Evidence presented at Smith's trial included a
recording of a 911 call, in which the boys cried out "Frank, no! God
help me!" A bloody hand print, identified as Smith's, was found on the
bedsheet next to his wife's body.
November 18, 1993
STATE OF TENNESSEE, APPELLEE,
OSCAR FRANKLIN SMITH, DEFENDANT-APPELLANT.
CRIMINAL COURT. DAVIDSON COUNTY. Hon. J. Randall
Wyatt, Jr., Judge.
Drowota, III, O'Brien, Anderson, Reid, Daughtrey
The opinion of the court was delivered by: Drowota
The Defendant, Oscar Franklin (Frank) Smith, age
40, was found guilty by a Davidson County jury of the triple murders
of his estranged wife, Judith (Judy) Lynn Smith, age 35, and her two
sons by a previous marriage, Chad Burnett, age 16, a sophomore in high
school, and Jason Burnett, age 13, an eighth-grader.
The jury found two aggravating circumstances in the
premeditated first degree murder of Judy Smith, T.C.A. §
39-2-203(i)(5) and (12)(1982), and four aggravating circumstances in
the premeditated first degree murders of Chad and Jason Burnett, T.C.A.
§ 39-2-203(i)(5), (6), (7) and (12)(1982), and sentenced the Defendant
to death on the murder counts as to all three victims. On appeal, the
Defendant cites 20 errors made by the trial court including, but not
limited to, the sufficiency of the convicting evidence, the
sufficiency of the evidence of the four aggravating circumstances, the
admission of testimony regarding the "alternative light source"
technique of fingerprint identification, and the admission of the tape
recordings and purported transcript of a 911 emergency telephone call
allegedly made from the victim's residence just prior to the murders.
It appears that these tragic, brutal and bizarre
murders occurred at approximately 11:20 p.m. on Sunday, October 1,
1989, when the Metropolitan Nashville Police Department received a 911
emergency call from 324 Lutie Street, Judy Smith's home in the
Woodbine section of Nashville. On the tape of the call, which was
later technically enhanced and played at trial, a young male voice,
identified at trial as that of Jason Burnett, is heard crying, "Help
me!" In the background another male, identified as Chad Burnett, is
heard shouting "Frank, no. God, help me!" The call ended abruptly with
Jason stating "324 Lutie Street." Officers dispatched to the scene
arrived at the house five minutes later. They knocked on the front
door and received no answer. Everything appeared quiet so the officers
assessed the situation as a "false call" and left.
It was not until 3:00 p.m. the next day, that the
bodies of Judy, Jason and Chad were discovered. The body of Chad was
found lying face up on the kitchen floor. The room was a wreck; the
phone had been ripped off the wall and large quantities of blood were
on the floor and wall. An awl, a tool similar to an ice pick and often
used in leatherworking, was found in the room. Chad had been shot
three times: in the right shoulder, the upper chest, and on the inside
left eyebrow. The last two wounds were contact wounds and had been
fatal. Chad had also been stabbed several times in his chest, back and
abdomen with a sharp, needle-like weapon (such as an ice pick or awl)
and with a knife. His neck had been slashed, and there were defensive
wounds on his hands. All of his injuries had occurred before death.
Judy Smith's body was found lying on its back on a
bed in the front bedroom. There was blood splattered on the panelled
wall next to the bed. She had been shot in the left arm and the neck.
The latter wound, caused by a gun fired from a range within two feet,
had severed her spinal cord and produced instant paralysis, rapid
unconsciousness and death. Shortly after death, her neck had been
slashed; and, like Chad, she had been stabbed with a knife and a
weapon resembling an awl or ice pick. The medical examiner opined that
both Judy and Chad had died from multiple gunshot and stab wounds.
The body of Jason, Judy's youngest son, was
discovered lying on its left side on the floor at the foot of the bed
on which his mother lay. He had not been shot. There were numerous
defensive wounds on his hands. His neck had been slashed, and he had
been stabbed in the chest and abdomen. Two of the wounds to the
abdomen had been fatal because they had cut major veins. His small
bowel protruded from his body through these wounds. All of Jason's
injuries had occurred before death. The medical examiner testified
that Jason had bled to death over a period of several minutes as a
result of the multiple stab wounds.
The three victims had been dead at least twelve
hours before they were found. There were no signs of forcible entry
into the house. The back door had been left open. There were signs of
a struggle in the house, particularly the kitchen, where a leg had
been broken off the table. A .22 caliber cartridge was found on the
rug in the den. An identical type of bullet was removed from the
bodies of Judy and Chad who, ballistics experts determined, had been
shot with the same gun. There were bullet holes in the walls of the
front bedroom and the den. A path of splattered blood led from the den
down the hall to the kitchen. Drops of blood in the bathroom indicated
that someone had cleaned up in that room.
All of the evidence connecting the Defendant to the
killings of his estranged wife and step children was circumstantial.
The Defendant and Judy Smith were married on August 8, 1985. Frank
Smith had two children by his first marriage, Laura, age 18, and Merl,
a son age 15, who lived with the Defendant's parents in Pleasant View,
Tennessee. In December of 1986, Judy and Frank had twin boys, Chris
and Casey. In June of 1989, the Smiths separated and a divorce action
was pending at the time of the murders. Judy Smith had been awarded
temporary custody of the twins, with the Defendant receiving
visitation every other weekend. A key issue in the divorce was which
parent would receive custody of the twins.
There was testimony that Judy, Chad and Jason were
afraid of the Defendant. In June 1989, the Defendant and Jason had
gotten into a fight at the Defendant's trailer on his family's farm in
Pleasant View. The Defendant had bitten Jason on the back and held a
gun to his head. He had ordered Judy and the older boys out of the
trailer and threatened to kill Judy if she tried to take the car or
the twins or if she took out a warrant or notified the police. In
August 1989, when Judy returned to the trailer to retrieve her clothes,
the car and other items, the Defendant had tied her up, raped her, run
a knife across her throat and told her he was going to kill her. At
the time of the killings, warrants were pending charging the Defendant
with aggravated assault based on these two incidents.
During the summer of 1989, the Defendant called
Judy several times at the Waffle House restaurant where she worked and,
according to a fellow employee who listened to the numerous phone
calls at Judy's request, threatened to kill Judy. He told her he would
shoot her and stab her. Once he threatened to kill Chad and Jason
because "she was better to them than . . . she was his twins." The
last of these calls occurred in August 1989.
When the Defendant was picking up the twins for
visitation two or three weeks before the murders, the Defendant told
Judy's father, "You tell Judy that I've been playing with her with kid
gloves, but now the gloves are coming off." Another time he said that
he would kill Judy if she ever left him.
One of the Defendant's co-workers at Maintenance
Service Corporation in Lavergne testified that, in the early summer
months of 1988, the Defendant offered to kill his wife if he would in
turn kill Judy. Two weeks later the Defendant told his co-worker that
they could plan the killings so that each man would be out of town
when the other killed his wife. One month before Judy and her sons
were killed, the Defendant asked another co-worker if he knew anyone
who would kill the Defendant's family. Two weeks later the Defendant
told the same co-worker that he would offer $20,000 to have someone
kill Judy and his two stepsons. The Defendant specified that his twins
were not to be killed.
When police first entered Judy Smith's house, they
found a bloody palm print on the sheet beside Judy's body. A latent
fingerprint examiner testified that it matched the palm print of the
Defendant's left hand, which, like the print on the sheet, was missing
the two middle fingers. Other circumstantial evidence connected the
Defendant to the crime. A brown cotton work glove found in the front
bedroom resembled gloves the Defendant used in his work. The Defendant
also owned a .22 caliber revolver and was known to carry a large knife.
He engaged in the craft of leatherworking, in which an awl is a basic
tool used to punch holes or mark guidelines in leather. In March 1989,
he had taken out a life insurance policy with American General on Judy
for $20,000 and the boys for $10,000 each. In February of that same
year, he had taken out a $20,000 policy on Judy and insured the boys
for $5,000 each with Liberty National. He had earlier taken out a
policy on Judy for $10,000 and the boys for $4,000 each with United
Insurance. He thus was the beneficiary of $88,000 of life insurance on
the lives of Judy and her two sons.
The Defendant testified that on October 1, 1989, he
drove to Nashville and met Judy, Chad, Jason and the twins for
breakfast at Shoney's restaurant. After breakfast, they went to the
residence on Lutie Street, where Chad and Jason babysat the twins
while he and Judy looked for a used car for Judy. That afternoon, the
Defendant and Judy went to a Waffle House at I-40 and Charlotte Avenue
and drank coffee there until about 5 p.m. They then ate dinner at the
Gold Rush restaurant and later stopped for coffee at another Waffle
House, located at I-24 and Harding Place, where they remained until
9:30 p.m. Subsequently, they returned to Judy's residence on Lutie
Street. Chad and Jason came out to Defendant's car with the twins. He
then drove the twins back to his home in Pleasant View, which is
approximately 31 miles from Judy's home.
