IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE FILED
APRIL 1997 SESSION
October 3, 1997
STATE OF TENNESSEE, ) Cecil Crowson, Jr.
C.C.A. No. 03C01-9512-CC-00383
Appellate C ourt Clerk
)
Appellee, ) HAMBLEN COUNTY
)
VS. ) HON. LYNN W. BROWN, JUDGE
)
LEONARD EDWARD SMITH, ) (Death Penalty)
)
Appellant. )
FOR THE APPELLANT: FOR THE APPELLEE:
J. ROBERT BOATRIGHT JOHN KNOX WALKUP
150 Commerce Street Attorney General and Reporter
Kingsport, TN 37660
LARRY S. WEDDINGTON AMY L. TARKINGTON
200 Seventh Street Assistant Attorney General
Bristol, TN 37620 450 James Robertson Parkway
Nashville, TN 37243-0493
H. GREELY WELLS, JR.
District Attorney General
P. O. Box 526
Blountville, TN 37617-0526
OPINION FILED:
AFFIRMED
JOE G. RILEY,
JUDGE
OPINION
This is the third trial in which the defendant, Leonard Edward Smith, was
sentenced for the felony murder of Novella Webb. On each occasion he was
sentenced to death by electrocution. The guilt of the defendant having been previously
affirmed on direct appeal, the present appeal resulted solely from the re-sentencing
hearing. Finding as an aggravating circumstance that the defendant had been
previously convicted of one (1) or more felonies, other than the present charge, which
involved the use or threat of violence to the person, the jury again imposed the death
penalty. Defendant presents the following issues for our review:
(1) whether the trial court erred by not allowing the defendant
to establish selective prosecution by the district attorney
general in death penalty cases;
(2) whether the trial judge erred by not recusing himself;
(3) whether the trial court erred by denying the defendant
the services of a jury selection expert;
(4) whether the trial court committed errors with regard to
the jury selection process;
(5) whether the trial court erred in honoring the defendant’s
request not to present further mitigating evidence;
(6) whether the trial court erred in allowing the introduction
of the judgment of conviction for the present offense;
(7) whether the trial court erred with regard to the introduction
of evidence of prior violent felonies of which the defendant
had been convicted;
(8) whether the trial court erred in allowing the introduction
of victim impact evidence;
(9) whether the state engaged in prosecutorial misconduct;
(10) whether the trial court committed errors with regard to the
jury instructions;
(11) whether the trial court erred in allowing the jurors
to take exhibits to the jury room during deliberations;
(12) whether the trial court erred in declaring the death penalty
statutes constitutional; and
(13) whether imposition of the death penalty was excessive and
disproportionate to the penalty imposed in similar cases.
Finding no reversible error, we AFFIRM the sentence of death.
2
CASE HISTORY
Defendant was originally charged with the murder of John Pierce and Novella
Webb, both of whom were killed in Sullivan County. Venue was changed to Hamblen
County at defendant’s request, and he was convicted on two (2) counts of felony
murder. At the conclusion of all the proof in the first trial, the state withdrew the death
penalty request for the murder of Pierce, whereupon defendant received a life
sentence for this homicide. He was then sentenced to death for the murder of Webb.
On his first direct appeal, the Tennessee Supreme Court affirmed the conviction and
the life sentence for the murder of Pierce but reversed the conviction for the murder
of Webb. Finding an improper joinder of offenses as well as prosecutorial misconduct
during final argument, the Court reversed and remanded for a new trial. See State v.
Smith, 755 S.W.2d 757 (Tenn. 1988) (hereinafter “Smith I”).
Defendant was re-tried and convicted for the felony murder of Webb and again
sentenced to death by electrocution. On direct appeal the Tennessee Supreme Court
affirmed the conviction but vacated the death penalty finding (1) the jury was
improperly allowed to consider the life sentence imposed for the Pierce murder in
considering the death penalty for the Webb murder; and (2) the underlying felony was
improperly used as an aggravating circumstance pursuant to State v. Middlebrooks,
840 S.W.2d 317 (Tenn. 1992). See State v. Smith, 857 S.W.2d 1 (Tenn. 1993)
(hereinafter “Smith II”).
Upon remand the trial judge sua sponte changed venue from Hamblen County
to Johnson County. The trial judge further overruled a motion for recusal. An
extraordinary appeal was granted by this Court pursuant to Tenn. R. App. P. 10(a).
On extraordinary appeal this Court found the trial court erred by changing venue
without defendant’s consent. The refusal of the trial judge to recuse himself was
affirmed; however, this Court noted that this issue could be re-litigated on direct
appeal. See State v. Smith, 906 S.W.2d 6 (Tenn. Crim. App. 1995) (hereinafter “Smith
III”).
A re-sentencing hearing was then conducted before a jury in Hamblen County.
3
Finding as an aggravating circumstance that the defendant had previously been
convicted of one (1) or more felonies, other than the present charge, which involved
the use or threat of violence to the person, the jury again imposed the death penalty.
The trial court ordered that the death penalty run consecutively to the life sentence in
the Pierce murder. This appeal resulted.
EVIDENCE AT RE-SENTENCING HEARING
The evidence offered at the re-sentencing hearing was rather limited. The state
introduced a Carter County indictment charging the defendant with armed robbery
along with the judgment revealing that defendant was convicted of simple robbery. An
officer with the Carter County Sheriff’s Department identified the defendant as the
same Leonard Edward Smith convicted of that robbery. The state introduced another
Carter County indictment and judgment of conviction of simple robbery. Another
officer identified the defendant as the same Leonard Edward Smith who was convicted
of that robbery.
The state then introduced the redacted judgment revealing that defendant had
been convicted of first degree murder in the Pierce case. The reference to the life
sentence was redacted. Also introduced was the judgment of conviction in the instant
case, the Webb murder, revealing that defendant had been convicted of first degree
murder. There was no reference to the sentence previously imposed. An agent of the
Tennessee Bureau of Investigation identified the defendant as being the same
Leonard Edward Smith convicted of these two murders.
