State v. Irick

• Citation: 109 S.Ct. 1357,762 S.W.2d 121
• Parties: STATE of Tennessee, Appellee, v. Billy Ray IRICK, Appellant.
• Decision Date: 07 November 1988
• Court: Supreme Court of Tennessee

Page 121

762 S.W.2d 121

STATE of Tennessee, Appellee, v. Billy Ray IRICK, Appellant.

Supreme Court of Tennessee,

at Knoxville.

Nov. 7, 1988.

Certiorari Denied March 6, 1989.

See 109 S.Ct. 1357.

Kenneth A. Miller, Spalvins, Miller & Prewitt, James H. Varner, Jr., Tipton, Eshbaugh, Simpson & Varner, Knoxville, for appellant.

W.J. Michael Cody, Atty. Gen. & Reporter, Kathy M. Principe, Asst. Atty. Gen., Nashville, William E. Dossett, Dist. Atty. Gen., David G. Dake, David C. Jennings, Asst. Dist. Attys. Gen., Knoxville, for appellee.

OPINION

O'BRIEN, Justice.

Billy Ray Irick was indicted for common law murder, felony murder, aggravated rape by vaginal penetration and aggravated rape by anal penetration of a seven-year-old child. In a jury trial he was found guilty of first degree murder during the perpetration of a felony and two (2) counts of aggravated rape. After a sentencing hearing the jury found that defendant should be put to death by electrocution. The aggravating circumstances warranting the death penalty were: (1) The victim was less than twelve (12) years of age and the defendant was eighteen (18) years of age or older; (2) the murder was especially heinous, atrocious, or cruel in that it involved torture or depravity of mind; (3) the murder was committed for the purpose of avoiding, interfering with, or preventing a lawful arrest or prosecution of the defendant or another; and (4) the murder was committed while the defendant was engaged in committing the felony of rape. T.C.A. § 39-2-203(i)(1), (5), (6) and (7). The trial judge sentenced defendant to forty (40) years as a Range II especially aggravated offender on each charge of aggravated rape, to be served concurrently with each other and consecutively to the sentence imposed for murder.

Among the various issues raised for reversal is a multi-faceted complaint about the jury selection process. This included the charge that prospective jurors were called in other than a random selection process, because they were not called into the jury box in a sequence which counsel considered appropriate. In conjunction with other technical and expert assistance approved by the trial court the defendant was authorized to employ an expert psychologist to evaluate a questionnaire prepared for selection of the prospective jury and for related trial assistance. This expert, whose sole practice was devoted to litigation consulting, had attained a doctorate degree in experimental psychology and experimental research. Based upon the jury evaluation questionnaire he prepared a list of jurors for the selection process broken down in categories which he considered would tend to be more pro-defense or more pro-prosecution. He referred to these in his testimony as non-authoritarian or pro-authoritarian jurors respectively. In his selection process he utilized handwriting analysis of the individual jurors plus predictor variables on the questionnaires as well as specific answers given to questions posed to venire members. It was obvious from the testimony of the witness that this analysis was highly speculative and theoretical without any empirical basis. Seven of the jurors designated by the witness as "pro-defense" were members of the jury which found defendant guilty and prescribed his sentence. We have examined the record carefully. There is not the slightest evidence that the jury selection process was inappropriate or unconstitutional.

