State v. Adkins, 14

• Decision Date: 16 February 1987
• Docket Number: No. 14,14
• Citation: 725 S.W.2d 660
• Parties: STATE of Tennessee, Appellee, v. Carl Wayne ADKINS, Appellant. 725 S.W.2d 660
• Court: Tennessee Supreme Court

Page 660

725 S.W.2d 660

STATE of Tennessee, Appellee, v. Carl Wayne ADKINS, Appellant.

No. 14

725 S.W.2d 660

Supreme Court of Tennessee,

at Knoxville.

Feb. 16, 1987.

Robert J. Jessee, James T. Bowman, Johnson City, for appellant.

W.J. Michael Cody, Atty. Gen. and Reporter, Kathy M. Principe, Asst. Atty. Gen., Nashville, for appellee.

OPINION

FONES, Justice.

On January 29, 1980, defendant was convicted of first degree murder and sentenced to death. On appeal, this Court affirmed the conviction of first degree murder but reversed the death penalty and remanded for a resentencing hearing. State v. Adkins, 653 S.W.2d 708 (Tenn.1983). In October 1984, a resentencing hearing was held and the jury again assessed the death penalty. The trial judge granted defendant's motion for a new sentencing hearing for error in advising that jury that the first jury had imposed the death penalty. The third sentencing hearing was held in June 1985. It also resulted in a sentence of death. On this appeal, defendant asserts errors allegedly committed at that hearing. We find that no errors were committed and affirm the sentence of death.

The State relied upon two aggravating circumstances, to-wit: previous conviction of one or more felonies which involved the use or threat of violence to the person and the murder was committed to avoid, prevent or interfere with the prosecution of defendant for another offense. T.C.A. Sec. 39-2-203(i)(2) and (i)(6).

The State proved that on September 30, 1965, defendant was convicted of murder in the second degree and sentenced to ten years in the State Penitentiary. In further support of the first aggravating circumstance, the State proved that in September 1981 defendant pled guilty to a charge of aggravated assault and was sentenced to two years in the State Penitentiary. The victim of that assault, Shirley Bell, testified that she had lived with defendant for approximately four months and that approximately two months after she left him he shot her in the stomach. As a result she was hospitalized for six months and was told that she would never walk again. That shooting took place at a trailer belonging to Junior Adams, where Shirley was temporarily residing.

The victim of the murder for which defendant has been convicted in this case was Junior Adams. The murder took place on May 22, 1979. Defendant was indicted for the assault on Shirley Bell on May 14, 1979, and was arrested on that charge the following day. In support of the second aggravating circumstance, the State proved that Junior Adams was an eyewitness to the shooting of Shirley Bell. Shirley Bell testified that on the day Adams was killed she heard defendant ask Adams, "What he was going to tell in court concerning my case," and Adams respond that he was going to tell the (expletive) truth.

The third jury's verdict expressly found that defendant had previously been convicted of murder in the second degree and aggravated assault on Shirley Bell constituting the proscribed aggravating circumstance described in T.C.A. Sec. 39-2-203(i)(2). No mention was made of the other aggravating circumstance. Defendant does not contend that the jury's failure to find that the State had not proven the second aggravating circumstances beyond a reasonable doubt affected the sentence of death and we hold that it does not. Parenthetically, we note that at the first trial of this case aggravating circumstance (i)(6) was presented to the jury at the sentencing hearing on substantially the same evidence as presented to the third sentencing jury. The first jury found that aggravating circumstance to have been proven, justifying the death penalty. On our prior review we found no error in the submission of that aggravating circumstance to that jury and expressly noted that, but for other errors not involving aggravating circumstance (i)(6), the death sentence could have been imposed as a result of that trial. 653 S.W.2d at 716.

Defendant adduced proof that he had been adjudged indigent and was represented by other attorneys at the first trial. His proof further showed that he had issued witness subpoenas for Walt Whaley and Jean Morton, which were returned "Not to be Found," and that a blood alcohol test performed on the victim Junior Adams during the autopsy registered .12. Defendant also proved that he had pled guilty to aggravated assault arising out of the shooting of Shirley Bell and had received a two year sentence and had been confined to jail since his arrest in 1979.

