Robert Faulkner was convicted of fatally
beating his estranged wife, Shirley, with a skillet and a horseshoe
after she filed for divorce in January 1999.
Sepreme Court of Tennessee
State v. Faulkner
STATE of Tennessee v. Robert FAULKNER
January 28, 2005
JANICE M. HOLDER, J., delivered the opinion of the
court, in which FRANK F. DROWOTA, III, C.J., and E. RILEY ANDERSON,
and WILLIAM M. BARKER, JJ., joined. ADOLPHO A. BIRCH, JR., J. filed a
concurring and dissenting opinion.
Robert C. Brooks, Memphis, Tennessee, for the
appellant, Robert Faulkner.Paul G. Summers, Attorney General and
Reporter; Michael E. Moore, Solicitor General; Mark A. Fulks,
Assistant Attorney General; William L. Gibbons, District Attorney
General; and Phillip Gerald Harris and Jennifer Nichols, Assistant
District Attorneys General, for the appellee, State of Tennessee.
The defendant, Robert Faulkner, was convicted of
the first degree premeditated murder of his wife, Shirley Faulkner.
The jury imposed a sentence of death based upon the aggravating
circumstance that the defendant was previously convicted of one or
more violent felonies. See Tenn.Code Ann. § 39-13-204(i)(2) (1997).
The Court of Criminal Appeals affirmed. On automatic appeal under
Tennessee Code Annotated section 39-13-206(a)(1) (2003), we designated
the following issues for oral argument: 1
1) whether the trial court improperly excluded testimony at the guilt
phase regarding Faulkner's “diminished capacity”; 2) whether the
trial court committed harmful error in its instructions defining
“intentionally” and “knowingly”; 3) whether the failure of the
verdict form to recite that the jury found the aggravating
circumstance “beyond a reasonable doubt” rendered the verdict invalid;
and 4) whether the sentence of death is disproportionate or invalid
under the mandatory review of Tennessee Code Annotated section
39-13-206(c)(1) (2003). Having carefully reviewed these issues and
the issue of photographic evidence raised by Faulkner, we find no
merit to his arguments. Accordingly, we affirm the judgment of the
Court of Criminal Appeals.
At the guilt phase of the trial, the State's proof
showed that the defendant, Robert Faulkner, and the victim, Shirley
Faulkner, married in September 1998 and separated in December 1998.
Faulkner moved in with his grandmother while the victim continued to
live at her house in Memphis. On January 18, 1999, the victim filed
a complaint with the Memphis Police Department alleging that on the
previous night Faulkner struck her with his fist, held an ashtray over
her head, and threatened to kill her. According to the victim, who
suspected that Faulkner had been high on cocaine, Faulkner also called
her several times on the morning of January 18, again threatening to
kill her. The officer who took the report testified that the victim
was nervous and shaking and that her left temple was swollen. On
January 19, the victim visited a physician, who treated her for trauma
to the left side of her face. The victim reported to the physician
that she had been hit in the face on Sunday, which was January 17.
At approximately 11:00 p.m. on January 21, the
victim clocked out from her shift as a cashier at a grocery store.
Before leaving, she purchased groceries. Although the victim's
supervisor testified that the victim appeared normal when she left, a
security guard who escorted the victim to her car described her as
shaking and crying. The victim told the guard that she was afraid to
go home because her husband might be waiting there. The victim
refused the guard's offer to escort her home and left by herself.
That same night, the victim's son-in-law, Andre King, decided to check
on the victim because a tornado watch was in effect for Memphis.
When Mr. King arrived shortly after midnight, he noticed that the
lights were on in the victim's house but that no car was in the
driveway. Mr. King waited outside for approximately thirty minutes
and then left.
The next day, January 22, the victim's friend, Joe
Ann Stewart, learned that the victim had not reported for work at her
second job as a housekeeper for an apartment complex. Ms. Stewart
called the victim's daughter, Twyla King, and asked her to meet Ms.
Stewart at the victim's house. Ms. Stewart also contacted the police.
Two officers arrived and used Ms. King's key to enter the house,
which showed no signs of forced entry. The officers observed bags of
groceries in the doorway of the kitchen. The lights were on in the
library and the kitchen, and the television was on in the den.
However, the victim's bedroom at the back of the house was dark, and
the door was closed. When the officers entered the bedroom, they
discovered the victim's body which was badly beaten about the head and
lying face up on the floor.
Dr. O'Brien Cleary Smith, the Shelby County Medical
Examiner, testified that the trauma to the victim was entirely focused
on her head. The victim suffered at least thirteen blows to her head,
most of them to her face. She had numerous bruises and tears to the
skin and fractures of the facial bones. The injuries produced
bruising of the brain, and some of the bone fragments cut into the
base of her brain. The victim's facial bones were so fragmented that
Dr. Smith could not count the fractures or determine the sequence of
the blows. The victim's upper denture plate had been split in half.
One piece was found on the floor; the other was still in her mouth.
In addition, after inhaling her own blood, the victim's efforts to
breathe caused a red frothy foam to obstruct her airway. The victim
also swallowed over a pint of blood. Dr. Smith testified that the
victim must have been alive, although not necessarily conscious, to
have swallowed that amount of blood.
Dr. Smith concluded that the cause of death was
blunt trauma to the head. He found no defensive injuries on the
victim's body or any evidence that she had tried to escape the beating.
Blood stains indicated that her head had moved after the beating
began but her arms had not. Based on blood-splatter evidence
indicating that the attack occurred while the victim was lying on the
floor, Dr. Smith opined that the victim had been stunned or rendered
unconscious by an initial blow or blows to the back of the head and
may have felt nothing after she was first struck. Because the
victim's blood had clotted before the end of the attack, Dr. Smith
concluded that the beating had lasted six minutes, the minimum time
necessary for clotting.
The crime scene unit of the Memphis Police
Department discovered blood in the victim's bedroom, in the foyer next
to the bedroom, and in the hallway running the entire length of the
house. Blood was smeared on the handles of two grocery bags, in the
kitchen doorway, and on the inside and outside knobs of the front door.
Officers found a broken handle from a skillet on the bed near the
victim's body. The rest of the skillet was never located. The
victim's car was also missing and was discovered the day after the
murder near the residence of Faulkner's sister. Blood stains were
found inside the car.
On Sunday morning, January 24, Faulkner went to the
fugitive office of the Shelby County Sheriff's Department and
announced that he wanted to turn himself in for killing his wife on
Thursday. Faulkner was transferred to Sergeant William Ashton of the
Memphis Police Department. According to Sergeant Ashton, Faulkner
was “very calm and very rational” during the interview. After
informing Faulkner of his Fifth Amendment rights and receiving a
written waiver, Sergeant Ashton asked Faulkner if he went by any other
names. Faulkner replied, “Yes, Skillet.” He then grinned and said,
“That's what I hit her with, too.” Faulkner stated that the incident
occurred around 12:00 to 12:30 a.m. on the night of January 21 and 22.
He said that he hit his wife with a frying pan and a metal horseshoe.
Faulkner claimed that his wife had called him at lunchtime on
January 21 and asked him to meet her at her house that evening.
Faulkner described what happened:
My conversation with my wife was reconciling, and
she had on her mind divorce. She said she just wanted the divorce,
and I asked her why didn't she just call me on the phone and tell me
that. I said, you didn't have to make me walk all the way from
Shasta Street in the rain just to tell me you wanted a divorce. I
sat back down on the bed and explained to her that I had enough
problems already over my head and had to bury my brother on Monday.
Everything I've tried to do since being out has just collapsed. I've
lost my job, I've lost my wife, I was subject to being sent back to
the penitentiary because I can't be without a job for 30 days. And
you called me back here to discuss a divorce, and I only came to
reconcile and ask we set aside our differences and go to my brother's
funeral together. And she responded she was going, but she wasn't
going with me.