Judy called her sister about 10:30 p.m. and told
her that Frank had taken the twins so that he could watch them the
next day to give her time to look for a car. The son-in-law of Judy
Smith's neighbor at 318 Lutie Street testified that he saw the
Defendant's white LTD parked at Judy's house around 11:00 or 11:15
As part of his work as a machine tool repairman,
the Defendant had to travel to Morehead, Kentucky, to work on a
machine the next day. His employer had instructed him to leave on
Monday morning, but he had requested instead that he be allowed to
leave Sunday, stay overnight and then go to the customer's plant.
Sometime during the early morning hours of Monday, October 2, he made
the 260-300 mile trip to Morehead in his white LTD. He was at the
customer's plant Monday morning, 8:00 EST, repaired the machine, and
returned to Pleasant View that afternoon.
When picked up for an interview by law enforcement
officers on the evening of October 2, the Defendant never asked why he
was being questioned and spoke of his wife in the past tense before he
was told of her death. The Defendant told officers that he had gone
out with Judy on Sunday to look for a car and claimed they were
getting back together. He said he left Nashville with the twins around
9:00-9:30 p.m., arrived at his mother's house sometime between 10:00
and 10:30 p.m. and left there at approximately 10:30 p.m. to drive to
Kentucky. When told what had happened to his wife and stepchildren, he
asked no questions about the circumstances of their deaths and
displayed little emotion. The officers noticed he had some abrasions
on his hand, elbow, back and shoulder blade.
The Defendant presented an alibi defense through
his testimony and that of his family. He and his witnesses testified
that he had been at his home in Pleasant View from 10:00 until 11:15
p.m., when he drove directly to Morehead, Kentucky. He had suffered
the abrasions when his dog had jumped on him upon his return home
Monday afternoon. The Defendant denied committing the murders,
threatening his wife or assaulting Judy and Jason. He claimed he was
being framed and insisted that he and his wife had been reconciling.
The Defendant and his witnesses denied that he owned an awl, a .22
caliber revolver, or a knife large enough to have caused the victims'
wounds. He denied trying to hire someone to kill his wife. He had no
idea how the bloody palm print, missing two fingers just like his own
hand and identified by an expert as his print, came to be on the sheet
next to his wife's body. He denied that he was at Judy Smith's
residence on Lutie Street at 11:22 p.m. on October 1, 1989.
It was the State's theory that the Defendant
planned the homicides of his wife and stepsons. He had left the twins
with his mother around 10:30 p.m., made the thirty minute drive back
to his wife's home, committed the killings and then driven to Morehead,
Kentucky. The jury obviously did not accept the Defendant's alibi
defense and found the Defendant guilty of three counts of premeditated
first degree murder.
At the sentencing hearing the State presented the
records of the three murder convictions, photographs of the bodies of
Chad and Jason Burnett, and the testimony of the assistant Davidson
County Medical Examiner concerning the suffering of the victims.
The Defendant presented personnel and an inmate
from the Davidson County Jail, where he had been incarcerated since
his arrest, to testify that he had been a good prisoner. Several of
his co-workers testified that he was a good employee. His mother and
his daughter from a previous marriage testified about his character
and the fact he had a severely retarded teenage son who depended
emotionally on him. There was evidence that the Defendant had suffered
a "nervous breakdown" while on a business trip to Utah at some time in
the past and that he had been hospitalized for depression in April
1983. The psychiatrist who had treated him at the time testified that
he exhibited symptoms of paranoia or hypervigilance and had an
Dr. Gillian Blair, a clinical psychologist, had
evaluated the Defendant in November 1989. She diagnosed him as
suffering from a paranoid personality disorder, chronic depressive
neurosis and a paranoid delusional disorder. She described his family
as dysfunctional. His father was a diagnosed paranoid schizophrenic.
Dr. Blair felt that the Defendant would pose no danger in the highly
structured environment of prison.
In rebuttal, the State presented the testimony of
Dr. Leonard Morgan, a clinical psychologist from the Dede Wallace
Center who had examined the Defendant to determine his competency to
stand trial. Dr. Morgan opined that the Defendant was not suffering
from any mental illness, only personality disorder, and was not
delusional. He stated that the Defendant had told him he did not want
to use an insanity defense because he would have trouble later getting
a home loan.
The Defendant asserts that the evidence was
insufficient to support his convictions. When the sufficiency of the
evidence is challenged, the relevant question for an appellate court
is whether, after viewing the evidence in the light most favorable to
the prosecution, any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt. Jackson v.
443 U.S. 307,
99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979);
see Tenn. R. App. P. (13)(e). A jury verdict approved by the trial
Judge accredits the testimony of the witnesses for the State and
resolves all conflict in favor of the State's theory. State v.
657 S.W.2d 405, 410 (Tenn. 1983), cert.
465 U.S. 1073,
104 S. Ct. 1429, 79 L. Ed. 2d 753 (1984);
State v. Hatchett,
560 S.W.2d 627, 630 (Tenn. 1978). On
appeal, the State is entitled to the strongest legitimate view of the
evidence and all reasonable or legitimate inferences which may be
drawn therefrom. State v. Cabbage,
571 S.W.2d 832, 835 (Tenn. 1978). A
verdict against the Defendant removes the presumption of innocence and
raises a presumption of guilt on appeal, State v. Grace,
493 S.W.2d 474, 476 (Tenn. 1973), which
the Defendant has the burden of overcoming. State v. Brown,
551 S.W.2d 329, 331 (Tenn. 1977).
The Defendant argues that he was convicted solely
on circumstantial evidence. A conviction may be based entirely on
circumstantial evidence where the facts are "so clearly interwoven and
connected that the finger of guilt is pointed unerringly at the
Defendant and the Defendant alone." State v. Duncan,
698 S.W.2d 63, 67 (Tenn. 1985), cert.
475 U.S. 1031,
106 S. Ct. 1240, 89 L. Ed. 2d 348 (1986);
State v. Williams, 657 S.W.2d 405 (Tenn. 1983), cert. denied, 465 U.S.
1073, 104 S. Ct. 1429, 79 L. Ed. 2d 753 (1984); State v. Crawford,
225 Tenn. 478, 484,
470 S.W.2d 610, 612 (1971).
The jury failed to believe Defendant's alibi story
that he was leaving Pleasant View, Tennessee, almost 31 miles away
from the victim's residence, when the 911 call was made. They chose
instead to believe a disinterested witness who identified the
Defendant's car in Judy Smith's driveway around 11:00 or 11:15 the
night of the murder. The testimony accredited by the jury in this case
clearly establishes the Defendant's presence at Judy Smith's residence
at 324 Lutie Street at the time of the murder. Witnesses identified
voices on the 911 emergency call at 11:22 p.m. as that of Jason
Burnett crying "Help me!" and that of his older brother Chad shouting
"Frank, no. God help me!" The call ended abruptly with Jason stating
"324 Lutie Street." The Defendant's bloody palm print was found on the
sheet next to Judy Smith's body. The evidence also clearly established
that the Defendant had threatened the victims prior to the murders. We
find the Defendant's challenge to the sufficiency of the evidence to
be without merit.
The Defendant next avers that the statement he made
to the police on the evening of October 2, 1989, should have been
suppressed by the trial court. He submits that the statement should
have been suppressed because the officers failed to advise him of his
constitutional rights under Miranda v. Arizona,
384 U.S. 436,
86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
The trial court held that Miranda did not apply because the Defendant
was not in custody and the officers were making only a general
During the early investigation of the offense on
the afternoon of October 2, 1989, Detective Mike Smith of the
Metropolitan Police Department was ordered to travel to Robertson
County to find the Defendant in order to ascertain the location of the
twins and obtain possible information about Judy Smith's activities
over the past few days. The Metropolitan Police Department called the
Robertson County Sheriff's Department and informed Detective Don
Bennett that they were investigating a homicide in Davidson County and
trying to locate Oscar Smith and his two young children. Around
4:30-5:00 p.m., Bennett and two other officers drove to Smith's home,
where they saw Smith and his family standing in the front yard.
Upon verifying that the twins were with the
Defendant, Detective Bennett informed him that Metro officers were
coming to Springfield to talk with him and requested the Defendant
ride with him to the interstate a short distance away to talk with the
Nashville police. Bennett told the Defendant "on the front end" that
he was not under arrest and that the officers "needed to talk with him."
Bennett testified that, if the Defendant had refused to accompany him,
he would have been allowed to go. At his suppression hearing the
Defendant acknowledged that he knew he was not under arrest or in
custody at this time. He cooperated and voluntarily got into the back
of one of the sheriff's cars.
The officers and the Defendant drove to the
intersection of Highway 49 and I-24, where at 7:10 p.m. they met
Detectives E. J. Bernard and Mike Smith. It was decided the Metro
officers would talk with Defendant at the offices of the Detective
Division of the Sheriff's Department in Springfield. Detectives
Bennett and Smith testified that, when asked, the Defendant agreed to
talk with the officers in Springfield rather than at the interchange.
Defendant denied he had any part in this decision.
The officers and the Defendant arrived at the
Detective Division around 7:25 p.m., and the Defendant was interviewed
by Smith and Bernard in one of the private offices. Detective Smith
testified that he did not give the Defendant his Miranda warnings
because "he wasn't in custody at the time." Smith testified that the
Defendant was not a suspect, that he was only being interviewed to
verify the whereabouts of himself and his twins, and that, if he had
asked at any time to leave, he would have been taken home. The
Defendant was calm and cooperative and agreed to talk with the
officers, who spoke with him for about thirty-five minutes, obtaining
general information about Judy Smith, the Defendant and the twins.
