[Deathpenalty] death penalty news-----ALA., TENN.
rhalperi at mail.smu.edu
Fri Apr 27 14:41:04 UTC 2007
Alabama's blood-stained hands
Alabama's death row inmates are not indisputably innocent, unlike the 31
people killed on Monday by Cho Seung-Hui on the Virginia Tech campus. The
inmates have been convicted of capital crimes.
But not being indisputably innocent doesn't automatically equate to guilt.
Take the case of Walter McMillian, who was on our state's death row for
almost 6 years before he was released from prison in 1993. The Alabama
Court of Criminal Appeals concluded that evidence of his innocence had
been hidden by the sheriff of Monroe County and other officials.
McMillian's capital murder conviction was overturned and the charges
against him were dismissed.
Justice was served, but at least six years late. Meanwhile, McMillian had
to live with a ticking clock in his head, each passing second pushing him
one step closer to death.
Were it not for the Court of Criminal Appeals, the state would have
murdered an innocent man - which would have made Alabama as much a
murderer than Seung-Hui was.
Since 1975, Alabama has executed 35 convicts. During the same 32 years,
seven convicts - McMillian, Gary Drinkard, Louis Griffin, Randall Padgett,
Wesley Quick, James Cochran and Charles Bufford - were ultimately
acquitted of capital murder.
The state unjustly had sentenced them to die.
"The trials that led to some of these convictions are incredibly
unreliable," said Bryan Stevenson, the executive director of the Equal
Justice Initiative, a non-profit organization that provides poor
defendants and prisoners with lawyers. "In most of these cases, the
lawyers called no witnesses, presented no defense."
Most on death row don't have the money to pay high-priced lawyers. They
have had to rely on state-appointed attorneys to represent them who, by
law, can't be paid more than $1,000 for their out-of-court time, severely
limiting their ability to give their clients a vigorous defense.
No vigorous defense means no fair trial - and in capital cases, that can
mean certain death.
So what, you might say. If they don't want to be on Death Row, they
shouldn't have committed a capital crime.
But what if they didn't? What if, like Drinkard, Griffin, Padgett, Quick,
Cochran and Bufford, they should never have been facing capital charges?
What if, like McMillian, some of them are actually innocent of committing
any crime at all?
Then they had better be fortunate enough to have money, or to have
Stevenson or some other lawyer who can work on their behalf at no cost to
them. Otherwise, Alabama will be financing their deaths.
This is why it's so important that the U.S. Supreme Court gives serious
consideration to Barbour vs. Haley, the case brought against the state by
Alabama death row inmates.
"We are arguing that in the United States, there ought to be a right to
counsel for death row inmates," said Stevenson, who is representing the
inmates in the case. "Alabama is the only state that continues to refuse
counsel to death row inmates for conviction appeals."
With a 1-to-7 rate of capital cases being overturned in Alabama over the
past 32 years, why would Alabama officials want to risk staining their
hands with innocent blood?
Yet, the state has argued to the Supreme Court that inmates have no
constitutional right to legal counsel paid for by the state.
The lack of a constitutional right doesn't prohibit the state from
providing the lawyers. In fact, I'm surprised that in this Bible Belt
state, in which politicians love to put their piety on parade, that no
state official is taking the just, righteous position that a person
convicted to die needs to be given every opportunity to prove his
"If I get hit by a car tomorrow, dozens of people on death row will have
no legal representation," Stevenson said. "We (Equal Justice Initiative)
can not continue to meet all of these needs. We get no state funding. We
get no federal funding."
He added, "The states wants a death penalty. The law ought to be that if
you're going to have a death penalty, it's applied fairly."
Is that really too much to ask?
(source: The Huntsville Times, April 20)
Appeals Court Sets Aside Death Penalty In McMinn County Case
The Tennessee Court of Criminal Appeals has reversed a death penalty
sentence for a McMinn County man.
The appeals court upheld the conviction of Ricky Thompson for killing his
wife, but changed his sentence to life in prison.
His original conviction was in 1991, but he later was given a new trial.
Here is the full opinion:
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT KNOXVILLE
July 26, 2006 Session
STATE OF TENNESSEE v. RICKY THOMPSON
Direct Appeal from the Circuit Court for McMinn County Nos. 89-705, -06,
-07 Jon Kerry Blackwood, Judge
No. E2005-01790-CCA-R3-DD - Filed April 25, 2007
The Defendant, Ricky Thompson, was convicted of first degree murder, and
he was sentenced to death. On appeal, he contends that: (1) his due
process rights were violated because he was incompetent to stand trial and
the trial court failed to hold a competency hearing; (2) his right to
self-representation was denied; (3) the evidence is insufficient to
establish the elements of premeditation and deliberation; (4) the trial
court erred when it instructed the jury on the definition of reasonable
doubt; (5) the trial court erred when it instructed the jury about the
burden of proving the Defendants mental state at the time of the offense;
(6) the trial court erred when it instructed the jury on the definition of
premeditation and when it instructed the jury to consider whether the
Defendant was guilty of the greater charged offense before considering any
lesser-included offenses; (7) the trial court erred when it admitted the
victim's younger brother's testimony because it violated the
constitutional guarantees to due process and against cruel and unusual
punishment; (8) the evidence is insufficient to support the aggravating
circumstance that the Defendant knowingly created a great risk of death to
2 or more persons other than the victim during the murder and that this
aggravating circumstance is unconstitutionally overbroad; (9) the evidence
is insufficient to support the aggravating circumstance that the murder
was especially heinous, atrocious, or cruel in that it involved torture or
depravity of mind and that this aggravating circumstance is
unconstitutionally vague and overbroad; and (10) the death penalty was
arbitrarily imposed and is disproportionate to the penalty imposed in
similar cases. After throughly reviewing the record, briefs, and
applicable law, we affirm the Defendant's conviction but modify the
Defendants sentence of death to reflect a sentence of life imprisonment.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court
Affirmed as Modified
Robert W. Wedemeyer, J., delivered the opinion of the court as to Part I,
in which David G. Hayes and J.C. McLin, JJ., joined. David G. Hayes, J.,
delivered the opinion of the court as to Part II, in which J.C. McLin, J.,
joined; Robert W. Wedemeyer, J., dissented as to Part II.
Brock Mehler, Nashville, Tennessee (on appeal) and Charles M. Corn,
Athens, Tennessee (at trial and on appeal), and Randy G. Rogers and Lee E.
Ledbetter, Athens, Tennessee (at trial) for the appellant, Ricky Thompson.
Robert E. Cooper, Jr., Attorney General and Reporter; Michael E. Moore,
Solicitor General; Mark E. Davidson, Assistant Attorney General; Jerry N.
Estes, District Attorney General, for the appellee, State of Tennessee.
A. Procedural History and Facts
I. Procedural History
In 1991, a McMinn County jury convicted the Defendant of first degree
murder, aggravated assault, and arson. The jury imposed a sentence of
death for the murder conviction, and the trial court imposed sentences of
six years and four years, respectively, for the aggravated assault and
arson convictions. On appeal, in 1996, this Court reversed the convictions
and remanded for a new trial. See State v. Ricky Thompson, No.
03C01-9406-CR-00198, 1996 WL 30252 (Tenn. Crim. App., at Knoxville, Jan.
24, 1996), perm. app. denied (Tenn. July 1, 1996) (concurring in the
In June 1998, the Defendant was found incompetent to stand trial. In April
1999, a different trial judge determined that the Defendant had become
competent. In June 2000, the Defendant was tried, and the jury again
convicted him of first degree murder, aggravated assault, and arson. The
jury found that two aggravating circumstances applied and that those
circumstances outweighed any mitigating circumstances beyond a reasonable
doubt. Based upon this finding, this second jury again sentenced the
Defendant to death for the murder conviction.
The Defendant filed a motion for new trial and/or judgment of acquittal,
and, on October 15, 2003, the trial court modified the jurys verdict to
not guilty by reason of insanity. On appeal by the State, this Court
concluded that the evidence was legally sufficient to support the jurys
verdict. See State v. Ricky Thompson, No. E2002-02631-CCA-R3-CD, 2003 WL
22018899 (Tenn. Crim. App., at Knoxville, Aug. 27, 2003), perm. app.
granted (Tenn. Feb. 2, 2004). We reversed the judgment of the trial court,
reinstated the jurys guilty verdicts and sentence of death for the murder
conviction, and remanded the case for consideration of the remaining
issues presented in the Defendants motion for new trial and for sentencing
on the aggravated assault and arson convictions. The Tennessee Supreme
Court affirmed this Courts judgment. See State v. Thompson, 151 S.W.3d 434
On remand, the trial court heard the motion for new trial on June 23,
2005. The trial court sentenced the Defendant to three years each for the
aggravated assault and arson convictions, and it ordered that the
sentences should be served consecutively to each other and to the death
sentence. On July 5, 2005, the trial court denied the Defendants motion
for new trial, and it is from that judgment that the Defendant now
II. Pretrial Competency Hearings
a. June 1998 Competency Hearing
At the conclusion of pre-trial motions hearings in February 1998, the
trial court, Judge Charles Lee, on its own motion ordered that the
Defendants competency to stand trial and ability to consult with counsel
be evaluated. Following the evaluation, a competency hearing was held in
June 1998. At the outset of the hearing, Judge Lee noted that the report
received from the Middle Tennessee Mental Health Institute (MTMHI)
indicated that, in the opinion of the evaluators, the Defendant was not
competent to consult with counsel at this time but that the Defendant did
not meet the criteria for judicial commitment. Judge Lee noted the
agreement of the parties that the Defendant was incompetent and stated
that the purpose of the hearing was to determine "what now to do with the
[D]efendant upon that finding."
Two experts testified on behalf of the State: Dr. Samuel Craddock, MTMHI
staff psychologist, and Dr. Royeka Farooque, MTMHI staff psychiatrist. Dr.
Craddock testified that the Defendant was evaluated over a twenty-four day
period in April 1998, during which time he was interviewed and underwent
psychiatric testing. The doctors also received reports of the Defendants
behavior from MTMHI staff. Following their evaluation, the doctors
concluded that the Defendant was not competent to stand trial. Dr.
Craddock testified, [W]e felt as though he was substantially depressed;
suspicious of his attorneys and the judicial system; and that he would not
be able to work effectively to achieve the best possible outcome for
himself. Dr. Craddock said that this conclusion was based on the
Defendant's state of mind and the doctors view that the Defendants
impressions of his attorneys had no basis or justification in reality. Dr.
Craddock and Dr. Farooque concluded that the Defendant did not meet the
standards for being committed for treatment because he was not a danger to
himself or others. This conclusion was based mostly on observations of the
Defendants behavior while he resided at MTMHI. The doctors felt that the
Defendants emotions affected his competence but not to the point that he
could be committed. Dr. Craddock said it would be difficult to guess how
the Defendant would function outside of a structured living environment,
but he believed it was likely that the Defendant would resume abusing
alcohol and drugs. Dr. Craddock said that the doctors concluded that the
Defendants unfitness might be a short-term condition and that the
Defendant could achieve competence with proper medication. The doctor saw
no reason why the medications could not be administered while the
Defendant was in the custody of the Department of Correction.
