the
petitioner spoke with Sexton and obtained Sexton’s rifle. He returned to the victim’s car
and drove off. Sexton accompanied the petitioner in his own car. Eventually, the
petitioner drove to a wooded area near a creek where he made the victim get out of the
trunk of her car and lie facedown on the ground. He then shot her in the back of her
head at least once, killing her. The petitioner and Sexton returned the next day to
dispose of the body, wrapping it in a tent, weighting it down with cinder blocks and then
throwing it into a quarry lake. The body was discovered several days later. Following
their arrests, both Sexton and the petitioner made statements to the police after waiving
their rights. Both men were tried together.
ANALYSIS
As a preliminary matter, we first note that “[i]n post-conviction relief
proceedings the petitioner has the burden of proving the allegations in his petition by a
preponderance of the evidence.” McBee v. State, 655 S.W.2d 191, 195 (Tenn. Crim.
App. 1983). Furthermore, the factual findings of the trial court in hearings “are conclusive
2
Don King testified during the senten cing hearing that he had also had sex with th e victim while
they were at his trailer. The only proof that the victim’s sex with either Don King or the petitioner was
anything other than consensual was the victim’s question to the petitioner, as reported in his confession
to the police.
3
on appeal unless the evidence preponderates against the judgment.” State v. Buford,
666 S.W.2d 473, 475 (Tenn. Crim. App. 1983).
I. AGGRAVATING FACTORS
In his first issue, the petitioner asserts that two of the four aggravating
factors relied upon by the jury in imposing the death sentence “could not be
constitutionally applied to the facts of this case” and that the remaining two factors “were
impermissibly tainted by evidence which was erroneously admitted by the trial court.”
The four aggravating factors found by the jury were the following:
1. The petitioner was previously convicted of one or more felonies,
other than the present charge, which involved the use or threat of
violence to the person;
2. The murder was especially heinous, atrocious or cruel in that it
involved torture or depravity of mind;
3. The murder was committed for the purpose of avoiding, interfering
with or preventing a lawful arrest or prosecution of the petitioner or
another; and
4. The murder was committed while the petitioner was engaged in
committing, or was an accomplice in the commission of, or was
attempting to commit, or was fleeing after committing or attempting
to commit, any rape, robbery, larceny or kidnapping.
T.C.A. § 39-2-203(i)(2), (5), (6), and (7) (1982 Repl).
With respect to the last of these factors, the petitioner alleges that our
Supreme Court’s opinion in State v. Middlebrooks, 840 S.W.2d 317 (Tenn. 1992),
requires this Court to conclude that the use of the felony murder aggravator in this case
was unconstitutional. 3 The State disagrees, citing State v. Hines, 919 S.W.2d 573 (Tenn.
1995), in which our Supreme Court held that “Where . . . a felony not underlying the
3
In Middlebrooks, our Supreme Court held that “when the defendant is convicted of first-degree
m urde r solely on the b asis of felony m urde r, the aggra vating circum stan ce s et out in Te nn. C ode Ann .
§§ 39-2-203(i)(7) (19 82) an d 39-13-204(i)(7)(1991), does not narrow th e class of de ath -eligible
murderers sufficiently under the Eighth Amendm ent to the U.S. Constitution, and Article I, § 16 of the
Tennessee Constitution because it duplicates the elements of the offense. As a result, we conclude that
Tenn. Code Ann. § 39-2-203(i)(7) is unconstitutionally applied under the Eighth Amendm ent to the
U.S.Constitution and Article I, § 16 of the Tennessee Constitution where the death penalty is imposed
for felony murder.” 840 S.W .2d at 346.
4
felony murder conviction is used to support the felony murder aggravating circumstance,”
there is no Middlebrooks error. 919 S.W.2d at 583.
In support of its argument, the State asserts that the petitioner was found
guilty of felony murder “solely on the basis of kidnap[p]ing.” Although the State cites to
no portion of the record in support of this assertion, the charge to the jury on felony
murder included as the underlying felony only the offense of kidnapping. Moreover, the
jury stated to the trial court that the murder conviction was for count three of the
indictment. Count three of the indictment alleged that the petitioner and his co-defendant
had murdered the victim “while during the perpetration of a kidnapping.”
The charge given to the jury during the penalty phase of the trial included
the following instruction:
No death penalty shall be imposed but upon a unanimous finding by
the jury that one or more of the following specified statutory
aggravating circumstances have been proved on the trial and/or on
the sentence hearing beyond a reasonable doubt.
...
The murder was committed while the defendant was engaged in
committing, or was an accomplice in the commission of, or was
attempting to commit, or was fleeing after committing or attempting
to commit any rape, robbery, larceny, or kidnapping.
Rape is the unlawful carnal knowledge of a woman, forcibly and
against her will.
Robbery is the felonious and forcible taking of the goods or money
of any value from the person or presence of another by violence or
putting the person in fear.
Kidnapping is the offense of forcibly or unlawfully confining,
inveigling, or enticing away another with the intent of causing him to
be secretly confined or imprisoned against his will.
Any person who feloniously takes and carries away the personal
goods of another with the intent to permanently deprive the true
owner thereof is guilty of larceny.
Thus, the jury was given the choice of four felonies from which to choose in determining
whether the felony murder aggravating circumstance applied. However, it is impossible
5
to discern from the record which of the four felonies the jury relied upon in determining
to apply this aggravator.