During this time, the Defendant signed a form giving his consent to
officers to search his house and vehicle. The detectives did not
inform the Defendant of the deaths of his wife and stepsons until late
in the interview. Questioning was terminated when the Defendant asked
to talk with an attorney. He was allowed to return home at that time,
which was about 8:30 p.m. The Defendant was not charged with the crime
until November 6, 1989, over a month after the interview took place.
The Defendant testified that he felt he had no
choice whether to get into the police car, to go to the interstate or
to go to the sheriff's offices in Springfield. He admitted he knew he
was not under arrest, wanted to cooperate with the officers and was
not coerced in any way.
This Court is bound by the trial court's
determination that the Defendant was not in custody at the time of
questioning unless it "clearly appears that there has been an abuse of
discretion and a violation of the rights of the accused." Childs v.
584 S.W.2d 783, 788 (Tenn. 1979); State
797 S.W.2d 631, 639 (Tenn. Crim. App.
1990); State v. Nakdimen,
735 S.W.2d 799, 802 (Tenn. Crim. App.
1987). There is a "hairline of distinction" between the investigatory
and the accusatory or custodial stage. Childs v. State, 584 S.W.2d at
788, State v. Morris,
224 Tenn. 437,
456 S.W.2d 840, 842 (1970). Whether one
is in custody turns not on whether the interrogation occurred in a "coercive
environment" but on whether the accused was "deprived of his freedom
of action in any significant way." Oregon v. Mathiason,
429 U.S. 492,
97 S. Ct. 711, 714, 50 L. Ed. 2d 714
(1977). Under California v. Beheler,
463 U.S. 1121,
103 S. Ct. 3517, 3520, 77 L. Ed. 2d 1275
(1983), the ultimate inquiry to determine whether a person is "in
custody" for purposes of receiving Miranda protection is "simply
whether there is a 'formal arrest or restraint of freedom of movement'
of the degree associated with a formal arrest."
Under the principles of Mathiason and Beheler and
the totality of the circumstances test of State v. Morris, 456 S.W.2d
at 842, the trial court did not err in refusing to suppress the
Defendant's statement. While the Defendant was transported to police
headquarters and questioned apart from his family, this was done for
the convenience and safety of the investigating officers. (Detective
Bennett explained that from previous experiences the sheriff's
officers knew that the Defendant was potentially dangerous and heavily
armed and that they felt it would be safer to talk with him away from
his home.) The Defendant knew that he was free to go at any time,
wanted to cooperate, went willingly with the police, gave a voluntary
(and exculpatory) statement, and was allowed to go when he asserted
his rights. The interview occurred early in the investigation, shortly
after the victims were found, when the police were still asking
general questions and sorting out the victims' activities prior to
their deaths. The detectives testified that the Defendant was not a
suspect. The decision of the trial Judge that the Defendant was not in
custody for purposes of Miranda is not in error.
The Defendant's second argument against the
admission of his statement is that Detective Bernard, rather than
Detective Smith, who was the only one of the two interrogating
officers to testify at the suppression hearing, testified for the
State at trial regarding the substance of Defendant's statement. On
appeal, the Defendant argues that the testimony of Detective Bernard
that he was watching the Defendant "to make sure that either he didn't
try to leave or run away" during a break in the interrogation
establishes that the Defendant was in custody when the statements were
given without prior Miranda rights. At trial, however, the Defendant's
objection to Detective Bernard's testimony was based on the theory
that Bernard was testifying to a statement other than that described
by Detective Smith at the suppression hearing. It is apparent that
this theory is mistaken and that the Defendant was trying to limit the
State's witnesses to those presented at the suppress ion hearing. The
trial court did not err in allowing Detective Bernard to testify about
the circumstances of the statement. The Defendant never renewed his
objection to the admissibility of the statement under Miranda based on
Furthermore, the testimony of Detective Bernard,
when taken in context, does not clearly demonstrate that the trial
court abused its discretion and that the Defendant's rights were
violated. Bernard's remarks that he was afraid the Defendant might
leave because he had just learned his wife was dead are subject to
various interpretations. The record shows that Bernard was not
guarding the Defendant but standing some distance away. We do not find
that the trial court erred in refusing to suppress Bernard's testimony,
nor does the substance of his testimony reveal plain error in the
court's earlier ruling concerning the circumstances of the statement.
The Defendant next asserts that the trial court
erred in denying his motion to suppress evidence obtained during a
search of his residence. On October 13, 1991, law enforcement
authorities conducted a search of the Defendant's residence pursuant
to a search warrant. Several items taken during the search were
admitted into evidence at trial, including a holster, a live .22
caliber cartridge and assorted leatherworking tools. The Defendant
contends that the trial court should have suppressed the evidence
obtained as a result of this search because it violated his rights
under the Fourth and Fourteenth Amendments to the United States
Constitution and Article I, Section 7 of the Tennessee Constitution.
The Defendant presents three reasons why the search was
First, the Defendant says the affidavit supporting
the search warrant failed to establish probable cause because it did
not establish a nexus between the crimes, the evidence sought and the
place to be searched. The information deemed insufficient by the
Defendant is incorporated into the affidavit, dated October 13, 1989.
It states that the Defendant had become a prime suspect as the result
of the police investigation beginning October 2, 1989, because he had
admitted being with the victims the night of the offense and there was
a history of domestic violence between the Defendant and the victims.
After leaving the victims, the affidavit states, the Defendant had
returned to the place to be searched (his and his parents' residences);
and the murder weapons (a .22 calibre gun, a large blade knife, and an
ice pick-type weapon) as well as personal papers of Judy Smith were
missing from the scene of the crime. The police had a description of
the clothing worn by the Defendant the night of the killings. It was
further stated that on October 6, 1989, law enforcement officers had
observed the residence to be searched and noticed it was used for
storage by the Defendant and his parents.
An affidavit in support of a search warrant must
set forth facts from which a reasonable Conclusion might be drawn that
the evidence is in the place to be searched. Zurcher v. Stanford Daily,
436 U.S. 547,
98 S. Ct. 1970, 1976-1977, 56 L. Ed. 2d
525 (1978); see generally W. LaFave, 2 Search and Seizure § 3.7(d),
pp. 102-111 (2d ed. 1987). The nexus between the place to be searched
and the items to be seized may be established by the type of crime,
the nature of the items, and the normal inferences where a criminal
would hide the evidence. United States v. Jacobs,
715 F.2d 1343, 1346 (9th Cir. 1983).
Where the object of the search is a weapon used in
the crime or clothing worn at the time of the crime, the inference
that the items are at the offender's residence is especially
compelling, at least in those cases where the perpetrator is unaware
that the victim has been able to identify him to the police. Other
instrumentalities are also likely to be in the offender's home,
especially when there is reason to believe he would make use of them
La Fave, (supra) , § 3.7(d) pp. 108-109.
In the case at bar, the Defendant had informed
police that, after leaving the victims, he had gone directly to his
trailer and his parents' home located nearby, then left for Kentucky.
The items being sought, murder weapons such as a gun and ice pick/awl,
clothing worn the night of the killing, divorce papers, etc., were of
the type kept at one's residence. It was reasonable to conclude that
personal items such as these would have been left at Defendant's
trailer and would remain there. See United States v. Jacobs, 715 F.2d
at 1346; United States v. Steeves,
525 F.2d 33, 38 (8th Cir. 1975).
Second, the Defendant asserts the search warrant
failed to describe the person and place to be searched with sufficient
particularity. The specific defects of which Defendant complains are
(1) that the warrant listed his address as 3535 Cooper-Nicholson Road
when it is 3533 Cooper-Nicholson Road and (2) that his father's birth
date is given after his name on the search warrant. The requirement of
particular description of the place to be searched is met by a
description which particularly points to a definitely ascertainable
place so as to exclude all others, and enables the officer to locate
the place to be searched with reasonable certainty without leaving it
to his discretion. Hatchett v. State,
208 Tenn. 399,
346 S.W.2d 258, 259 (Tenn. 1961); State
634 S.W.2d 648, 650 (Tenn. Crim. App.
1982). Neither of the two alleged defects prevents satisfaction of
this test by the warrant in this case.
At the hearing on the motion to suppress, the proof
showed that the house of the Defendant's parents, his sister's trailer
and his trailer were all located on the same property. A common
driveway enters the property from the main road and connects the
Defendant's trailer and his parents' house, which are about 50 to 60
yards apart. Officers testified that they looked at the property
before getting the warrant and that only one mailbox with the number
3535 stood at its entrance. The Defendant's proof showed that there
were two mailboxes on the road, one marked 3535, the other 3533, and
that 3533 was the Defendant's address. The search warrant described
the Defendant's trailer in detail. Any inaccuracy in the address did
not invalidate the warrant since the overall description of the
premises contained in the warrant enabled the police to locate the
place to be searched with reasonable certainty. See State v. Wright,
618 S.W.2d 310, 318 (Tenn. Crim. App.
Likewise, the erroneous birth date following the
Defendant's full and correct name did not render the description
ambiguous. Detective Pridemore testified at the suppression hearing
that the officers corrected this clerical error on the original of the
warrant when it was discovered at the commissioner's office in
Robertson County at the time the warrants were being obtained.
