State v. Burns
| Decision Date | 09 November 1998 |
| Citation | 979 S.W.2d 276 |
| Parties | STATE of Tennessee, Appellee, v. Kevin BURNS, Appellant. |
| Court | Tennessee Supreme Court |
Glenn I. Wright, Wilson & Wright, Memphis, for Appellant.
John Knox Walkup, Attorney General & Reporter, Michael E. Moore, Solicitor General, Kenneth W. Rucker, Assistant Attorney General, Nashville, At Trial: John W. Pierotti, District Attorney General, Thomas D. Henderson, John Wheeler Campbell, Assistant District Attorney Generals, Memphis, for Appellee.
The defendant, Kevin Burns, was convicted of two counts of felony murder and two counts of attempted felony murder. The jury imposed the death penalty for one of the felony murder convictions after finding that evidence of an aggravating factor--that the defendant knowingly created a great risk of death to two or more persons other than the victim murdered--outweighed the evidence of mitigating factors beyond a reasonable doubt. The jury imposed a life sentence for the other felony murder conviction.
On direct appeal, the Court of Criminal Appeals affirmed the convictions and the sentences for the felony murder convictions, but reversed the attempted felony murder convictions. After the case was docketed as a death penalty appeal in this Court pursuant to Tenn.Code Ann. § 39-13-206(a)(1) (1997), we reviewed the Court of Criminal Appeals' decision, the record, and the applicable law and we entered an order specifying three issues for oral argument. 1
We have determined that none of the alleged errors claimed by the defendant affected the convictions for felony murder or the sentences imposed by the jury. We have further concluded that the evidence supports the jury's findings as to the aggravating and mitigating circumstances, and the sentence of death is not arbitrary or disproportionate to the sentence imposed in similar cases, considering the nature of the crime and this defendant. Accordingly, the judgment of the Court of Criminal Appeals is affirmed.
On April 20, 1992, four young men, Damond Dawson, Tracey Johnson, Eric Thomas, and Tommie Blackman, were sitting in a car in Dawson's driveway in Memphis. Dawson was in the driver's seat, Johnson was in the front passenger seat, Thomas was in the back seat behind Dawson, and Blackman was in the back seat behind Johnson.
The defendant, Kevin Burns, and Carlito Adams, who knew Blackman, walked up to the passenger side of the car. Adams pulled out a handgun and told Blackman to get out of the car. When Blackman refused, Burns pulled out a handgun and went around to the driver's side of the car. Blackman got out of the car and fled. Adams said "get him," and three or four more men appeared from behind hedges and fired at Blackman.
Eric Jones, age fourteen, was playing basketball at Dawson's house with three friends. Jones saw the men in the car removing jewelry and pulling money from their pockets. Seconds later, Jones saw Blackman running toward him. Amidst gunshots, Jones and Blackman escaped to the back of the house; Jones' three friends ran to an adjacent yard. Once inside the house, Jones heard seven or eight more gunshots.
Mary Jones, Eric Jones' mother, lived across the street from the Dawsons. She saw Adams shoot Johnson once in the chest. She saw Kevin Burns shoot Dawson several times, walk to the front of the car, and then shoot Dawson again. Ms. Jones unequivocally identified Burns and stated that she got "a real good look in his face" as he ran toward her after the shootings.
Tracey Johnson died at the scene. Damond Dawson, who suffered five gunshots to his arm, buttocks, chest, and hip was alive when police arrived but died after being transported to the hospital. Eric Thomas, who sustained gunshots to his chest and stomach, survived and made a photo identification of Kevin Burns two days after the incident. Thomas testified that Burns and the others had "opened fire" after robbing him and his friends of their jewelry and money. Thomas said that he initially told police he had been shot by Adams, but explained that he believed he was going to die and gave police the only name he knew, which was Adams.
On June 23, 1992, Burns was found in Chicago and arrested. After being advised of his rights and signing a waiver, the defendant gave a statement in which he admitted his role in the killings. He said that he had received a telephone call from Kevin Shaw, who told him that four men had "jumped" Shaw's cousin. Burns, Shaw, and four others intended to fight the four men, and Shaw gave Burns a .32 caliber handgun. As the others approached a car with four men sitting in it, Burns stayed behind. He heard a shot, saw a man running across the yard, and fired three shots. He then left the scene with the other men.
After the guilt phase of the trial, the jury deliberated and returned verdicts of guilty for two counts of felony murder and two counts of attempted felony murder. The trial moved into the penalty phase of the proceedings for the jury to determine the punishment for each of the felony murder convictions.
Jonnie Dawson, mother of Damond Dawson, testified that Damond was the youngest of her three children and seventeen years of age when he was killed. She said he was a good son who was very good at athletics. The neighborhood had changed after the killings; people locked their doors and were afraid. Ms. Dawson testified that she no longer knew what it was like to be happy.