The remainder of the proof offered by defendant was objected to by the State. This objection was sustained by the trial judge. Defendant's offer of proof, adduced outside the presence of the jury, is in the record. It consisted principally of testimony by one Jimmy Burroughs, who was a friend of Bob Morton. Bob Morton was married to Jean Morton, identified in the record as a prostitute. Jean Morton was living with Junior Adams in June 1978 and was present at Adams' trailer when defendant shot Shirley Bell. Burroughs testified that on May 22, 1979, the day Adams was killed, Jean Morton and Junior Adams were at the Varsity Grill at the lunch hour. When Bob Morton came in and asked Jean Morton if she was going to be home that night, she responded that she was spending the night with Junior Adams. Bob Morton sat down elsewhere in the grill but later approached his wife and asked the same question and received the same answer. Morton then told Junior Adams that he would kill him before the night was over.

Burroughs also testified that four or five days before Bob Morton died he confessed to Burroughs that he had killed Junior Adams. Bob Morton died on June 5, 1981, more than two years after Adams was murdered and more than a year after defendant had been convicted and sentenced to death in the trial court, all of which events were well known to the witness Burroughs. The cross examination of Burroughs, focusing on when and to whom he reported the conversation at the grill and the confession shortly before Morton's death, raised very serious questions about the credibility of that testimony if it had been relevant and admissible at the sentencing hearing.

Defendant based several issues upon the exclusion of Burroughs' testimony. He asserts that (1) he should have been granted a new trial on the issue of guilt or innocence since the "death bed confession" of Bob Morton would have established defendant's innocence; (2) the trial judge improperly excluded Burroughs' testimony about Bob Morton's conversation with his wife and Junior Adams at the Varsity Grill; and (3) the trial judge improperly excluded Burroughs' testimony reporting Bob Morton's alleged confession.

Defendant has been tried and convicted of the murder of Junior Adams. His appeal asserting errors at that trial has been fully considered by this Court and affirmed in an opinion reported in 653 S.W.2d 708. In State v. Hartman, 703 S.W.2d 106 (Tenn.1985), we held that the issue of guilt or innocence is not relevant at a sentencing hearing. At a resentencing hearing, both the State and defendant are entitled to offer evidence relating to the circumstances of the crime so that the sentencing jury will have essential background information "to ensure that the jury acts from a base of knowledge in sentencing the defendant." See State v. Teague, 680 S.W.2d 785, 788 (Tenn.1984). It is elementary that the issue of guilt or innocence in a capital case requires a full scale trial and cannot be an adjunct of a resentencing hearing. There are procedures, too well known to require discussion, for obtaining a retrial of guilt or innocence in a capital case; but that issue is not available at a resentencing hearing.

It is sufficient to say that the trial court correctly excluded Burroughs' testimony because it was only relevant to the issue of guilt or innocence and not relevant as essential background information. There are other reasons why his testimony was inadmissible which are unnecessary to relate.

Defendant asserts as error the trial judge's denial of his pretrial motion to require the clerk of the trial court to furnish him with a list of all of the persons charged with first degree murder since 1977 and of the disposition of those charges in support of his allegation that the District Attorney General of Washington County was exercising his prosecutorial discretion to seek or not to seek the death penalty in an arbitrary and capricious manner. As a related second prong, defendant suggests that the data requested was necessary so that this Court could conduct an appropriate proportionality review and further charges this Court with limiting such review "to cases which come before the Supreme Court on appeal."

The proof that defendant's counsel sought was available as public records and it is their obligation to dig it out and present it in the trial court if they deem it relevant. In addition, this Court has that information, not just from Washington County, but from every county in the State of Tennessee and our proportionality review of death penalty cases since Tennessee Supreme Court Rule 12 (formerly Rule 47) was promulgated in 1978 has been predicated largely on those reports and has never been limited to the cases that have come before us on appeal. There is no merit to this issue.

Defendant says that his right to a speedy trial has been violated. The murder was committed on May 22, 1979; and defendant was tried, convicted and sentenced to death in February 1980. That trial was followed by defendant's motion for a new trial, his appeal to this Court, preparation of a substantial record, briefing and oral argument. This Court's decision was released on March 28, 1983. The first resentencing hearing was held in October 1984, and the second resentencing hearing was held in June 1985.

Defendant does not focus on any of the time intervals between those numerous proceedings as involving undue delay but instead...