The daughter of the victim testified that her parents operated a country store for
many years, and her mother was 59 years of age at the time of her death. She further
testified that her father was hospitalized as a result of this robbery and was never able
to work again. She stated that her family lived with the murder all the time.
The defendant’s only witness was the detective in charge of the investigation
of the case. At the request of defense counsel, he read defendant’s statement which
4
was taken shortly after the arrest:
I, Leonard Edward Smith, am giving this
statement of my own free will and without any threats or
promises being made to me. On Monday, May 21,
1984, I was with my girlfriend Angie O'Quinn and David
Hartsock and we went and got some liquor and went to
a road near the Sullivan-Carter County line. We parked
and were just drinking and talking and smoked some
joints. While we were on that road in my black Ford
Pinto which I had painted black because it used to be
orange, David said "Get out, I want to talk to you." He
and I got out and walked a ways from the car where
Angie couldn't hear us talking and David said, "I can get
us a little bit of money down here at this store." He
said, "It is the store down at the county line," and I
asked him if it was Shorty Malone's and he said, "Yes."
Angie and I drove David down there, and let him off a
little ways from the store. I parked on the little paved
road beside the store. David had a thirty-two caliber
chrome plated pistol with him. The pistol was his pistol.
I heard several shots fired and just a few seconds later
David came running around the store. David jumped
into the car and said, "Get the hell out of here, I had to
shoot him." I figured it was Shorty because he ran the
store. We drove out the road that goes behind the side
of Malone's Grocery, and it dead ends, and you can
turn left to the Wautauga area or right back to Sullivan
County. We turned onto the Wautauga Highway and
drove to what is known as Mountain Road. I asked
David if he shot the man, and he said that he shot him
one time and the man pulled a gun and started shooting
at him. I don't remember if he said what money he got.
I drunk some more liquor, and made Angie get out of
the car. I started driving and was just going to drive us
out of the mountain. We came out at some store, and
I turned left, and drove until I realized I was going to
[sic] wrong way, and I pulled in at Webb's Store to turn.
I stopped the car at Webb's and David jumped out, and
I ran in the store behind him. David ran and jumped on
the counter, and knocked the old man over and yelled
to me, "Get that bitch" referring to an old woman at the
end of the counter. I started towards her, and she
started throwing things at me and started spraying paint
on me. I fired one shot just to scare people, but the old
woman just kept spraying orange paint and came
towards me. I couldn't see because of the paint and I
held the gun up and apparently the old lady was trying
to get the gun away from me and it went off. We ran
from the store when I fired the second shot. I didn't
really know that I had shot her until we heard it later on
the news. When we were in Webb's Store the old man
was hollering, "Help me, help me," and hollering for his
wife. The old woman never did say anything that I
remember. I know that before we left the store, some
man came up to the door, and I told him to get out of
there. I didn't get any money from either store, and
David didn't say if he did or not. David and I left Webb's
5
and went back up towards Mountain Road, and picked
Angie up. I told her we had to get out of there, and we
drove down towards Underwood Park, and set the car
on fire. David cut a hose next to the carburetor and set
the car on fire. David and Angie and me took off on the
trails, and really didn't know which way to go. We came
out at a house on Indiana Creek. It was the Johnson
residence because my dad had sold them the house.
We didn't go to the house until late last night, and Angie
got Gladys Sheets to take us to the home where we
were arrested this morning. I had never been to the
house before but had been in the area. When Gladys
drove up to Dennis Cove, she said she thought we did
it. I had taken my shirt and wrapped my feet so I could
walk and I think I left it in Gladys' car or at the house.
Gladys had told us that Mrs. Webb, and the man at
Malone's were both dead. We told Gladys that we
didn't do it and she said, "If you didn't, you better keep
the gun because the news said it was a thirty-eight" and
she knew we had a thirty-two caliber. I told David to
throw the gun out anyway because I knew we had done
it. He threw it out as we went over a bridge, and we
drove on up to the house. We stopped at a grocery
store, and Angie and Gladys went in and got some food
for us to take to the house. We fixed something to eat,
went to sleep, but I felt like they knew where we were
at. I had cut mine and David's hair with a pair of
scissors Angie had in her pocketbook because I knew
they would be looking for somebody with longer hair.
This morning I heard a loud noise, and I knew we were
caught then. I told Angie I was going out, and you
come out too, so we won't get hurt. Somebody had
yelled for us to come out, and David went out first. All
I know is that everything didn't turn out the way it was
supposed to, and it shouldn't have happened. I am
sorry for what happened, because I know I am a thief,
but I don't think of myself as a murderer. This is all I
know to tell you about what happened.
After the testimony of the detective, the defendant requested that his attorneys
present no further mitigating evidence nor make a closing argument. The trial court
determined that the defendant was competent to make such a request. No further
mitigating evidence was submitted.
The state’s rebuttal proof consisted of re-calling the daughter of the victim. She
testified that during the 11 years since the homicide, she had never seen any evidence
of remorse from the defendant.
The state made a closing argument. Defense counsel, honoring defendant’s
request, did not.
6
I. SELECTIVE PROSECUTION
Defendant filed a pre-trial motion requesting that the district attorney general
disclose the standards used to determine whether to seek the death penalty in murder
cases. The assistant district attorney general explained that aggravating and
mitigating circumstances were examined and weighed in order to determine whether
to seek the death penalty under particular facts. Defense counsel’s request to put the
assistant district attorney general under oath to testify was denied by the trial court.
Prosecutorial discretion used in selecting candidates for the death penalty does
not result in any constitutional deprivation. Gregg v. Georgia, 428 U.S. 153, 198-99,
96 S.Ct. 2909, 2937, 49 L.Ed. 2d 859 (1976); State v. Brimmer, 876 S.W.2d 75, 86
(Tenn. 1994); State v. Cazes, 875 S.W.2d 253, 268 (Tenn. 1994). This issue is
without merit.