Nevertheless, State v. Hines appears to require this Court to find that no
Middlebrooks error was committed under the facts of this case. In Hines, the defendant
had been convicted of felony murder “solely on the basis of armed robbery.” 919 S.W.2d
at 583. However, our Supreme Court went on to find that “the felony underlying the
conviction in this case is clear, as is the use of the two different and additional felonies
[of larceny and rape] to establish the aggravating circumstance found by the jury.” Id.
In finding Middlebrooks inapplicable, the Court stated:
Where, as in the instant case, a felony not underlying the felony
murder conviction is used to support the felony murder aggravating
circumstance, there is no duplication. Furthermore, under these
facts the aggravating circumstance as applied restricts the
sentencer’s discretion to those who kill while in the perpetration of
multiple felonies, a class of murderers demonstrably smaller and
more blameworthy than the general class of murderers eligible for the
death penalty under the . . . felony murder statute. . . . Under these
circumstances, where a felony other than that used to prove the
substantive offense is used to establish the aggravating
circumstance, there is no constitutional prohibition against the use of
the [felony murder] aggravating circumstance . . . to support the
imposition of the death penalty for felony murder.
Hines, 919 S.W.2d at 583.
The Hines opinion does not reveal how the Court came to its conclusion
that the jury’s use of the rape and larceny felonies in establishing the aggravating
circumstance was “clear.” In a footnote, the opinion acknowledges that the jury found
that the murder had been “committed while the defendant was engaged in committing or
was an accomplice in the commission of, or was attempting to commit, or was fleeing
after committing or attempting to commit, any robbery, larceny, or rape.” 919 S.W.2d at
582 n.3 (emphasis added). Moreover, in what appears to be a contradictory position, the
Court went on to conduct a harmless error analysis “[o]n the premise that error existed
because the jury based its finding regarding the felony murder aggravating circumstance
6
in part on the robbery.” 919 S.W.2d at 583.
Nevertheless, the crux of the Court’s reasoning appears to be that the
defendant had been engaged in multiple felonies at the time he killed the victim.4 In
contrast, the defendant in Middlebrooks had been found guilty of first-degree felony
murder and aggravated kidnapping (the felony on which both the murder conviction and
the aggravating circumstance were based), but acquitted of premeditated murder, armed
robbery, and aggravated sexual battery. Middlebrooks, 840 S.W.2d at 322. Therefore,
Middlebrooks involved a murder committed in the commission of only a single felony.
In the instant case, the petitioner was convicted of felony murder solely on
the basis of kidnapping. In addition to kidnapping, however, the felony murder
aggravating circumstance was supported by three additional felonies: robbery, larceny
and rape. Indeed, the petitioner was convicted of armed robbery in addition to felony
murder. Moreover, in the direct appeal of this case, our Supreme Court found, according
to the petitioner’s confession, “that the victim had accused him of raping her, and that he
had taken a gold cigarette lighter belonging to [the victim] during the criminal episode.”
King, 718 S.W.2d at 250. Accordingly, the Court held, the trial court had been justified
in including the felonies of rape and larceny in the felony murder aggravator. Therefore,
while the petitioner was not convicted of either rape or larceny, this fact did not preclude
the jury from relying on either or both of these felonies in assessing the applicability of
the felony murder aggravator. Thus, the petitioner was presented as a member of the
class of murderers who kill during the perpetration of multiple felonies, “a class of
murderers demonstrably smaller and more blameworthy than the general class of
murderers eligible for the death penalty” under the felony murder statute as duplicated
by the felony murder aggravator. Hines, 919 S.W.2d at 583. Accordingly, we disagree
4
However, the opinion does not indicate whether Hines was either indicted for or convicted of
any other offenses.
7
with the court below that the felony murder aggravating circumstance was improperly
applied in this case, and hold that there was no Middlebrooks error.
However, as did the Hines court, we also conduct a harmless error analysis
out of concern that error was committed because the jury based its finding regarding the
felony murder aggravating circumstance in part on the kidnapping. See Hines, 919
S.W.2d at 583. As set forth more fully below, we have determined that the remaining
three aggravating circumstances were properly applied in this case, and that the evidence
strongly supported them. The State’s closing arguments did not give extraordinary weight
to the felony murder aggravator. The petitioner’s prior felony convictions involving
violence were not disputed. The petitioner admitted during the penalty phase that he had
“probably” killed the victim because she had said “something about rape” and he “got
scared.” This admission was more than sufficient to support the aggravating factor that
he had committed the murder to avoid prosecution. The evidence also supported
application of the “heinous, atrocious or cruel” aggravator. As did our Supreme Court in
Hines, then, we find that “[u]nder this record it can be concluded beyond a reasonable
doubt that the sentence would have been the same had the jury given no weight to the
[felony murder] aggravating factor.” 919 S.W.2d at 584. See also State v. Howell, 868
S.W.2d 238, 260 (Tenn. 1993) (the applicable harmless error analysis requires the
reviewing court to conclude beyond a reasonable doubt that the sentence would have
been the same had the jury given no weight to the invalid aggravating factor).
The petitioner also contends that the jury’s finding that the murder was
especially heinous, atrocious or cruel in that it involved torture or depravity of mind must
be set aside as unconstitutionally applied. In support of his argument, the petitioner
complains about the jury instructions given (and those omitted) on this aggravating factor,
and about the sufficiency of the evidence supporting this factor. However, our Supreme
Court has previously addressed both of these issues, holding
8
we find [no] prejudicial error in the trial court’s failure to define the
term