The Defendant's concluding argument is that the
search warrant was invalidated because Detective Pridemore of the
Metropolitan Nashville Police Department had no authority to execute
the warrant in Robertson County. T.R.Cr.P. 41(c) requires that a
search warrant be "directed to and served by the sheriff or any deputy
sheriff of the county wherein issued, any constable, or any other
peace officer with authority in the county." When the warrant was
obtained and executed, Detective Pridemore was accompanied by Deputy
Groves of the Robertson County Sheriff's Department. The warrant
itself is addressed "to any Peace Officer within or of said County [Robertson
County]." The Judicial Commissioner certified that the warrant was
delivered for execution to Pridemore; however, Groves executed the
return on the warrant. Pridemore's participation in procuring the
warrant and executing it does not invalidate the warrant. See State v.
572 S.W.2d 921 (Tenn. 1978)(issuance of
warrant to federal officer and his participation in its execution did
not invalidate warrant so long as it met all statutory requirements);
State v. Robinson,
622 S.W.2d 62, 75 (Tenn. Crim. App.
1981). We are of the opinion that the trial court correctly held that
the search warrant was validly executed.
The Defendant contends that the trial court erred
in admitting testimony regarding the victim's fear of the Defendant.
Don Robirds, Judy Smith's father; Teresa Zastrow, her sister; and
Billy Fields, her friend, testified over objection that Judy Smith had
"expressed fear" of the Defendant during their separation. At trial
the Defendant objected to this testimony on hearsay grounds, and the
trial court ruled the statements admissible under the "state of mind"
hearsay exception in Rule 803(3), Tennessee Rules of Evidence. On
appeal the Defendant asserts primarily that evidence that the victim
was afraid of the Defendant is not relevant and, if so, its relevance
was outweighed by its prejudicial effect. See Tenn. R. Evid. 401 and
While the evidence was admissible to show the
declarant's state of mind, i.e., that the victim was afraid of the
Defendant or had expressed fear of the Defendant during the period of
the couple's separation, Judy Smith's state of mind was not directly
probative on the issue of whether the Defendant had murdered her and
her sons. The Defendant distinguishes State v. Cravens,
764 S.W.2d 754, 755 (Tenn. 1989), the
case relied upon by the trial court in admitting these statements, by
noting that in Cravens, the Defendant had raised the issues of self-defense
and justifiable homicide in opening statements. This made the victim's
fear of the Defendant prior to the killing relevant on those issues.
The State points out in this case that the
Defendant asserted that he and the victim were in the process of
reconciling at the time of her death thus attempting to indicate that
he had no motive for murdering her. The State therefore argues that
the victim's expressions of fear of the Defendant would be relevant
rebuttal on that issue. The problem with this argument is that the
issue of reconciliation had not yet been raised by the Defendant in
opening statement or on examination. Defendant's cross-examination on
this issue during the State's case in chief may have been a response
to this testimony rather than vice versa. However, the Defendant's
statement to police on October 2 had mentioned that he and his wife
were reconciling, and testimony of the victim's fear was relevant to
reveal the falsehood in this statement.
In any event, any error in the admission of this
evidence is harmless beyond a reasonable doubt in light of the proof
in this case. T.R.A.P. 36(b); Tenn. R. Crim. P. 52(a). When one
considers the proof of Defendant's previous threats and violent
assaults upon the victims, that Judy Smith would have been afraid of
the Defendant is obvious.
The Defendant next alleges that the trial court
erred in admitting the victims' statements to Judy Smith's sister
about the Defendant's previous assaults against Judy and Jason. Teresa
Zastrow, Judy's sister, testified that on the day Judy and the
Defendant separated, Chad called and asked her to drive to the
Defendant's trailer to pick up himself, Jason and Judy. Teresa
responded to the call and found Judy and her two sons walking down the
road about one mile from the trailer. She described them as "nervous
to the point of hysterical, all of them talking at once." After Teresa
had calmed Judy down enough to talk, Judy told her sister that she and
the Defendant had argued and that Jason and the Defendant had gotten
into a fight. The Defendant had kicked Jason's legs, tried to kick him
in the groin and bitten him on the back. He had ordered them to leave
and put a gun to Jason's head. Once they were outside, he had shot the
gun into the air and again ordered them to leave. He threatened Judy
that, if she tried to get the car or the twins or if she took out a
warrant or brought the police "up there," he would kill her and her
Later, Teresa testified that in August, 1989 her
sister had returned to the trailer. When she saw her afterwards, Judy
was "very confused, in shock" and "so flat it was . . . hard to
explain how she was." Teresa saw rope burns on Judy's wrists and a red
mark on her throat. Judy told her that she had gone with the Defendant
to the trailer to get her car and some other items. While she was
there, the Defendant tied her up by the wrists and neck, raped her,
ran a knife across her throat, and said he was going to kill her.
The Defendant contends that this evidence was
inadmissible hearsay, irrelevant and prejudicial, and an improper
reference to other crimes in violation of Tenn. R. Evid. 404(b). The
trial court admitted both statements as excited utterances under Tenn.
R. Evid. 803(2). Both fall under that exception to the hearsay rule
inasmuch as they relate to "a startling event or condition made while
the declarant was under the stress of excitement caused by the event
or condition." Tenn. R. Evid 803(2); see generally Cohen, Paine &
Sheppeard, Tennessee Law of Evidence § 803.(2).1 et seq. (2d ed.
1990). The proof does not support the Defendant's argument that Judy
Smith was not under "the stress of excitement" when the statements
were made because she had calmed down enough to talk when she made the
first statement and her demeanor was "flat" at the time of the second
statement. Considering the interval between the "startling events" and
the statement, the nature and seriousness of the events, and the
appearance, behavior, outlook and circumstances of the declarant, see
Cohen, Tenn. Law of Evidence, supra § 803(2).2, the trial court did
not err in concluding that the declarant was under "the stress of
excitement" at the time the statement was made.
In response to the Defendant's assertions that the
evidence of the two episodes was irrelevant and inadmissible under
Tenn. R. Evid. 404(b), the State cites a line of cases, see, e.g.,
State v. Turnbill,
640 S.W.2d 40, 46-47 (Tenn. Crim. App.
1982); and State v. Glebock,
616 S.W.2d 897, 905-906 (Tenn. Crim. App.
1981), which hold that violent acts indicating the relationship
between the victim of a violent crime and the defendant prior to the
commission of the offense are relevant to show defendant's hostility
toward the victim, malice, intent, and a settled purpose to harm the
victim. Also, in the present case, the victims, despite the
Defendant's threats to kill them if they did so, had filed charges
against the Defendant based on these prior assaults. The evidence of
these violent episodes was admitted not to prove the Defendant acted
in accord with this character but as part of the proof establishing
his motive for the killings. The probative value of this evidence is
not outweighed by the danger of unfair prejudice. See Tenn. R. Evid.
404(b)(3); see generally 4 Am. Jur.2d Homicide § 274 (1968); 41 C.J.S.
Homicide § 206 (1991).
The Defendant next objects to the testimony of
Billy Fields, Judy Smith's boyfriend, that Judy had told him not to
come by her house on Sunday because she was afraid his being there "might
cause a conflict." The trial court admitted the hearsay apparently
because it had "to do with matters that we've already considered." The
State avers the statement was admissible under the "state of mind"
hearsay exception in Tenn. R. Evid. 803(3). The Defendant argues
relevance and prejudice under Tenn. R. Evid. 401 and 403. We find the
statement was admissible and relevant to show Judy's plans for Sunday,
the day she was killed and to explain why Fields did not see her that
day. See Tenn. R. Evid. 803(3) and Advisory Commission Comments. To
the extent it might have been used improperly to establish the
Defendant's conduct on Sunday, see Advisory Commission Comments, (supra)
, the record is full of other testimony, including that of the
Defendant, that he and Judy Smith were together that day and that he
went to her house with the twins. We find no reversible error.
The Defendant next argues that the trial court
erred in admitting evidence of Judy Smith's statements to Sheila
Gunther regarding Judy's future plans and Gunther's testimony that
Defendant threatened the victims. Sheila Gunther was Judy Smith's co-worker
at the Waffle House and she testified that, before she quit working at
the restaurant in August 1989, Judy told her that if she ever got a
divorce from the Defendant she would take all her children, including
the twins, and leave and that the Defendant would never find her again.
The trial court held this admissible as going to Judy Smith's state of
mind under Tenn. R. Evid. 803(3). The Defendant contends that Smith's
state of mind, i.e., her intent to leave Nashville after the divorce
was final, was irrelevant to the present case and, if relevant,
prejudicial. There is no indication that Judy had conveyed her
intentions to the Defendant, but the record shows that the custody of
the twins was a major issue in the divorce. Judy's intent to hide the
twins from the Defendant after the divorce would be relevant as to
motive if Defendant knew of her plans. Cf. State v. Coker, supra, 746
S.W.2d at 173. In any event, we find that any error in admitting this
piece of evidence was harmless. T.R.A.P. 36(b); T.R.Cr.P. 52(a).