II. RECUSAL OF TRIAL JUDGE
Defendant contends the trial judge should have granted a motion for recusal
since the trial judge was the prosecuting attorney in an earlier robbery case that the
state relied upon as an aggravating circumstance. A motion for recusal based upon
the alleged bias or prejudice of the trial judge addresses itself to the sound discretion
of the trial court and will not be reversed on appeal absent a clear abuse of discretion.
Caruthers v. State, 814 S.W.2d 64, 67 (Tenn. Crim. App. 1991). A motion for recusal
should be granted whenever the judge’s impartiality might reasonably be questioned.
Tenn. Sup. Ct. Rule 10, Code of Judicial Conduct, Canon 3C; State v. Hines, 919
S.W.2d 573, 578 (Tenn. 1995).
The issue of recusal was addressed in the extraordinary appeal in Smith III. We
noted that the record did not establish that the trial judge acted as a lawyer in any
matter “in controversy” and further found no indication of bias. Smith III, 906 S.W.2d
at 12. We found that the disqualification provisions of Article 6, § 11 of the Tennessee
Constitution precluding a judge from presiding “on the trial of any cause... in which he
7
may have been of counsel...” does not apply to prior concluded trials. Id. at 12 (citing
State v. Warner, 649 S.W.2d 580, 581 (Tenn. 1983)). We, nevertheless, concluded
that the issue could be more fully litigated in the direct appeal if the defendant
establishes that the nature of the trial judge’s participation in the earlier prosecution
deprived the defendant of a fair and impartial arbiter. Our review of the record
indicates no further evidence of the nature of the trial judge’s participation in the
underlying charge. Accordingly, this issue is without merit.
III. JURY SELECTION EXPERT
Defendant requested the expert services of a licensed private investigator, two
(2) psychologists, a medical doctor and a jury selection expert. All services were
authorized except the jury selection expert. Defendant challenges this denial.
The decision of whether to authorize expert services lies within the sound
discretion of the trial court. See State v. Cazes, 875 S.W.2d 253, 261 (Tenn. 1994),
cert. denied, ___ U.S. ___, 115 S.Ct. 743, 130 L.Ed.2d 644 (1995); State v. O’Guinn,
709 S.W.2d 561, 568 (Tenn. 1986) cert. denied, 479 U.S. 871, 107 S.Ct. 244, 93
L.Ed.2d 169 (1986). The right to these services exists only upon a showing of a
particularized need. State v. Shepherd, 902 S.W.2d 895, 904 (Tenn. 1995); State v.
Black, 815 S.W.2d 166, 179-80 (Tenn. 1991). “The defendant must show that a
substantial need exists requiring the assistance of state paid supporting services and
that his defense cannot be fully developed without such professional assistance.”
State v. Evans, 838 S.W.2d 185, 192 (Tenn. 1992), cert. denied 510 U.S. 1064, 114
S.Ct. 740, 126 L.Ed.2d 702 (1994).
Our Supreme Court has held that there is no constitutional violation in the denial
of a capital murder defendant’s request for funds for a jury selection expert, absent a
showing of any special need. See State v. Black, 815 S.W.2d at 179-80. There was
no showing of a particularized need for a jury selection expert in the case at bar.
Defense counsel had represented defendant in both of his prior trials and conducted
extensive voir dire in the present case. The trial court did not abuse its discretion in
8
denying funds for a jury selection expert. This issue is without merit.
IV. JURY SELECTION
A. Questionnaire on Life Imprisonment
Defense counsel was allowed to submit an extensive questionnaire to potential
jurors prior to the jury selection process. The trial judge disallowed, however, two (2)
questions asking whether the potential juror believed that a person sentenced to life
would spend the rest of his life in prison, and if not, how many years he/she thought
such a person would serve. One of these questions also asked whether this would
make the potential juror less likely to vote for a life sentence.
The scope and extent of voir dire is entrusted to the discretion of the trial judge
whose actions will not be disturbed absent a clear abuse of discretion. State v. Irick,
762 S.W.2d 121, 125 (Tenn. 1988); State v. Poe, 755 S.W.2d 41, 45 (Tenn. 1988).
Defendant contends more leeway should be allowed in voir dire so as to enable him
to intelligently exercise peremptory challenges. Although we agree with this general
statement, we find no abuse of discretion in this instance. Without the opportunity of
an explanation from counsel or the court as to these questions on the questionnaire,
this could lead to unwarranted speculation as to the meaning of a life sentence. This
issue is without merit.
B. Group Voir Dire
The trial judge denied defendant’s request for individual voir dire on all issues
except pre-trial publicity and views on the death penalty. Defendant cites three (3)
instances during group voir dire when jurors stated they would be unable to follow the
law. He contends he was prejudiced by group voir dire. All of these jurors were
ultimately excused for cause.
The trial court’s authority to question jurors individually is permissive, not
mandatory. State v. Hutchison, 898 S.W.2d 161, 167 (Tenn. 1994), cert. denied 116
S.Ct. 137 (1994). It is only where there is a significant possibility that jurors have been
9
exposed to potentially prejudicial material that individual voir dire is mandated. State
v. Cazes, 875 S.W.2d at 262. Our review of the record does not indicate any prejudice
to the defendant as a result of group voir dire. The three (3) instances related by the
defendant did not result in prejudicial information being imparted to other jurors. This
issue is without merit.
C. Alternating Voir Dire Questioning
Defendant complains that the trial judge erred in not alternating the order of voir
dire between the state and the defense. This issue was rejected in Smith II, 857
S.W.2d at 20. We find no abuse of discretion in allowing the state to proceed first in
voir dire questioning.
D. Sua Sponte Dismissals for Cause
Defendant contends the trial court erred by sua sponte excusing several
prospective jurors for cause. In the instances cited by defendant, each juror had
indicated that he or she could not follow the law. It is clear that each juror’s views
would “prevent or substantially impair the performance of his [her] duties as a juror in
accordance with his [her] instructions and his [her] oath.” Wainwright v. Witt, 469 U.S.