Dr. Craddock further testified that the evaluation showed that the
Defendant had an intelligence quotient of 88, which is slightly below
average, and a seventh grade reasoning level. The doctor attempted to
administer the Minnesota Multiphasic Personality Inventory (MMPI)
assessment, but the results were not valid because the Defendant refused
to answer multiple questions, including questions regarding his family
background. Dr. Craddock said the Personal Assessment Inventory ("PAI")
indicated that the Defendant had features of depression, anxiety, and
schizophrenia, as well as paranoia and a history of alcohol use. A third
personality assessment tool, the Malone Test, showed that the Defendant
had features of depressive, dependent schizotypal and borderline
personalty disorders. Dr. Craddock noted that, at times, the Defendant
refused medications, tests, and meals while being evaluated. He said that
the Defendant stopped taking his medication after voicing his suspicion
that he was being poisoned by the MTMHI staff, and the Defendant also
stated his belief that the staff, the judge, and the attorneys wanted to
steal from him. Dr. Craddock agreed that the staff had characterized the
Defendant as demanding and manipulative, and they noted several incidents
when the Defendant became very angry and would fly off. Dr. Craddock said
the Defendant would sometimes laugh inappropriately after behaving
inappropriately. He believed that the Defendants behavior was the result
of extremely poor judgment and not an effort to appear mentally ill. In
response to the trial courts questions, Dr. Craddock said that the
Defendant could be treated at MTMHI or in the Department of Correction
Special Needs Facility to restore his competency.
Dr. Rokeya Farooque, a forensic psychiatrist at MTMHI, testified that the
Defendant was diagnosed with depressive disorder, a "[v]ery minor form of
mental illness," as a result of which he was adjudged not competent to
stand trial, to assist his attorneys, or to represent himself. The
problematic behaviors she observed did not come from a major depressive
disorder or other mental illness but were the result of his personality
disorder, which was the reason that the Defendant did not need to be
committed for psychiatric treatment. Dr. Farooque opined that the
Defendant was not schizophrenic, which she described as a major mental
illness," rather she diagnosed the Defendant with "schizotypal
personality," a personality disorder involving "inflexible maladaptive
behaviors" in dealing with oneself or others over a long period of time.
Dr. Farooque said that it was very rare for a patient, such as the
Defendant, who was charged with a serious crime to have his behavior
attributed to any kind of seizure disorder, but she always tried to rule
this out in the beginning of her assessment with a scan of the patients
head. She said that, although there was no physical indication that the
Defendant needed a neurological evaluation, she tried to conduct a scan
everyday, and the Defendant refused. Dr. Farooque said that she believed
the Defendant had a chance to become competent with antidepressant
medication and support counseling and therapy. She said that the
Defendants pessimistic outlook about his lawyers and a trial were the
result of depression and anxiety that could be treated with medication.
However, she said that medication could not be used to correct the
Defendants personality disorder that caused his self-defeating behavior.
Dr. Larry Southard, MTMHI Director of Forensic Services, testified that
the Defendant could be treated in the Special Needs Facility of the
Department of Correction with medication and continuing assessment by
clinical professionals and that this would be preferable to treatment at a
county jail. He believed, however, that the best treatment could be
provided in a Department of Mental Health facility. At the conclusion of
the hearing, the trial court ordered that the Defendant should be held for
safekeeping to detain him and to restore his competency in the most
expeditious manner possible. The court ordered the Department of Mental
Health to provide consultative services to the Department of Correction
and to provide periodic evaluations to the court. At the conclusion of the
hearing, the Defendant stated that he would refuse to go to the Special
Needs Facility for treatment. The trial court stated that it would
investigate the possibility of forcing the Defendant to be medicated.
b. April 1999 Competency Hearing
A second competency hearing was held in April 1999 before Judge John Byars
at the DeBerry Special Needs Facility where the Defendant had been housed.
Dr. Farooque testified that the Defendant was evaluated for the second
time on February 22, 1999, and, following the evaluation, she and the
other two evaluators concluded that the Defendant was competent to stand
trial at that time. Dr. Farooque said that the Defendant was "appropriate"
and "alert," and, although his logic was poor, the Defendant was able to
answer all their questions. She saw no signs or symptoms that the
Defendant was depressed. She said the Defendant understood the court
procedures, the seriousness of the charges against him, and the sentencing
options if he was convicted. Further, the Defendant felt his attorneys
needed to listen to his input about his case, but, in her opinion, the
Defendant "need[ed] to understand that his lawyer has the best knowledge
how to prepare his defense." The evaluators did not believe that "there is
any mental illness that he is having at the present time that is going to
impair his ability to confer with his lawyers. When the Defendant was
previously found incompetent, he showed signs of depression and was
agitated, demanding, and manipulative. The doctors at that time felt the
Defendant was not "putting his best effort forward to help himself and
needed treatment. While in the prison system, the Defendant was no longer
in a depressed condition despite the fact that he had stopped taking the
medication that had been prescribed for him. She said that the Defendant's
mental condition in February 1999 was much improved from the time of his
earlier in-patient evaluation when he was wholly focused on wanting to
represent himself and "wasn't looking at all the issues."
On further examination, Dr. Farooque said that, although the earlier
evaluation took place over twenty-four days and the most recent evaluation
lasted about forty-five minutes, she was able to perform a clinical
assessment of the Defendant by talking with him. She said that the
Defendants personality disorder, his "inflexible way" of dealing with his
environment, would never change and his manipulative behaviors were not
likely to change dramatically. She said that the Defendants psychiatric
diagnosis did change, and the doctors no longer saw symptoms of
depression. Dr. Farooque said that when she met with the Defendant and his
doctor at the special needs facility the Defendant's doctor said that he
did not believe the Defendant needed medications other than an
anti-depressant. She said that the Defendant told her he stopped taking
the anti-depressant because he said it "made him shake . . . ." Dr.
Farooque received a letter from the Defendant the day before the
competency hearing in which he said he was "very sad" after reading the
April, 1999, evaluation report and that he was not trying to delay his
trial. She said the Defendant also wrote that his attorneys and the
doctors were all out to get him and that he thought it was "rather funny"
that he could "make you all kill me, and I know you all want me to kill
myself." Dr. Farooque said that the evaluators were led to conclude that
the Defendant might be trying to delay his trial because they saw no
evidence of any mental illness when he was insistent on firing his lawyers
and said that the lawyers and the prosecutors were all the same. Dr.
Farooque said it seemed to her that the Defendant knew that people would
say he did not understand what was happening when he made such comments
and that she and the other doctors believed "that maybe he is trying to
manipulate again the system like he manipulated in the hospital . . . ."
Dr. Craddock testified that, following the Defendants February, 1999,
evaluation, he felt that the Defendant was competent to stand trial. He
said that after a thirty-minute meeting with the Defendant he was of the
opinion that there was no mental illness impairing the Defendants ability
to work with his counsel. Dr. Craddock said that he had felt the Defendant
had always had "a full understanding of the charges against him and his
legal situation." Further, the doctor said that, "after giving [the
Defendant] the benefit of the doubt for a number of months," he believed
that the Defendant's "expressed beliefs were not delusional or the product
of a mental illness but more an obstinance and a desire to proceed the way
that he wanted to versus the way his attorneys were recommending . . . ."
Although he felt the Defendant was not competent after his first
evaluation, the doctors did not know at that time whether the Defendant
was incompetent because of mental illness or for some other reason. When
he initially found the Defendant incompetent, it was because he "wanted to
err on the side of caution." After the second evaluation, he felt the
Defendants reasoning ability and judgment were improved.
Dr. Craddock further testified that the Defendant at times was inclined to
sabotage himself and recommended another competency evaluation if the
start of his trial was delayed for several months. He noted that the
Defendant's history of mental illness and his need for medication varied.
Dr. Craddock said that it was "very conceivable" that a depressed person
could get better without treatment from one year to the next. Further, he
said that the Defendant did not perform well in understanding cause and
effect relationships, and he felt that the Defendants counsel would have
to spend an "above-average amount of time" helping the Defendant
understand and prepare for the consequences of his legal decisions. He
believed that the Defendant could assist his attorneys in preparing his
case and could weigh his options with counsels assistance, but the
Defendant was unable to think of all the possibilities on his own. Dr.
Craddock could not say whether the Defendant would retaliate in some way
if he did not get his way in making decisions about his case. He said some
people thought if they "acted out" it might be to their advantage in the
long run, such as obtaining a new trial, but he did not know the
Defendants motives. Dr. Craddock said that he believed the Defendant was
capable of understanding and making an assessment about whether, for
example, to plead guilty. He said that the Defendant was capable of
appreciating his legal situation but might act in a self-defeating manner,
although this was not necessarily indicative of mental incompetence. Dr.
Craddocks impression was that the Defendant might be trying to delay his
trial because he felt that the Defendant was "grasping at reasons why his
relationship with his attorneys was not adequate to proceed to trial."
The Defendant testified that he was not trying to use the mental
evaluations to delay his trial. He said that he would disagree with any
lawyer who told him that certain testimony was not admissible because it
was hearsay. Further, he did not like the rule that allowed doctors who
had treated him since his childhood to send their records but not appear
in person at trial. He said he would want the doctors to testify in person
and tell the truth, even if their testimony hurt his case. The Defendant
did not care about having a sentencing phase if he was convicted of
murder. He said that he understood the charges, the maximum sentence he
faced if convicted, and the role of the prosecutors, defense counsel, the
judge and the jury. He "guessed" he would tell his attorneys if a witness
lied while testifying, but his attorneys had told him that lying did not
matter. He agreed that he gave his attorneys a lot of advice that they did
not always take. The Defendant told the prosecutor, "I might as well sit
with you when we go to court."The Defendant said that he was dissatisfied
with his counsel because they refused to file his motions, and he did not
believe it was premature to file them even though Judge Lee had ruled
earlier that he would not entertain any motions unless and until the
Defendants competency had been restored.
At the conclusion of the hearing, the trial court found the Defendant
competent to advise his attorneys and to stand trial.
III. Proof at Guilt Phase
As summarized in our Supreme Courts opinion affirming this Court's
judgment reinstating the jury's guilty verdicts, the following proof was
adduced in the guilt phase of the Defendants June 2000 trial:
The Events of October 25-26, 1989.
In the days before the events in question, victim Nina Thompson confided
to Vickie Lynn Estelle, her supervisor at the Jiffy convenience store in
Athens, Tennessee, that she and her husband, the [D]efendant, were having
marital problems. The victim said that she was considering leaving him. On
the evening of October 25, 1989, the victim asked Bryan Kevin Helms, a
co-worker arriving to relieve her at the end of her shift, to cover for
her if the [D]efendant called or came looking for her. Helms agreed and
did not ask any questions. The victim left with her niece, Dana Christine
Rominger, and did not come home after work that night. Rominger testified
at trial that after the victim had spoken to her earlier that day about
the problems she was having with the [D]efendant and expressed fear for
her own safety, Rominger told her she could spend the night with her.
Rominger picked up the victim after work and the women went to Rominger's
fathers house where they spent the night.
The [D]efendant spent the evening and early morning hours looking for the
victim. During visits to the convenience store where the victim worked and
to the victims mothers home, the angry [D]efendant stated that "he was
ready to kill someone," that he was going to kill that damn bitch Nina and
kill the cops if they came to his trailer." He also threatened to blow out
the brains of his eight-month-old son, Ricky, who was with him during his
search for the victim. At one point, he purchased two gallons of kerosene
or gasoline at the convenience store and showed Helms an assault rifle
with a bayonet attached.