Gunther also testified that at Judy Smith's request
she listened to several telephone conversations between the Defendant
and Judy during the summer of 1989. In at least twelve of these calls,
the Defendant threatened to kill Judy, Chad and Jason. The Defendant
submits that this evidence is too remote in time to the murders to be
relevant and, if relevant, is prejudicial. The Defendant's threats
against the victims are clearly relevant to show malice, premeditation
and the Defendant's state of mind; the objection based on remoteness
affects only the weight, not the admissibility of the evidence. See
generally, 41 C.J.S. Homicide § 204 (1991); Wharton's Criminal
Evidence § 201 (13th ed. 1972).
The Defendant avers that the trial court abused its
discretion in admitting photographs of the victims at the guilt-innocence
phase of the trial. The Defendant argues that the prejudicial effect
of the admission of the photographs at the guilt phase outweighs their
probative value and that the photographs therefore should have been
excluded under Tenn. R. Evid. 403 and State v. Banks,
564 S.W.2d 947, 951 (Tenn. 1978). The
Defendant complains of the admission of two sets of photographs. The
first show the bodies of Judy Smith and Chad Burnett as they were
found at the scene. The two photographs containing Judy's body show
the bloody hand print as it was found on the sheet and its location in
relation to the body and the bed. This, the State avers, was important
proof because it directly ties the Defendant, not only to the scene of
the crime, but since the print is in blood, to the murder of the
victims. The photographs of the kitchen showing Chad's body, while
more gruesome than those of the bed and Judy's body, were probative to
show the violence of the struggle and the assault on Chad, the broken
table, and the bloody footprint on the wall. The State, during the
guilt phase, only sought to admit four out of 15 photographs. They did
not seek to admit any photographs of Jason Burnett, who was found with
his intestines protruding from his stomach. We agree with the trial
court that the probative value of these four photographs is not
substantially outweighed by the danger of unfair prejudice under Tenn.
R. Evid. 403 or Banks.
The second set of photographs of which the
Defendant complains were taken at the morgue and were used to
illustrate the testimony of Dr. Harlan, the medical examiner. Dr.
Harlan testified at the jury-out hearing that the photographs would
assist her in explaining the victim's injuries. Dr. Harlan's testimony
was very complicated in that there were three different types of
wounds on two of the victims because three different weapons were used.
The photographs, which are in color, show the various individual
wounds on the bodies of the victims after they were cleaned. They
illustrate the testimony of Dr. Harlan. The trial court ruled that the
probative value exceeded the prejudicial effect. The court also stated
"that they also go to premeditation, malice and intent because of the
obvious multiplicity of these wounds and an obvious intent of whoever
was inflicting these wounds."
The trial court applied the rule this Court set out
in State v. Banks, supra, and correctly weighed the probative value of
the evidence against its possible prejudicial effect. A trial court
has broad discretion in determining whether such evidence should be
admitted. State v. Melson,
638 S.W.2d 342, 365 (Tenn. 1982). Here,
the trial court did not abuse its discretion and we find no error.
The Defendant next objects to the admission by the
trial court of any testimony by Sgt. Johnny Hunter, a certified latent
fingerprint examiner, regarding the "alternate light source technique"
used to identify the palm print found on the sheet beside Judy Smith's
body. Sgt. Hunter testified that the bloody palm print found on the
sheet belonged to the Defendant. The Defendant contends that the "alternate
light source" does not conform to generally accepted scientific theory
and is inadmissible under Tenn. R. Evid. 703 and that Hunter is not a
qualified expert in this technique under Tenn. R. Evid. 702.
The "alternate light source" is a machine that
transmits the light from a very bright light bulb through an optic
fiber tube to illuminate an object. It uses different filters to
change the wave length of the light so that the features of a
fingerprint, such as the ridges, are enhanced against the background
and made clearer. The machine does not touch the print, "lift" it or
alter it in any way. In Sgt. Hunter's words, it is "just a very bright
light bulb that is shined through filters." Hunter used the light when
he took a photograph of the print and then used the photograph to
match the prints by means of the traditional techniques of comparison.
Hunter had been trained by the manufacturer in how to use the machine.
Although Hunter had used the machine "thousands of times" to examine
prints, this was the first time he had testified in court on an
identification assisted by alternate light source and the first time
he had used the light to enhance a print in blood.
Although the Defendant tries to characterize the
alternate light source as a new and unique area of scientific
expertise, it is apparent from the record that the machine is simply a
tool, used by an examiner to make a fingerprint clearer for
examination and comparison. The Defendant contends the light source
was not trustworthy. Tenn. R. Evid. 703 provides that a "court shall
disallow testimony in the form of an opinion or inference if the
underlying facts or data indicate lack of trustworthiness." The
underlying facts in this case do not render Sgt. Hunter's testimony
untrustworthy or indicate in any way that the alternate light source
is unreliable. The Defendant admits, and the record establishes, that
Sgt. Hunter is an expert in the area of latent print comparison and
blood stain analysis and had been trained in the use of the alternate
light source machine. Traditional fingerprint analysis, i.e.,
comparison of ridges, whorls, and other identifying marks, was used to
establish that the palm print was the Defendant's. The trial court did
not err under Tenn. R. Evid. 702 and 703 when it allowed Sgt. Hunter
to testify as an expert based upon his use of the alternate light
The Defendant argues that the tape recording of the
911 call from the victims' residence on October 1, 1989, at 11:22
p.m., and the transcript of the recording, were inadmissible hearsay.
The State argues both were admissible under the excited utterance
exception to the hearsay rule, Tenn. R. Evid. 803(2), and the trial
court admitted them as part of the res gestae, an obsolete term often
inaccurately applied to excited utterances. See Cohen, Paine &
Sheppeard, Tenn. Law of Evidence § 803(2).1, p. 412 (2d ed. 1990). The
Tennessee Rules of Evidence contain no "res gestae " provision. The
Defendant avers that Montesi v. State,
220 Tenn. 354,
417 S.W.2d 554 (Tenn. 1967), requires
that the testifying witness must have seen the declarant make the
excited utterance for the statement to be admissible.
The Defendant's reliance on Montesi is misplaced.
First, this case was tried under the new Rules of Evidence, which have
no such requirement. See Tenn. R. Evid. 803(2). Furthermore, we do not
read Montesi as holding that the testifying witness must have observed
the declarant make the excited utterance but that, when the declarant
is a bystander, rather than a participant or actor in the startling
event, the bystander-declarant must have observed the event to which
his declarations relate. In the present case the declarants are Chad
and Jason Burnett, who were clearly participants in the startling
event. Montesi states no requirement that the person testifying to the
hearsay must have actually seen, as opposed to heard, the declarant as
he or she made the statement.
The Defendant also submits that the tape's
probative value was outweighed by the danger of unfair prejudice. He
cites the case of State v. Pendergrass,
586 P.3d 691 (Mont. 1978), in support of
his position. In that case, the prejudicial danger of a tape recording
of an hysterical emergency call by a rape victim was held to outweigh
the tape's probative value, which was simply to bolster the already
overwhelming evidence that a rape had occurred, something the
defendant did not dispute. In the present case the tape contains a
statement by one of the victims in which he says the Defendant's name
as he is being attacked, one of the two most probative pieces of
evidence establishing the Defendant's identity as the killer. The
court did not err in finding that the probative value of the tape
outweighed any prejudicial danger.
Finally, the Defendant argues that the court should
not have allowed the jury to use a transcript of the recording. First,
he says that, since the content of the tape was in dispute, the
transcript which purported to accurately represent it should not have
been admissible. The tape had been electronically enhanced by the
F.B.I. The 911 operator who took the call testified that she heard
only screaming and not the words "Frank, no. God help me," when she
took the call. She testified she had heard Chad's words clearly only
after the tape had been enhanced. The operator also testified that the
transcript was an accurate reproduction of the tape as enhanced.
Barbara Kohus, an F.B.I. signal processor, testified concerning the
procedure used to enhance the tape and the fact that the process does
not change the words but only reduces noise so that the voices can be
heard more easily.
Defendant also complains that the use of
exclamation points in the transcript prejudiced him and that the
transcript preconditioned the jurors to accept the transcript's
version of the tapes. Before playing the tape and giving the jury the
transcript, the court fully instructed the jury that the tape, not the
transcript, was the evidence in the case and that if any discrepancies
were found between the two, they were to "rely upon hearing and . . .
understanding of the tape and disregard portions of the transcript
that [they found] to be inaccurate." The trial court did not err in
admitting the tape recording and allowing the jury to use a transcript.
See, e.g., State v. Coker,
746 S.W.2d 167, 172 (Tenn. 1987); State
598 S.W.2d 209, 223 (Tenn. 1980); State
755 S.W.2d 464, 469 (Tenn. Crim. App.
1988); State v. Elrod,
721 S.W.2d 820, 822-823 (Tenn. Crim. App.
1986); State v. Smith,
656 S.W.2d 882, 887-888 (Tenn. Crim. App.
1983); see also Tenn. R. Evid. 1001-1008.
