State v. Nichols

• Court: Tennessee Supreme Court
• Writing for the Court: ANDERSON; Ladies and gentlemen; REID; DAUGHTREY; REID; PER CURIAM; DAUGHTREY
• Citation: State v. Nichols, 877 S.W.2d 722, 62 USLW 2771 (Tenn. 1994)
• Decision Date: 02 May 1994
• Parties: STATE of Tennessee, Appellee, v. Harold Wayne NICHOLS, Appellant.

Page 722

877 S.W.2d 722

62 USLW 2771

STATE of Tennessee, Appellee, v. Harold Wayne NICHOLS, Appellant.

Supreme Court of Tennessee at Knoxville.

May 2, 1994.

Order on Petition for Rehearing June 20, 1994.

Hugh J. Moore, Jr., Rosemarie Bryan, Chattanooga, for appellant.

Charles W. Burson, Atty. Gen. & Reporter, Stan Lanzo, Dist. Atty. Gen., Chattanooga, for appellee.

OPINION

ANDERSON, Justice.

In this capital case, the defendant, Harold Wayne Nichols, pled guilty to first-degree felony murder and was sentenced by a jury to death. At the sentencing hearing, the jury found two aggravating circumstances: (1) Nichols' five previous convictions for aggravated rape and (2) the fact that the murder occurred during the commission of a felony. Tenn.Code Ann. § 39-13-204(i)(2) & (7). The jury found that the aggravating circumstances outweighed the mitigating circumstances beyond a reasonable doubt and sentenced the defendant to death. The defendant now appeals his sentence, alleging a number of errors in the sentencing phase.

We have thoroughly examined the record of this sentencing hearing and conclude that any trial errors committed during the sentencing phase were harmless error beyond a reasonable doubt and did not affect the jury's verdict of death. Although the use in this case of the aggravating circumstance that the murder occurred during the commission of a felony violated Article I, § 16, of the Tennessee Constitution and the Eighth Amendment to the United States Constitution, see State v. Middlebrooks, 840 S.W.2d 317, 346 (Tenn.1992) (Drowota and O'Brien, JJ., dissenting), we conclude that the sentencing jury's consideration of the invalid circumstance was harmless error beyond a reasonable doubt. Accordingly, we affirm the jury's sentence of death.

BACKGROUND

Because of the substantial publicity surrounding the murder and rape cases, the defendant requested a change of venue prior to trial. The trial court granted the change of venue to Sumner County, but only for the limited purpose of jury selection. The court then ordered the case back to Hamilton County for trial with the Sumner County jury. The trial reconvened in Hamilton County on May 9, 1990. Following the court's denial of the defendant's motion to suppress his videotaped confessions, the defendant entered pleas of guilty to the charges of first-degree felony murder, aggravated rape, and first-degree burglary. ¹

The trial proceeded to the penalty phase with the State relying on two aggravating circumstances: (1) the murder's occurrence during the commission of a felony and (2) Nichols' previous convictions of violent felonies. Tenn.Code Ann. § 39-13-204(i)(2) & (7). The State introduced evidence concerning the nature and circumstance of the crime, which included the defendant's videotaped confession, testimony from the medical examiner about the nature and extent of the victim's injuries and the cause of her death, and testimony from the detective who had questioned the defendant on the videotaped interview. The Hamilton County Criminal Court Clerk also testified concerning the defendant's five prior convictions for aggravated rape.

The proof showed that on the night of September 30, 1988, the defendant broke into the house where the 21-year-old-victim, Karen Pulley, lived with two roommates in the Brainerd area of Chattanooga, Tennessee. After finding Pulley home alone in her upstairs bedroom, the defendant tore her undergarments from her and violently raped her. Because of her resistance during the rape, he forcibly struck her at least twice in the head with a two-by-four he had picked up after entering the house. After the rape, the defendant, while still struggling with the victim, struck her again several times with great force in the head with the two-by-four. The next morning, one of Karen Pulley's roommates discovered her alive and lying in a pool of blood on the floor next to her bed. Pulley died the next day. Three months after the rape and murder, a Chattanooga police detective questioned the defendant about Pulley's murder while he was in the custody of the East Ridge police department on unrelated charges. It was at this point that the defendant confessed to the crime. This videotaped confession provided the only link between the defendant and the Pulley rape and murder.