At 11:00 a.m. the following morning, the victim, Rominger, and the victims
five-year-old daughter drove to the couples trailer and went inside. The
[D]efendant and Nina argued, and the [D]efendant threatened to hurt the
victim if she did not do what he said. The victim, her daughter, and
Rominger then ran out of the trailer and got into Rominger's car, taking
the eight-month-old Ricky with them. The [D]efendant followed, carrying an
assault rifle. The victim, still carrying baby Ricky, got out of the car
at the [D]efendants direction. When Rominger began blowing the car horn
and screaming for help, the [D]efendant told her to "shut . . . up" and
shot her in the leg. Rominger and the victims daughter fled across the
street to a neighbors trailer. As the victim turned to run, the
[D]efendant shot her in the back. She fell to the ground on top of baby
Ricky. As the baby crawled out from under his mothers body, the
[D]efendant stood over the victim and fired several more shots as she lay
on the ground. He also fired several shots into the air and into cars
parked nearby. The [D]efendant then picked up baby Ricky, went into his
trailer, and set it afire. When he left the trailer, he was overheard as
he walked next to the victims body stating, "See you later," as though
nothing had happened. He then carried the baby to a store across the
street, bought a soft drink, took some unidentified "powder," and waited
for the police.
Evidence of the Defendants Mental State.
The [D]efendant presented the expert testimony of two witnesses in support
of his insanity defense. Dr. Tramontana, a clinical psychologist, opined
that the [D]efendant suffered from a mild to moderate impairment of the
frontal lobe of his brain. On the day of the crime, this impairment would
have affected the [D]efendants reasoning, his judgment, and his ability to
inhibit impulsive reactions. It would also have affected the [D]efendants
ability to focus, concentrate, plan, and organize. Such condition could be
aggravated by stress or intoxication. Dr. Tramontana opined that the
[D]efendant's mental impairment could have interfered with the
[D]efendants exercise of proper delay in judgment when provoked by
circumstances such as were alleged to have occurred on the day of the
crime. During cross-examination, Dr. Tramontana admitted that the
Minnesota Multiphasic Personality Inventory test administered to the
[D]efendant in 1991 was invalid, possibly because the [D]efendant had
fabricated or exaggerated his symptoms.
Dr. Bernet, a psychiatrist, recounted the [D]efendants history of mental
health problems, which included numerous hospitalizations from 1968 to
1984. Dr. Bernet testified that the [D]efendant had an impairment to the
frontal lobe of his brain as a result of chronic alcohol abuse. This
impairment affected his ability to exercise self-control and curb
impulsive behavior. Furthermore, the [D]efendant suffered from a chronic
psychiatric disorder called schizo-affective schizophrenia, which caused a
loss of touch with reality, delusions, hallucinations, and drastic mood
swings. These two conditions (the frontal lobe defect and the
schizophrenia), could aggravate one another. Dr. Bernet testified that the
[D]efendant's mental defects could diminish his ability to appreciate
right and wrong and conform his actions to the law. He admitted, however,
that the [D]efendants condition would come and go and that he would have
"good periods" during which he could function normally. Dr. Bernet also
admitted that the report he had prepared after evaluating the [D]efendant
stated that the [D]efendants mental deficiencies were not serious enough
to support an insanity defense. This latter testimony was later stricken
from the record and the jury was instructed to disregard it, after the
trial court decided that such testimony was barred by the passage, in
1995, of an amendment to the insanity statute that provided that "no
expert witness may testify as to whether the [D]efendant was or was not
insane as set forth in subsection (a) [of that statute]."
The defense also presented the testimony of Nancy Smith, the [D]efendants
first cousin, who testified that the [D]efendant had been strange and out
of touch with reality at times since he was a child. She also testified
about the [D]efendants history of mental health problems, which included
suicide attempts and repeated hospitalization over the years. On
cross-examination, the [D]efendants cousin admitted that the [D]efendant
had not had any mental health problems requiring treatment from 1985 until
the date of the shooting, although he continued to abuse drugs.
The State relied on the testimony of lay witnesses and cross-examination
of the [D]efendant's experts to rebut the claim of insanity. The
[D]efendant's physician, who had been treating the [D]efendant for six
months before the homicide, testified that on October 25, 1989, the day
before the shooting, the [D]efendant came to his office and appeared to be
"stable." Family members, co-workers of the victim, neighbors, and others
in contact with the [D]efendant testified that although the [D]efendant
appeared somewhat withdrawn or different, they never saw anything bizarre
or unusual about his behavior and that he was a good father. There was
testimony that the [D]efendant appeared agitated and angry the night
before the killing, exhibiting an assault rifle and stating that he was
mad enough to kill someone. He was also reported to have instructed his
brother-in-law on how to feign mental illness.
After the killing, the [D]efendant gave the police a detailed account of
the shooting and showed no emotion. He did not appear to be under the
influence of drugs or alcohol.
Thompson, 151 S.W.3d at 436-38. The Defendants statement to police was as
Today, my wife, Nina Thompson, came to our trailer this morning and came
inside. My son, Ricky, who is nine months old, and I were in the living
room watching cartoons. Nina started telling me that we should get back
together. I told her not to take Ricky, and she said that she would not.
She grabbed Ricky and ran out the door. Christy Rominger was in the yard,
and they ran toward the car. Nina had gotten in, but when I got to the car
she got out with Ricky in her arms. I told her 15 or 20 times to sit Ricky
down, but she wouldnt. I shot my rifle toward the car, and when it hit it
must have glanced down and hit Christy. I then shot Nina five or six
times, and when she fell I began shooting into the other cars parked at
the trailer. I think I threw my gun down on the ground in front of the
trailer. It is an SKS caliber or 7.62 x .39 caliber . . . . I ran down
toward Jackie Curtis to call the police.
Upon this proof, the jury returned a verdict convicting the Defendant for
the first-degree murder of Nina Thompson, the aggravated assault of
Rominger, and arson.
IV. Proof at Penalty Phase
The Defendant testified in his own defense. He said that he understood
that he did not have to take the stand but wanted to make a statement to
the jury. The Defendant said, I think if you found me guilty of first
degree murder then you should go ahead and give me the death penalty, if
you think that. When asked to explain why he wanted the death penalty, the
Defendant said, I think if they think Im guilty of that, killing my wife
the way I did, then I deserve it, if thats what they think. The Defendant
said that he cared about his son but would rather have his son hate him
than the victim. He agreed that he was telling this to the jury because he
was remorseful for killing the victim. The Defendant said that he was
"tired of it all." He acknowledged telling his counsel that it was some
other part of him that killed the victim and that "when she grabbed the
baby she didnt care about him."
When asked whether, before the victim came into his life, anyone ever
cared about him besides his grandmother and a cousin, the Defendant said
he thought his parents also loved him. He said that his father did not
attend either of his trials, and his mother was deceased. The Defendant
said that he "sometimes" felt that he was mentally ill. With respect to
the events surrounding the murder, the Defendant said that he tied the
door to his trailer with a coat hanger "[t]o keep everybody out, I guess."
Initially, the Defendant did not respond to his counsel's question whether
he wanted to die. The Defendant then said, "Yes, I want to die. If you
give me the death penalty, I'd rather have it." He said that after a
person dies, he goes on to the "next level, in front of God or whatever."
The Defendant said that he would not hold anything against the jury if
they sentenced him to death and that he had tried to commit suicide many
times "probably [because he] was tired of life at that point in time." He
said that he loved the victim, her daughter, and their son.
On cross-examination, the Defendant testified that he first told the trial
judge that he wanted to plead guilty and receive a death sentence five or
six months before the trial began, but the court refused to allow it. He
denied telling the jury that he wanted to die in an effort to prove that
he was crazy or to manipulate the jurors. The Defendant acknowledged
saying that he ran after his wife on the day of the murder because he was
afraid she would hurt the baby. He said that the victim did not care about
the baby "unless somebody was around," and she was a bad mother while he
was a good father. He recalled "bits and pieces" about the victims murder
but did not remember shooting her first in the back as she held the baby
or multiple times as she lay on the ground. The Defendant recalled
throwing gas around the trailer but did not believe he had set the trailer
on fire. He did not deny the murder but said, "Part of me killed my wife.
What part, I don't know." The Defendant said that he was a good husband
and had never threatened to harm the children in an attempt to force the
victim to stay with him. He denied holding a gun to his son's head and
threatening to kill him if the victim did not return home in the early
morning hours before the murder.
The defense introduced the written statement of Terry Hahn who was
unavailable to testify for health reasons. Hahn said that she had dated
the Defendant's brother, Jerry Thompson, for two years and was acquainted
with the Defendant as well as his parents from 1986 through 1992. She said
that the Defendant's family was "extremely unstable." Hahn said that the
Defendant's mother was a heavy drinker who was promiscuous and violent
when she drank and was not a good mother. She described the Defendant's
father as "very cold and non-caring toward his children." Hahn said that
the Defendants brother had "serious psychological problems" and eventually
The affidavit of Thomas Lanier, a correctional counselor at the DeBerry
Special Needs Facility in Nashville, Tennessee, was read into evidence.
Lanier said that during the time he observed the Defendant, from
1998-2000, the Defendant seemed to be fearful of the other inmates and was
no more of a behavior problem than anyone else in the unit." Bradley
McLure and Pamela Covington, correctional officers at the special needs
facility, also testified by affidavit. McLure said that he observed the
Defendant during 1999, and the Defendant seemed intimidated by other
inmates and was withdrawn. Covington said that she observed the Defendant
in her capacity as security supervisor at both DeBerry and at Riverbend
prison. She said the Defendant was a good prisoner who did not cause any
Nancy Smith, the Defendants cousin, testified that the Defendants father
was not around to care for him. Smith said that she had observed the
Defendant's mother and the Defendant in a physical altercation and heard
the Defendants mother refer to her children using vulgar expressions.
Smith said she did not believe that the Defendants mental condition had
worsened since the victims murder, but she felt the Defendant was more
Dr. Diana McCoy, a forensic psychologist, testified that she was retained
to perform investigative services in preparation for the penalty phase of
the Defendant's trial. She said that she interviewed the Defendant five
times over a total of fourteen hours and collected records from many of
the Defendants psychiatric hospitalizations. She said she also talked with
the Defendant's family members, acquaintances, and prison staff in
investigating the Defendant's background and had read the transcript of
the guilt phase of his trial.
Dr. McCoy said that the Defendant had a significant history of psychiatric
diagnoses and treatment from an early age. She said that the most "glaring
thing" in the Defendant's social history was his "very poor, very chaotic,
really pitiful childhood." The doctor said the Defendants background, one
of the worst she had heard, included a promiscuous, alcoholic, mother "who
was physically and verbally abusive of her children, went in and out of
their lives, [and] abandoned them for long periods of time." She said the
behavior of the Defendants mother was always inappropriate, and the
Defendant's childhood was "pretty horrible." Dr. McCoy said that the
Defendants father was not any better; he worked, drank, and always had a
"hands-off" approach to his children. Dr. McCoy said that the Defendant
had tried to protect his parents and did not talk much about them. As a
result, she obtained most of her information about the Defendant's parents
from others. She said that the Defendant's grandparents seemed to be "good
people," but she believed they found it difficult to set any limits for
the Defendant and his brother. She said that the Defendant had a history
of inappropriate behavior toward women.
