Keen v. State, No. W2004-02159-CCA-R3-PD (Tenn. Crim. App. 6/5/2006), W2004-02159-CCA-R3-PD.
| Decision Date | 05 June 2006 |
| Docket Number | No. W2004-02159-CCA-R3-PD.,W2004-02159-CCA-R3-PD. |
| Parties | DAVID KEEN v. STATE OF TENNESSEE. |
| Court | Tennessee Court of Criminal Appeals |
Donald E. Dawson, Nashville, Tennessee; and Catherine Y. Brockenborough, Nashville, Tennessee, for the appellant, David Keen.
Paul G. Summers, Attorney General and Reporter; Michelle Chapman McIntire, Assistant Attorney General; and William L. Gibbons, District Attorney General, for the appellee, State of Tennessee.
Thomas T. Woodall, J., delivered the opinion of the court, in which Alan E. Glenn and Robert W. Wedemeyer, JJ., joined.
Capital Petitioner David Keen appeals as of right the judgment of the Shelby County Criminal Court denying his petition for post-conviction relief. Petitioner Keen pled guilty to first degree felony murder committed in the perpetration of the rape of eight-year-old Ashley Nicole (Nikki) Reed. See State v. Keen, 31 S.W.3d 196 (Tenn. 2000); State v. Keen, 926 S.W.2d 727 (Tenn. 1996). He was sentenced to death. On direct appeal, the petitioner's conviction was affirmed, but the supreme court reversed and remanded the sentence of death after finding reversible error due to erroneous jury instructions. Keen, 926 S.W.2d at 736. On remand, the jury, again, imposed the penalty of death. Keen, 31 S.W.3d at 202. Our supreme court affirmed the sentence of death on direct appeal. Id. A pro se petition for post-conviction relief was filed on May 3, 2001, which was followed by the appointment of counsel and an amended petition on November 16, 2001. An evidentiary hearing was conducted and, on August 2, 2004, the post-conviction court denied relief and dismissed the petition. On direct appeal to this Court, the petitioner presents for our review the following claims: (1) whether the petitioner was denied a fair trial due to jury misconduct; (2) whether the petitioner received constitutionally effective assistance of counsel at his sentencing hearing; (3) whether the death sentence violates the holdings in Apprendi, Ring, or Jones; (4) whether the prosecutor's discretion in seeking the death penalty violates Bush v. Gore; (5) whether the imposition of the death penalty is unconstitutional; and (6) whether imposition of the death penalty violates international law. After a careful and laborious review of the record, this Court concludes that there is no error requiring reversal. Accordingly, the judgment of the post-conviction court is affirmed.
The proof as set forth in the supreme court's decision opinion affirming the imposition of the death penalty established the following:
At the time of the tragic events giving rise to this case, the appellant was living with his then-fiancée, Deborah Wilson, in a three-bedroom mobile home in Millington, Tennessee. Also living with the appellant and his fiancée were Deborah's four children, including Ashley Nicole, her mother, and her father. During the late afternoon of March 17, 1990, the appellant and Deborah met her mother and father at the VFW Club in West Memphis, Arkansas, to eat dinner and play bingo. All of Deborah's children were spending the night with various friends. Shortly after the appellant and Deborah arrived at the VFW Club, Deborah's father, Jessie Wilson, expressed some concern over Nikki's arrangements to sleep over at a friend's house. The appellant offered to go back to Millington to check on Nikki, and Mr. Wilson allowed the appellant to borrow his car to make the short trip.
The appellant left the VFW Club at about 5:30, and he returned about two hours later. Upon returning, he told everyone that Nikki was spending the night with her friend, Shantell. The group stayed at the VFW Club until about 10:30 that evening, and on his way back home to Millington, Mr. Wilson noticed that the green blanket he usually kept in his car was missing. Mr. Wilson questioned the appellant about the blanket, but the appellant merely replied that he put the blanket in the back seat of the car because he did not want to sit on it.
The next morning, Deborah and the appellant went shopping at the local Wal-Mart while Mrs. Wilson went to pick Nikki up for church. When Mrs. Wilson returned home, she told her husband that Nikki did not go to her friend's house the previous evening, and the two of them searched around the mobile home park for Nikki. When Deborah and the appellant returned from shopping, they joined the search for Nikki. After searching all day and finding no trace of his granddaughter, Mr. Wilson told Deborah to report Nikki's disappearance to the police. Deborah and the appellant then left on foot for the police station to file a missing persons report.