* * *
So as we were finishing our conversation that was
turning into an argument, I proceeded to walk from her bedroom to the
front door as I was leaving. She walked behind me and asked me not
to come back while I was standing in the hallway and everything just
exploded. And I pushed her back off me and grabbed the two items
that I seen, and I struck her repeatedly across the head.
Faulkner estimated that he struck his wife between
seven and eight times. He acknowledged that the victim fell to the
floor after the second blow and that he continued to hit her while she
was on the floor. After the attack, Faulkner put the murder weapons
in a bag and drove away in the victim's car. He threw the murder
weapons and his bloody clothes into a flooded viaduct and then parked
the car where it was later found. He slept in empty houses instead
of returning to his grandmother's house. Faulkner concluded his
statement by professing, “I loved my wife with all my heart. I never
meant to take her life. Everything that I had ever tried to do right
turned out wrong. Under all the pressure, stress and strain, I made
a wrong decision. I only like to say that I'm sorry.” Faulkner
requested that he be placed on suicide watch in jail.
Faulkner's proof at the guilt phase consisted in
part of testimony showing that the security guard who had escorted the
victim from the grocery store to her car did not know Faulkner as the
guard had claimed and that the guard had been fired for carrying an
unauthorized weapon. Evidence was introduced that Faulkner had lost
his job on January 3 and that Jimmy Osby, a close friend whom Faulkner
called his “brother,” had committed suicide on January 21. A Shelby
County jailer testified that Faulkner was placed on suicide precaution
on January 24.
Based upon the above evidence, the jury convicted
Faulkner of first degree premeditated murder. A sentencing hearing
was conducted to determine punishment.
At the penalty phase, the State presented proof
that in March 1976 Faulkner was convicted of assault with intent to
commit first degree murder, assault with intent to commit robbery, and
assault with intent to commit voluntary manslaughter. Evidence also
showed that Faulkner was convicted of four robberies in September 1984
and second degree murder in October 1984.
Paulette Sutton, a forensic serologist and blood-stain
expert, testified that based on her analysis of blood-stain patterns,
the victim had collapsed fairly quickly but that the attack continued
for six minutes. Sutton theorized that the victim's arms had not
moved because Faulkner was straddling her during part of the assault,
not because she was unconscious.
The final witness for the State was the victim's
daughter, Twyla King. Ms. King testified that she had two brothers: Musenda
Spencer, age twenty-one, and Jamil Spencer, age seventeen. Musenda
was a freshman in college at the time of the murder. Because of the
loss of his mother's financial support, Musenda now had to work while
attending school. Jamil had “problems” and was incarcerated at the
time of the murder. Taking custody of her younger brother affected
Ms. King emotionally and financially. Ms. King testified that she
and her husband had three daughters. The oldest daughter had been
very close to her grandmother, suffered emotionally because of the
murder, and was in counseling at the time of the trial. Ms. King
concluded by stating that she missed her mother's emotional support.
In mitigation, the defense presented two witnesses.
The first witness was Dr. Fred Steinberg, a forensic and clinical
psychologist who had interviewed and tested Faulkner for twelve hours.
Dr. Steinberg opined that Faulkner was not malingering. Dr.
Steinberg testified that Faulkner had experienced a very rough
childhood. He was neglected and abused. Both his parents were
alcoholics, and one of them abused drugs. Faulkner lived with foster
parents at times. Dr. Steinberg testified that Faulkner suffered
from chronic substance abuse. According to Dr. Steinberg, on the
night of the murder Faulkner's predisposition toward impulsive
behavior was made significantly worse by a number of stressors: his
attempt to establish himself outside of prison, his difficult
relationship with his wife, the loss of his job in early January, his
grandmother's hospitalization in early January due to Alzheimer's
disease, his friend's suicide the day before the murder, and his
frequent use of cocaine. Dr. Steinberg defined “stressor” as a life
change that impacts an individual and has an effect upon his
psychological and physiological condition. Dr. Steinberg stated that
Faulkner had the ability to form intent but that he could not suppress
his emotions and that his ability to “cap” his behavior was diminished.
Conceding that Faulkner had no mental disease or defect and was sane
and competent, Dr. Steinberg diagnosed him as having mixed personality
features and exhibiting paranoid thinking typical of cocaine usage.
On cross-examination, the State elicited information concerning
Faulkner's record of fighting with fellow inmates, possessing weapons,
and threatening officers while incarcerated.
The second witness was Patricia McNealy, a
counselor at an alcohol and chemical abuse center, who had worked with
Faulkner beginning in November 1998 when he tested positive for
cocaine while on parole. McNealy testified that Faulkner attended
classes twice a week. She had noticed the stress in his life and
observed that Faulkner began using cocaine again after losing his job
in early January 1999. Around January 20, Faulkner called McNealy to
tell her that he would not attend his next group session because his
“brother” had committed suicide. Faulkner admitted during the call
to McNealy that he had been using cocaine.
Based upon this proof, the jury found that the
State had proven the statutory aggravating circumstance that the
“defendant was previously convicted of one (1) or more felonies, other
than the present charge, whose statutory elements involve the use of
violence to the person.” Tenn.Code Ann. § 39-13-204(i)(2) (1997).2
The jury further found that the State had proven beyond a reasonable
doubt that the statutory aggravating circumstance outweighed any
mitigating circumstances. As a result, the jury sentenced Faulkner
to death for the murder of Shirley Faulkner.
Testimony Regarding “Diminished Capacity”
Faulkner sought to introduce the testimony of Dr.
Steinberg and Patricia McNealy during the guilt phase to establish
“diminished capacity.” 3
At a jury-out hearing, Dr. Steinberg testified that Faulkner had
experienced significant, multiple stressors at the time of the offense
ranging from loss of job to marital problems. He also suffered from
exacerbation of a drug problem. His grandmother was hospitalized.
His best friend, whom he felt was like a brother, had committed
suicide. All of these stressors occurred within a short period of
time. According to Dr. Steinberg, these stressors in combination
affected Faulkner's “predisposed tendency to have a short fuse.”
However, Dr. Steinberg found no indication that Faulkner suffered from
a mental disease or defect at the time of the offense. In short, Dr.
Steinberg believed that Faulkner was capable of forming intent but
that his ability to suppress his emotions was impaired. McNealy
would have testified about Faulkner's drug dependency. Defense
counsel described her testimony as “dovetailing” with Dr. Steinberg's
testimony because she would be relating one of the stressors affecting
Faulkner. The trial court ruled that Dr. Steinberg's testimony was
inadmissible at the guilt phase under State v. Hall, 958 S.W.2d 679 (Tenn.1997),
because Dr. Steinberg could not testify that Faulkner was incapable of
forming intent as a result of a mental disease or defect. The trial
court also excluded McNealy's testimony, finding that its
admissibility depended on the admissibility of Dr. Steinberg's
In Hall, the Court held that if general relevancy
standards and evidentiary rules are satisfied, “psychiatric evidence
that the defendant lacks the capacity, because of mental disease or
defect, to form the requisite culpable mental state to commit the
offense charged is admissible under Tennessee law.” Id. at 689 (emphasis
added). The Court cautioned against referring to such evidence as
proof of “diminished capacity.” Id. at 690. Instead, such evidence
should be presented as relevant to negate the existence of the
culpable mental state. The Court distinguished “mental disease or
defect” from “emotional state or mental condition”:
[W]e emphasize that the psychiatric testimony must
demonstrate that the defendant's inability to form the requisite
culpable mental state was the product of a mental disease or defect,
not just a particular emotional state or mental condition. It is the
showing of lack of capacity to form the requisite culpable mental
intent that is central to evaluating the admissibility of expert
psychiatric testimony on the issue.
Id. at 690 (emphasis in original).