412, 424, 105 S.Ct. 844, 852, 83 L.Ed.2d 841 (1985).
The trial court’s findings on this issue are entitled to a presumption of
correctness since they involve a determination of demeanor and credibility, and the
burden rests on the defendant to establish by clear and convincing evidence that the
trial court’s determinations were erroneous. State v. Alley, 776 S.W.2d 506, 518
(Tenn. 1989). The responses of these jurors gave the judge the “definite impression”
they could not follow the law. Wainwright v. Witt, 469 U.S. at 425-26, 105 S.Ct. at 853.
These jurors met the standard for dismissal. See State v.Hutchison, 898
S.W.2d 161 (Tenn.1994). Furthermore, the argument that defense counsel should be
allowed to rehabilitate such jurors is without merit. State v. Harris, 839 S.W.2d 54, 65
(Tenn. 1992).
E. Failure to Excuse for Cause
Defendant contends the trial judge erred in failing to excuse two (2) potential
jurors who stated they could not consider mitigating evidence. Although both potential
10
jurors initially stated they would have trouble considering certain kinds of mitigating
evidence, the totality of the questions and answers reveals that they could follow the
law in weighing aggravating and mitigating circumstances. The trial court has wide
discretion in ruling on the qualifications of jurors. State v. Howell, 868 S.W.2d 238,
248 (Tenn. 1993). The failure to exclude these two (2) jurors was not an abuse of
discretion.
Furthermore, one of the jurors was excused by defendant’s peremptory
challenge. Neither did the other juror sit on the panel. The defendant exercised only
six (6) peremptory challenges out of the allowed 15 challenges. Therefore, defendant
is entitled to no relief. See State v. Howell, 868 S.W.2d at 248-49.
V. FAILURE TO PRESENT FURTHER MITIGATING PROOF
After the testimony of the investigating detective who read the defendant’s pre-
trial statement to the jury, defense counsel advised the trial judge that the defendant
wanted to waive further mitigating proof. Since this was against the advice of counsel,
the trial judge allowed a recess in which counsel discussed this issue with the
defendant. Upon returning to the courtroom, counsel again stated defendant’s desire
to rest the case and waive final argument. According to counsel, defendant had
considered waiving mitigation proof several months earlier. The trial court questioned
the defendant as to this decision, including the likelihood that the “jury will almost
certainly return with a verdict of death by electrocution.” Defendant, who refused to
communicate directly with the trial judge, acknowledged through counsel that he
understood.
Defense counsel was questioned extensively by the trial judge as to defendant’s
competency. Noting that defendant had been examined by various experts, defense
counsel stated none of the reports indicated that he was incompetent. Both defense
counsel advised the court they had no doubts about defendant’s competency and
ability to make this decision. The trial judge was satisfied that the defendant
understood the ramifications of this decision.
11
Defense counsel then rested the case even though other witnesses were
prepared to testify on behalf of the defendant. Final argument was also waived at the
request of the defendant. Defendant now contends the trial court erred in allowing the
defendant to waive further proof and final argument.1
A. Waiver
Firstly, we note that the issue of the failure to present further mitigating proof
and final argument has been waived. Defendant seeks relief for something he chose
to do. Relief may not be granted to a party responsible for an alleged error or who
failed to take whatever action was reasonably available to prevent or nullify the harmful
effect of the alleged error. Tenn. R. App. P. 36(a); State v. Gregory, 862 S.W.2d 574
(Tenn. Crim. App. 1993). The issue is also waived by the failure to raise it in the
motion for new trial. Tenn. R. App. P. 3(e); State v. Moffett, 729 S.W.2d 679 (Tenn.
Crim. App. 1986). Nonetheless, we will address the issue.
B. Defendant’s Right to Control Defense
Defendant now contends he had no right to control the presentation of his
defense; therefore, it was error for the court to allow defense counsel to follow his
directive to present no further mitigating proof nor make a closing argument.
In death penalty cases, the sentencer may not be precluded from considering
any aspect of a defendant’s character or record as a basis for a sentence less than
death. Lockett v. Ohio, 438 U.S. 586, 604-05, 98 S.Ct. 2954, 2964-65, 57 L.Ed.2d 973
(1978) (plurality opinion); see also Johnson v. Texas, 509 U.S. 350, 361, 113 S.Ct.
2658, 2666, 125 L.Ed.2d 290, reh’g denied, 509 U.S. 941, 114 S.Ct. 15, 125 L.Ed.2d
767 (1993). The United States Supreme Court has held that mitigating evidence is
relevant to sentencing hearings and should be heard. See California v. Brown, 479
U.S. 538, 541, 107 S.Ct. 837, 839, 93 L.Ed.2d 934 (1987); Eddings v. Oklahoma, 455
1
The defendant’s reason for the request to waive further mitigating proof and argument
is not revealed in the record. Arguably, it could be strictly tactical hoping for a life sentence,
or it could be that defendant desired the death penalty. The defendant’s motive is not
determinative of this issue on appeal.
12
U.S. 104, 113-15, 102 S.Ct. 869, 876-77, 71 L.Ed.2d 1 (1982). As a general rule,
counsel should present mitigating evidence. Goad v. State, 938 S.W.2d 363 (Tenn.
1996). However, there is no legal requirement and no established practice that the
accused must offer evidence at the penalty phase of a capital trial. State v. Melson,
772 S.W.2d 417, 421 (Tenn. 1989), cert. denied 493 U.S. 874, 110 S.Ct. 211, 107
L.Ed.2d 164 (1989); see also Darden v. Wainwright, 477 U.S. 168, 184-85, 106 S.Ct.