In the meantime, Mr. Wilson and his wife again searched the trailer park, and after waiting some time for Deborah and the appellant to return from the police station, they decided to drive to the police station themselves. As soon as Mrs. Wilson opened the door to get into her car, she saw a pair of panties lying on the passenger-side floorboard. Mr. Wilson told his wife not to move the panties, and they drove to the police station where they notified an officer about their discovery. When Mr. Wilson later approached the appellant about the panties in the car, the appellant was evasive and would not answer his questions.
The next day, a detective with the Millington Police Department asked the appellant and Deborah to come to the police station for questioning. Although the appellant initially denied any involvement in Nikki's disappearance, he admitted after further questioning by the police that he "threw her in the river." The appellant then took the detective and others officers to Memphis along the north end of Mud Island in the Wolf River, where the police found Nikki's naked body wrapped in a green blanket. Although the police found a blue denim skirt and a pink shirt wrapped with the body, the officers found no panties.
The appellant was taken to the Memphis Police Department where he again confessed to the murder of Nikki Reed. The appellant stated that when he found Nikki, he intended to take her back with him to West Memphis because he was unsure whether she could spend the night with her friend. In his initial statement to the Millington police, the appellant stated that on the return trip to West Memphis, he and Nikki argued about something concerning her seat belt. The appellant stated that during this argument, he became very angry, grabbed Nikki's throat, and covered her mouth until she turned blue. Although he admitted to wrapping Nikki's body in the green blanket and throwing her into the river, he could not remember whether he struck her, took her clothes off, or raped her.
However, when questioned further in Memphis about the incident, the appellant admitted to his actions in gruesome detail:
I pulled off to the side of the road and undressed Ashley and undid my pants, and I held my hand over her throat and tried to penetrate [her]. I felt crap and I stopped, and Ashley had turned blue in the face. She wasn't breathing. I tied a shoe lace around her neck and she still was not breathing. I untied the shoe lace, wrapped her up in a blanket, tied the blanket together and dumped her off into the river off of the old Auction Street boat Dock. Then I went back over to West Memphis and told Ashley's mother that Ashley was spending the night at her friend, Shantell's, house.
The appellant also stated that Nikki struggled "for a little while," although she did not scream or holler, because he "was practically on top of her with [his] hand on her throat." Nikki was eight years old and weighed sixty-eight pounds.
At the sentencing hearing, the State called Dr. Jerry Francisco, the Shelby County Medical Examiner, to testify as to the results of the victim's autopsy. Dr. Francisco testified that Nikki suffered multiple scrapes and bruises to her face and neck, and that she had a deep ligature mark around the front of her neck caused by a tightly-pulled fabric cord, such as a shoelace. The medical examiner also found a bruise and scrapes around her genital area and a tear on the posterior wall of the vagina. Sperm heads were also found inside the vagina. Dr. Francisco determined that Nikki was alive while she was raped and suffered the various injuries, although he could not say with certainty that she was conscious during the entire episode.
In addition, the autopsy revealed that fluid was found in the lungs of the victim. Although Dr. Francisco stated that fluid in the lungs can be associated with either drowning or asphyxia, he testified that the left side of the heart was diluted, which "is the type of change you see in a person who is alive and submerged." Although the medical examiner stated that the ligature strangulation was the actual cause of death, he also stated that "[i]n my opinion, she was alive at the time she was placed in the water."
In mitigation, the defense called the appellant's adoptive parents, Robert and Evelyn Brieschke, who adopted the appellant and his older brother when the appellant was four years old. His adoptive parents testified that the appellant was malnourished when he was first adopted, and that he was very nervous and upset, had difficulty playing and interacting with others, and had difficulty sleeping. The appellant was diagnosed with Attention Deficit Disorder in fourth grade, and he was placed on Ritalin, which offered some improvement. The Brieschkes later learned from a psychological report completed before the appellant's adoption that the appellant was in need of immediate help and counseling, although this information was kept from them at the time of the adoption. In high school, the appellant skipped classes, smoked marijuana, and drank alcohol. At one...
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