Dr. Steinberg's testimony was not offered to show
that Faulkner lacked the capacity to form the requisite intent because
of a mental disease or defect. His proposed testimony, therefore,
did not meet the prerequisites of Hall. Accordingly, we conclude that
the trial court properly excluded the testimony of both Dr. Steinberg
and Patricia McNealy during the guilt phase.
Instructions Defining “Intentionally” and
In its instruction on the elements of first degree
premeditated murder, the trial court informed the jury that “[a]
person acts intentionally with respect to the nature of the conduct or
to a result of the conduct when it is the person's conscious objective
or desire to engage in the conduct or cause the result.” Cf.
Tenn.Code Ann. § 39-11-106(a)(18) (1997). Regarding the elements of
second degree murder, the trial court instructed the jury that,
“Knowingly” means that a person acts knowingly with
respect to the conduct or to the circumstances surrounding the conduct
when the person is aware of the nature of the conduct or that the
circumstances exist. A person acts knowingly with respect to a
result of the person's conduct when the person is aware that the
conduct is reasonably certain to cause the result.
Cf. id. at (a)(20). Relying on State v. Page, 81
S.W.3d 781 (Tenn.Crim.App.2002), Faulkner argues that the trial court
erred by failing to limit the definitions of “intentionally” and
“knowingly” to the result-of-conduct language since murder is a crime
defined only by its result.
In Page, the fifteen-year-old defendant was
indicted for and convicted of second degree murder. The victim was
killed as a result of being struck in the head once by the defendant
with a baseball bat. The trial court instructed the jury that
A person acts “knowingly” if that person acts with
(1) that his conduct is of a particular nature; or
(2) that a particular circumstance exists; or
(3) that the conduct was reasonably certain to
cause the result.
Id. at 786. The Court of Criminal Appeals held
that the instruction on the knowing mens rea element of second degree
murder, a result-of-conduct offense, erroneously lessened the State's
burden of proof by allowing the jury to convict based only upon
awareness of the nature of the conduct or circumstances surrounding
the conduct. Id. at 788. The State conceded on appeal that the
instruction was erroneous but asserted that the error was harmless.
The Court of Criminal Appeals applied a constitutional harmless error
analysis and concluded that the error was not harmless beyond a
reasonable doubt. The court recognized that mens rea was the central
disputed issue at trial. Id. at 789-90. Moreover, in closing
argument, the State specifically and improperly relied upon the
defendant's awareness of the nature of the conduct and circumstances
surrounding the conduct rather than the defendant's awareness of the
result of his conduct. Id. The court noted in dicta that the
“intentional” culpable mental state of first degree premeditated
murder relates to the result of conduct. As it did for the other
homicide offenses, the court suggested a jury charge for first degree
premeditated murder, that deviated from the pattern jury instruction
by limiting the definition to the result of conduct. Id. at 789 n. 2.
The State contends that Faulkner has waived the
issue because he did not object at trial and did not raise the issue
in his motions for a new trial. An erroneous or inaccurate jury
charge, as opposed to an incomplete jury charge, may be raised for the
first time in a motion for a new trial and is not waived by the
failure to make a contemporaneous objection. See State v. Lynn, 924
S.W.2d 892, 898-99 (Tenn.1996) (citing Tenn. R.Crim. P. 30(b)). Therefore,
contrary to the State's assertion, Faulkner's failure to object at
trial does not result in waiver. We conclude, however, that the
issue is waived because Faulkner did not raise it in any of his three
motions for a new trial. See Tenn. R.App. P. 3(e). The decision in
Page was released while Faulkner's case was pending on appeal. The
timing of the decision in Page does not relieve Faulkner of the
requirement of raising the issue in the motion for a new trial. Cf.
Page, 81 S.W.3d at 787-88 n. 1 (noting that the issue was raised for
the first time in the motion for a new trial).
Because the issue is waived, it may be considered
only if plain error exists. Rule 52(b) of the Tennessee Rules of
Criminal Procedure provides that “[a]n error which has affected the
substantial rights of an accused may be noticed at any time, even
though not raised in the motion for a new trial or assigned as error
on appeal, in the discretion of the appellate court where necessary to
do substantial justice.” When deciding whether plain error exists,
appellate courts consider five factors:
(a) the record must clearly establish what occurred
in the trial court; (b) a clear and unequivocal rule of law must have
been breached; (c) a substantial right of the accused must have been
adversely affected; (d) the accused did not waive the issue for
tactical reasons; and (e) consideration of the error is “necessary to
do substantial justice.”
State v. Smith, 24 S.W.3d 274, 282 (Tenn.2000).
The presence of all five factors must be established, and
consideration of all the factors is not necessary when it is clear
from the record that at least one of the factors cannot be established.
Id. at 283. Moreover, the error must be of such a great magnitude
that it probably changed the outcome of the trial. Id.
The State contends that there has been no breach of
any clear and unequivocal rule of law, nor has any substantial right
of the accused been adversely affected. The law is well-settled in
Tennessee “that a defendant has a right to a correct and complete
charge of the law so that each issue of fact raised by the evidence
will be submitted to the jury upon proper instructions.” State v.
Farner, 66 S.W.3d 188, 204 (Tenn.2001). The law requires that all of
the elements of each offense be described and defined in connection
with that offense. State v. Cravens, 764 S.W.2d 754, 756 (Tenn.1989).
An instruction should be considered prejudicially erroneous only if
the jury charge, when read as a whole, fails to fairly submit the
legal issues or misleads the jury as to the applicable law. State v.
Vann, 976 S.W.2d 93, 101 (Tenn.1998).
We have not previously addressed the holding in
Page. We agree that a proper instruction defining “knowingly” or
“intentionally” does not include the nature-of-conduct and
circumstances-surrounding-conduct language because second degree
murder and first degree premeditated murder are result-of-conduct
offenses. We are not convinced, however, that the inclusion of such
language is an error of constitutional dimension when the instruction
also includes the correct result-of-conduct definition.
Noting that Tennessee's criminal code is similar to
the code adopted in Texas, Page cited Cook v. State, 884 S.W.2d 485 (Tex.Crim.App.1994),
the seminal case in Texas on this issue. Without analyzing the basis
for the error, the majority in Cook held that the trial court erred in
refusing the defendant's request to limit the definitions of the
applicable mental states for the homicide to the result of the
defendant's conduct. 884 S.W.2d at 491. The majority in Cook
remanded the case for a harmless error determination, citing for
guidance cases that do not apply a constitutional harmless error
standard. Four members of the en banc court dissented, concluding
that the charge, when read as a whole, stated the applicable law in a
manner that was not reasonably likely to mislead the jury into
convicting the defendant because they thought he engaged in conduct
that ultimately caused the victim's death. Id. at 496.
Our research has revealed few decisions from other
states concerning this issue. In State v. Rothacher, 272 Mont. 303,
901 P.2d 82, 86 (1995), the Montana Supreme Court held that an
instruction that does not properly narrow the definition of the mental
state element to the result of the conduct is “clearly contrary to the
plain language in the homicide statute” and therefore erroneous.
Finding that the error was harmless beyond a reasonable doubt, the
The potential prejudice from [the instruction]
could occur where a defendant acted purposefully, but intended no harm.
However, there were no facts presented in this case from which an
argument could be made that when Rothacher struck his victim in the
face and kicked him in the head while he was [lying] on the ground, he
intended no harm. Therefore, [the instruction] was, at worst,
Id. at 87.
In State v. Austin, 244 Conn. 226, 710 A.2d 732,
739 (1998), the Connecticut Supreme Court held that the trial court
improperly instructed the jury on the entire definition of the mental
state element when only the result-of-conduct definition applied.
Applying a non-constitutional harmless error standard, the court found
that the error was harmless because 1) the entire charge eliminated
any possible risk of confusion, and 2) the factual issues mitigated
against the possibility of jury confusion. Regarding the second
factor, the court stated:
The defendant admitted that he pulled the trigger
and shot the victim. Counsel for both parties agreed that the sole
issue in dispute was the defendant's mental state. Under the
circumstances, “[i]t strains reason to believe that the jury could
have [understood] the challenged instruction as not requiring that the
state prove beyond a reasonable doubt that the defendant intended to
kill [the victim].”