Dr. McCoy was unable to obtain the Defendant's school records and relied
on the Defendant for information about his youth and his schooling. She
felt that the Defendant was forthcoming because he did not paint himself
in the best light. The Defendant reported that he was suspended in the
fifth grade for throwing a book at a teacher who he said had taunted him
about not having a mother. The Defendant said that he quit school in the
tenth grade after he was suspended for squirting disappearing ink on a
teacher and the principal. The Defendant reported spending a lot of his
childhood years alone with no friends and no one to attend school events
or other activities with him. Dr. McCoy said that, when the Defendant was
eighteen years old, his father remarried. She said the Defendant's new
stepmother tried to help the Defendant with his behavior and other
problems, but in Dr. McCoy's opinion the efforts came too late. Dr. McCoy
said that the Defendants father and stepmother reported that the Defendant
went into periods of deep depression during which he would not speak to
them and slashed his wrists. Dr. McCoy stated that, based on her
discussions with the Defendant's father and other family members, the
Defendants father went "overboard" the few times that he tried to
discipline the Defendant. She said that the Defendants father locked him
in a closet, burned his arm with a match until his skin blistered as
punishment for playing with matches, and once beat the Defendant "from
head to toe" until the Defendant could not sit down. Dr. McCoy said that
the Defendants father ignored the Defendant the rest of the time. Dr.
McCoy found that the Defendant had suffered severe emotional abuse and
neglect as well as sexual and physical abuse during childhood. She said it
was not surprising that both the Defendant and his brother began using
drugs and alcohol at a very young age, something that their mother had
tolerated in her home.
Dr. McCoy said that the Defendants background created a sense of
abandonment and self-esteem issues in him. Given his family setting, it
would have been very difficult for the Defendant to develop normally
because he had no "building block" for a normal adolescence or ability to
cope with adulthood. Dr. McCoy said that the Defendant began developing
depression in his later teenage years and began "acting out against
society." The Defendant received his first psychiatric treatment at age
nineteen, but the doctor believed he should have been treated sooner. Dr.
McCoy noted that the Defendant had an extensive history of psychiatric
diagnoses and treatments, but it was her opinion that he "clearly wasn't
cured." Regarding the Defendant's history of suicide attempts, she said
that some were "attention seeking" while others were genuine attempts to
kill himself. Dr. McCoy said that the Defendant was very childlike and
immature in his constant need for attention and believed his suicide
efforts were a sign of a disturbed person.
Dr. McCoy reviewed the various diagnoses the Defendant was given following
outpatient and inpatient treatments beginning when he was eighteen years
old. Diagnoses from 1969 through 1974 included character disorder, gross
emotional immaturity, depression, sociopathic, and passive aggressive
personality. Beginning in 1975, in addition to the previous diagnoses, a
drug dependence was noted, and the Defendant was diagnosed as being
schizophrenic with unspecified mental retardation and having anti-social
personality disorder. Dr. McCoy noted that schizophrenia was among the
most serious of mental illnesses and said that it was noted in the
Defendants history several times from between 1975 and 1979. The Defendant
continued to be diagnosed with schizophrenia and depression from 1979 to
1984. The doctor noted that it was not unusual that the Defendant received
no treatment in 1982 or 1983 because many mentally ill people never
received treatment unless it was in connection with criminal proceedings.
Dr. McCoy testified that the Defendant met the victim in 1984, and they
were married a few years later. Although the relationship was "pretty
chaotic," it also provided a kind of stability in the Defendant's life,
which might explain the Defendants lack of psychiatric treatment after
1984. She said that the Defendant did take a lot of Valium and believed
that he was self-medicating during these years.
Dr. McCoy said that people sometimes achieve a kind of temporary stability
in their life until they are faced with an even bigger stressor that just
knocks them back down again. She opined that someone with the Defendants
background would have "great difficulty" in life. Dr. McCoy found it
interesting that, when the Defendant first received psychiatric treatment
at age eighteen, the psychiatrist noted that the Defendants prognosis was
very poor because of his "gross emotional immaturity" and his "infantile
rage." As to his relationship with the victim, Dr. McCoy said that the
Defendant had a very difficult time trusting the victim. McCoy said that
the "real sad thing" was that the Defendants fear of abandonment and his
constant jealousy led to the couples constant fighting and his biggest
fear coming true that the victim would leave him and he would be alone.
Dr. McCoy said that the victim "fed the flames" of the Defendants jealousy
by telling anyone who was around that the Defendant could not satisfy her.
Dr. McCoy said that when the baby came along it was the last stressor for
an already unstable couple. She said that "cocaine entered the scene and
that both the Defendant and the victim abused drugs and alcohol. From Dr.
McCoy's investigation, she saw no reason to doubt the validity of the
Defendants history of diagnosed mental health problems.
Dr. McCoy said that the Defendant was not the most logical or reasonable"
person and not a "terrifically clear thinker, where he is going to think
through the consequences of what he does." The Defendant described his
relationship with the victim as having "really, really reached a sorry
state" after the baby was born and the couple began using cocaine. The
Defendant told her that the victim would go back and forth between telling
him that she loved him and did not love him, and he became paranoid and
unable to sleep very well as a result. Dr. McCoy said the Defendant
believed that the victim was going to try to kill him in his sleep. Dr.
McCoy concluded that, at the time of the murder, the Defendant's mental
state "due to mental illness and intoxication, was such that his ability
to appreciate the wrongfulness of his conduct and to conform his conduct
to the requirements of the law was substantially impaired, significantly
affecting his judgment." She did not conclude that the Defendant was
insane but that his judgment was affected, and he had "incredibly poor
reasoning abilities." The doctor said it was not inconsistent for the
Defendant to recall only "bits and pieces" of the murder and that his
actions and thoughts at the time of the murder could qualify as a
psychosis, that is that the Defendant was out of touch with reality as
shown by his "pretty distorted reasoning" at the time. Dr. McCoy said that
while in prison the Defendant received psychiatric care and treatment and
was "truly miserable" about what he had done to his family and himself.
She noted that, from 1990, the Defendants treatment record reflected
diagnoses of psychosis and major depression and suicide gestures. Dr.
McCoy believed that the Defendant's stress levels in prison came from his
concern for his children and his feelings of guilt and remorse for his
actions rather than from his status as a death-row inmate.
Dr. McCoy reviewed the Defendant's prison psychiatric records between the
time he was declared incompetent in February, 1998, and then competent in
April, 1999. She said that, in the eleven months he was in custody at the
DeBerry Special Needs Facility, the Defendant was given some therapy but
was mainly treated with medication. She said that nothing in his records
led her to conclude that the Defendant became competent while at DeBerry;
she believed that the Defendant was mentally ill at the time of the murder
and continued to be mentally ill.
On cross-examination, Dr. McCoy testified that she worked as a
psychologist specializing in mitigation work and that she was personally
opposed to the death penalty. She agreed that her opinion of the
Defendants mental state at the time of the offense was based entirely on
what the Defendant had told her. She believed the Defendant was truthful
with her to the extent that he was aware of what was going on when he told
her that he did not intend to shoot the victim and had little knowledge of
what happened after he followed her outside that day. The doctor testified
that the Defendant told her that he had no memory of talking to the
victims body after the shooting or of shooting at nearby cars.
Dr. McCoy acknowledged that the Defendant was raised primarily after age
four or five by his grandparents who appeared to be loving and caring. She
said that even without alcohol or drugs the Defendant was in a "fragile
state" when he killed the victim. The Defendant had discussed with her his
deteriorating relationship with the victim in the year leading up to the
murder. She acknowledged that the Defendant's history showed no evidence
of any serious psychological incident, evaluation, or treatment from
February 1985 to the date of the murder. Dr. McCoy said that, although the
Defendant was not receiving psychiatric treatment, since 1985 he had been
seeing a medical doctor, Dr. Rogers, who had diagnosed anxiety and was
prescribing Valium for the Defendant up to the day before the murder. Dr.
McCoy said she did not know what, if anything, happened to the Defendant
from the time the Defendant was found incompetent and the time he was
declared competent less than a year later. She agreed that it was possible
that he was cured or that nothing had changed and he was in the same
condition as when he was found incompetent. Dr. McCoy said that a "suicide
gesture" was a way of trying to get attention or trying to manipulate
something in one's environment. She said that she did not interpret the
Defendant's request that the jury give him the death penalty as a suicide
Following deliberations, the jury returned its verdict sentencing the
Defendant to death. The jury found that the State had proven two statutory
aggravating circumstances: (1) the Defendant knowingly created a great
risk of death to two or more persons, other than the victim murdered,
during the act of the murder; and (2) the murder was especially heinous,
atrocious, or cruel in that it involved torture or depravity of mind. See
Tenn. Code Ann. 39-2-203(i)(3), (5) (1982). The jury also found that
these statutory aggravating circumstances outweighed any mitigating
circumstances beyond a reasonable doubt.
On this appeal from the denial of his motion for new trial, the Defendant
contends that: (1) his due process rights were violated because he was
incompetent to stand trial and the trial court failed to hold a competency
hearing; (2) his right to self-representation was denied; (3) the evidence
is insufficient to establish the elements of premeditation and
deliberation; (4) the trial court erred when it instructed the jury on the
definition of "reasonable doubt;" (5) the trial court erred when it
instructed the jury about the burden of proving the Defendants mental
state at the time of the offense; (6) the trial court erred when it
instructed the jury on the definition of "premeditation" and when it
instructed the jury to consider whether the Defendant was guilty of the
greater charged offense before considering any lesser-included offenses;
(7) the trial court erred when it admitted the victim's younger brother's
testimony because it violated the constitutional guarantees to due process
and against cruel and unusual punishment; (8) the evidence is insufficient
to support the aggravating circumstance that the Defendant knowingly
created a great risk of death to two or more persons other than the victim
during the murder and that this aggravating circumstance is
unconstitutionally overbroad; (9) the evidence is insufficient to support
the aggravating circumstance that the murder was especially heinous,
atrocious, or cruel in that it involved torture or depravity of mind and
that this aggravating circumstance is unconstitutionally vague and
overbroad; and (10) the death penalty was arbitrarily imposed and is
disproportionate to the penalty imposed in similar cases.
I. Defendants Competency
The Defendant contends that the trial court erred when it failed to hold a
new competency hearing before or during his June, 2000, trial despite
being presented with several indicia of his incompetence. He points to the
finding that he was incompetent only two years earlier, his long history
of disturbed behavior, and his demeanor during the sentencing phase of the
trial. The defendant concludes that he was tried while incompetent in
violation of his due process rights and is entitled to a new trial.
It is fundamental that an accused cannot be tried, convicted, or sentenced
while he is mentally incompetent. See Berndt v. State, 733 S.W. 2d 119,
121 (Tenn. Crim. App. 1987) (citing Pate v. Robinson, 383 U.S. 375 (1966);
Drope v. Missouri, 420 U.S. 162 (1975); State v. Stacy, 556 S.W.2d 552
(Tenn. Crim. App. 1977); Mackey v. State, 537 S.W.2d 704 (Tenn. Crim. App.
1975)). The standard for determining competency is whether an accused has
"'the capacity to understand the nature and object of the proceedings
against him, to consult with counsel and to assist in preparing his
defense.'" State v. Black, 815 S.W.2d 166, 174 (Tenn. 1991) (quoting
Mackey, 537 S.W.2d at 707). When there is a question about a defendants
competency to stand trial, the trial court is obligated to conduct a
hearing to inquire into the matter. If warranted, the trial court on its
own motion or at the request of either party may order a mental evaluation
of the defendant. See Tenn. Code Ann. 33-7-301(a)(1) (1997); Berndt, 733
S.W.2d at 122; State v. Haun, 695 S.W.2d 546, 549 (Tenn. Crim. App. 1985).
In determining whether a trial court should have sua sponte ordered a
competency hearing, this Court considers whether the facts before the
trial court at the time the trial commenced should have led the trial
court "to experience doubt" regarding the defendants competency to stand
trial. Berndt, 733 S.W.2d at 122 (quoting Pate v. Smith, 637 F.2d 1068,
1072 (6th Cir. 1981)); see also Williams v. Bordenkircher, 696 F.2d 464,
467 (6th Cir. 1983). The defendant has the burden of establishing his
incompetency by a preponderance of the evidence. State v. Reid, 164 S.W.3d
286, 307 (Tenn. 2005); State v. Oody, 823 S.W. 2d 554, 559 (Tenn. Crim.