2464, 2473, 91 L.Ed.2d 144 (1986). In fact, counsel has properly seen fit not to offer
any evidence at the penalty phase in many death penalty cases. State v. Melson, 772
S.W.2d at 421 (citing sixteen cases heard by the Tennessee Supreme Court).
At the heart of the issue in this case is whether counsel should disregard the
client’s desires as to how the defense should be conducted. The purpose of a defense
lawyer is to assist a defendant in making a defense and to represent the defendant
before the court. State v. Franklin, 714 S.W.2d 252, 262 (Tenn. 1986). Although a
client may conduct his or her own defense ultimately to his or her detriment, that
choice must be honored out of “that respect for the individual which is the lifeblood of
the law.” Faretta v. California, 422 U.S. 806, 834, 95 S.Ct. 2525, 2541, 45 L.Ed.2d
562 (1975). We are certainly not suggesting that counsel must honor an illegal or
unethical request from the client. However, the authority to make decisions generally
belongs to the client and, if made within the framework of the law, such decisions are
binding on counsel. Sup. Ct. Rules, Rule 8, Code of Prof. Resp., EC 7-7.
The nature of the attorney-client relationship in a criminal case was addressed
in State v. Ali, 329 N.C. 394, 407 S.E.2d 183 (1991). The court found no constitutional
violation when counsel complied with the wishes of the defendant in accepting a juror
when counsel suggested otherwise. The court found that the attorney-client
relationship is one based upon principles of agency as opposed to guardian and ward.
Ali, 407 S.E.2d at 189; see also People v. Wilkerson, 123 Ill.App.3d 527, 463 N.E.2d
139 (1984).
We likewise find that the attorney-client relationship is primarily one of agency.
If a competent defendant knowingly and voluntarily chooses a lawful course of
conduct, counsel is ordinarily bound by that decision. If the defense is prejudiced
13
because of a defendant’s choice, a defendant should not later be heard to complain
as to the course the defendant chose. State ex rel. Lea v. Brown, 166 Tenn. 669, 64
S.W.2d 841, 848 (1933); Dukes v. State, 578 S.W.2d 659, 665 (Tenn. Crim. App.
1978).
The United States Supreme Court has recognized the right of a mentally
competent defendant to forego appellate review. Demosthenes v. Baal, 495 U.S. 731,
110 S.Ct. 2223, 109 L.Ed.2d 762 (1990); Whitmore v. Arkansas, 495 U.S. 149, 110
S.Ct. 1717, 109 L.Ed.2d 135 (1990); Gilmore v. Utah, 429 U.S. 1012, 97 S.Ct. 436, 50
L.Ed.2d 632 (1976). A competent defendant may, therefore, waive the right to present
certain mitigating evidence. Singleton v. Lockhart, 962 F.2d 1315, 1322 (8th Cir.
1992). Counsel is not ineffective if he or she follows the defendant’s request not to
fight the death penalty. Autry v. McKaskle, 727 F.2d 358 (5th Cir. 1984); Clark v.
State, 613 S.2d 412 (Fla. 1992), cert. denied 114 S.Ct. 114 (1993).
In this case trial counsel received explicit instructions from their client not to
present further mitigating evidence nor make a closing argument. Trial counsel
believed the defendant to be competent as did the trial judge. In view of counsels’ and
the court’s explanations to defendant of the ramifications of his decision, the
competence of the defendant, and his knowing and voluntary request that no further
mitigating evidence nor argument be presented, we find no error committed by the trial
court in allowing the waiver of further mitigating evidence and closing argument.
C. Competency
Defendant contends the trial court erred by failing to conduct a sufficient inquiry
into the defendant’s competency when defendant decided not to present further
mitigating evidence and closing argument.
Firstly, this issue was waived by the failure to request the trial court to do
anything further. Tenn. R. App. P. 36(a); see also State v. Estes, 655 S.W.2d 179,
182 (Tenn. Crim. App. 1983) (holding that the failure of counsel to bring the matter of
competency before the court amounted to a waiver of that issue).
Secondly, there is nothing in the record to indicate that defendant was
incompetent. He had been examined by a clinical psychologist and a psychiatrist
14
before this trial. Counsel indicated there was nothing that would establish
incompetence. The defendant was questioned by the trial judge. Counsel stated
several times that the defendant was now and had always been competent. The trial
judge’s determination that the defendant was competent to make this decision is
supported by the record. This issue is without merit.
D. Reliability of Appellate Review
Defendant contends that meaningful appellate review of death penalty cases
is undermined by the failure to present available mitigating evidence.
After restricting the class of death-eligible offenses, a state must utilize
additional procedures under the Eighth Amendment to the United States Constitution
to assure reliability in the determination that death is the appropriate punishment in a
given capital case. See Woodson v. North Carolina, 428 U.S. 280, 96 S.Ct. 2978, 49
L.Ed.2d 944 (1976). Individualized determinations on the basis of the character of the
individual and the circumstances of the crime must be allowed. Zant v. Stephens, 462
U.S. 862, 103 S.Ct. 2733, 77 L.Ed.2d 235 (1983); State v. Howell, 868 S.W.2d at 256.
A proper narrowing device must differentiate a death penalty case in an objective,
even-handed, and substantially rational way from murder cases in which the death
penalty may not be imposed. State v. Hines, 919 S.W.2d at 583.
Comparative proportionality review by an appellate court is not constitutionally
required in every case in which the death penalty is imposed and the defendant
requests it. Pulley v. Harris, 465 U.S. 37, 104 S.Ct. 871, 79 L.Ed.2d 29 (1984).
However, meaningful appellate review does play a crucial role in ensuring that the
death penalty is not imposed arbitrarily or irrationally. Parker v. Dugger, 498 U.S. 308,
321, 111 S.Ct. 731, 739, 112 L.Ed.2d 812 (1991).
The Tennessee statute creates a comparative proportionality review to serve
as an additional safeguard against arbitrary or capricious sentencing. Tenn. Code
Ann. § 39-2-205 (1982) [presently Tenn. Code Ann.§ 39-13-206)(Supp. 1996)]; State
v. Bush, S.W.2d (Tenn. 1997); State v. Harris, 839 S.W.2d 54, 84 (Tenn.