Id. (citation omitted).
We have found no authority supporting the
conclusion in Page that the erroneous instruction lessened the State's
burden of proof. Moreover, the conclusion is inconsistent with
Page's application of harmless error analysis. See Sullivan v.
Louisiana, 508 U.S. 275, 280, 113 S.Ct. 2078, 124 L.Ed.2d 182 (1993)
(holding that an instructional error that lessens the burden of proof
is considered structural and not subject to harmless error analysis).
The superfluous language in the “knowingly” definition did not
lessen the burden of proof because it did not relieve the State of
proving beyond a reasonable doubt that the defendant acted knowingly.
Page also described the instructional error as a
misstatement of an element. 81 S.W.3d at 789. The misstatement of
an element in jury instructions is subject to constitutional harmless
error analysis. Pope v. Illinois, 481 U.S. 497, 501-03, 107 S.Ct.
1918, 95 L.Ed.2d 439 (1987). In Page, however, an element was
misstated only to the extent that the erroneous instruction defined
the entire scope of the mental state element when only the result-of-conduct
definition applied. In our view, the inclusion of such surplusage
falls short of being a “misstatement of an element,” as that term is
used in constitutional analysis. Cf. State v. Turner, 675 S.W.2d
199, 205 (Tenn.Crim.App.1984) (holding that inclusion of surplusage in
jury charge defining conspiracy was “plainly harmless”).
We recognize that we previously have stated that “a
defendant has a constitutional right to a correct and complete charge
of the law.” State v. Teel, 793 S.W.2d 236, 249 (Tenn.1990). This
statement was cited by the Court of Criminal Appeals in Page, 81 S.W.3d
at 789. Our statement in Teel, however, was made in the context of
the omission of the definition of rape, the underlying felony for the
felony murder charge. 793 S.W.2d at 249. The failure to instruct
the jury on a material element of an offense is a constitutional error
subject to harmless error analysis. See State v. Ducker, 27 S.W.3d
889, 899 (Tenn.2000). Not every erroneous jury instruction, however,
rises to the level of constitutional error. See Miller v. State, 54
S.W.3d 743, 746 (Tenn.2001) (clarifying that State v. Brown, 836 S.W.2d
530 (Tenn.1992), “did not declare or imply that the potentially
confusing ‘premeditation may be formed in an instant’ instruction
infringed upon a defendant's constitutional rights”).
Turning to the present case, we must first
determine whether the inclusion of the nature-of-conduct language in
the “intentionally” definition is an error of constitutional dimension.
As noted above, the trial court instructed the jury in accordance
with Tennessee Code Annotated section 39-11-106(a)(18) (1997) that
“[a] person acts intentionally with respect to the nature of the
conduct or to a result of the conduct when it is the person's
conscious objective or desire to engaged in the conduct or cause the
result.” First degree premeditated murder requires not only that the
killing be “intentional,” but also that the defendant act with a
“premeditated” mental state. See Tenn.Code Ann. § 39-13-202(a)(1)
(1997). The trial court instructed the jury in pertinent part:
A premeditated act is one done after the exercise
of reflection and judgment. Premeditation means that the intent to
kill must have been formed prior to the act itself. It's not
necessary that the purpose to kill preexist in the mind of the accused
for any definite period of time. The mental state of the accused at
the time he allegedly decided to kill must be carefully considered in
order to determine whether the accused was sufficiently free from
excitement and passion as to be capable of premeditation.
(Emphasis added); cf. id. at (d).
As the trial court instructed, “the element of
premeditation requires a previously formed intent to kill.” See
State v. West, 844 S.W.2d 144, 147 (Tenn.1992). The instructions
properly defined “intentionally” with regard to the result of the
conduct. The entire charge on first degree premeditated murder
eliminated any risk of the jury applying the wrong definition. We
conclude, therefore, that the instructional error was not
constitutional in nature. Furthermore, we find that the error was
harmless. The evidence overwhelmingly demonstrated that Faulkner
intended the result of his conduct. He had made prior threats to
kill the victim and inflicted numerous blows during the commission of
the offense. During its closing argument, the State did not rely on
the superfluous language in the “intentionally” definition. Cf. Page,
81 S.W.3d at 789 (noting in harmless error analysis that during
closing argument the State specifically and improperly relied upon the
nature of the conduct and the circumstances surrounding the conduct).
In finding that Faulkner acted with premeditation, the jury
necessarily found that his conscious objective was to cause the result
of his conduct, i.e., the victim's death. The inclusion of the
nature-of-conduct language was mere surplusage that did not affect the
outcome of the trial. See Tenn. R.Crim. P. 52(a).
Having found that the erroneous instruction
defining “intentionally” was harmless, we conclude that Faulkner is
not entitled to relief under the plain error doctrine. Moreover,
because Faulkner was not convicted of second degree murder, his issue
regarding the erroneous instruction defining “knowingly” is moot.
Faulkner contends that the sentence of death was
imposed in violation of the United States and Tennessee Constitutions
because the verdict form did not recite that the jury found the
aggravating circumstance “beyond a reasonable doubt.” The State
argues that this issue is waived because Faulkner did not
contemporaneously object to the verdict form and did not include this
issue in any of his motions for a new trial.
The jury verdict in this case stated:
We, the jury, unanimously find the following listed
statutory aggravating circumstance or circumstances: the defendant
was previously convicted of one or more felonies other than the
present charge. The statutory elements of which involve the use of
violence to the person. We, the jury, unanimously find that the
state has proven beyond a reasonable doubt that the statutory
aggravating circumstances so listed above outweighs any mitigating
circumstances. Therefore, we, the jury, unanimously find that the
punishment for the defendant, Robert Faulkner, shall be death.
Prior to the verdict, the trial court instructed
the jury on seven occasions that it was required to consider any
statutory aggravating circumstances proven beyond a reasonable doubt.
The trial court instructed the jury that the State bears the burden
of proving any statutory aggravating circumstances beyond a reasonable
doubt. The trial court further instructed the jury that victim
impact evidence does not relieve the State of its burden of proving
beyond a reasonable doubt the existence of an aggravating circumstance
and that the jury may not consider victim impact evidence until it
determines that the State has proven one or more statutory aggravating
circumstances beyond a reasonable doubt.
The verdict form incorporated the language of
Tennessee Code Annotated section 39-13-204(g)(1)(B) (1997), which
provides: “We, the jury, unanimously find the following listed
statutory aggravating circumstance or circumstances․” The statutory
form also omits the burden of proof for establishing aggravating
Regardless of waiver, a similar issue was rejected
by this Court recently in State v. Davidson, 121 S.W.3d 600, 619-20 (Tenn.2003).
We concluded that such an error can be distinguished from the
reversible error in the verdict form in State v. Carter, 988 S.W.2d
145, 152 (Tenn.1999). See Davidson, 121 S.W.3d at 620. In Carter,
the wrong form was used, and the form was not merely silent as to the
burden or proof but conflicted with the trial court's instructions
regarding the burden. Like Davidson, the language used in the
verdict form in the present case was statutorily mandated, and the
trial court repeatedly and clearly instructed the jury that it must
find any statutory aggravating circumstances beyond a reasonable doubt.
We conclude, therefore, that the failure of the verdict form to
recite that the jury found the aggravating circumstance “beyond a
reasonable doubt” did not render the verdict invalid.
We are bound by statute to review the application
of the death penalty to determine whether:
(A) The sentence of death was imposed in any
(B) The evidence supports the jury's finding of
statutory aggravating circumstance or circumstances;
(C) The evidence supports the jury's finding that
the aggravating circumstance or circumstances outweigh any mitigating
(D) The sentence of death is excessive or
disproportionate to the penalty imposed in similar cases, considering
both the nature of the crime and the defendant.