The Defendant avers that the trial court erred in
admitting evidence the Defendant had been charged with the aggravated
assaults of two of the victims. The administrator of the General
Sessions Court of Robertson County testified that two warrants
charging the Defendant with aggravated assault had been pending on
October 1, 1989. The first had been issued June 17, 1989, and alleged
the aggravated assault of Judy Smith's thirteen-year-old son Jason
Burnett. The second, issued August 1, 1989, charged the aggravated
assault of Judy Smith. The court date in both cases had been set for
October 30, 1989. Both were dismissed that day because the prosecutor
was deceased. The trial court admitted this evidence over Defendant's
objections as relevant to the Defendant's motive and intent.
The Defendant asserts that this evidence was
irrelevant and, if relevant, was substantially more prejudicial than
probative. The trial court correctly held that evidence of the
outstanding warrants was relevant as to motive and intent, see State
645 S.W.2d 392, 397 (Tenn. 1983), and did
not err in finding that the danger of unfair prejudice did not
outweigh its probative value. See Tenn. R. Evid. 404(b).
Finally, the Defendant argues that this proof
should not have been admitted because the prior crimes were not
established by "clear and convincing evidence" under the guidelines of
State v. Parton,
694 S.W.2d 299 (Tenn. 1985). Strictly
speaking, the evidence of which Defendant complains is not "other
crimes evidence" as discussed in Parton. The relevant fact was that
the charges were pending, and exposed the Defendant, who knew of them,
to possible prosecution and punishment regardless of their validity.
Proof establishing the charges' truthfulness might have been relevant
to increase the strength of the State's theory that avoiding
prosecution and conviction was the Defendant's motive but was
unnecessary to establish the admissibility of the outstanding warrants.
The Defendant also avers that the trial court erred
in admitting evidence that the Defendant had attempted to solicit
others to kill the victims. The Defendant complains of the testimony
of two of his co-workers. The first, Raymond Merritt, testified that
during the month before the murders the Defendant asked him if he knew
of anyone the Defendant could hire to kill his family and told Merritt
that he would pay $20,000 to have his wife and step-children killed.
The second witness, Jerry Williams, testified that in the late spring
or early summer of 1988, the Defendant offered to kill Williams' wife
if Williams would kill the Defendant's wife.
The Defendant contends this evidence is
inadmissible as irrelevant and, if relevant, as prejudicial beyond its
probative value under Tenn. R. Evid. 404(b), governing the admission
of evidence of other crimes or bad acts. We find that the evidence
offered by both witnesses is relevant to establish intent,
deliberation and premeditation.
The Defendant next alleges that the trial court
erred in admitting an alleged comment made by him concerning the "McDonald's
Massacre" in California. Clinton Curtis was an employee of Seal
Master, the business in Morehead, Kentucky, where the Defendant
repaired a machine on the morning following the murders. Curtis was
allowed to testify that during a break that morning around nine
o'clock he and the Defendant were discussing the issue of banning
automatic weapons. Curtis remarked that one reason for such a ban was
incidents like that in California where a man shot a number of people
in a McDonald's restaurant. The Defendant remarked in response "that
you never know when one of us could snap and do something like that."
The Defendant says that this evidence was both
irrelevant and prejudicial under Tenn. R. Evid. 401 and 403. The trial
court felt the statement was relevant as going to the Defendant's
response to a conversation concerning "a number of people being killed"
nine hours after the State alleged he had killed three people. The
weight of the statement would be a matter for the jury. The State
argues that the Defendant's comment about a mass murder within such a
short period of time after the commission of the murders was relevant.
The evidence has only slight probative value under
Rule 401, but unfair prejudicial dangers from its admission are also
minimal. Clearly, any error in the admission of this single statement
would be harmless under T.R.A.P. 36(b) and T.R.Cr.P. 52(a).
The Defendant next contends that the trial court
erred in allowing the State to cross-examine the Defendant about his
prior employment in a meat packing plant. Over objection the State was
permitted to ask the Defendant about his previous employment in the
processing room or killing room of a meat packing plant in Nashville.
There he had cut off the usable parts of animals and placed them on a
conveyor belt to be sent to another room to be made into sausage. He
testified that he was responsible for separating the diaphragm, liver,
and kidneys and acknowledged that he dealt with the intestinal parts
and stomach contents of the animals.
The Defendant says that this evidence was
irrelevant and prejudicial. The evidence was relevant because Jason's
intestines had been pulled from his body. Establishing that the
Defendant had had a prior job removing intestines helped connect the
Defendant to the crime.
The Defendant complains that the State was allowed
to refer to the processing room as "the killing room." The State used
this phrase only once in the initial questioning; and, after the
Defendant informed the examining prosecutor that the room was called
the processing room, the term was not used again. Other than the
Defendant's remarks, the record does not reveal the correct name of
the room; but any prejudice caused by the use of this phrase on one
occasion in the context of the total examination and the description
of the Defendant's duties would be harmless. See T.R.A.P. 36(b);
The Defendant complains of the admission during the
sentencing phase of two color photographs of Jason and Chad Burnett's
bodies as they were found by the police. The trial court held the
photos were relevant to aggravating circumstance (i)(5), the murders "were
especially heinous, atrocious or cruel in that involved torture or
depravity of mind." T.C.A. § 39-2-203(i)(5)(1982)[now § 39-13-204(i)
(5)(1991)]. The Defendant argues that the probative value of these
photographs was outweighed by the danger of unfair prejudice.
Photographs of the victim of a first degree murder
have been previously admitted at the sentencing hearing in several
capital cases where they are relevant to establish circumstance
(i)(5). See, e.g., State v. Payne,
791 S.W.2d 10, 19-20 (Tenn. 1990)(videotape);
State v. Miller,
771 S.W.2d 401, 403-404 (Tenn. 1989);
State v. Porterfield,
746 S.W.2d 441, 449-450 (Tenn. 1988);
State v. McNish,
727 S.W.2d 490, 494-495 (Tenn. 1987).
Both photographs are undeniably gruesome; however,
we are of the opinion that the trial court did not err in admitting
the photographs, which reflect directly upon the issues of torture and
depravity. The photograph of Jason Burnett reveals the full extent of
the abdominal wounds and illustrates the mistreatment suffered by the
victim. The photograph of Chad Burnett shows the multiplicity and
viciousness of the wounds inflicted upon him. Their probative value
was not substantially outweighed by the danger of unfair prejudice.
See, e.g., State v. Payne, 791 S.W.2d at 19-20; T.R.E. 403.
The next issue we must resolve is whether the
evidence was sufficient to support the aggravating circumstance that
the offense "was especially heinous, atrocious or cruel in that it
involved torture or depravity of mind." This aggravating circumstance
was found by the jury to apply in the murders of all three victims. At
sentencing, Dr. Harlan testified regarding the manner in which each of
the victims had died. Judy Smith was paralyzed and without feeling
from the neck down and would have died between two and six minutes
after the infliction of the fatal wound to her neck. She would have
been conscious during the early portion of that time but unable to
move. She may have been able to hear from between two and four minutes
after being shot and thus could have heard the sounds of her children
being murdered. Dr. Harlan's testimony at the guilt phase indicated
that Judy's neck had been slashed and her stab and puncture wounds
were inflicted after her death. Chad would have lived seven to eight
minutes after receiving his fatal wounds and perhaps as many as 15
minutes after the gunshot wound to his chest. The wound to the chest
was first and would have caused severe pain. Dr. Harlan also noted
that Chad had received his multiple stab wounds prior to death. Jason
had lived the longest, up to fifteen minutes, and had died slowly from
stab wounds to the liver and left lower abdomen. Dr. Harlan said that
the latter wound had been inflicted while Jason was already lying on
the ground. For most of the time it took him to die, he would have
been conscious and in extreme pain, fully aware of his condition as he
cradled his small bowel in his arms as it protruded from his abdomen.
In State v. Williams,
690 S.W.2d 517, 529 (Tenn. 1985), this
Court defined torture as the infliction of severe physical or mental
pain upon the victim while he or she remains alive and conscious. The
willful infliction of such severe pain necessarily involves depravity,
which may also be shown by acts occurring shortly after the victim's
death. The defendant's actions in this case meet the definition of
this aggravating offense as set forth in Williams and applied in
previous cases. See, e.g., State v. Harris,
839 S.W.2d 54 (Tenn. 1992); State v.
815 S.W.2d 166 (Tenn. 1991); State v.
Payne, 791 S.W.2d 10 (Tenn. 1990); State v. Miller, 771 S.W.2d 401 (Tenn.
1989); State v. Johnson,
743 S.W.2d 154 (Tenn. 1987); State v.
Teague, 645 S.W.2d 392 (Tenn. 1983). The multiplicity of the wounds,
the infliction of gratuitous violence on the victims and their
needless mutilation supports application of this circumstance. See
State v. Melson, 638 S.W.2d 342, 367 (Tenn. 1982), State v. Dicks,
615 S.W.2d 126, 131-132 (Tenn. 1981); cf.
Proffitt v. Florida,
428 U.S. 242,
96 S. Ct. 2960, 2968, 49 L. Ed. 2d 913
Defendant also says that a finding of this
aggravating circumstance is inherently inconsistent with the jury's
verdicts that the murders were committed "with a cool purpose" as
required for first-degree premeditated murder. Nothing in the
definitions of torture or depravity under circumstance (i)(5)
conflicts with this element of first-degree murder. The Defendant also
raises the point made in Chief Justice Reid's Dissent in State v.
