State v. Duncan
| Decision Date | 09 September 1985 |
| Citation | 698 S.W.2d 63 |
| Parties | STATE of Tennessee, Appellee, v. David Carl DUNCAN, Appellant. 698 S.W.2d 63 |
| Court | Tennessee Supreme Court |
Edward M. Yarbrough, J. Russell Heldman (on appeal only), William Norman Ligon, Nashville, (at trial only), for appellant.
Kymberly Lynn Anne Hattaway, Asst. Atty. Gen., W.J. Michael Cody, Atty. Gen. & Reporter, Nashville, of counsel.
Defendant, David Carl Duncan, appeals his conviction of murder in the first degree and sentence of death, and two consecutive life sentences imposed on convictions for armed robbery and aggravated rape. He questions the sufficiency of the evidence over all, rulings by the trial court on voir dire, the admission of evidence, objections to argument by the state in both the convicting and sentencing phases of the trial, and the court's instructions to the jury. Defendant also insists that the sentencing provision of the Tennessee Death Penalty Act, T.C.A. Sec. 39-2-203, is unconstitutional.
After consideration of the several issues and of the entire record, we are of the opinion that no reversible error was committed in the trial, that the verdicts and sentences are sustained by the evidence, and that the sentence of death under the circumstances of this case is in no way arbitrary or disproportionate. See State v. Harries, 657 S.W.2d 414 (Tenn.1983); State vs. Strouth, 620 S.W.2d 467 (Tenn.1981), cert. denied, 455 U.S. 983, 102 S.Ct. 1491, 71 L.Ed.2d 692; Houston v. State, 593 S.W.2d 267 (Tenn.1980), cert. denied 449 U.S. 891, 101 S.Ct. 251, 66 L.Ed.2d 117.
Defendant was convicted of raping and killing Ruby Evelyn Burgess in the course of a robbery of the Short Stop Market in Gallatin, Tennessee. Ms. Burgess was employed at the market as the night-shift cashier, with her work assignment being from 10:00 p.m. to 6:00 a.m. On February 15, 1981, her relief reported to the market at approximately 5:40 a.m. She found the "still-warm," partially nude body of Ms. Burgess in the aisle near the cash register. Ms. Burgess's throat had been cut and she was lying in a pool of blood. Her pants and undergarments were pulled down around her lower right leg. A trail of blood led from the cooler at the back of the store to her body, indicating that the assault took place in the cooler. Time of death was fixed by the examining physician at approximately 5:30 a.m. According to the examining physician, Ms. Burgess's death resulted from three cuts to her neck of such force that they cut through her neck muscles, jugular vein, trachea, larynx and esophagus, and nicked the carotid artery. The immediate cause of death was an air embolus in the heart caused by the entry of air into the blood stream through the gaping wound in Ms. Burgess's neck.
A subsequent examination of Ms. Burgess's body revealed mobile sperm in her vagina from a "type O secretor." The defendant is a "type O secretor," as are approximately thirty-five percent of the male population.
The cash register drawer was closed when Ms. Burgess's body was found, but comparison of the cash register tape with the contents of the register showed that $246.00 was missing. The last item shown on the cash register tape was a 35cents grocery item. (Prior to it, $3.00 worth of gas and a 25cents grocery item had been sold.) A bottle of Tropicana fruit punch, which sold for 35cents, was sitting on the counter by the cash register. The bottle still had "frost" on it when the police arrived. Six fingerprints were lifted from the bottle. Four of the prints were later identified as being from defendant's left hand.
Linda Kelly, a local cab driver who had known the defendant three or four years, testified that she saw defendant pumping gas into a dark green Buick Electra at the market at approximately 4:50 a.m. on February 15, 1981. The defendant was wearing a toboggan and a dark jacket and had his hair in plaits.
At approximately 5:30 a.m., Harold Pryor, an employee of the Nashville Tennessean, was putting newspapers in a rack outside the Short Stop Market, when he saw a young black male, six foot one, approximately one hundred forty-five pounds, wearing a "tam" (or having short hair) and a dark "shawl," come from the direction of the market door and go towards a dark blue or black car parked at the store. The description generally matched that of the defendant, but Pryor did not identify the defendant as the man he had seen.