Tenn.Code Ann. § 39-13-206(c)(1) (2003). Having
thoroughly reviewed the record, we find no indication that the
sentence of death was imposed in an arbitrary fashion. We also
conclude that the State presented sufficient proof to support the
jury's finding that Faulkner had prior convictions for felonies whose
statutory elements involve the use of violence to the person. See
Tenn.Code Ann. § 39-13-204(i)(2) (1997). We further hold that the
evidence supports the jury's finding that the aggravating circumstance
outweighed any mitigating circumstances beyond a reasonable doubt.
Next, we must determine whether the sentence of
death in this case is disproportionate to the penalty imposed in
similar cases, considering the nature of the crime and the defendant.
Tenn.Code Ann. § 39-13-206(c)(1)(D) (2003). We are mindful of the
following principles applicable to proportionality review:
In conducting a comparative proportionality review,
we begin with the presumption that the sentence of death is
proportional with the crime of first degree murder. A sentence of
death may be found disproportionate if the case being reviewed is
“plainly lacking in circumstances consistent with those in similar
cases in which the death penalty has previously been imposed.” A
sentence of death is not disproportionate merely because the
circumstances of the offense are similar to those of another offense
for which a defendant has received a life sentence. Our inquiry,
therefore, does not require a finding that a sentence “less than death
was never imposed in a case with similar characteristics.” Our duty
“is to assure that no aberrant death sentence is affirmed.”
State v. Hall, 976 S.W.2d 121, 135 (Tenn.1998) (citations
omitted). We have found the following factors helpful in identifying
and comparing similar cases: 1) the means and manner of death; 2)
the motivation for killing; 3) the place of death; 4) the similarity
of the victims and treatment of the victims; 5) the absence or
presence of premeditation, provocation, and justification; and 6) the
injury to and effects on non-decedent victims. See State v. Bland,
958 S.W.2d 651, 667 (Tenn.1997). In comparing defendants, we
consider the following non-exclusive factors: 1) prior criminal
history; 2) age, race, and gender; 3) mental, emotional, and
physical condition; 4) role in the murder; 5) cooperation with
authorities; 6) remorse; 7) knowledge of helplessness of victim; and
8) capacity for rehabilitation. See id.
The proof in this case showed that Faulkner
brutally killed his wife by hitting her in the head and face with a
skillet. Four days prior to the murder, he hit her with his fist and
threatened to kill her with an ashtray. The next day, he repeated
his threat to kill her. On the night of the murder, Faulkner went to
his wife's house and attacked her, striking her in the head with the
skillet. After two blows, the victim fell to the floor. Faulkner
continued to hit her in the head and face with the skillet and a metal
horseshoe. In an attack that lasted at least six minutes, Faulkner
struck his wife at least thirteen times, completely crushing her face.
The victim was alive and breathing during a portion of the attack,
although she may have been unconscious after the first few blows.
After beating his wife to death, Faulkner took her car. He threw the
murder weapons and his bloody clothes into a flooded viaduct.
Several days later, Faulkner turned himself in to the police and
confessed to the murder.
Faulkner, an African-American male, was forty-three
years old at the time of the murder and had a prior criminal history
including convictions for second degree murder, assault with intent to
commit first degree murder, assault with intent to commit robbery,
assault with intent to commit voluntary manslaughter, and robbery.
Mitigation testimony showed that Faulkner was subjected to neglect and
abuse as a child, that his parents were alcoholics and one used drugs,
and that he was placed in foster care. The defense presented expert
testimony that, at the time of the murder, Faulkner had a
predisposition toward impulsive behavior that was made significantly
worse by a number of stressors, ranging from the loss of his job to
the suicide of a close friend. The expert testified that Faulkner
had the ability to form intent but that once his emotions were aroused
under stressful circumstances he could not suppress them and his
ability to “cap” his behavior was diminished. There was some
evidence that Faulkner was using crack cocaine at or about the time of
Based upon an exhaustive review of the record and
Supreme Court Rule 12 reports, we conclude that the sentence of death
imposed in this case is not excessive or disproportionate when
compared to the penalty imposed in similar cases. The sentence of
death has been upheld in numerous cases in which the victim was the
defendant's wife or girlfriend. See, e.g., State v. Suttles, 30 S.W.3d
252 (Tenn.2000) (defendant stabbed girlfriend in Taco Bell parking lot;
(i)(2) and (i)(5) aggravating circumstances); State v. Keough, 18
S.W.3d 175 (Tenn.2000) (defendant stabbed wife after argument in bar
and left her to bleed to death in car; (i)(2) aggravator); State v.
Hall, 8 S.W.3d 593 (Tenn.1999) (after arguing with wife, defendant
beat, strangled, and drowned her; (i)(5) aggravator); State v. Hall,
958 S.W.2d 679 (Tenn.1997) (angry that girlfriend was going to leave
him, defendant set fire to her car while she was inside; (i)(5) and
(i)(7) (felony murder) aggravators); State v. Smith, 868 S.W.2d 561 (Tenn.1993)
(defendant stabbed, shot and disemboweled wife; (i)(5) and (i)(12) (mass
murder) aggravators); State v. Johnson, 743 S.W.2d 154 (Tenn.1987) (defendant
suffocated wife with plastic bag; (i)(2) and (i)(5) aggravators).
The sentence of death also has been upheld in numerous cases where the
defendant fatally beat the victim in the head. See, e.g., State v.
Nichols, 877 S.W.2d 722 (Tenn.1994) (defendant beat victim in head
with a piece of lumber during rape; (i)(2) and (i)(7) aggravators); State
v. Cazes, 875 S.W.2d 253 (Tenn.1994) (defendant beat woman's head to
pieces with hammer and also raped her; (i)(2), (i)(5), and (i)(7)
aggravators); State v. Barber, 753 S.W.2d 659 (Tenn.1988) (defendant
beat elderly woman in head with crescent wrench during burglary;
(i)(5) and (i)(7) aggravators); State v. Porterfield, 746 S.W.2d 441
(Tenn.1988) (defendant beat man to death by hitting him in head twenty-one
times with tire iron; (i)(2), (i)(4), and (i)(5) aggravators); State
v. McNish, 727 S.W.2d 490 (Tenn.1987) (defendant beat elderly woman to
death with a vase; (i)(5) aggravator); State v. Harbison, 704 S.W.2d
314 (Tenn.1986) (defendant killed woman during burglary by striking
her on head with a vase; (i)(7) aggravator). In addition to Keough,
supra, juries have imposed the death penalty based solely on a finding
of aggravating circumstance (i)(2) in several other cases. See, e.g.,
State v. Odom, 137 S.W.3d 572 (Tenn.2004); State v. Dellinger, 79 S.W.3d
458 (Tenn.2002); State v. McKinney, 74 S.W.3d 291 (Tenn.2002); State
v. Chalmers, 28 S.W.3d 913 (Tenn.2000).
We reiterate that our analysis does not require a
determination of whether a given case is subjectively “more or less”
like other “death” cases or other “life” cases. Davidson, 121 S.W.3d
at 623 (citation omitted). Instead, our review requires that we
identify an aberrant death sentence by determining whether the case is
plainly lacking in circumstances consistent with those in similar
cases in which the death penalty previously was imposed. Id. After
reviewing the cases discussed above as well as many others not
specifically cited, we are of the opinion that the sentence of death
in this case is not excessive or disproportionate to the penalty
imposed in similar cases, considering both the nature of the crime and
In accordance with Tennessee Code Annotated section
39-13-206(c)(1) (2003) and the principles adopted in prior decisions,
we have considered the entire record in this case and conclude that
the sentence of death has not been imposed arbitrarily, that the
evidence supports the jury's finding of the statutory aggravating
circumstance, that the evidence supports the jury's finding that the
aggravating circumstance outweighs any mitigating circumstances beyond
a reasonable doubt, and that the sentence is not excessive or
We have reviewed all of the issues raised by
Faulkner and conclude that they do not warrant relief. With respect
to issue of photographic evidence which was raised in this Court but
not addressed in this opinion, we affirm the decision of the Court of
Criminal Appeals. Relevant portions of that opinion are incorporated
herein and are attached as an appendix. Faulkner's conviction and
sentence of death are affirmed. The sentence of death shall be
carried out as provided by law on the 18th day of August, 2005, unless
otherwise ordered by this Court or other proper authority. It
appearing that defendant Robert Faulkner is indigent, costs of this
appeal are taxed to the State of Tennessee.