Black, 815 S.W.2d 166, 197 (Tenn. 1991), that, because the jury found
that the Defendant killed Chad and Jason Burnett to avoid or prevent
his arrest or prosecution, T.C.A. § 39-2-203(i)(6)(1982), their
murders do not demonstrate Defendant's depravity of mind because they
were killed for a purpose. The majority in Black, id. at 182, did not
adopt this interpretation of the aggravating circumstances.
The next issue we must address is whether the death
penalty may be imposed in this case upon a finding of the aggravating
circumstance that the murders of Chad and Jason Burnett were committed
to avoid, interfere with or prevent the lawful arrest or prosecution
of the Defendant. T.C.A. § 39-2-203(i)(6)(1982)[now §
39-13-204(i)(6)(1991)]. The Defendant argues that this aggravating
circumstance can only apply to this case if the State proves that Judy
Smith was killed first. Such a chronology is not necessarily a
prerequisite to finding this aggravating circumstance, cf. State v.
778 S.W.2d 48, 53 (Tenn. 1989)(circumstance
not limited to first-hand witness of crime). For purposes of applying
this circumstance, it is sufficient that the proof supports a finding
that at least one motive for killing the boys was the threat they
posed of the Defendant's apprehension regardless of the time of their
mother's death. See State v. Black, 815 S.W.2d at 182. Jason's futile
911 phone call is evidence of his attempt to report the crime and
secure the Defendant's capture by law enforcement officers. The record
supports a finding that Defendant was aware of the efforts to contact
police and that a motive for the boys' murders was to avoid or prevent
Defendant's lawful arrest. Compare State v. Branam,
855 S.W.2d 563, 570 (Tenn. 1993) (evidence
insufficient to support this aggravating circumstance).
Defendant next argues that prevention of arrest and
prosecution must be the "dominant motive" for the murders. This Court
rejected a similar argument in State v. Carter,
714 S.W.2d 241, 250 (Tenn. 1986)(avoidance
of arrest need not be sole motive for murder). See State v. Evans,
838 S.W.2d 185 (Tenn. 1992)(Evans
committed the murder both while engaged in the robbery and in an
effort to avoid arrest. Both motives are present and neither one is "dominant.")
The Defendant relies upon a line of cases from Florida requiring that,
before Florida's similar aggravating circumstance may be used to
aggravate a murder, proof of the requisite intent must be very strong
where the victim is not a law enforcement officer. See, e.g., Garron
528 So. 2d 353 (Fla. 1988); Perry v.
522 So. 2d 817, 820 (Fla. 1988); White v.
403 So. 2d 331, 338 (Fla. 1981); Riley v.
366 So. 2d 19, 22 (Fla. 1978). The
Florida Supreme Court has applied this aggravating circumstance very
strictly. Had our Legislature wished to require that there be only one
motive or a "dominant motive" for an aggravating circumstance to be
employed, it would have included such a requirement in the statute.
Finally, the Defendant submits that the finding of
the "heinous, atrocious or cruel" aggravator precludes a finding of
the circumstance in subsection (i)(6). There is no merit to this issue
under State v. Black, supra.
The Defendant next questions whether the death
penalty may be imposed in this case under the aggravating circumstance
that the murders of Jason and Chad Burnett were committed while the
Defendant was engaged in committing the murder of Judy Smith. T.C.A. §
39-2-203(i)(7)(1982)[now § 39-13-204(i)(7)(1991)]. The Defendant avers
that the jury's failure to return a verdict of guilty on the felony
murder charges relating to the boys' deaths precludes, and is
inconsistent with, a finding of this aggravating circumstance. First,
the jury was instructed that they could not return a verdict of guilty
as to each victim on both premeditated and felony murder but must
limit their verdict of guilty to only one of the counts. Thus, under
the court's instructions, a finding of guilty on the charges of
premeditated murder does not preclude, and is not inconsistent with,
the jury's finding of aggravating circumstance (i)(7) in the murders
of Chad and Jason Burnett. This Court has also previously held that
acquittal under a felony murder charge does not preclude a finding of
this aggravating circumstance. See State v. Wright, supra, 756 S.W.2d
The Defendant also insists that evidence that the
Defendant offered $20,000 to have all three victims killed is
inconsistent with the application of the "felony murder" statutory
aggravating circumstance. There was sufficient proof that Chad and
Jason were killed in the perpetration of Judy Smith's murder to submit
this aggravating circumstance to the jury. While there is a danger if
this circumstance is too broadly applied in multiple murders that any
murder after the first could arguably be enhanced by this aggravator,
in the present case the proof supports a finding of circumstance
(i)(7). See, e.g., State v. Black, 815 S.W.2d 166 (Tenn. 1991).
The Defendant next asks whether the "mass murder"
aggravating circumstance in T.C.A. § 39-2-203(i)(12)(1982) [now §
39-13-204(12)(1991)] is applicable in this case. The statute reads as
The defendant committed "mass murder" which is
defined as the murder of three or more persons within the state of
Tennessee within a period of forty-eight (48) months, and perpetrated
in a similar fashion in a common scheme or plan.
The jury found the existence of the "mass murder"
statutory aggravating circumstance as to all three victims. We held
this aggravating circumstance applicable to a similar set of facts in
State v. Black, 815 S.W.2d 166, 183-184 (Tenn. 1991), where a majority
of this Court held:
The term "mass murderer" as used in the statute can
apply to multiple murders committed close in time or multiple murders
committed singly over a longer period of time, not to exceed four
years. We are of the opinion that the statute encompasses a situation
where a defendant is simultaneously tried, as in the present case, for
a series of separate but related homicides committed as part of a
common scheme or plan.
815 S.W.2d at 184. See also State v. Van Tran, S.W.2d
, (Tenn. 1993).
The Defendant relies on Chief Justice Reid's
Dissent in that case and argues that the murders must have been
committed over an extended period of time before this circumstance can
apply. A majority of this Court, however, found that the "mass murder"
aggravating circumstance was appropriate for a series of separate but
related homicides committed as part of a common scheme or plan, as in
The Defendant's final issue deals with the
constitutionality of Tennessee's death penalty statute. The Defendant
contends that Tennessee's statutory scheme for capital sentencing
violates his rights under the Fifth, Sixth, Eighth and Fourteenth
Amendments to the United States Constitution and Article I, Sections
8, 9, 16 and 19 of the Tennessee Constitution. The Defendant says that
the aggravating circumstances in the statute do not genuinely narrow
the class of persons eligible for the death penalty and argues that
the use of the circumstance of felony murder to aggravate a felony
murder fails to narrow the class. This may be true in the case of
felony murder, see State v. Middlebrooks,
840 S.W.2d 317 (Tenn. 1992), but the
aggravating circumstances have performed their constitutional function
in this case, where the Defendant was convicted of premeditated murder.
See State v. Cauthern,
778 S.W.2d 39, 47 (Tenn. 1989). Defendant
says the statute unconstitutionally mandates a sentence of death. This
argument was rejected in State v. Smith,
857 S.W.2d 1, 21-22 (Tenn. 1993); and
State v. Black, 815 S.W.2d at 185 (and cases cited therein). The
Defendant states that the absence of a requirement that the jury
specify the mitigating factors it found prevents effective appellate
review and overemphasizes the importance of the aggravating
circumstances, which are required to be listed. There is no merit to
this issue under State v. Melson, 638 S.W.2d 342, 368 (Tenn. 1982). In
his last two attacks on the statute, Defendant contends that death per
se and execution by electrocution are cruel and unusual punishment.
These arguments were recently rejected by a majority of this Court in
State v. Black, 815 S.W.2d at 179, 187-191.
We find no error in the guilt phase or sentencing
phase of this case. In accordance with the mandate of T.C.A. §
39-13-206(c)(1)(D) (formerly T.C.A. § 39-2-205(c)(4)], we find: that
the sentence of death was not imposed in an arbitrary fashion, that
the evidence supports the jury's findings of the statutory aggravating
circumstances; and that the evidence supports the jury's finding of
the absence of any mitigating circumstances sufficiently substantial
to outweigh the aggravating circumstances so found.
Our comparative proportionality review convinces us
that the sentence of death is neither excessive nor disproportionate
to the penalty imposed in similar cases, considering both the nature
of the crime and the Defendant. See State v. Black, 815 S.W.2d 166 (Tenn.
1991); State v. Payne, 791 S.W.2d 10 (Tenn. 1990); and State v.
Johnson, 743 S.W.2d 154 (Tenn. 1987). We have studied, compared and
analyzed cases, and conducted a meaningful proportionality review as
outlined in State v. Barber,
753 S.W.2d 659, 663-668 (Tenn. 1988). As
stated in State v. Harris, 839 S.W.2d 54, 77 (Tenn. 1992), "no two
cases are alike, and no two defendants are alike." A comparative
review helps us make the determination of whether the penalty imposed
in this case is or is not disproportionate to the penalty imposed in
similar cases considering the nature of the crime and the defendant.