1992). In addition, Sup. Ct. Rules, Rule 12 requires the submission of a trial judge’s
15
report to be used by the appellate court as an integral part of proportionality review.
See State v. Barber, 753 S.W.2d 659, 663-64 (Tenn. 1988).
Unfortunately, in this case the only way to have gotten further possible
mitigating evidence before the jury would have required counsel to disregard their
client’s emphatic instructions, thereby creating an untenable conflict. This they could
not do. Trial counsel must function as an advocate for the defendant as opposed to
a mere friend of the court. United States v. Cronic, 466 U.S. 648, 104 S.Ct. 2039, 80
L.Ed.2d 657 (1984).
The heightened standard of reliability in death penalty cases does not mandate
or justify forcing an unwilling defendant to present certain mitigating evidence. Wallace
v. State, 893 P.2d 504 (Okla. Crim. 1995), cert. denied 116 S.Ct. 232 (1995). As did
the court in Wallace, we likewise conclude that the Eighth Amendment does not
require the presentation of such proof under these circumstances and does not
prevent an adequate appellate review.2
This issue is without merit.
VI. ADMISSION OF WEBB JUDGMENT OF CONVICTION
The state introduced the judgment showing that the defendant had been found
guilty of the first degree murder of Webb. Defendant contends this judgment was
erroneously relied upon by the state as an aggravating circumstance.
No contemporaneous objection was made to the introduction of this evidence.
The issue is, therefore, waived. Tenn. R. App. P. 36(a); State v. Walker, 910 S.W.2d
381, 386 (Tenn. 1995). We will, nevertheless, address this issue.
This was a re-sentencing hearing only as guilt had already been determined and
2
Noting that it would be inappropriate to require defense counsel to present mitigating
evidence contrary to the wishes of the client and further noting the inappropriateness of the
presentation of such proof by the prosecutor or under the authority of the trial judge, it has been
suggested that the best accommodation of interests would be achieved by appointing an
independent attorney whose specific role is to present mitigating evidence. Linda E. Carter,
Maintaining Systemic Integrity In Capital Cases: The Use of Court-Appointed Counsel to
Present Mitigating Evidence When the Defendant Advocates Death, 55 TENN . L. REV. 95, 147-
49 (1987). We do not find that such is required by the United States Constitution or the
Tennessee Constitution.
16
affirmed on the previous appeal. The state was entitled to show to the jury that the
defendant had in fact been convicted of the first degree murder for which the jury was
to determine the sentence.
Defendant’s primary argument is that the state was improperly allowed to use
this first degree murder conviction as an aggravating circumstance in the same case.
The state relied upon one (1) aggravating circumstance; namely, the defendant was
previously convicted of one (1) or more felonies, other than the present charge, whose
statutory elements involved the use or threat of violence to the person. Tenn. Code
Ann. § 39-2-203(i)(2) (1982) (emphasis added). Obviously, the state could not rely
upon the present conviction as one of the previous violent felony convictions.
However, our reading of the record does not indicate that the state relied upon
this conviction as one of the prior violent felonies. From voir dire through final
argument the state contended that the defendant had been convicted of three (3)
prior felony offenses involving violence or the threat of violence; namely, two (2)
robberies and the first degree murder of Pierce. The trial judge further instructed the
jury that the state alleged the defendant had been previously convicted of murder in
the first degree and two (2) robberies. The trial court was obviously referring to the
Pierce first degree murder conviction which had been made an exhibit. This issue is
without merit.
VII. PRIOR VIOLENT FELONIES
As previously stated, the prosecution relied upon the prior violent felonies
aggravating circumstance. Tenn. Code Ann. § 39-2-203(i)(2) (1982), the statute in
effect at the time of this crime, defined this aggravating circumstance as follows:
The defendant was previously convicted of one (1) or more
felonies, other than the present charge, which involved the
use or threat of violence to the person.
Defendant contends the state was erroneously allowed to introduce evidence in
support of this aggravating circumstance.
A. Pierce Judgment
17
Defendant argues that the introduction of his conviction and redacted Order of
Judgment for the first degree murder of Pierce was erroneously allowed as evidence.
Smith I condemned the use of defendant’s life sentence in the Pierce case as
evidence in the Webb case. 755 S.W.2d at 767-69. Upon re-trial the state again
failed to observe the warning in Smith I and related to the jury that the defendant had
received a life sentence for the Pierce murder. On appeal in Smith II the Court again
condemned this evidence and remanded for a new sentencing hearing. 857 S.W.2d
at 25. Both Smith I, 755 S.W.2d at 769, and Smith II, 857 S.W.2d at 25, recognized
the sentencing relevance of the Pierce conviction but not the Pierce life sentence.
The trial judge conducted an extensive jury-out hearing and redacted the Pierce
judgment omitting any reference to the sentence. Upon being asked if there were any
objections to the redactions, defense counsel made no objection. The issue is,
therefore, waived. Tenn. R. App. P. 36(a); State v. Walker, 910 S.W.2d at 386.
Furthermore, the jury was specifically instructed by the trial judge not to speculate as
to the significance of any redactions. The jury is presumed to have followed the
instructions of the court. State v. Woods, 806 S.W.2d 205, 211 (Tenn. Crim. App.
1990).
The admission of the redacted judgment showing the conviction but not the
sentence is in compliance with the dictates of Smith I and Smith II. This issue is
without merit.
B. Direct Participation in Violence
Defendant contends that he did not directly participate in the use of violence in
the Pierce murder as a co-defendant was the person who actually fired the shot that
killed Pierce. He argues that direct participation is necessary to trigger this homicide
as a prior violent felony. This issue was decided contrary to defendant’s argument in
Smith II, 857 S.W.2d at 10. See also State v. Teague, 680 S.W.2d 785, 789 (Tenn.