I concur in the conclusion of the majority that
Faulkner's conviction should be affirmed. As to the sentence of
death, however, I continue to adhere to my views, previously expressed
in a long line of dissents, that the comparative proportionality
review protocol currently embraced by the majority is inadequate to
shield defendants from the arbitrary and disproportionate imposition
of the death penalty. See Tenn.Code Ann. § 39-13-206(c)(1)(D) (1995
Supp.). I have repeatedly expressed my displeasure with the current
protocol since the time of its adoption in State v. Bland, 958 S.W.2d
651 (Tenn.1997). See State v. Robinson, 146 S.W.3d 469, 529 (Tenn.2004)
(Birch, J., concurring and dissenting); State v. Leach, 148 S.W.3d,
42, 68 (Tenn.2004) (Birch, J., concurring and dissenting); State v.
Davis, 141 S.W.3d 600, 632 (Tenn.2004) (Birch, J., concurring and
dissenting); State v. Berry, 141 S.W.3d 549, 589 (Tenn.2004) (Birch,
J., concurring and dissenting); State v. Holton, 126 S.W.3d 845, 872
(Tenn.2004) (Birch, J., concurring and dissenting); State v. Davidson,
121 S.W.3d 600, 629-36 (Tenn.2003) (Birch, J., dissenting); State v.
Carter, 114 S.W.3d 895, 910-11 (Tenn.2003) (Birch, J., dissenting); State
v. Reid, 91 S.W.3d 247, 288-89 (Tenn.2002) (Birch, J., concurring and
dissenting); State v. Austin, 87 S.W.3d 447, 467-68 (Tenn.2002) (Birch,
J., dissenting); State v. Stevens, 78 S.W.3d 817, 852 (Tenn.2002) (Birch,
J., concurring and dissenting); State v. McKinney, 74 S.W.3d 291,
320-22 (Tenn.2002) (Birch, J., concurring and dissenting); State v.
Bane, 57 S.W.3d 411, 431-32 (Tenn.2001) (Birch, J., concurring and
dissenting); State v. Stout, 46 S.W.3d 689, 720 (Tenn.2001) (Birch,
J., concurring and dissenting); Terry v. State, 46 S.W.3d 147, 167 (Tenn.2001)
(Birch, J., dissenting); State v. Sims, 45 S.W.3d 1, 23-24 (Tenn.2001)
(Birch, J., concurring and dissenting); State v. Keen, 31 S.W.3d 196,
233-34 (Tenn.2000) (Birch, J., dissenting). As previously discussed,
I believe that the three basic problems with the current
proportionality analysis are that: (1) the proportionality test is
(2) the pool of cases used for comparison is inadequate,2
and (3) review is too subjective.3
I have previously discussed, in depth, my perception that these flaws
undermine the reliability of the current proportionality protocol.
See State v. Godsey, 60 S.W.3d at 793-800 (Birch, J., concurring and
dissenting). I continue to adhere to my view that the current
comparative proportionality protocol is woefully inadequate to protect
defendants from the arbitrary or disproportionate imposition of the
Accordingly, I respectfully dissent from that portion of the majority
opinion affirming the imposition of the death penalty in this case.
(Excerpts from the Court of Criminal Appeals'
Decision)IN THE COURT OF CRIMINAL APPEALS OF TENNESSEEAT JACKSONMay 6,
2003 SessionSTATE OF TENNESSEE v. ROBERT FAULKNERDirect Appeal from
the Criminal Court for Shelby County, No. 99-07635; Chris Craft,
JudgeNo. W2001-02614-CCA-R3-DD-Filed September 26, 2003
Thomas T. Woodall, J., delivered the opinion of the
court, in which David G. Hayes and John Everett Williams, JJ., joined.
[Deleted: Factual Background]I. Evidence of
Diminished Capacity[Deleted]II. Introduction of Photographs of
Seven color photographs were admitted during the
guilt phase of the Defendant's trial and seven color photographs were
admitted during the sentencing phase of the Defendant's trial.
During the guilt phase, the following photographs were admitted:
1. Exhibit # 3: Color photograph of the victim's
body lying on the floor near a dresser. Blood is visible on the
victim's head and on the carpet beneath the victim's body.
2. Exhibit # 33: Color photograph of the victim's
head during the autopsy. Photo depicts the number and position of
wounds to the victim's head.
3. Exhibit # 34: Color autopsy photograph
revealing close-up of “cleaned-up” wound to victim's head. Wound
showed repeated blows but was not accompanied with pooled or running
4. Exhibit # 35: Color autopsy photograph of
victim's facial features, specifically the nose and mouth region.
Photo revealed “a definite gap or dent or cut in the bottom lip.”
5. Exhibit # 36: Color autopsy photograph of
victim's facial features, specifically the mouth and chin region.
Tape measure indicated size of wounds.
6. Exhibit # 37: Color autopsy photograph of
victim's facial features, specifically the upper mouth, nose, and left
eye region. Photo indicated number of wounds to facial area.
7. Exhibit # 41: Color autopsy photograph of front
view of victim's head. Photo depicted severity of facial wounds
inflicted upon the victim.
During the penalty phase, the following photographs
1. Exhibit # 47: Color photograph of victim's
body lying on bedroom floor.
2. Exhibit # 48: Color photograph of close-up of
victim's body as found on bedroom floor.
3. Exhibit # 49: Color photograph of victim's body
lying on bedroom floor.
4. Exhibit # 50: Color photograph of victim's body
lying on bedroom floor. Different angle showing little or no blood
spatter on right side of victim's body.
5. Exhibit # 56: Color photograph depicting blood
stain on carpet.
6. Exhibit # 60: Color photograph of victim's body
lying on bedroom floor. Photograph indicated the presence of blood
clots on victim's person and on carpet.
7. Exhibit # 61: Color photograph of close-up of
victim lying on bedroom floor. Photograph indicated the presence of
blood clots or spatter on dresser behind victim's body.
The Defendant complains that the trial court erred
in admitting these photographs stating that “[t]he introduction of
gruesome photographs of the victim violates the Defendant's rights
under the federal and state constitutions, as well as the Tennessee
Rules of Evidence.” The State responds that “the relevance of these
photographs was not substantially outweighed by the danger of unfair
prejudice,” and, therefore, the trial court did not err by admitting
Tennessee courts follow a policy of liberality in
the admission of photographs in both civil and criminal cases. See
State v. Banks, 564 S.W.2d 947, 949 (Tenn.1978) (citations omitted).
Accordingly, “the admissibility of photographs lies within the
discretion of the trial court” whose ruling “will not be overturned on
appeal except upon a clear showing of an abuse of discretion.” Id.; see
also State v. Hall, 8 S.W.3d 593, 602 (Tenn.1999), cert. denied, 531
U.S. 837, 121 S.Ct. 98, 148 L.Ed.2d 57 (2000). Notwithstanding, a
photograph must be found relevant to an issue that the jury must
decide before it may be admitted into evidence. See State v. Vann,
976 S.W.2d 93, 102 (Tenn.1998), cert. denied, 526 U.S. 1071, 119 S.Ct.
1467, 143 L.Ed.2d 551 (1999); State v. Braden, 867 S.W.2d 750, 758 (Tenn.Crim.App.),
perm. to appeal denied, (Tenn.1993) (citation omitted); see also Tenn.