Brenda Hudson, mother of Tracey Johnson, testified that Tracey was the oldest of her three children and twenty years of age when he was killed. He had been working at Wal-Mart and saving money for his four-month-old daughter. Tracey's death had greatly affected Ms. Hudson' other two children, Tracey's grandfather, and Tracey's young daughter:
When you go over to her house to see her, she has a picture in a frame and she will show you. She'll say, And it's hard for me to go see her a lot because it breaks my heart to hear her say that.
In mitigation, Leslie Burns, the defendant's mother, testified that the defendant was twenty-six years of age and had twelve brothers and sisters. He had graduated from high school and had presented no disciplinary problems while in school. The defendant's father, Reverend Obra Carter, testified that his son had always been obedient and well-mannered. Phillip Carter, the defendant's brother, testified that the defendant had been active in the church and had always tried to avoid trouble.
Norman McDonald, the defendant's Sunday School teacher, testified that he had known Kevin Burns for several years. According to McDonald, Burns was a "faithful" young man who had always attended church regularly. Mary Wilson, a Captain with the Shelby County Sheriff's Department, and Bennet Dean, a volunteer chaplain, both testified that Burns had actively participated in religious services while in custody for these offenses.
The prosecution relied on two aggravating circumstances to seek the death penalty for the felony murder convictions--that the defendant knowingly created a great risk of death to two or more persons, other than the victim murdered, during the act of murder, and that the murder had been committed for the purpose of avoiding, interfering with, or preventing a lawful arrest or prosecution of the defendant or another. Tenn.Code Ann. § 39-13-204(i)(3) and (6) (1997 & Supp.1998).
With regard to the felony murder of Damond Dawson, the jury imposed the death penalty after finding that the evidence supported the "great risk of death" aggravating circumstance and that this factor outweighed the evidence of mitigating factors beyond a reasonable doubt. With regard to the felony murder of Tracey Johnson, the jury imposed a sentence of life imprisonment.
The trial court entered judgment in accordance with the jury's verdict. The Court of Criminal Appeals affirmed the convictions and sentences for the offenses of felony murder, but reversed the convictions for attempted felony murder based on our opinion in State v. Kimbrough, 924 S.W.2d 888 (Tenn.1996). 2 After our review of the record and applicable authority, we affirm the Court of Criminal Appeals.
The defendant argues that the Court of Criminal Appeals' reversal of the attempted felony murder convictions requires a finding that the evidence failed to support the single aggravating circumstance found by the jury--that the defendant knowingly created a great risk of death to two or more persons, other than the victim murdered. Tenn.Code Ann. § 39-13-204(i)(3). The State maintains that the evidence overwhelmingly supported the jury's finding, notwithstanding the reversal of the attempted felony murders.
We begin by observing that the Court of Criminal Appeals properly reversed the attempted felony convictions. In Kimbrough, supra, we noted that the statutes governing attempted crimes require a defendant to intend the commission of a specific crime or result, while the offense of felony murder requires "a reckless killing of another" in the course of certain enumerated felonies. Tenn.Code Ann. §§ 39-12-101 (1997) & 39-13-202(a)(2) (1997 & Supp.1998). Like nearly every jurisdiction that has addressed the issue, we concluded that the offense of attempted felony murder does not exist:
[I]t is illogical that someone could intend to cause someone else's death through negligence or even recklessness. While one may reasonably conclude that a defendant intentionally behaved in a reckless manner and may have intended to kill the victim, it does not make sense to say that a defendant intended to kill the victim by being reckless.
We conclude that one cannot intend to accomplish the unintended. Consequently, the offense of attempted felony-murder does not exist in Tennessee.
Aggravating...
To continue reading
Request your trial
-
State v. Reid
...Crim. App. at Jackson, Mar. 14, 2000), aff'd by, No. W1998-00634-SC-DDT-DD (Tenn. at Jackson, Apr. 17, 2001) (citing State v. Burns, 979 S.W.2d 276, 282 (Tenn. 1998), cert. denied, 527 U.S. 1039, 119 S. Ct. 2402 (1999); State v. Nesbit, 978 S.W.2d 872, 891 (Tenn. 1998), cert. denied, 526 U.......
-
State v. Thacker
...trial fundamentally unfair, or whose probative value is outweighed by its prejudicial effect. See Tenn. R. Evid. 403; State v. Burns, 979 S.W.2d 276, 282 (Tenn.1998). Generally, Rule 404 prohibits the use of character evidence to prove action on a particular occasion in conformity with the ......
-
State v. Carruthers
...by a young male defendant who told others the killing was a "hit" and the jury found similar aggravating circumstances) State v. Burns, 979 S.W.2d 276 (Tenn.1998) (killing of other young males during a robbery by a young male defendant); State v. Smith, 868 S.W.2d 561 (Tenn.1993) (brutal ki......
-
Sutton v. Bell
...to this proposition and agree with the trial court's refusal to answer the jury's question in this case. See also State v. Burns, 979 S.W.2d 276, 295-96 (Tenn.1998) (approving trial court's instructions to the jury to refer to the charges and instructions and continue deliberations in respo......