State v. Miller

• Decision Date: 24 April 1989
• Citation: 771 S.W.2d 401
• Parties: STATE of Tennessee, Appellee, v. David Earl MILLER, Appellant. 771 S.W.2d 401
• Court: Tennessee Supreme Court

Page 401

771 S.W.2d 401

STATE of Tennessee, Appellee, v. David Earl MILLER, Appellant.

771 S.W.2d 401

Supreme Court of Tennessee at Knoxville.

April 24, 1989.

Rehearing Denied June 19, 1989.

Mark E. Olive, Tallahassee, Fla., Robert C. Edwards, Knoxville, for appellant.

W.J. Michael Cody, Atty. Gen. and Reporter, Debra K. Inglis, Asst. Atty. Gen., Nashville, for appellee.

OPINION

FONES, Justice.

This is a direct appeal from a resentencing hearing, ordered by this Court in State v. Miller, 674 S.W.2d 279 (Tenn.1984), wherein his conviction of murder in the first degree was affirmed. The first sentencing hearing was reversed because the State introduced evidence that defendant had been twice arrested on charges of rape. Both charges were dismissed.

At the 1982 sentencing hearing, the only aggravating circumstance that the State sought to prove was that the murder was heinous, atrocious or cruel, in that it involved torture or depravity of mind. At the resentencing hearing in 1987, the State added two additional aggravating circumstances, to wit, the murder was committed for the purpose of avoiding, interfering with or preventing a lawful arrest or prosecution of defendant, and the murder was committed while defendant was engaged in committing rape. T.C.A. Sec. 39-2-203(i)(6) and (i)(7). The jury rejected the two additional aggravating circumstances, but imposed the sentence of death upon the finding that the murder was especially heinous, atrocious and cruel.

Defendant asks the Court to reconsider two issues involved in the guilt-innocent phase of the first trial, to wit, the trial judge's instruction allegedly shifting the burden of proof in violation of Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979) and denial of appointment of a psychiatrist to aid defendant, allegedly in violation of Ake v. Oklahoma, 470 U.S. 68, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985).

All of the issues relevant to the guilt or innocence of defendant that were raised at the 1982 trial of this case, and raised on the direct appeal were dealt with in this Court's opinion released in 1984. All of the guilt-innocent issues were foreclosed when the 1984 opinion sustaining defendant's conviction of first degree murder became final, except such issues as are permissible in a post-conviction proceeding. In addition to that elementary principle, such issues are never relevant at a sentence hearing or a resentence hearing. See State v. Adkins, 725 S.W.2d 660 (Tenn.1987); State v. Hartman, 703 S.W.2d 106 (Tenn.1985).

Defendant asserts that error was committed in allowing the State to rely on two aggravating circumstances not relied upon at the first sentencing hearing. First, defendant says that the double jeopardy clause was violated. The U.S. Supreme Court has held that "aggravating circumstances" are not offenses, but are "standards to guide the making of [the] choice" between death and life imprisonment. Poland v. Arizona, 476 U.S. 147, 156, 106 S.Ct. 1749, 1755, 90 L.Ed.2d 123 (1986) (quoting Bullington v. Missouri, 451 U.S. 430, 438, 101 S.Ct. 1852, 1858, 68 L.Ed.2d 270 (1981)). The Court held that so long as the appellate court had not found the evidence legally insufficient to justify imposition of the death penalty, the double jeopardy clause does not foreclose a second sentencing hearing at which the "clean slate" rule applies.

Next defendant argues that the two additional aggravating circumstances were based upon the theory that defendant had committed the crime of rape upon the victim, when in fact defendant had been acquitted of rape at the first trial. That contention is totally lacking in merit. Defendant was not charged with the offense of rape and thus could not have been acquitted of that offense. Defendant attempts to magnify an evidentiary ruling of the trial judge at the first trial regarding the use of the word rape, into an acquittal of that offense.

Finally, defendant's contention with respect to the State's presentation of two aggravating circumstances not used at the first sentencing hearing were rendered moot by the jury's implicit rejection of both. The record shows that the jury's verdict found the aggravating circumstances that the murder was especially heinous, atrocious or cruel only, with no negative or affirmative finding as to the aggravating circumstances in subsections (i)(6) and (i)(7) of T.C.A. Sec. 39-2-203. See State v. Smith, 695 S.W.2d 954, 959 (Tenn.1985).

Defendant alleges error in the admission of testimony by the victim's mother, that the victim had attended special education classes since she started school in Colorado. She had been tested at the University of Colorado, with the result that she was placed in special education classes. Mrs. Standifer testified that her daughter had slight diffuse brain damage.

Defendant insists that such evidence falls within the category of "personal characteristics of the victim", held to be improper sentencing characteristics in Booth v. Maryland, 482 U.S. 496, 107 S.Ct. 2529, 96 L.Ed.2d 440 (1987). We find that the mentioned evidence was relevant at the resentencing as part of the essential background of the crime in capital cases in order to insure that the jury acts from a base of knowledge in sentencing defendant. State v. Teague, 680 S.W.2d 785, 788 (Tenn.1984). Also, this single characteristic was insignificant in comparison with the large package of endearing traits involved in Booth that added up to a Victim Impact Statement. There is no merit to this issue.

Defendant alleges reversible error in the introduction of photographs of the victim taken at the scene of the crime and at the morgue. The trial judge carefully applied the balancing process required by State v. Banks, 564 S.W.2d 947 (Tenn.1978) and found that the probative value of that evidence outweighed the prejudicial effect, on the issue of the heinous, atrocious, cruel aggravating circumstances. We have carefully reviewed this issue and we agree with the trial judge the photographs supplemented the testimony of the pathologist and showed the shocking force and brutality employed by the killer in inflicting numerous wounds on the victim. See State v. Porterfield, 746 S.W.2d 441 (Tenn.1988); State v. McNish, 727 S.W.2d 490 (Tenn.1987).

Prior to offering the testimony of the volunteer chaplain of the Knox County Jail, defendant sought a ruling by the trial judge that the State be prohibited from making any reference to the fact that defendant had been on death row. Defendant intended to prove by the witness Chamberlin that defendant had become a Christian while in prison and had been baptized just before leaving the Knox County Jail for the State prison in Nashville; that the witness had visited and worshipped with defendant at the penitentiary in Nashville and, in short, that defendant had compiled an impressive record of worship for a period of about six years. The State's position was that such testimony presented the issue of whether defendant had experienced a real "change of heart" or was engaging in manipulative conduct and that whether defendant was under a sentence of death at times relevant to the change was a critical factor. The trial judge ruled that he would not limit the State's cross-examination as requested by defendant.

Defendant was granted permission to examine Chamberlin out of the presence of the jury. After completing the direct examination, defendant renewed his contention that Chamberlin's direct testimony should be admitted and the State prohibited from making any reference to the fact that defendant was under a sentence of death when he was baptized. The State had no objection to the admissibility of Chamberlin's direct testimony and agreed that they would avoid any mention of death row, but the prosecutors did not agree that they would avoid bringing out the fact that at the time he was baptized he had been sentenced to death by the jury in the 1982 trial. The trial judge ruled that he would not limit the State's cross-examination so as to keep that information from the jury. Defendant then elected not to examine Chamberlin in the presence of the jury, but preserved his objection to the trial judge's action as precluding the presentation of highly relevant evidence of a...