See Lockett v. Ohio,
438 U.S. 586, 686, 602-605,
98 S. Ct. 2954, 2963-2965, 57 L. Ed. 2d
The Defendant's clearly identifiable bloody palm
print was found on the sheet next to Judy Smith's body and the 911
tape established the Defendant's presence at the scene at the time the
murders were being committed. Clearly, the Defendant's bringing three
weapons, including an awl, is evidence that he not only planned the
murders ahead of time, but planned the torture as well. The murders of
the three victims, as described earlier in this opinion, involved the
intentional, senseless, brutal, gruesome and violent killing of three
helpless people, which clearly warrants the imposition of the death
penalty. We find that the sentence of death in the case of Judy Smith
was not imposed in an arbitrary fashion, that the evidence supports
the jury's findings of two statutory aggravating circumstances. We
further find that the sentence of death in the cases of Chad and Jason
Burnett was not imposed in an arbitrary fashion, that the evidence
supports the jury's findings of four statutory aggravating
circumstances, and that the evidence supports the jury's finding of
the absence of any mitigating circumstances sufficiently substantial
to outweigh the aggravating circumstances so found.
The sentence of death will be carried out as
provided by law on the 23rd day of February, 1994, unless otherwise
ordered by this Court or by other proper authority. Costs are adJudged
against the Defendant.
FRANK F. DROWOTA, III
O'Brien and Anderson, JJ.
Reid, C.J. See separate Concurring opinion.
Daughtrey, J. See separate Concurring opinion.
I concur in affirming the defendant's conviction of
the premeditated first degree murder of Jason Burnett, and the
sentence of death upon that conviction. I agree with Justice
Daughtrey's observation that Discussion of the sentences of death
imposed for the murders of Judy Smith and Chad Burnett would serve no
useful purpose, whether in concurrence or Dissent.
Except as noted below, this case presents the same
issues regarding the imposition of the sentence of death as were
present in State v. Howell, S.W.2d (Tenn. 1993), and my concurrence
with the decision affirming the sentence in this case is based on the
reasons set forth in my Concurring opinion in Howell. There is no
basis in this record on which this Court can make the determinations
necessary to hold that the statute authorizing the imposition of the
sentence of death does not reflect contemporary standards of decency
in Tennessee. Id. at . Furthermore, the trial of this case was
essentially free of error, according to procedures permitted by prior
decisions of this Court. The record could well serve as a text for the
trial of a capital case. Any deficiencies, none of which require
reversal of the conviction or sentence, have been invited by this
Court's failure to adopt procedures that would compel compliance with
constitutional standards in every case in which the sentence of death
In this case, the defendant asserts that the
evidence does not support aggravating circumstance T.C.A. §
39-2-203(i)(5), "The murder was especially heinous, atrocious, or
cruel in that it involved torture or depravity of mind," and that the
facts necessary to support aggravating circumstance (i)(5) are
inconsistent with a finding of premeditated murder or a finding that
the murder was committed to avoid arrest.
In State v. Black, 815 S.W.2d 166 (Tenn. 1991), in
Dissent, I agreed with the defendant's contention that the instruction
with regard to depravity of mind was unconstitutionally vague and
inconsistent with a finding that the killing was committed to prevent
lawful arrest. In that case, there was no evidence of torture. Each of
the victims had been shot in the head and obviously had died
immediately. The prosecution contended that the facts showed depravity
of mind. Id. at 181. In the case before the Court, the wounds
inflicted upon Jason Burnett support the finding of torture, about
which there is no uncertainty. Also, torture, as distinguished from
depravity of mind, is not inconsistent with the deliberation present
in premeditated murder or the decision to kill for the purpose of
avoiding arrest, the aggravating circumstance set forth in T.C.A. §
In State v. Black, in Dissent, I further stated
that, in my view, the killing of three members of a family at the same
time and place is not "mass murder" within the meaning of the statute,
T.C.A. § 39-2-203(i)(12). 815 S.W.2d at 197. As pointed out by Justice
Fones, Dissenting in State v. Bobo,
727 S.W.2d 945, 957 (Tenn. 1987):
As rewritten by this Court, the mass murder
aggravating circumstance is completely redundant because every murder'
conviction that could be proven would fully support aggravating
circumstance number two and in some instances would fully support the
death penalty under aggravating circumstance number seven. The result
is that the Court strains legislative intent to the breaking point,
rewrites a statute to conform to its view of legislative intent, but
nothing of substance that was not already included in the aggravating
circumstances theretofore enacted, has been added. I would declare the
mass murder aggravating circumstance unconstitutional, period.
However, any evidence admitted in support of "mass
murder" was otherwise admissible. Consequently, there was no
inadmissible evidence that could have affected the jury's decision.
For the reasons more fully discussed in State v. Howell, S.W.2d at ,
charging mass murder as an aggravating circumstance was harmless error
beyond a reasonable doubt.
In Black, it was my view that the Court could not
reasonably conclude that the valid aggravating circumstances
outweighed the mitigating circumstances, but I have reached the
opposite Conclusion in this case. The reasoning in Black was as
Once the remaining aggravating circumstances are
distilled to their factual essence, it is evident that the defendant
was found eligible for the death penalty because the victim was a
child, T.C.A. § 39-2-203(i)(1); because the defendant had been
involved in an earlier altercation with Angela Clay's husband, T.C.A.
§ 39-2-203(i)(2); and because he killed Lakeisha Clay in connection
with the murder of her mother, T.C.A. § 39-2-203(i)(6) and (7).
Qualitatively, except for the age of the victim, every aggravating
circumstance properly found in this case arose from the defendant's
emotional involvement with Angela Clay. On the other hand, in
mitigation, the defendant presented testimony that before his
involvement with Angela Clay, he had been a responsible and nonviolent
person, that he was a model prisoner, that he suffered from
psychological problems, and that his violent behavior was focused on
the Clay family.
As this Court stated in Delk v. State,
590 S.W.2d 435, 442 (Tenn. 1979), "the
line between harmless and prejudicial error is in direct proportion to
the degree of the margin by which the proof exceeds the standard
required" to support the results reached by the jury. In this case the
margin is slim. I would not find as a matter of law that the jury's
consideration of these invalid aggravating circumstances was harmless
815 S.W.2d at 198. In Black, the defendant killed
his "girlfriend" and her two small children because she was becoming
reconciled with her estranged husband. The record in Black showed the
murder to have been the result of a sudden outburst of deadly violence
caused by irrational and uncontrolled jealousy.
The circumstances of the present case are
substantially different, even though the victims in both cases were a
mother and her two children. The acts of the defendant in the case
before the Court, were, in contrast, cold and deliberate. The
defendant had planned over a long period of time to kill his ex-wife
and her two children. He had purchased insurance on the lives of the
victims on three occasions shortly before he killed them. He made
three separate solicitations to have his wife or his wife and the
stepsons killed, including an offer of $20,000, and an offer whereby
he would kill the other person's wife. The defendant made many threats
to kill his wife and her children, some to the wife directly and some
to other persons. He planned his work schedule so that he could claim
that he was out of the state on the night the murders were committed.
Based on these significantly different factual
situations, it is my view that a court could not find that beyond a
reasonable doubt the aggravating circumstances in Black outweighed the
mitigating circumstances, but could find that beyond a reasonable
doubt the aggravating circumstances outweigh the mitigating
circumstances in the case before the Court.
The deficiencies of the Court's comparative
proportionality review were noted again in State v. Howell, S.W.2d at
. Nevertheless, as in Howell, the record shows that the defendant in
this case is among those most deserving of the ultimate sanction. The
Court's failure in this case to perform any meaningful comparative
review does not require that the sentence be reversed.
Lyle Reid, C.J.
I concur fully in the decision to affirm the
defendant's conviction on three counts of first-degree, premeditated
murder. The guilt-innocence phase of the trial was meticulously
handled by the trial Judge, and although no trial is perfect, the
mistakes made in this one were apparently trivial and without
discernible affect on the jury's verdict.
The sentencing phase of the trial was also
carefully conducted, and, given the senseless nature and the
horrifying circumstances of the murders committed in this case, it is
not surprising that a "death-qualified" jury would vote to impose the
ultimate penalty against Oscar Franklin Smith on all three counts. As
to one of the victims, Jason Burnett, who was deliberately eviscerated
by his step-father and left to die an unnecessarily painful and
terrifying death, there can be little doubt that capital punishment is
both proportional to the offense and supported by sufficient
aggravating circumstances, as set out in Tennessee's first-degree
murder statute. Because the two additional death penalties are
obviously redundant, and because the strength of the evidence with
regard to those two sentences is less clear than it is with regard to
the murder of Jason, I conclude that it is unnecessary to subject them
to further examination.
In the absence of trial error, the only other
impediment to imposition of the death penalty for the murder of Jason
Burnett would be a finding that the procedure set out in Tennessee's
capital punishment statute was unconstitutional in some respect (including
the manner of execution). However, as the author of the lead opinion
in this case points out, all the constitutional questions raised by
this defendant have been previously decided against his insistence,
although sometimes by a divided court.
For the reasons set out in this separate opinion, I
concur in the judgment of the trial court finding the defendant guilty
of murder in counts one, two, and four of the indictment and in the
sentence imposed with regard to count four.
Martha Craig Daughtrey, Justice.