App. 1991); see also, Medina v. California, 505 U.S. 437 (1992) (holding
that defendants may properly be required to establish their incompetency
by a preponderance of the evidence). "On appeal, the findings of the trial
court are conclusive unless the evidence preponderates otherwise." State
v. Leming, 3 S.W.3d 7, 14 (Tenn. 1998) (citing Oody, 823 S.W.2d at 559).
In the case under submission, at the time the Defendants trial began, he
had undergone two mental evaluations to determine his competency. Both
evaluations were primarily conducted by Drs. Craddock and Farooque. As
noted, the Defendant was initially found incompetent in 1998. Following
his second evaluation, in February 1999, the trial court held a second
competency hearing in April 1999. Both doctors testified that their
opinion was that the Defendants diagnosis had changed, and he was at that
time competent to stand trial and to assist his attorneys in his defense.
Both doctors also concluded that the Defendant was trying to delay his
trial. Dr. Craddock testified that the Defendants beliefs about his
attorneys and his legal situation were not caused by any mental illness or
delusions; rather, they were manifestations of the Defendants obstinance
and his efforts to control his case and get his own way rather than
listening to the advice of his counsel.
The Defendant discounts the finding of competency based on the brief
nature of the February 1999 evaluation, characterizing it as a "30-minute
'drive by' evaluation." In their testimony, however, both doctors
explained that being able to talk with the Defendant and observe him and
his responses to their questions allowed them to form an opinion about his
competency. The doctors explained that their conclusion that the Defendant
had become competent was based primarily on the fact that he no longer
showed any of the signs or symptoms of the depression they had observed in
him the year before. They explained that it was his depression that led
them to conclude that the Defendant was not competent in 1998. Dr.
Farooque said that the Defendant at the second evaluation was "alert" and
responded appropriately to her questions. In particular, she found that
the Defendant understood the nature of the charges and his legal situation
and concluded that there was no mental illness that would prevent him from
advising or assisting his attorneys. Dr. Farooque acknowledged that
recommended counseling with the Defendant by MTMHI doctors did not take
place while he was held at DeBerry after initially being found
incompetent. She noted, however, that the Defendant was prescribed an
anti-depressant by his doctor at the prison facility, although he
eventually discontinued its use. She further noted that a persons
psychiatric condition could change and that it was not at all unusual for
someone with depression to improve even without treatment. Defense expert
Dr. McCoy, although of the opinion that the Defendant continued to be
mentally ill, agreed that it was possible that the Defendants depression
was resolved in the year before his second evaluation.
The record does not reflect any motion by the defense seeking further
inquiry into the Defendant's mental state before trial. The trial court
was in a position to observe the Defendant during pre-trial proceedings.
Having nothing before it to suggest that the Defendant was not competent,
the trial court was entitled to rely on its own observations together with
the findings of the evaluating experts, which were based on the Defendants
most recent competency evaluation, in proceeding to trial.
The Defendant also points to his demeanor and behavior as evidence of his
incompetency in arguing that, at the very least, the trial court was
obligated to order a competency hearing during the trial itself. We cannot
agree. The record is devoid of any evidence of problematic behavior or
interruptions by the Defendant until after the guilt phase was concluded
and the jury had returned its verdict convicting him as charged. Following
the guilt phase, the trial court was able to observe and interact with the
Defendant during various exchanges with him before the sentencing phase
began. There is no indication that the Defendants statements, behavior, or
demeanor should have caused the trial court to doubt his competency when,
for example, the trial court confirmed that the Defendant understood and
wished to reject a plea that the State was offering and that he wanted to
exercise his right to testify during the sentencing phase.
During the sentencing phase, the Defendant twice objected as the
affidavits of corrections officers were read into evidence, at one point
commenting, "Thats not true. They're a bunch of snoops." The trial court
advised the Defendant to be quiet or he would be removed or gagged. During
defense counsels closing argument, the Defendant first stated that he
objected to his counsel "saying anything. Counsel prepared the jurors for
further possible outbursts from the Defendant by telling them, "Ricky
probably will object. Im going to say some things he doesn't like." As if
on cue, the Defendant immediately interrupted his attorney and declared,
You havent done shit on this case." As defense counsel concluded, he was
directing his remarks to those jurors who might have a "fundamental
religious belief" when the Defendant announced that he was "right with
God." Lastly, twice during the prosecutor's closing statement, the
Defendant said, "Give me the death penalty and let's go home." Outside the
jury's presence, the trial court inquired whether the Defendant wanted to
stay in the courtroom and whether he could be quiet, to which he replied
affirmatively. This was the extent of the interruptions by the Defendant.
We conclude the noted interruptions of his counsels remarks during the
sentencing phase did not suggest that the Defendant did not understand
what was happening at that point in his trial or that he was unable to
advise his attorneys. Rather, the Defendants behavior indicated that he
was fully aware of his legal predicament and understood that the jury was
considering whether or not he should be sentenced to death for his first
degree murder conviction. The trial court was aware of Dr. Craddocks
testimony predicting that the Defendant might "act out" or resort to
self-defeating behavior if his case did not go his way, and the doctors
opinion that this did not reflect an inability to understand or assist his
situation but a refusal to do so. Defense counsel likewise forecasted the
likelihood that the Defendant would interrupt counsels closing statement
because he disagreed with some of the remarks counsel was making. We do
not conclude that the Defendants limited interruptions at the conclusion
of the proceedings should have caused the trial court to doubt his
competency and order a hearing on the matter.
In our view, the Defendant has not met his burden of establishing that he
was incompetent to stand trial either before or during his trial. The
record demonstrates that the Defendant had the ability to consult with his
counsel and had a "rational as well as factual understanding of the
proceedings." Dusky v. United States, 362 U.S. 402, 402, 80 S. Ct. 788,
789 (1960). Accordingly, the record supports the trial court's finding
that the Defendant was competent and does not show that the trial court
abused its discretion in failing to sua sponte order a competency hearing
and further evaluation of the Defendant at any point during the trial. The
Defendant is not entitled to relief on this issue.
II. Defendant's Right to Self-Representation
The Defendant contends that he was denied the right to represent himself
at trial. He asserts that he made timely and unequivocal requests to
proceed without the assistance of counsel and says that, although he was
prepared to waive counsel, the trial court prevented him from doing so.
The Defendant contends that he first expressed a desire to proceed pro se
during pre-trial hearings in February 1998 before Judge Charles Lee. The
transcript, however, supports the trial court's understanding that the
Defendant's complaints at that time were focused on his dissatisfaction
with defense counsel's performance and the lack of the Defendant's own
input into his case and did not involve a definite request to represent
himself. The transcript from that proceeding reveals that the trial court
asked the Defendant at that hearing,
THE COURT: Mr. Thompson, is it your request recognizing that in this case
the State wishes to proceed with this as a capital case, are you asking
this Court to consider allowing you to act as your own counsel?
THE DEFENDANT: Not completely by own counsel but I want something to say
about what they do on my case.
. . . .
THE COURT: But strategy calls if you want to go against the advice of your
attorney is still your call to make as long as you are competent to make
Now, recognizing that is it your desire for the court to consider allowing
you to act as your own counsel?
THE DEFENDANT: No.
After further addressing aspects of his counsel's representation, the
Defendant informed the court that he no longer sought their removal. The
Defendant explained that in view of the courts instructions to the court
clerk to provide copies of all pleadings filed by defense counsel to the
Defendant, "[I]t will make what I will know more or less going on. Then I
can have some control of my case, too."
Prior to testimony from the first witness at his April, 1999, competency
hearing, the Defendant stated, "I'm telling the Court now that I'm firing
both of these lawyers." Observing that the Defendants court-appointed
attorneys were present, then-presiding Judge John Byers stated that he
would "handle the case based upon the participation of the lawyers" and
began the hearing. At the conclusion of the proof regarding his
competency, the Defendant expressed dissatisfaction with his counsel's
refusal "to file motions and different things that Ive asked them to
[file]." At the conclusion of the hearing, the following exchange
transpired between the Defendant and Judge Byers:
THE DEFENDANT: I've fired these lawyers.
THE COURT: Mr. Thompson, The Court is going to, these lawyers are going to
represent you. Its the opinion of The Court that you're not able to
represent yourself. You're not knowledgeable in the law from what I've
heard here. And if you want to make communications to The Court, theyre
going to have to be through Counsel so they can make a determination of
what's in your best interest. All right?
THE DEFENDANT: Will The Court appoint me new counsel then?
THE COURT: No. No. These -
THE DEFENDANT: So I have to start filing malpractice lawsuits to get them
off my case?
THE COURT: That's something that if you've got a pen and pencil you can
do. There's nothing I can do about that. But you've got counsel and that's
not going to make me remove counsel. Now, on this wanting to subpoena
witnesses, you give them names of witnesses and why you want them
subpoenaed. They're going to have to make the determination as to whether
these witnesses will be competent witnesses. Okay?
THE DEFENDANT: So youre saying theyre going to control my case?
THE COURT: They're going to represent you. They're going to represent you
in accordance with the law and present your case in court. And I'm the
judge and Im going to make the rulings. Some of the rulings you're going
to like and some of them you're not going to like. If Im wrong, youve got
a right to an appeal. Okay? Were going to do our utmost to see that you
get a fair trial, but were, not going to let you, take over the system.
Okay? Ill make the decisions.
THE DEFENDANT: Do I have to come to court at all?
THE COURT: Yes, sir. You'll be at court.
THE DEFENDANT: I thought I could decline to come to court.
THE COURT: No, sir. You can't decline anything. You'll be at court. You'll
be at court when this case is tried. Anything further?
THE DEFENDANT: Can I just go ahead and plead guilty?
THE COURT: Not now. Not now. You need to consult with your counsel.
THE DEFENDANT: Now can I put them on the witness stand?
THE COURT: No, sir. . . . Now, this proof is in the competency hearing.
Based on the testimony that the Court has heard today from the expert
witnesses, the Court concludes that Mr. Thompson is competent to advise
counsel. He is competent to stand trial. The Court so rules.
On November 15, 1999, the Defendant filed pro se a three-page "Motion." In
the motion, the Defendant asserted that he had "fired Mr. Charlie Corn of
the Public Defenders Office," one of his two attorneys, and listed various
reasons in support of his "action." The Defendant wrote that neither of
his attorneys had done anything on his case and that he had "repeatedly
asked the Court to take the Public Defender's Offices off his case." In
paragraph form, the Defendant listed ten reasons that he sought counsel's
removal. Paragraph seven reads as follows, "Ricky Thompson wants to act as
his own counsel to represent himself, if the Court wants someone to Mock
Justice, Let me do it, dont let the Public Defenders Offices make Mockery
Before this Court, the Defendant submits that he timely asserted his
desire to proceed pro se first before Judge Byers at the April, 1999,
competency hearing, and as renewed in the November, 1999, motion. The
record contains no ruling disposing of the November, 1999, motion.
"The right to assistance of counsel in the preparation and presentation of
a defense to a criminal charge is grounded in both the Tennessee and
United States Constitutions." State v. Northington, 667 S.W.2d 57, 60
(Tenn. 1984) (citing U.S. Const. amend. VI; Tenn. Const. art. I, 9). "It
is settled law that there exists the alternative right the right to self
representation which also has its foundation based on the Sixth
Amendment." Id. at 60 (citing Faretta v. California, 422 U.S. 806 (1975)).