R. Evid. 401. Photographs of a corpse are admissible in murder
prosecutions if they are relevant to the issues at trial,
notwithstanding their gruesome and horrifying character.
Additionally, the admissibility of evidence at a capital sentencing
hearing is controlled by section 39-13-204(c), Tennessee Code
Annotated, which allows the admission of any evidence “the court deems
relevant to the punishment ․ regardless of its admissibility under the
rules of evidence.” See Hall, 8 S.W.3d at 601. In essence, section
39-13-204(c) permits introduction of any evidence relevant to
sentencing in a capital case, subject only “to a defendant's
opportunity to rebut any hearsay statements and to constitutional
limitations.” See Hall, 8 S.W.3d at 601.
Notwithstanding this broad interpretation of
admissibility, evidence that is not relevant to prove some part of the
prosecution's case should not be admitted solely to inflame the jury
and prejudice the defendant. Banks, 564 S.W.2d at 950-51.
Additionally, the probative value of the photograph must outweigh any
unfair prejudicial effect that it may have upon the trier of fact. Vann,
976 S.W.2d at 103; Braden, 867 S.W.2d at 758; see also Tenn. R. Evid.
403. In this respect, we note that photographs of a murder victim
are prejudicial by their very nature. However, prejudicial evidence
is not per se excluded; indeed, if this were true, all evidence of a
crime would be excluded at trial. Rather, what is excluded is
evidence which is “unfairly prejudicial,” in other words, that
evidence which has “an undue tendency to suggest a decision on an
improper basis, commonly, though not necessarily, an emotional one.”
See Vann, 976 S.W.2d at 103 (citations omitted).
A. Photographs at Guilt Phase
Exhibit number 3 is a photograph depicting the
location of the victim's body in relation to the dresser. The
defense objected stating that sketches of the crime scene were
available to show the location of the victim's body and that the
photograph was too graphic. The trial court found that “the
probative value of this photograph is not outweighed by any unfair
prejudice. It's not, in my mind, other than showing someone dead who
obviously has been beaten around the head, it's not inflammatory.”
Five other photographs that were more graphic were excluded by the
Exhibit numbers 33 though 37 and exhibit number 41
are all photographs of the victim taken during the autopsy. At trial,
the State asserted that the photographs were necessary to show
different aspects of the examination performed by Dr. Smith. The
prosecution stated that the photographs were also necessary as
evidence of repeated blows, or proof of premeditation, and not that a
single blow was struck in anger. Because the photographs of the
wounds were taken during the autopsy, the wounds had been “cleaned up”
as much as possible. There was no fresh blood and the photographs
were basically “scientific” photographs.
The trial court made the following rulings with
regard to these photographs:
This [exhibit # 33] shows a wound. Apparently,
her scalp has been shaved on the right top side of her head to show
the wound there. Other than having a little blood in her ear, that
seemed to pool in the ear, this picture is a cleaned up picture.
Well, I find that this will help assist the jury.
It's very probative as to the position and the repeated wounds, and
it's been cleaned up. And there's nothing gross or heinous about it
other than the obvious wound that was inflicted. So I'm going to
allow number nine [exhibit # 33].
Well, for the record, photograph number twelve [exhibit
# 34] is a scalp shaved showing a wound or, apparently, several wounds․
Because it's a close up showing the obvious repeated blows to that
area, I'm going to allow this. It's been cleaned up. And although
the wound is red, there is no running blood or pooled blood, so I'm
going to allow picture 12.
All right. Looking at picture eight [exhibit
# 35] in it[ ]s totality, there's nothing gross or heinous about it.
It's much less graphic than number seven. There is a definite gap or
dent or cut in the bottom lip that you can see in this picture, you
can't in the other one. I don't think there's any additional unfair
prejudicial value at all to number eight, so I'm going to allow number
All right. That is-covers the same material that
[exihibit # 35] covers ․ and that's cumulative with [exhibit # 35]․
He has a ruler next to it.
Well, it's-before it was cumulative, but because it
has the ruler, I'm going to do this, then ․ we're going to ․ allow
this one as well․
Well, this photograph [exhibit # 37] is a close up
of the nose and her left eye and the left side of her mouth, and that
shows other things that I didn't see in any other pictures. One, it
shows a cut to her nose, to the left side of her nose; it shows two
to three cuts to the top left of her mouth, and also a definite cut or
blow to the left eye. There's a line on the eyelid. Although her
eyelid is partially open, and up at the top-I mean, up in the right
eye area, you can barely start to see a wound there. There's nothing
about this picture in my mind that's inflammatory, and for that reason,
it's probative, and I'm going to allow it.
All right. Well, of all 13 pictures, this is the
one that is the most unpleasant to look at because it shows her
frontal face., it shows the area where her right eye would be as just
a big dent in her head. It show a denture-a partial denture-in her
mouth․ Her face has been cleaned up and there's no blood. There are
open wounds, but there's no pools of blood or dripping blood, and it
shows repeated-what seems to me numerous, repeated blows to the front
of her face. Which, in my mind ․ would be very probative of the fact
that she just laid on the ground. Apparently, if someone hits her in
the face like this to cause this wound, her body would have moved.
Laying on the ground with someone standing over her, hitting her
repeatedly with an object or objects, which is extremely probative of
premeditation. The main issue in this case ․ is whether or not the
defendant could form intent or premeditation, or whether this was just
a knowing killing. This is a 3-D picture ․ you can see that not only
was she struck repeatedly, but from different angles which would take
some time to do-to do this damage. And I find that it's cleaned up.
And other than being unpleasant, because we have a person who has
been killed by these wounds, I don't think that it's being introduced
as inflammatory. Any unfair prejudice in this picture over a diagram
would be slight, and it does not at all, I think, overcome the extreme
probative value of it․
While Defendant admitted to the murder of his wife,
he claimed that he acted in a state of passion and thus, was not
guilty of first-degree premeditated murder. The issue before the
jury was whether the killing resulted from a state-of-passion produced
by adequate provocation or whether the killing was premeditated. The
purpose for introducing photographs into evidence is to assist the
trier of fact. As a general rule, the introduction of photographs
helps the trier of fact see for itself what is depicted in the
photograph. State v. Griffis, 964 S.W.2d 577, 594 (Tenn.Crim.App.),
perm. to appeal denied, (Tenn.1997).
In State v. Banks, 564 S.W.2d at 947, our supreme
court set forth several factors to be considered by the trial court in
determining admissibility of photographs, including their value as
evidence, whether they are needed to establish a prima facie case and
whether, and to what extent, they are “gruesome.”
The only seriously contested issue in the case was
the degree of homicide. The State relied heavily upon the nature and
extent of injuries inflicted upon the victim to establish a prima
facie case of first degree murder. While repeated blows are not
alone sufficient to establish premeditation, see State v. Brown, 836
S.W.2d 530, 542 (Tenn.1992), the photographs were relevant to the
critical issue of premeditation and were not inflammatory. The
photographs, demonstrating repeated blows to the head of the victim,
were relevant to show the element of premeditation in this first
degree murder case. There is little dispute that the photographs are
unpleasant and gruesome. However, they are highly relevant and
probative to show that Defendant used a weapon upon an unarmed victim,
the repeated blows upon the victim, and the brutality of the attack.
Our supreme court has held that photographs of the victim may be
admitted “as evidence of the brutality of the attack and the extent of
force used against the victim, from which the jury could infer malice,
either express or implied.” State v. Goss, 995 S.W.2d 617, 627 (Tenn.Crim.App.1998)
(citing Brown, 836 S.W.2d at 551; see also State v. Smith, 868 S.W.2d
561, 576 (Tenn.1993) (trial court did not abuse its discretion by
admitting a photograph of the victim when the trial court stated that
the photograph was relevant to show “ ‘premeditation, malice and
intent because of the multiplicity of these wounds and an obvious
intent of whoever was inflicting these wounds.’ ”)). In this case,
the State was required to prove that the killing was intentional.
