State v. Keen

• Decision Date: 23 May 1994
• Citation: 926 S.W.2d 727
• Parties: STATE of Tennessee, Appellee, v. David KEEN, Appellant.
• Court: Tennessee Supreme Court

Page 727

926 S.W.2d 727

STATE of Tennessee, Appellee, v. David KEEN, Appellant.

Supreme Court of Tennessee.

May 23, 1994.

Opinion Granting Rehearing

and Remanding for Sentencing

July 8, 1996.

Charles W. Burson, Attorney General and Reporter, Joel Perry, Assistant Attorney General, Nashville, for Appellee.

W. Mark Ward, Memphis, Brock Mehler, Nashville, for Appellant.

OPINION

O'BRIEN, Justice.

Defendant, David M. Keen, entered a plea of guilty to murder in the first degree and perpetration of rape, and to a charge of aggravated rape. The cause was submitted to a jury for consideration of the evidence for sentencing. Upon completion of their deliberation they unanimously found (1) the murder was committed against a person less than 12 years of age and the defendant was 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 while the defendant was engaged in committing or attempting to commit rape. The jury unanimously found there were no mitigating circumstances sufficiently substantial to outweigh the statutory aggravating circumstances and that the punishment for the offense should be death. Defendant was sentenced for aggravated rape as a standard, Range I offender, to 20 years imprisonment consecutive to the murder sentence.

Defendant has raised 17 issues for error, several of which are divided into sub-issues. He acknowledges the court has previously rejected much of his argument, but has raised the issues here for various reasons including the purpose of preserving them for later review. The Court has concluded a resentencing hearing is required due to error in the jury instructions, therefore we have addressed each of the issues raised as a measure to assist the trial judge at resentencing.

Some of the issues raised relate to the sufficiency of the evidence which in summary shows that defendant pled guilty to the aggravated rape and felony murder of 8 year old Ashley Nicole "Nicki" Read. At the time of the offense he was 27 years of age. He was the boyfriend of Nicki's mother, Deborah Read, and lived with Deborah, her four children, Deborah's father and his wife, in a trailer park in Millington, Tennessee. On the evening of 17 March 1990, defendant and Deborah joined her father and his wife at the VFW Club in West Memphis, Arkansas, to play bingo. At approximately 5:00 p.m., defendant volunteered to return to Millington to check on Deborah's children. He used the Chevrolet automobile owned by Mr. Jesse Wilson, Deborah's father, to make the trip. He returned to the VFW Club about 8:00 p.m. The four of them returned to Millington sometime after 10:30 p.m. Nicki, who was supposed to be spending the night with a friend, did not come home the next morning. After a search the family concluded she was missing and reported her disappearance to the police. While Deborah and defendant were at the police station, Mr. Wilson discovered Nicki's underpants lying on the floorboard on the front passenger side of his car. He also found missing a green blanket which he usually kept in the automobile. Later that night defendant was asked to come to the police station to be interviewed. Shortly after 1:00 a.m. he confessed to the police that he had thrown Nicki's body into the water at a boat ramp on the north end of Mud Island, in Memphis, where the Wolf River flows into the Mississippi. Following his directions rescue workers found the child's nude body tied up in the blanket missing from her grandfather's car. Defendant gave conflicting statements to the police describing the circumstances of the rape and homicide. He also testified at trial about what happened but was not completely clear about details, or the order in which the events had occurred. He related circumstances of the rape during his testimony indicating he did not intentionally kill her. Essentially, his testimony was that, while holding his hand over her mouth, he raped the victim until she defecated. He wrapped a shoe string about her neck, holding it with both hands, until it cut a groove into her neck. At some point she stopped breathing. After he had finished the assault he wrapped the child's nude body in the green blanket and dropped her into the river.

An autopsy indicated the cause of death was ligature strangulation, consistent with the physical evidence and defendant's testimony relative to twisting the shoelace around the victim's neck. The medical examiner testified that the child would have fallen unconscious within seconds and died within minutes. Abrasions, tears and bruises were found about her vaginal area. Sperm heads were found in her vagina. The medical examination did not disclose whether she had been raped before or after strangulation. However, examination of the heart disclosed that the victim had inhaled some water before she died.