The right to self-representation, however, is not absolute. To invoke the
right, the Defendant must: (1) timely assert the right to proceed pro se;
(2) clearly and unequivocally exercise the right; and (3) knowingly and
intelligently waive his or her right to assistance of counsel. State v.
Herrod, 754 S.W.2d 627, 629-30 (Tenn. Crim. App. 1988). Additionally, Rule
44(b)(2) of the Tennessee Rules of Criminal Procedure provides that
indigent Defendants should execute a written waiver before being allowed
to proceed pro se.
Applying these criteria, we conclude that the Defendant did not
successfully invoke his right to represent himself at trial. The record
shows that any attempt to do so at the first competency hearing before
Judge Lee was neither clear nor unequivocal, and the Defendant concedes
that he ultimately abandoned the idea during the hearing. The record of
the second competency hearing in April, 1999, before Judge Byers does not
support the Defendant's contention that he "again tried to assert his
right to fire his attorneys and represent himself." Although the trial
court offered its opinion that the Defendant lacked the ability to
represent himself, the Defendant made no express request to do so. Rather,
the Defendants focus was again on his counsels performance, and he
appeared intent on "firing" counsel or having them removed or replaced.
Lastly, we consider the November 15, 1999, pro se motion, which included
the Defendants statement that "Ricky Thompson wants to act as his own
counsel to represent himself . . . . Although the statement at first
glance conveyed a request by the Defendant to proceed pro se, we conclude
that the request was not clear and unequivocal when considered in light of
the entire pleading and surrounding circumstances. In the very next
paragraph, the Defendant further stated, "Ricky Thompson wants a
Transcript of the Court Hearing that took place on April 20th 1999 so I
can get ready for Trial and Ricky Thompson needs this Transcript for
Counsel, either way, we need this Court Transcript to prepare for Trial
In our view, the Defendant contemplated going to trial both pro se and
with counsel. While it is apparent that the Defendant was often
dissatisfied with his appointed attorneys and repeatedly sought their
removal, it is not clear that he wanted to proceed with no counsel at all
if the trial court declined to remove his attorneys of record. Moreover,
there is no indication that the Defendant ever moved the trial court to
rule on his November 1999 motion or that he reasserted his right to
represent himself in the seven months before his June 2000 trial began.
"Because a Defendant normally gives up more than he gains when he elects
self-representation, we must be reasonably certain that he in fact wishes
to represent himself." Adams v. Carroll, 875 F.2d 1441, 1444 (9th Cir.
1989) (citing Brewer v. Williams, 430 U.S. 387, 404 (providing that courts
must indulge in every reasonable presumption against waiver of the right
Based on the record presented, we conclude that the Defendants right to
self-representation was not denied because the Defendant never made a
clear and unequivocal assertion of the right. Therefore, he is not
entitled to relief on this issue.
III. Sufficiency of the Evidence of Premeditation and Deliberation
The Defendant asserts that the evidence was insufficient to establish the
elements of premeditation or deliberation. He focuses, however, on
deliberation, and the essence of his argument is that his was a crime of
passion with no evidence of the required "cool purpose" of mind to support
a first-degree murder conviction. In his brief, he states:
Assuming arguendo, that the evidence is sufficient to establish
premeditation, it is insufficient to establish the separate and distinct
element of deliberation. Clearly, this was a crime of passion. The intent
to kill was formed in passion, and it was certainly executed at a time of
high passion. Even if one speculates that a cooling-off period occurred in
the morning hours prior to the victim's appearance at the trailer on the
26th, it cannot be denied that their arguing and her act of snatching the
child and running away was sufficient provocation as to excite passion in
The Defendant concludes that under the facts presented, he can be
convicted of no greater offense than second degree murder.
In reviewing a challenge to the sufficiency of the evidence, we consider
the evidence and all reasonable inferences that may be drawn therefrom in
the light most favorable to the State. On appeal, the relevant question is
whether any rational trier of fact could have found the essential elements
of the crime beyond a reasonable doubt. See State v. Leach, 148 S.W.3d 42,
53 (Tenn. 2004); State v. Williams, 657 S.W.2d 405, 410 (Tenn. 1983).
"Questions regarding the credibility of witnesses, the weight and value of
the evidence, and any factual issues raised by the evidence are resolved
by the trier of fact." Leach, 148 S.W.3d at 53.
At the time of the October, 1989, offense, first degree murder was defined
as [a]n intentional, premeditated and deliberate killing of another." See
Tenn. Code Ann. 39-13-202 (a)(1) (1989). A "deliberate act" was defined
as "one performed with a cool purpose" and a "premeditated act" as "one
done after the exercise of reflection and judgment." See Tenn. Code Ann.
39-13-201(b)(1), (2) (1989). Our Supreme Court has reiterated that,
despite the tendency to intermingle them, the elements are distinct and
both must be proven in order to sustain a first-degree murder conviction.
State v. Brown, 836 S.W. 2d 530, 539-41 (Tenn. 1992). In Brown, the
Supreme Court opined:
Perhaps the best that can be said of 'deliberation' is that it requires a
cool mind that is capable of reflection, and of 'premeditation' that it
requires that the one with the cool mind did in fact reflect, at least for
a short period of time before his act of killing.
Id. at 541 (citing 2 W. LaFave and A. Scott, Substantive Criminal Law 7.7
(1986)). Stated differently, this Court has held that "[i]n order to
convict a Defendant for premeditated murder, the jury must find that the
Defendant formed the intent to kill prior to the killing, i.e.,
premeditation, and that the Defendant killed with coolness and reflection,
i.e., deliberation." State v. Brooks, 880 S.W.2d 390, 392 (Tenn. Crim.
The existence of premeditation and deliberation are questions for the jury
that may be inferred from the manner and circumstances of the killing. See
State v. Gentry, 881 S.W.2d 1, 3 (Tenn. Crim. App. 1993). Circumstances
tending to indicate premeditation and deliberation include the use of a
deadly weapon on an unarmed victim, the fact that the killing was
particularly cruel, declarations by the Defendant of his intent to kill
the victim, the making of preparations before the killing for the purpose
of concealing the crime, and calmness immediately after the killing. See
Bland, 958 S.W.2d at 660 (citing Brown, 836 S.W.2d at 541-42; State v.
West, 844 S.W.2d 144, 148 (Tenn. 1992)). Premeditation and deliberation
can also be shown by proof of motive, evidence of a plan or design to
kill, or the very nature of death. State v. Bordis, 905 S.W.2d 214, 222
(Tenn. Crim. App. 1995).
In the present case, with the exception that the Defendant made no effort
to conceal his crime, there was evidence of all of these indicators of a
deliberate, premeditated killing. The evidence showed that the Defendant
first threatened the victim that she would "pay" when he was asked to
leave the victim's workplace the day before the murder. When she did not
return home from work, the Defendant began searching for her. As his
search intensified, he became visibly angry. He displayed a rifle with an
attached bayonet to her co-worker in an apparent effort to convince him to
reveal the victim's whereabouts. The Defendant made repeated statements to
witnesses that no one was going to get his baby, that he was mad enough to
kill someone, that he would kill "the cops" if they came to get his baby,
and that he was going to "kill that bitch Nina." Eventually, the Defendant
returned home without finding the victim.
The Defendant testified that he was at home "watching cartoons" with the
baby when the victim came to their home the next day. An argument ensued,
and the victim attempted to leave with the baby. The Defendant chased
after the victim, but stopped long enough to pick up his loaded and
readily accessible rifle, and reached the car before she could get away.
The Defendant pointed the rifle into the car, made eye contact with the
victims young niece, and fired, shooting the niece as she screamed for
help. The Defendant returned his sights to the victim and shot her from
behind as she walked away. The Defendant dropped the rifle after shooting
the victim the first time, then immediately picked it back up and began
shooting her again, striking her at least four more times after she fell
to the ground. After the murder, the Defendant kicked the victims body.
After setting their trailer on fire, the Defendant took the baby across
the street and waited for police to arrive showing no apparent emotion.
>From this evidence, the jury could reasonably find that the Defendant had
ample opportunity and did in fact reflect on the manner and consequences
of his action. Accordingly, we conclude that there was sufficient proof
from which the jury could find both premeditation and deliberation.
Moreover, the fact that the Defendant became upset, "distraught," or even
enraged after the victim snatched the child and ran away does not mean
that the murder could only have been committed on impulse and without a
"cool mind . . . capable of reflection," as the Defendant urges. Brown,
836 S. W. 2d at 541. "'Deliberation' is present if the thinking, i.e., the
'premeditation,' is being done in such a cool mental state, under such
circumstances, and for such a period of time as to permit a 'careful
weighing' of the proposed decision." Id. (quoting C. Torcia, Whartons'
Criminal Law 140 (14th ed. 1979). When the Defendant first threatened to
kill the victim, he had conceived the thought and decided what he would do
if she tried to take the baby. In arming himself, chasing the victim
outside, and shooting her repeatedly at close range after the first shot
felled her, the Defendant carried out his preconceived plan. The evidence
showed that it was not a plan hastily conceived in the passions of that
moment or executed without adequate time for the Defendant to reflect
about his proposed decision. In our view, the victim acted precisely the
way the Defendant anticipated that she might, and he responded by killing
her as he had already determined he would if his fears were realized. The
circumstances of the offense do not negate the element of deliberation. As
we have observed, the "presence of agitation or even anger . . . does not
necessarily mean that the murder could not have occurred with the
requisite degree of deliberation." Gentry, 881 S.W.2d at 5. Accordingly,
the evidence supports the jurys finding that the Defendant committed a
premeditated and deliberate murder. The Defendant is not entitled to
relief on this issue.
IV. "Reasonable Doubt" Instruction
The Defendant contends that the trial court erred when it instructed the
jury on the definition of "reasonable doubt." In both phases of the trial,
the trial court instructed the jury on the definition of "reasonable
doubt" as follows:
Reasonable doubt is that doubt engendered by an investigation of all of
the proof in the case and an inability after such investigation to let the
mind rest easily as to the certainty of guilt. Reasonable doubt does not
mean a doubt that may arise from possibility. Absolute certainty of guilt
is not demanded by the law to convict of any criminal charge, but moral
certainty is required, and this certainty is required as to every
proposition of proof requisite to constitute the offense.
See Tenn. Pattern Instruction-Crim. 2.03 (5th ed. 2000).
The Defendant submits that by expressly defining reasonable doubt to
exclude a doubt that may arise from possibility, the challenged
instruction suggested an improperly high degree of doubt required for
acquittal and understated the States burden of disproving other possible
theories or defenses. The Defendant acknowledges that both the Tennessee
Supreme Court and the Sixth Circuit Court of Appeals have rejected
challenges to the pattern jury instruction given in his case, but he
asserts that the decisions have focused primarily on the "moral certainty"
language within the instruction and have not addressed the point he posits
In Victor v. Nebraska, the United States Supreme Court upheld the
following language in a California instruction defining reasonable doubt:
Reasonable doubt is defined as follows: It is not a mere possible doubt;
because everything relating to human affairs, and depending on moral
evidence, is open to some possible or imaginary doubt. It is that state of
the case which, after the entire comparison and consideration of all the
evidence, leaves the minds of the jurors in that condition that they
cannot say they feel an abiding conviction, to a moral certainty, of the
truth of the charge.
511 U.S. 1, 17 (1994). The Defendant contends that the use of the word
"mere" modifying possible doubt and the inclusion of the explanatory
phrase that "everything . . . is open to some possible or imaginary doubt"
distinguishes the California instruction from the Tennessee instruction.