1984). This issue is without merit.
C. Introduction of Indictment
Defendant contends the trial court erred in allowing the introduction of an armed
robbery indictment since the judgment of conviction was only for simple robbery. This
18
issue has also been determined contrary to defendant’s argument in both Smith I, 755
S.W.2d at 764, and Smith II, 857 S.W.2d at 20. This issue is without merit.
VIII. VICTIM IMPACT TESTIMONY
The daughter of the victim testified briefly at the hearing. She related that her
parents operated this country store for many years. She stated her mother was 59
years of age at the time of her death, that her father was never able to work again after
his wife was killed, and that her family had to live with this murder every day. When
the detective as a defense witness read the defendant’s pre-trial statement
acknowledging sorrow for what had happened, the victim’s daughter testified in rebuttal
that defendant had never exhibited remorse. Defendant contends this victim impact
testimony was erroneously admitted.
In State v. Payne, 791 S.W.2d 10, 18 (Tenn. 1990), our Supreme Court held
that, while this kind of evidence might be “technically irrelevant,” the evidence is
admissible relating to the defendant’s personal responsibility and moral guilt. This
ruling was affirmed by the United States Supreme Court when it held that there is no
per se Eighth Amendment bar to such evidence. Payne v. Tennessee, 501 U.S. 808,
111 S.Ct. 2597, 115 L.Ed.2d 720 (1991). More recently, the Tennessee Supreme
Court announced its adherence to the admissibility of such evidence finding no
violation of the Tennessee Constitution. State v. Brimmer, 876 S.W.2d 75, 86 (Tenn.
1994). The issue regarding victim impact testimony was raised in Smith II, and the
Tennessee Supreme Court determined such testimony to be admissible. 857 S.W.2d
at 14. The trial judge relied upon this holding in admitting the testimony.
Even accepting these decisions, the defendant contends these cases do not
authorize victim impact testimony when such is not authorized under state law.
Specifically, defendant contends that victim impact testimony is not recognized as an
aggravating circumstance under our law.
19
It is undisputed that victim impact is not listed as a statutory aggravating
circumstance. Tenn. Code Ann. § 39-2-203(i) (1982) [presently Tenn. Code Ann. § 39-
13-204(i)(Supp.1996)]. However, the only “victim impact” testimony was given by the
daughter and was extremely brief. The reference to victim impact in the state’s final
argument was also very brief. If there was error, it was harmless beyond a reasonable
doubt. Tenn. R. App. P. 36(b). 3
IX. PROSECUTORIAL MISCONDUCT
Defendant contends that prosecutorial misconduct undermined his rights to a
fair trial and a reliable sentencing determination. No contemporaneous objection was
made to any of the alleged improper arguments. The issue is waived. Tenn. R. App.
P. 36(a); State v. Keen, 926 S.W.2d 727, 736 (Tenn. 1994). Nevertheless, we will
address these issues.
A. Intentional Murder
Defendant contends the prosecutor improperly argued to the jury that the
homicide was intentional as opposed to being accidental. Our review of the argument
does not substantiate this claim. The prosecutor merely related the facts and
circumstances surrounding the murder and stated the barrel of the gun “ended up in
her nose, and that’s where Leonard Smith pulled the trigger.” This argument was not
improper.
B. Victim Impact
Defendant contends the prosecutor improperly argued victim impact to the jury.
As previously stated, the alleged victim impact argument was extremely limited. The
prosecutor simply related that the victim and her husband had run a country store for
some 40 years, the husband was elderly and in failing health, and the victim was 59
3
We are mindful that other panels of this court have found error in the admission of
victim impact testimony. State v. Clarence C. Nesbit, C.C.A. No. 02C01-9510-CR-00293
(Tenn. Crim. App. filed Apr. 22, 1997, at Jackson); State v. Perry A. Cribbs, C.C.A. No. 02C01-
9508-CR-00211 (Tenn. Crim. App. filed Feb. 14, 1997, at Jackson); State v. Antonio M. Byrd,
C.C.A. No. 02C01-9508-CR-00232 (Tenn. Crim. App. filed Dec. 30, 1996, at Jackson).
However, harmless error was found in each case.
20
years of age. The prosecutor further stated that the homicide greatly affected the
family and “won’t go away.” If there was error, at most it was harmless. Tenn. R. App.
P. 36(b).
C. Deterrence
Defendant contends the prosecutor unlawfully argued the need for deterrence.
Any argument based upon general deterrence is improper. State v. Irick, 762 S.W.2d
121, 131 (Tenn. 1988); Smith II, 857 S.W.2d at 13.
The questioned argument was actually an explanation as to why felony murder
was a first degree murder, the most serious offense under our law. The prosecutor
stated that without felony murder, there would be no protection for those victimized by
someone like the defendant and his co-defendant. We do not view this as a
deterrence argument. This issue is without merit.
D. Webb Conviction
Defendant contends the prosecutor improperly argued that the present
conviction was a prior violent felony which the jury could consider as an aggravating
circumstance. The prosecutor clearly argued to the jury that the exhibit representing
the present conviction was the offense for which the jury was now going to be required
to sentence the defendant to either life imprisonment or death. He reviewed the other
three (3) judgments as those to be relied upon for prior felony convictions. The
prosecutor did not argue that the present conviction could be considered as an
aggravating circumstance. This issue is without merit.
X. JURY INSTRUCTIONS
Defendant contends the trial court erred in failing to instruct the jury on specific
non-statutory mitigating circumstances. Further, the defendant contends the trial court
erred in refusing to instruct the jury to presume that a sentence to life imprisonment
meant the defendant would spend the rest of his life in prison, whereas a sentence to
death would presume death by electrocution.
A. Non-Statutory Mitigating Circumstances
21
Defendant requested that the trial court give special jury instructions listing four
non-statutory mitigating circumstances. The trial court declined to do so. Defendant
contends this is reversible error under State v. Odom, 928 S.W.2d 18, 30 (Tenn.