Defendant insists the trial court failed to grant legitimate challenges for cause. He also says the trial judge took an adversarial role in rehabilitating prospective jurors who indicated bias or prejudice against the defendant or the imposition of the death penalty. This issue is entirely refuted by the record. Defendant refers specifically to (1) a venire member who initially said she did not think she could give a fair and impartial judgment because the case involved a child and a rape; (2) a father of an eight-year-old daughter who responded in the negative when asked if he felt he could be impartial on the subject of whether or not defendant should be electrocuted or sentenced to life imprisonment; (3) a person who indicated some inclination to the view that a defendant should testify or have someone testify for him; (4) one man, formerly a law enforcement officer in the military service, who responded to inquiry that he would be inclined to accept testimony of law enforcement officers and medical personnel. Each of these persons were challenged for cause. With the exception of the prospective juror who expressed some hesitancy and lack of understanding that a defendant does not have to take the stand in his own defense, the trial judge examined each of these venire persons carefully and prudently to clarify any confusion involved in the questioning by the respective attorneys. He determined that they were unbiased and open-minded, had not established any pre-formed opinion as to the guilt or innocence of the defendant and that they were otherwise properly qualified. It is the duty of the trial judge to participate in the examination of prospective jurors. The conduct of voir dire examination in a criminal prosecution is entrusted to his discretion. Tenn.R.Crim.P. 24. His actions in the conduct of voir dire examination will not be disturbed unless there is an abuse of that discretion. State v. Jefferson, 529 S.W.2d 674 (Tenn.1975), appeal after remand 559 S.W.2d 649 (Tenn.Cr.App.1977). We find nothing adversarial in the manner in which the trial judge performed his duty in this respect. Moreover, the record is clear that when the trial panel was complete defendant had not exercised all of his peremptory challenges. A defendant must not only exhaust his peremptory challenges, but he must also challenge or offer to challenge any additional prospective juror in order to complain on appeal that the trial judge's error in refusing to excuse for cause rendered his jury not impartial. Wooten v. State, 99 Tenn. 189, 41 S.W. 813 (1897); State v. Doelman, 620 S.W.2d 96, 100 (Tenn.Cr.App.1981).

Defendant protests the action of the trial court in excusing a juror for cause who unequivocally declared he would not consider the death penalty under any circumstances. Defendant concedes that prevailing case law is contrary to the position advocated by him. In Wainwright v. Witt, 469 U.S. 412, 105 S.Ct. 844, 852, 83 L.Ed.2d 841 (1985) the Court clarified and reaffirmed the proper standard for determining when a prospective juror may be excluded for cause because of his or her views on capital punishment. That standard is whether the juror's views would prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath. The issue is without merit.

Defendant has made a strong argument regarding admission of statements of defendant which had not been disclosed in response to a discovery request. Tenn.R.Crim.P. 16 relates to discovery and inspection. It provides that upon request the State shall permit a defendant to inspect and copy or photograph any relevant written or recorded statements made him ... or the substance of any oral statement which the State intends to offer in evidence at the trial made by the defendant, before or after arrest, in response to interrogations by any person known to the defendant to be a law-enforcement officer. The first reference is to the testimony of Detective Mike Parker, the officer who arrested defendant. At the time of the arrest the officer was accompanied by an acquaintance of Irick's who was along for the purpose of identifying him. They found him hitchhiking along the highway. When he was apprehended the identifying witness, Darrell Easterly, became very emotional and cursed defendant violently. He had to be restrained and placed in the front seat of the police car. When Irick was placed in the back seat Easterly turned and said, "You son of a bitch, you killed her." After some hesitation defendant responded, "I have been hiding under the bridge all day, and several police cars have gone by and I had thought about turning myself in." Objection was made to the admission of this evidence through the testimony of the police officer on the basis that the statement had not been provided in compliance with the discovery request. Secondarily, objection was voiced because the statement was made by defendant as a result of the verbal attack by Easterly on the premise that he was working with the police department in an attempt to locate him. The court ruled that the statement made by the defendant was a spontaneous declaration made after he had been properly advised of his right against self-incrimination and was not the result of police interrogation.

Another police officer, Detective Donald Wiser, testified in some considerable detail about the circumstances involved in interrogation of defendant at the police station after his arrest. Objection was made, apparently to the detail of the officer's testimony, on the basis that he had not testified about those circumstances during examination at a suppression hearing prior to trial. The trial court denied the motion but provided defense counsel with a transcript of the officer's testimony at the suppression hearing as well as a transcript of his trial testimony for the purpose of cross-examination of the officer on the next day. After the officer testified a motion to strike his testimony was made and overruled.

Criminal Procedure Rule 16 also provides for the inspection of results or reports of scientific tests or experiments in the possession of the State which are material to the preparation of the defense or intended for use by the State as evidence in chief at the trial. The rule excludes the discovery or inspection of reports, memoranda, or other internal State documents made by the District Attorney General or State agents or law enforcement officers in connection with the investigation or ...