He contends that without such modifying or explanatory language,
Tennessee's instruction impermissibly excludes any possible doubt, even a
reasonable, possible doubt, as a basis for the jury to find that
reasonable doubt existed.
In Austin v. Bell, 126 F.3d 843 (6th Cir. 1997), the Federal Court of
Appeals considered a challenge to the same version of Tennessee's pattern
jury instruction given in the Defendant's case. Although focusing on the
"moral certainty" language, the Court of Appeals concluded that
Tennessee's pattern instruction was most comparable to that of the
California instruction upheld in Victor. In upholding the
constitutionality of the instruction, the Court of Appeals opined that
Tennessee's instruction did not impermissibly understate the states burden
of proof. Id. at 847. In addition, the Tennessee Supreme Court has
repeatedly upheld the use of the reasonable doubt instruction containing
the identical "moral certainty" language and the phrases "let the mind
rest easily" and "arise from possibility" found in the instruction given
in the instant case. See State v. Bush, 942 S.W.2d 489, 521 (Tenn. 1997).
In Bush, the Court observed that, although "neither of these phrases have
been before the United States Supreme Court, the courts of this state have
consistently upheld the constitutionality of this instruction." Id.
(citing State v. Nichols, 877 S.W.2d 722 (Tenn. 1994), cert. denied, 513
U.S. 1114 (1995); Pettyjohn v. State, 885 S.W.2d 364 (Tenn. Crim. App.
1994); State v. Christopher S. Beckham, No. 02C01-9405-CR-00107, 1995 WL
568471 (Tenn. Crim. App, at Jackson, Sept. 27, 1995), perm. app. denied
(Tenn. Sept. 9, 1996); Richard Caldwell v. State, No. 02C01-9405-CR-00099,
1994 WL 716266 (Tenn. Crim. App., at Jackson, Dec. 28, 1994), app. granted
in part, denied in part, (Tenn. May 30, 1995); State v. Victoria Voaden,
No. 01C01-9305-CC-00151, 1994 WL 714223 (Tenn. Crim. App., at Nashville,
Dec. 22, 1994), perm. app. denied (Tenn. May 1, 1995); Harold V. Smith v.
State, No. 03C01-9312-CR-00393, 1994 WL 330132 (Tenn. Crim. App., at
Knoxville, July 1, 1994), no Tenn. R. App. P. 11 perm. app. filed).
We conclude that the challenged instruction did not impermissibly raise
the degree of doubt required for acquittal or correspondingly decrease the
States burden of proof in violation of the Defendant's due process rights.
The Defendant is not entitled to relief on this issue.
V. Instructions on Insanity
The Defendant asserts that the trial court erroneously instructed the jury
as to the burden of proving the Defendants mental state, i.e., his sanity
or insanity, at the time of the offense. He asserts that the trial court
gave two contradictory instructions on insanity, and it is not possible
for this Court to discern which of the instructions the jury followed in
reaching their verdict.
At the time of the offense, Tennessee law provided that insanity was an
absolute defense to prosecution "if, at the time of such conduct, as a
result of mental disease or defect, the person lacked substantial capacity
either to appreciate the wrongfulness of the persons conduct or to conform
that conduct to the requirements of law." See Tenn. Code Ann. 39-11-501
(1991). "If the evidence adduced either by the Defendant or the State
raises a reasonable doubt as to the Defendant's sanity, the burden of
proof on that issue shifts to the State. The State must then establish the
Defendant's sanity to the satisfaction of the jury and beyond a reasonable
doubt. Graham v. State, 547 S.W.2d 541, 544 (Tenn. 1977) (citing Collins
v. State, 506 S.W.2d 179 (Tenn. Crim. App. 1973); Covey v. State, 504
S.W.2d 387 (Tenn. Crim. App. 1973)). In the present case, the trial courts
instruction on insanity included the following statement:
Whether the Defendant had the capacity to form the culpable mental state
required to commit a particular offense is not to be confused with the
defense of insanity. If you find by a clear and convincing evidence that
the Defendant was insane as defined in these instructions at the time of
the commission of the offense, the Defendant must be found not guilty of
Regarding the Defendants plea of insanity, the trial court charged the
jury as follows:
The law allows you to infer that the Defendant is sane. Therefore, in the
first instance, the State need not introduce any evidence of the
Defendants insanity. However, if the evidence adduced either by the
Defendant or the State raises a reasonable doubt as to the Defendants
insanity or sanity the burden is upon the State to establish the
Defendants sanity beyond a reasonable doubt.
Lastly, the States burden of proving the Defendants sanity was reiterated
as follows: For the Defendant to be held legally responsible for his
conduct, the State must have proven beyond a reasonable doubt either that
he was not suffering from mental disease or defect, or that he
nevertheless had substantial capacity both to conform his conduct to the
requirements of the law and to appreciate the wrongfulness of his conduct.
The State concedes that the trial court initially misstated the law on
insanity by instructing the jury on the "clear and convincing" standard of
proof required under the post-1995 law that was not applicable at the time
of the offense. As the State correctly notes, however, the Defendant made
no contemporaneous objection to the challenged instruction at trial and
thus risks waiver. See Tenn. R. App. P. 36(a). Considering the issue
despite the waiver, this Court concludes that the latter instructions
correctly set forth the applicable law by charging the jury that the State
had the burden of proving the Defendants sanity beyond a reasonable doubt
once the issue of the Defendants mental state had been raised by the
evidence. The jury is presumed to have followed the trial courts
directions. See State v. Blackmon, 701 S.W.2d 228, 233 (Tenn. Crim. App.
1985). Moreover, the particular language from the post-1995 insanity law
that the Defendant contends was prejudicially erroneous, that is, "If you
find by . . . clear and convincing evidence that the Defendant was insane
. . . ," did not speak to the burden of proof but to the degree of proof
required to acquit the Defendant. For this reason alone, we conclude that
there is no reason to believe that the jury applied the burden of proving
the Defendants mental state other than as it was correctly instructed by
the trial court.
The Defendant contends that the trial court also erred in instructing the
jury how it should consider expert testimony about the Defendant's mental
state by mischaracterizing and commenting on the testimony of Dr. Bernet.
Dr. Bernet was initially allowed to testify to the findings as reflected
in his evaluation report that factors, including the Defendant's
psychiatric disorder, history of substance abuse with brain damage, acute
intoxication, and sudden agitation, interfered with the Defendants
"ability to act in a reasonable manner" at the time of the crimes but were
not "serious enough to constitute an insanity defense." Later, the trial
court interrupted defense counsels redirect examination of Dr. Bernet as
Now, ladies and gentlemen of the Jury, the Court wants to make an
instruction to you. Previously, this witness made testimony that it would
not support an insanity defense.
I wish to instruct you now that while this witness may be able to give
opinions based upon his examination, et cetera, and what his findings are,
whether or not there is sufficient evidence here for insanity defense is a
question of law for you people to determine.
Do you understand what I am saying? It is for you to determine from all of
the evidence in the case and can you consider it in that light.
The Defendant made no contemporaneous objection to the trial court's
instruction and defense counsel continued questioning the witness. After
Dr. Bernet was excused, defense counsel moved for a mistrial on the ground
that the trial court's efforts to cure "whatever mistake that may have
been [made] -- if in fact it was a mistake" could not repair any possible
damage. The trial court overruled the motion, explaining that it had
instructed the jury as to its responsibility for determining the ultimate
question of the Defendants sanity or insanity because it believed that the
doctor's testimony may have "encroached over into the jury's realm of
making the decision . . . ."
The Defendant contends that in instructing the jury that "this witness
made testimony that it would not support an insanity defense," the trial
court mischaracterized and oversimplified Dr. Bernet's testimony because
the doctor later altered his opinion. We cannot agree that the trial
courts instruction constituted an improper comment on the evidence. As
recited above, Dr. Bernet did initially testify that the factors
contributing to the Defendants mental state would not "constitute an
insanity defense." Dr. Bernet went on to testify to his opinion, based on
more recent information, that the Defendant had shown "features of
insanity" at the time of the offense but said he was not in a position to
say that the Defendant was insane at the time of the offense. In our view,
the trial court referenced the doctor's testimony only to the extent
necessary to identify for the jury the part that he found problematic. The
trial court ensured that the jurors understood that the determination of
the question of the Defendant's sanity was ultimately theirs to make. In
doing so, the trial court briefly and accurately stated the doctors
conclusion. This Court concludes that the trial court's limited remarks
did not constitute an improper comment on the evidence. The Defendant is
not entitled to relief on this issue.
VI. Homicide Instructions
The Defendant next contends that the trial court erred when it instructed
the jury on the definition of premeditation and when it instructed the
jury to consider whether the Defendant was guilty of the greater charged
offense before considering lesser-included offenses. During the guilt
phase, the trial court instructed the jury regarding the definition of
premeditation in pertinent part as follows: "Premeditation means that the
intent to kill must have been formed prior to the act itself. Such intent
or design to kill may be conceived and deliberately formed in an instant."
The trial court subsequently corrected itself and instructed the jury as
Okay. Previously while instructing you on the definition of premeditation,
I instructed you that such intent or design to kill may be conceived and
deliberately formed in an instant. This was not a correct statement of the
law. You will disregard that instruction. I will reread the instruction on
premeditation now to clarify the instruction.
Premeditation means that the intent to kill must have been formed prior to
the act. It is not necessary that the purpose to kill preexists in the
mind of the accused for any definite period of time. It is sufficient that
it preceded the act, however short the inference.
The Defendant contends that the trial courts instruction as corrected was
"incomprehensible" in that it did not explain why the formed in an instant
language in the instruction initially given was incorrect and because it
still essentially told the jury that an intent to kill could be formed in
the same moment the act was committed.
The Defendant made no objection to the new instruction on premeditation.
The failure to make a contemporaneous objection puts the Defendant at risk
of waiver. See Tenn. R. App. P. 36(a). Appellate relief is generally not
available when a party has "failed to take whatever action was reasonably
available to prevent or nullify the harmful effect of any error." State v.
Leonard Dale Kincer, No. M2004-01403-CCA-R3-CD, 2005 WL 1114438, at *8
(Tenn. Crim. App., at Nashville, May 11, 2005); see also State v.
Killebrew, 760 S.W.2d 228, 235 (Tenn. Crim. App. 1988) (holding that
waiver applies when the Defendant fails to make a contemporaneous
objection). Despite the risk of waiver, we address the issue and determine
the Defendant is not entitled to relief.
Generally, in determining whether instructions are erroneous, this Court
must review the charge in its entirety and read it as a whole. State v.
Hodges, 944 S.W.2d 346, 352 (Tenn. 1997) (citing State v. Stephenson, 878
S.W.2d 530, 555 (Tenn. 1994)). A charge should be considered prejudicially
erroneous if it fails to fairly submit the legal issues or if it misleads
the jury as to the applicable law. Id. (citing State v. Forbes, 918 S.W.2d
431, 447 (Tenn. Crim. App. 1995); Graham v. State, 547 S.W.2d 531, 531
In the present case, the jury was instructed that in order to find
premeditation, it must find that the intent or purpose to kill must have
been formed before the killing and that the purpose had to preexist in the
mind for some period of time, "however short," before the act was carried
out. As we have previously discussed, this is a correct statement of the
law as to the element of premeditation which required the jury to find
that the Defendant formed the intent to kill some time prior to the
killing. See State v. Brooks, 880 S.W.2d 390, 392 (Tenn. Crim. App. 1993).