The evidence showed that, until his arrest in January 1989, the defendant roamed the city at night and, when "energized," relentlessly searched for vulnerable female victims. At the time of trial, the defendant had been convicted on five charges of aggravated rape involving four other Chattanooga women. ² These rapes had occurred in December 1988 and January 1989, within three months after Pulley's rape and murder. The convictions presented to the jury were as follows:

The defendant was indicted for feloniously engaging in sexual penetration of T.R. on December 27, 1988, by the use of force or coercion while the defendant was armed with a weapon--a cord. The defendant pled guilty to the offense of aggravated rape.

The defendant was indicted for feloniously engaging in sexual penetration--anal intercourse--with S.T. on the 3rd day of January, 1989, by the use of force or coercion while he, the defendant, was armed with a weapon--a pistol. The defendant pled guilty to aggravated rape.

The defendant was indicted for feloniously engaging in sexual penetration--fellatio--with P.A.R. on January 3, 1989, thereby causing personal injury to her. The defendant was also indicted for feloniously engaging in sexual penetration--vaginal intercourse--with P.A.R., on January 3, 1989. The defendant pled not guilty and the jury found the defendant guilty of aggravated rape in each case.

The defendant was indicted for feloniously engaging in sexual penetration, vaginal intercourse, with P.A.G. on December 21, 1988, by the use of force or coercion while he, the defendant, was armed with a weapon--a knife. The defendant pled not guilty and a jury convicted the defendant of aggravated rape.

The primary factors in mitigation presented by the defense were the defendant's cooperation with the police and the psychological effects of his childhood. Several persons who knew the defendant testified to his good character and passive nature.

The defendant also took the stand and testified about his life and the violent crimes he had committed. After his mother died of breast cancer when he was ten years old, he and his older sister were placed in an orphanage for six years by his father, who was apparently emotionally abusive, at least to the defendant's older sister. In 1976, just as he was about to be adopted, he was returned to his father. In 1984 he pled guilty to attempted rape, was sentenced to five years in prison and served eighteen months. Thereafter, he violated parole and served an additional nine months. He was married in 1986. At the time of the killing, he was employed by Godfather's Pizza as a first assistant manager.

Defendant testified that when he committed these violent criminal acts, a "strange energized feeling" that he could not resist would come over him and result in actions that he could not stop. He explained that he had not asked for help for his affliction or told anyone about his criminal activity because he was afraid he would lose everything. He expressed remorse for his actions but testified that, if he had not been arrested, he would have continued to violently attack women.

Finally, Dr. Eric Engum, a lawyer and clinical psychologist, testified that he had diagnosed the defendant with a psychological disorder termed "intermittent explosive disorder." According to Engum, a person suffering from this disorder normally experiences an increasing, irresistible drive that results in some type of violent, destructive act. Dr. Engum opined that the defendant's condition may have grown out of his anger at abandonment in childhood but conceded that the disorder was rare. According to him, the defendant would function normally in an institutional regimented setting but, if released, would repeat the violent behavior. The State offered Dr. Engum's investigating notes to prove that he was a member of the defense team acting as a lawyer searching for a defense, rather than an objective psychologist searching for a diagnosis.

After deliberating approximately two hours, the jury returned a verdict of death based on the two statutory aggravating circumstances. The defendant now appeals that sentence, and we address hereafter the errors alleged.

I. CHANGE OF VENUE

The initial ground for appeal presents the Court with a question of first impression. As related in the preceding section, the defendant made a pretrial motion for change of venue, based on the extensive publicity that his arrest had generated in Hamilton County, Tennessee, and the surrounding area. The trial court granted the motion and moved the trial to Sumner County, some 125 miles away, but only for the limited purpose of selecting an unbiased jury. Once the Sumner County jury had been selected and sworn, the trial judge, over the defendant's objection, transferred the case and transported the jury back to Hamilton County for trial. Although the defendant originally moved for a change of venue, he now objects to what he characterizes as "two changes of venue" and contends that the trial court's procedure violated Article I, Section 9 of the Tennessee Constitution.

That provision of the state constitution grants a criminal defendant the right to trial by "an impartial jury of the County in which the crime shall have been committed." Although it literally refers to the place from which the jurors must be summoned, commonly known as the vicinage, the provision has been held to determine the venue of the trial as well. See Chadwick v. State, 201 Tenn. 57, 60, 296 S.W.2d 857, 859 (1956). In State v. Upchurch, 620 S.W.2d 540 (Tenn.Crim.App.1980), the trial court, faced with the defendant's objection to...