1996).
The present offense was committed prior to November 1, 1989; therefore,
sentencing for this capital offense is governed by the statutory law in effect on the date
of the commission of the offense. State v. Hutchison, 898 S.W.2d 161, 174 (Tenn.
1994), cert. denied 116 S.Ct. 137 (1995). At the time of the commission of this
offense, the statute did not require that the jury be instructed as to non-statutory
mitigating circumstances. Tenn. Code Ann. § 39-2-203(e)(1982); State v. Hartman,
703 S.W.2d 106, 118 (Tenn. 1985).
State v. Odom required the jury to be instructed on non-statutory mitigating
circumstances when raised by the evidence and specifically requested by either the
state or the defendant. 928 S.W.2d at 30. However, Odom was based upon the
requirements of the new statute, Tenn. Code Ann. § 39-13-204(e)(1991). Odom
specifically recognized that neither the United States Constitution nor the Tennessee
Constitution required the submission of non-statutory mitigating circumstances to the
jury. 928 S.W.2d at 30 (citing State v. Hutchison, 898 S.W.2d at 173-74). We,
therefore, conclude that the trial judge did not err in refusing to charge non-statutory
mitigating circumstances as was allowable under the statute in effect on the date of the
commission of the offense.
B. After-Effect of Verdict
Defendant requested that the jury be instructed that they were to presume that
if the defendant were sentenced to life imprisonment, he would spend the rest of his
life in prison; and that if he were sentenced to death, he would be executed by
electrocution. Alternatively, the defendant requested that the jury be instructed that
a sentence of life imprisonment meant the defendant would remain in prison for the
rest of his life, and that a sentence of death meant that the defendant would be
executed by electrocution. These requests were rejected by the trial court. Our
Supreme Court has recently ruled that the jury need not be given information about
22
parole availability. State v. Bush, S.W.2d (1997). Likewise, a trial court does
not err by refusing to instruct jurors that they should presume that the sentence they
assess will actually be carried out. State v. Caughron, 855 S.W.2d 526, 543 (Tenn.
1993); see also Smith II, 857 S.W.2d at 11. This issue is without merit.
XI. TAKING EXHIBITS TO JURY ROOM
Defendant contends the trial court erred in allowing the jury to take the exhibits
with them to the jury room for use in deliberations. More specifically, defendant
contends he was prejudiced by the redactions on the Pierce and Webb convictions.
Tenn. R. Crim. P. 30.1 was in effect at the time of trial. This rule provides that
the jury shall take to the jury room all exhibits that were received in evidence unless
the Court, for good cause, determines otherwise. Defendant’s contention that the jury
would engage in undue speculation due to the redactions on the Pierce and Webb
convictions is without merit. As previously noted, the jury had been specifically
instructed not to speculate concerning these matters. There was no abuse of
discretion in allowing the jury to take these exhibits to the jury room pursuant to Tenn.
R. Crim. P. 30.1.
XII. CONSTITUTIONALITY OF DEATH PENALTY
Defendant contends the Tennessee death penalty statutes are unconstitutional
in the following respects:
(1) the statutes fail to meaningfully narrow the class
of death eligible defendants;
(2) the statutes allow the death penalty to be imposed
capriciously and arbitrarily;
(3) electrocution constitutes cruel and unusual
punishment; and
(4) the appellate review process in death penalty
cases is constitutionally inadequate.
23
Each of these contentions has been rejected by our Supreme Court. State v. Keen,
926 S.W.2d at 741-44. This issue is without merit.
XIII. PROPORTIONALITY REVIEW
Pursuant to Tenn. Code Ann. § 39-2-205(c) (1982) [presently Tenn. Code Ann.
§39-13-206(c)(1)(Supp.1996)], we have reviewed the sentence of death for this felony
murder. The sentence was not imposed in an arbitrary fashion, and the evidence
clearly supports the jury’s finding of the statutory aggravating circumstance relating to
the conviction of three (3) prior violent felonies. The evidence further clearly supports
the jury’s finding that this statutory aggravating circumstance outweighs any mitigating
circumstances. We have further conducted a proportionality review as required by
State v. Barber, 753 S.W.2d 659, 663-68 (Tenn.1988). 4 The sentence is neither
excessive nor disproportionate to death sentences imposed in similar cases. See
State v. Howell, 868 S.W.2d 238 (Tenn. 1993); State v. Boyd, 797 S.W.2d 589 (Tenn.
1990); State v. Johnson, 762 S.W.2d 110 (Tenn. 1988); State v. Bobo, 727 S.W.2d
945 (Tenn. 1987); State v. Goad, 707 S.W.2d 846 (Tenn. 1986); State v. Johnson, 698
S.W.2d 631 (Tenn. 1985); State v. King, 694 S.W.2d 941 (Tenn. 1985); State v.
McKay, 680 S.W.2d 447 (Tenn. 1984); State v. Harries, 657 S.W.2d 414 (Tenn. 1983);
State v. Simon, 635 S.W.2d 498 (Tenn. 1982); State v. Coleman, 619 S.W.2d 112
(Tenn. 1981).
We find no reversible error; therefore, the judgment of the trial court is
AFFIRMED.5
JOE G. RILEY, JUDGE
4
Although there is no Tennessee Supreme Court Rule 12 report by the trial judge filed
in the record, we have examined the reports filed after both prior trials of this case. The absence
of a new report does not prevent adequate proportionality review. See State v. Smith, 893
S.W.2d 908, 927 (Tenn. 1994).
5
No execution date is set since this case will be automatically reviewed by the
Tennessee Supreme Court. Tenn. Code Ann. § 39-13-206(a)(1). If the death sentence is
affirmed, that Court will set the execution date.
24
CONCUR:
JERRY L. SMITH, JUDGE
CHRIS CRAFT, SPECIAL JUDGE
25
State v. Smith
Combined Opinion