In giving the corrected instruction, the trial court specifically told the
jury that its earlier instruction had erroneously stated that "such intent
or design to kill may be conceived and formed in an instant." The trial
court admonished, "This was not a correct statement of the law." The court
then reread the entire definition of premeditation without the "formed in
an instant language. Although we agree with the Defendant that it would
have been more complete to advise the jury that premeditation required the
exercise of reflection and judgment, see Tenn. Code Ann. 39-13-201(b)(2),
we do not conclude that the instruction as given incorrectly defined
premeditation or misled the jury.
Lastly, the Defendant challenges the homicide instructions in that they
required the jury first to consider whether the Defendant was guilty of
the greater offense before considering in turn whether any lesser-included
offenses were proven. The Defendant acknowledges that the Tennessee
Supreme Court has rejected similar challenges to "sequential charging" but
presents the issue here to preserve it for further appellate review. See
State v. Rutherford, 876 S.W.2d 118, 119-20 (Tenn. 1995), rev'd on other
grounds (Tenn. 1996); see also State v. McPherson, 882 S.W.2d 365, 375
(Tenn. Crim. App. 1994); State v. Raines, 882 S.W.2d 376, 381-82 (Tenn.
Crim. App. 1994), perm. app. denied (Tenn. July 5, 1994). We conclude that
the Defendant is not entitled to relief on this issue.
VII. Testimony of Joe Vann
During the guilt phase, the State was permitted to call Joe Vann, the
victim's younger brother, as a rebuttal witness over the Defendant's
objection. The Defendant argues that Vanns testimony was patently
unreliable because he made no statement to authorities in the eleven years
since the murder occurred and because his testimony contained obvious
discrepancies with that of other witnesses. The Defendant concludes that
the trial court committed reversible error in admitting the testimony
because its prejudicial effect far outweighed any probative value. In
order to address this claim, we find it necessary to present the witnesss
testimony in some detail.
Vann testified that he was twenty-eight years old, married, and worked at
Ray Pipes. He said he had a tenth-grade education, and his only criminal
record was for misdemeanor driving offenses and truancy in the 1990s. Vann
said that he was seventeen years old when the victim was murdered. He said
he had nine brothers and five sisters, including the victim, and that he
was particularly close to the victim because they had grown up together
while the others were older and had already left home. Vann said that
after the victim had her first child, Vanessa, by a neighbor, she
continued to live at their parents home. He said that Vanessas father had
nothing to do with her and did not provide the victim with child support.
Vann said that he saw the victim every other weekend after she married the
Defendant and moved out.
Vann said that he had a good relationship with the Defendant. He said that
they took trips to the mountains, looked at cars together, and the
Defendant bought him beer. Vann said that he had one conflict with the
Defendant when the Defendant and the victim lived at Hillside Trailer
Park. Vann said he was there one day when the victim checked on the baby
and found him in his crib with a gun in his hands. According to Vann, the
victim slung the gun to the ground, and the Defendant ran into the babys
room. Vann said that he did not see the Defendant hit the victim but heard
a sound and saw the victim emerge with her mouth bleeding. Vann said that
he told the Defendant not to hit his sister, and the Defendant denied so
doing. Vann said that when he questioned the Defendant why the victim had
a bloody mouth, and the Defendant responded, "I'll shoot you." Vann said
he told the Defendant he would shoot him if he hit the victim again. Vann
said the victim tried to calm them, and the Defendant told her to get the
children and they would all go out to eat pizza. Vann said the Defendant
kept "a bunch of guns" and a lot of "lawyer books" and "gun books" around
the trailer. Vann said that every time the Defendant brought the victim
back to see her mother, the Defendant would accuse the victim of going
next door to see Vanessas father. Vann said that the victim did not have
contact with Vanessa's father and that their mother had tried to explain
to the Defendant that the victim was only visiting her. Vann said that the
Defendant was very jealous of the victim and felt he was even jealous of
Vann and his other siblings. He said he never knew the Defendant to have a
job but was aware that he made some money by selling cars and guns. Vann
said that he was present when the Defendant advised Vanns brother, David,
on how to get disability or social security benefits. Vann testified:
He was telling David how to go to his doctor, speak to his doctor, and say
that hes hearing voices and just look away from his doctor and just stare
at the walls and just start talking and then go back to the subject matter
that he was talking about, that he was hearing the voices and stuff, then
his doctor would give him a see a psychologist or something, another
doctor, to, you know, prove the fact.
Vann said that the victim and the Defendant argued "all the time" and
their normal routine was to separate about twice a month. He said that the
victim usually left the Defendant and returned to her parents home on
Vann testified that, on the day before the murder, he was at home with his
mother, Elizabeth Vann. He said that in the evening, as it was getting
"dusky dark," they heard a car slow down. Vann said he turned on the porch
light and saw the Defendant in his blue Dodge van parked in the neighbors
driveway across the road. Vann said that the Defendant exited the van and
asked "where in the hell is Nina?" Vann said that he replied, "Ricky, she
ain't here, I ain't seen her," and the Defendant accused him of lying.
Vann said the Defendant threatened, "well, you better tell me right now or
I'll kill you and your momma and all of your family" and waived a gun as
he spoke. Vann said that he told the Defendant to come over to his yard,
and the Defendant stated:
[H]e was going to piss you know, he was going to kill me and my momma and
my whole family if we didn't tell him where she was, and he's going to
come back and piss on our graves, and all theyd do to him was send him to
Moccasin Bend and hed be up there about a couple of months and be back in
time to come back and piss on our graves, the grass wont even be on our
Vann said he had his father's shotgun at the time and would have "blow[n]
his damn head off" if the Defendant had come into the yard because the
Defendant was threatening his mother and upset her. Vann said they did not
call for help because they lived out in the country and "the law" did not
usually respond quickly.
On cross-examination, Vann testified that the Defendant acted jealous and
never wanted the victim to spend time with her brothers. Vann said the
Defendant was not crazy, but "crazy like a fox." Vann testified he
observed the Defendant drinking, but did not see the Defendant or the
victim using drugs. Vann said that he did not come forward before the
Defendant's first trial because he was trying to get the incident out of
his mind because it was not good for him to think about his sister's
murder. He said he related the encounter with the Defendant to some of his
family members. Vann said he was sure that the Defendant came to his house
at "about dark" the night before the murder. On further examination, Vann
said that neither the police nor Detective Farris ever interviewed him or
took a statement from him after the murder.
In urging that Vann's testimony was not properly admitted, the Defendant
emphasizes the fact that both trial judges ultimately found that the
testimony was not credible. This Court has held that "any competent
evidence which explains or is a direct reply to, or a contradiction of,
material evidence introduced by the accused, or which is brought out on
his cross-examination, is admissible in rebuttal." Nease v. State, 592
S.W.2d 327, 331 (Tenn. Crim. App. 1979). Questions concerning the
admission or rejection of rebuttal evidence address themselves to the
sound discretion of the trial court. State v. Scott, 735 S.W.2d 825, 828
(Tenn. Crim. App. 1987) (citing State v. Lunati, 665 S.W.2d 739, 747
(Tenn. Crim. App. 1983)); Beasley v. State, 539 S.W.2d 820, 823 (Tenn.
Crim. App. 1976). The trial courts decision in this regard will not be
reversed on appeal in the absence of a clear abuse of discretion. Id. at
In the present case, the Defendant presented extensive testimony from both
expert and lay witnesses in support of his insanity defense. The trial
court properly permitted in rebuttal Joe Vanns testimony suggesting that
the Defendant gave advice on how to feign mental illness. The defense also
presented proof that the Defendant was incapable of premeditation and
deliberation because of mental illness. The State was entitled to rebut
such evidence through Vann's testimony to the effect that the Defendant,
in the hours before killing the victim, displayed a weapon, threatened to
kill members of the victim's family, and contemplated receiving further
psychiatric treatment if he carried out his threats. The trial court did
not abuse its discretion in permitting Vann's rebuttal testimony.
VIII. Sufficiency of the Evidence of Aggravating Circumstances
The Defendant argues that there was insufficient evidence to support the
jurys finding of the (i)(3) and (i)(5) aggravating circumstances. "In
determining whether the evidence supports the jury's findings of statutory
aggravating circumstances, we view the evidence in a light most favorable
to the State and ask whether a rational trier of fact could have found the
existence of the aggravating circumstances beyond a reasonable doubt."
State v. Rollins, 188 S.W.3d 553, 571 (Tenn. 2006) (citing State v. Reid,
164 S.W.3d 286, 314 (Tenn. 2005)).
The first aggravating circumstance the jury found was that the Defendant
knowingly created a great risk of death to two or more persons in the
course of murdering the victim. See Tenn. Code Ann. 39-2-203(i)(3)
(1982). The proof showed that the Defendant, after making direct eye
contact with Rominger, shot at close range into the car in which Rominger
and the victims five-year-old daughter were sitting, striking Rominger in
the leg. The Defendant then turned his weapon on the victim, first firing
at her feet and then at her back as she held their baby in her arms
thereby placing the babys life in jeopardy. There was ample proof
supporting the finding of the (i)(3) aggravator.
The jury also found that the murder was "especially heinous, atrocious or
cruel in that it involved torture or depravity of mind." See Tenn. Code
Ann. 39-2-203 (i)(5) (1982). The Defendant submits that there is no
evidence to establish that the victim was tortured and, without evidence
of either torture or mutilation of the victim's body, no evidence to
support a finding that he possessed depravity of mind at the time of the
killing. The State contends that there was evidence of both torture and
depravity of mind.
"Torture" is defined as "the infliction of severe physical or mental pain
upon the victim while he or she remains alive and conscious." State v.
Williams, 690 S.W.2d 517, 529 (Tenn. 1985). The record reflects that no
autopsy was performed on the victim's body. Based on his visual
examination of the body, Dr. William Foree, the medical examiner,
testified that the victim died as the result of at least five bullet
wounds. Dr. Foree took photographs and made a diagram that showed the
victim had suffered a bullet wound to her left buttock and multiple shots
to the front of her body. Asked whether any or all of the wounds would
have proven fatal, Dr. Foree said, "Well, some of them would not have been
enough to kill her, but there were several that were." The State notes
that by all accounts, the Defendant first shot the victim as she was
walking away from him and the only wound to the victim's backside was to
her buttock "making it very unlikely that she died immediately." We agree
that the jury could reasonably have inferred that the victim was at least
initially alive and conscious as she suffered further bullet wounds. This
evidence of torture also proved the Defendant's depravity of mind. See
Williams, 690 S.W.2d at 529 (providing that proof of torture necessarily
establishes the murderer's depravity of mind because one who wilfully
inflicts such severe physical or mental pain on the victim is depraved.").
The Defendant further challenges the constitutionality of the aggravating
circumstances as being vague and/or overbroad. Our Supreme Court has
repeatedly rejected similar challenges and has held that the (i)(5)
aggravating circumstance is not unconstitutionally vague or overbroad. See
State v. Black, 815 S.W.2d 166, 181 (Tenn. 1991); State v. Barber, 753
S.W.2d 659, 670 (Tenn. 1988), cert. denied, 488 U.S. 900 (1988); Williams,
690 S.W.2d at 526-30.
Based on the foregoing, we conclude that there was sufficient evidence to
warrant the jurys finding of the (i)(3) and (i)(5) aggravating
circumstances. The Defendant's assignment of error fails. C. Conclusion
In consideration of the foregoing and the record as a whole, the judgment
of the trial court convicting the Defendant for first degree murder is
(source: The Chattanoogan)
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