On the day after the murder, the defendant called the cab company and for the first time ever specifically requested that Ms. Kelly drive him to work in nearby Hendersonville, Tennessee. When the defendant mentioned to Kelly that he had seen her someplace the night before, Kelly reminded him that they had seen one another at the Short Stop Market. The defendant said he had trouble remembering this because "he'd been gettin' out and gettin' high ... that weekend." When Kelly said, "it's bad about that woman, you know, gettin' killed," the defendant's hands began to tremble and he changed the subject. For the next week and a half Kelly drove the defendant to and from work for $14.00 per day. The defendant then told Kelly he was leaving Gallatin to go to a vocational training center in Kentucky or Indiana. The proof showed defendant did join the Job Corps in Kentucky, where he remained until the fall of 1981.
After his return to Gallatin, the murder investigation zeroed in on the defendant. The defendant gave the police two statements to the effect that he had not been near the store at the time of the murder, that he seldom traded there, and that he did not know Ms. Burgess. He said he had never purchased any juice at the store and was allergic to fruit punch. He further stated that he knew of no way he could have touched the bottle the police found on the counter by the cash register, and from which his fingerprints had been lifted.
The defendant's proof consisted of the testimony of friends and family. His girlfriend testified that he had spent the night of the killing at her house and that he had worked on her automobile the next day. She also testified that the defendant usually drove her orange and white automobile when he needed an automobile. Family members testified that while they owned two dark green automobiles, a Buick and a Nova, the Nova was not "street-worthy" in February, 1981, and the Buick was not purchased until sometime in 1982. The defendant's brother who owned the Nova testified that he had not permitted defendant to drive the car on the night of the murder, nor had he allowed defendant to drive his 1977 dark blue Grand Prix. The defendant did not testify.
From this evidence, the jury found the defendant guilty of first degree murder, aggravated rape, and armed robbery. Life sentences were given on the rape and robbery convictions and, in a separate hearing, the jury returned the sentence of death on the first degree murder conviction. In imposing the sentence of death, the jury found from the evidence introduced in the convicting phase of the trial that the murder of Ruby Evelyn Burgess was especially heinous, atrocious, or cruel in that it involved torture or depravity of mind and that the murder was committed while the defendant was engaged in committing rape and robbery. See T.C.A. Sec. 39-2-203(i)(5) and (7). No mitigating circumstances were found by the jury.
Where the sufficiency of the evidence is challenged, as it is in this case, the relevant question for this court is whether a rational trier of fact could find from the evidence that the essential elements of the crimes for which the defendant stands convicted were proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 2782, 61 L.Ed.2d 560 (1979); T.R.A.P. Rule 13(e). In our opinion, the evidence in this case meets the test. There is no question but that the crimes of murder, aggravated rape, and robbery were committed, and the evidence, though circumstantial, points unerringly to the defendant as the person guilty of the crimes. He was placed at the scene near the time the crimes were committed, and his fingerprints were on the "sweating" bottle of Tropicana juice found beside the cash register. A conviction based on circumstantial evidence is proper 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. Crawford, 225 Tenn. 478, 470 S.W.2d 610, 613 (1971). We are also of the opinion that the evidence that the murder of Ruby Evelyn Burgess occurred in the course of the rape and robbery, and the fact that her assailant cut her neck three times and left her to bleed to death, in our opinion fully supports the jury's finding of the two aggravating circumstances which were the bases of their decision that the punishment of the defendant for murder in the first degree should be death. There was no evidence of mitigating circumstances.
In determining the sufficiency of the convicting evidence, this court of necessity had to consider the challenges to testimony made by counsel for defendant on appeal. In only one instance, that is the admission of the black and white photographs of the scene of the crimes and the wound in the victim's neck, did trial counsel object to the admission of evidence. On appeal, new counsel also questions (1) the admissibility of the testimony of the examining physicians, (2) the admission of evidence obtained through defendant's detention, arrest, and interrogation, which would include the defendant's statements to officers, his fingerprints, and the blood and saliva samples, and (3) the testimony of the serologist. We find no prejudicial error in the admission of any of this evidence.
As pointed out by the state, it is basic that the failure of a defendant to timely object to the introduction of testimony is a waiver of appellate review of the issue. See T.R.A.P....
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