See Tenn.Code Ann. § 39-13-202(a)(1). The Defendant claims that he
acted out of passion. The photographs of the victim demonstrate that
the attack was brutal and non-relenting. The primary effect of
seeing the photographs is not so much to inflame the viewer as to
reveal to the viewer that, whoever inflicted the injuries upon the
victim did so deliberately and premeditatively, striking the victim
multiple times. The photographs depict a savage beating. Although
they are admittedly gruesome, they give a better description of the
nature and extent of the wounds than the testimony of the medical
examiner. Under the principles expressed in State v. Banks, 564 S.W.2d
947 (Tenn.1978), we find that the trial judge did not abuse his
discretion in admitting these photographs.
B. Photographs at Penalty Phase
Exhibit numbers 47 through 50 and exhibit numbers
56, 60 and 61 are photographs of the victim's body as it was
discovered at the crime scene. Exhibit number 47 depicts the wounds
to the victim's head, but also movement of the victim's head from
right to left. The trial court found this photograph probative to
prove the heinous, atrocious, cruel aggravator. Exhibit 49 is the
same photograph as exhibit 47. However, exhibit 49 contains two ink
markings referencing blood spatter that exhibit 47 lacks. Exhibits
number 48 and 50 were admitted because (1) number 48 was a close-up
photograph and (2) number 50 was “far back showing the other side of
the body with no blood on it.” Exhibit 56 depicts a pool of blood in
the carpet. The trial court found this photograph admissible as
“it's not gruesome.” Exhibits 60 and 61 were admitted to show the
duration of the assault demonstrating the various aspects of blood
clotting. The court found that “there's nothing in these photographs
the jury would not have already have seen from earlier photographs.”
On appeal, the Defendant complains that the admission of these
photographs was error in that (1) the photographs were more
prejudicial than probative and (2) the photographs were cumulative.
Photographs are not necessarily rendered
inadmissible because they are cumulative of other evidence or because
descriptive words could be used. See Collins v. State, 506 S.W.2d
179, 185 (Tenn.Crim.App.1973). Photographs must be relevant to prove
some part of the prosecution's case and must not be admitted solely to
inflame the jury and prejudice them against the defendant. Banks,
564 S.W.2d at 951; see Tenn. R. Evid. 403 (relevant evidence may be
admitted if its probative value is not “substantially outweighed by
the danger of unfair prejudice”). On appeal, the trial court's
decision to admit a photographic exhibit is reviewable for abuse of
discretion. Banks, 564 S.W.2d at 949.
Photographs depicting a victim's injuries have been
held admissible to establish torture or serious physical abuse under
aggravating circumstance (i)(5). See, e.g., State v. Smith, 893 S.W.2d
908, 924 (Tenn.1994) (photographs depicting the victim's body,
including one of the slash wound to the throat, which was “undeniably
gruesome,” were relevant to prove that the killing was “especially
heinous, atrocious, or cruel” and were admissible for that purpose); State
v. McNish, 727 S.W.2d 490, 494-95 (Tenn.1987) (photographs of the body
of the victim who was beaten to death were relevant and admissible to
show the heavy, repeated and vicious blows to the victim and to prove
that the killing was “especially heinous, atrocious, or cruel”).
Although the photographs are not necessarily pleasant to view, the
photographs accurately depict the nature and severity of the injuries
inflicted upon the victim. This evidence was relevant to the State's
proof of the “heinous, atrocious, and cruel” aggravating circumstance.
See, e.g., State v. Morris, 24 S.W.3d 788 (Tenn.2000); State v.
Hall, 976 S.W.2d 121, 162 (Tenn.1998); State v. Smith, 893 S.W.2d
908, 924 (Tenn.1994), cert. denied, 516 U.S. 829, 116 S.Ct. 99, 133
L.Ed.2d 53 (1995); State v. Smith, 868 S.W.2d 561, 579 (Tenn.1993),
cert. denied, 513 U.S. 960, 115 S.Ct. 417, 130 L.Ed.2d 333 (1994) (citing
State v. Payne, 791 S.W.2d 10, 19-20 (Tenn.1990)), judgment aff'd. by,
501 U.S. 808, 111 S.Ct. 2597, 115 L.Ed.2d 720(1991); State v. Miller,
771 S.W.2d 401, 403-404 (Tenn.1989), cert. denied, 497 U.S. 1031, 110
S.Ct. 3292, 111 L.Ed.2d 801 (1990); State v. Porterfield, 746 S.W.2d
441, 449-450 (Tenn.), cert. denied, 486 U.S. 1017, 108 S.Ct. 1756, 100
L.Ed.2d 218 (1988); McNish, 727 S.W.2d at 494-495. Moreover, given
the fact that the jury rejected the (i)(5) aggravator, we are unable
to conclude that the photographs prejudiced the jury's verdict.
The photographs are relevant and are not so
unfairly prejudicial as to bar their admission. Accordingly, we
cannot conclude that the trial court abused its discretion by
admitting these photographs. See Tenn. R. Evid. 403. Defendant is
not entitled to relief on this issue.
III. Failure to Correctly Charge the Jury
[Deleted]IV. Failure of Indictment to Allege
Capital Offense[Deleted]V. Death Penalty Violates United States
Treaties and International Law[Deleted]VI. Constitutionality of
Tennessee Death Penalty Statutes[Deleted]X. Conclusion[Deleted]
to the setting of oral argument, the Court shall review the record and
briefs and consider all errors assigned. The Court may enter an
order designating those issues it wishes addressed at oral argument․”
Tenn. R. Sup.Ct. 12.2.
State also relied on the aggravating circumstance that the murder was
especially heinous, atrocious, or cruel in that it involved torture.
See Tenn.Code Ann. § 39-13-204(i)(5) (1997). However, the jury did
not find this aggravating circumstance.
discussed above, both Dr. Steinberg and McNealy testified at the
1. I have
urged adopting a protocol in which each case would be compared to
factually similar cases in which either a life sentence or capital
punishment was imposed to determine whether the case is more
consistent with “life” cases or “death” cases. See State v. McKinney,
74 S.W.3d at 321 (Birch, J., concurring and dissenting). The current
protocol allows a finding proportionality if the case is similar to
existing death penalty cases. In other words, a case is
disproportionate only if the case under review “is plainly lacking in
circumstances consistent with those in similar cases in which the
death penalty has been imposed.” Bland, 958 S.W.2d at 665 (emphasis
2. In my
view, excluding from comparison that group of cases in which the State
did not seek the death penalty, or in which no capital sentencing
hearing was held, frustrates any meaningful comparison for
proportionality purposes. See Bland, 958 S.W.2d at 679 (Birch, J.,
dissenting). This case, in particular, is a prime example of the
arbitrariness of this protocol.
3. As I
stated in my concurring/dissenting opinion in State v. Godsey, “[t]he
scope of the analysis employed by the majority appears to be rather
amorphous and undefined-expanding, contracting, and shifting as the
analysis moves from case to case.” 60 S.W.3d 759, 797 (Tenn.2001) (Birch,
J., concurring and dissenting).
4. I also
note that in a recent study on the costs and the consequences of the
death penalty conducted by the State Comptroller, one of the
conclusions was that prosecutors across the state are inconsistent in
their pursuit of the death penalty, a fact that also contributes to
arbitrariness in the imposition of the death penalty. See John G.
Morgan, Comptroller of the Treasury, Tennessee's Death Penalty: Costs
and Consequences 13 (July 2004), available at
JANICE M. HOLDER, J.
ADOLPHO A. BIRCH, JR., J., concurs and dissents.