In mitigation defendant offered his own testimony and that of his brother, his sister, his adoptive parents, and a clinical psychologist. The substance of their testimony was to relate the conduct of defendant in the rape and homicide of the victim to be the result of his childhood abuse. His siblings testified that their father was physically and emotionally abusive of his children and sexually molested at least one of his daughters. He was a parole violator and kept the family constantly on the move to evade the law. The children were malnourished and were neglected and abandoned by their parents when defendant was about two years of age. After a period of residency in various foster homes where he was physically and sexually abused, when defendant was about four and one-half years old he and his brother Allen were adopted by a couple who gave them a loving and stable family. His adoptive parents testified that he was a poor student and as an adolescent he drank, smoked marijuana, stole, and ran away from home.

Dr. John Hutson, a clinical psychologist, who had evaluated the defendant testified that he had not bonded with his parents and had developed a "shell" around himself, within which he held back all the anger of his past experiences until he "exploded." He diagnosed defendant as suffering from post-traumatic stress disorder, dependent personality disorder, pedophilia, and attention deficit disorder with hyperactivity in childhood. He opined that, at the time of the offense, defendant was under the influence of mental and emotional problems substantially affecting his judgment. On cross-examination Dr. Hutson testified that the results of defendant's testing indicated he may have been faking his answers in an attempt at manipulation. He also stated that the same results may have also indicated defendant was extremely upset when he took the test a few days after his arrest and that he may have been suicidal about that time.

There was also mitigating testimony from county jail personnel that defendant had been a good prisoner and caused no problems during his incarceration. Defendant's pastor testified that defendant was truly remorseful, accepted full responsibility for what he had done, and was sincere in his religious faith.

We first consider the issue concerning the trial judge's instructions to the jury on aggravating and mitigating circumstances. Defendant has asserted a number of subissues relating to purported errors in the trial judges instructions and the insufficiency or inadequacy of the instructions. On the other hand, the State has responded that defendant's objections regarding the penalty phase instructions have been waived. Defendant counters that issues regarding the reliability of a sentence of death and whether it was imposed in an arbitrary fashion are of constitutional dimension and not subject to usual rules of waiver.

We perceive the possibility of another extremely serious problem in this case. Among the issues raised are that the jury was instructed under the pre-November 1989 sentencing statute. Chapter 591 of the Public Acts of 1989 became effective on 1 November 1989. The offenses in this case occurred in March 1990. The sentencing hearing was held in February, 1991. The jury was instructed under the provisions of the pre-1989 statutes. This fact is raised by defendant as reversible error. Defense counsel raised no objection at trial through any of these proceedings, and, additionally, failed to raise the issue on motion for new trial, thus indicating his acquiescence in the procedure. The issue is raised in this Court as reversible error. The record clearly shows that defendant was represented by a member of the public defender's staff at trial and by a different member of that State agency on appeal. It is not our intention to cast any reflection on the character or legal ability of any member of the public defender's staff, or any other officers of the court participating in the trial. However, it creates an anomalous situation, which the Court looks upon with great concern, for appellate counsel to charge trial error to another member of his same office. Nonetheless, any error in this regard will be eliminated by a rehearing.

Defendant alleges three (3) ways in which the trial judge's instructions on mitigating circumstances violated his constitutional rights and the Tennessee Death Penalty Statute arguing that a capital sentencer must be able to consider and give effect to all relevant mitigating evidence offered. He says first the trial judge delivered instructions on only three (3) of the eight (8) statutory mitigating circumstances included in T.C.A. § 39-2-203(j), [T.C.A. § 39-13-204(j) ]:

(1) Defendant has no significant history of prior criminal activity;

(2) The murder was committed while the defendant was under the influence of extreme mental or emotional disturbance;

(3) The capacity of the defendant to appreciate the wrongfulness of his conduct to the requirements of the law was substantially impaired as a result of mental...