State v. Odom

Decision Date03 June 1996
Citation928 S.W.2d 18
PartiesSTATE of Tennessee, Appellee, v. Richard ODOM, a/k/a Otis Smith, Appellant.
CourtTennessee Supreme Court

A.C. Wharton, Shelby County Public Defender, W. Mark Ward, Assistant Public Defender, Memphis, Brock Mehler, Capital Case Resource Center, Nashville, for Appellant on appeal.

Edward Thompson, Carolyn Watkins, Assistant Public Defenders, Memphis, for Appellant at trial.

Charles W. Burson, Attorney General and Reporter, Rebecca Gundt, Assistant Attorney General, Michael E. Moore, Solicitor General, Nashville, John W. Pierotti, District Attorney General, Don D. Strother, Phillip Gerald Harris, Assistant District Attorneys General, Memphis, for Appellee.


BIRCH, Justice.

In this capital case, the defendant, Richard Odom, was convicted by a Shelby County jury of first-degree murder committed in the perpetration of rape. 1 At the sentencing hearing, the jury found three aggravating circumstances beyond a reasonable doubt: (1) the defendant had been previously convicted of one or more violent felonies; (2) the murder was especially heinous, atrocious, or cruel; and (3) the murder was committed during the defendant's escape from lawful custody or from a place of lawful confinement. Tenn. Code Ann. § 39-13-204(i)(2), (5), and (8). The jury found the aggravating circumstances outweighed the mitigating circumstances beyond a reasonable doubt and sentenced the defendant to death by electrocution. We address five issues:

(1) Whether the standard of review for trial court rulings on suppression issues is a "preponderance of the evidence" standard, or an "any material evidence" standard;

(2) Whether this Court should adopt a rule of law requiring the electronic recording of custodial interrogations;

(3) Whether the trial court's failure to admit portions of the testimony of John Hutson, Ph.D., a clinical psychologist, at the sentencing phase of the trial, was reversible error;

(4) Whether the change in Tenn. Code Ann. § 39-13-204(e) adding the language "No distinction shall be made between mitigating circumstances as set forth in subsection (j) and those otherwise raised by the evidence which are specifically requested by either the state or the defense to be instructed to the jury" is evidence of the legislature's intent that trial courts specifically charge the jury on nonstatutory mitigating factors; and

(5) Whether the definition of "serious physical abuse" in the "heinous, atrocious, and cruel" aggravator of Tenn. Code Ann. § 39-13-204(i)(5) is unconstitutionally vague.

We have determined from our independent review of the record before us that Odom received a fair trial in the convicting phase and that the jury's verdict of "guilty" of first-degree murder (felony) and aggravated rape is sufficiently supported by the evidence. Accordingly, the convictions are affirmed. We conclude, however, that reversible error was committed in the sentencing phase in the following regard: (1) the intermediate court's conclusion that the "heinous, atrocious, or cruel" aggravating circumstance was supported by the evidence; (2) the jury's finding that "[t]he murder was committed by the defendant while the defendant was in lawful custody or in a place of lawful confinement or during the defendant's escape from lawful custody or from a place of lawful confinement;" (3) the trial court's failure to permit the defendant to present mitigating evidence in the form of Dr. John Hutson's testimony; and (4) the trial court's failure to properly instruct the jury as to nonstatutory mitigating circumstances raised by the evidence and specifically requested by the defendant. Tenn. Code Ann. § 39-13-204(i)(8)(Supp.1995).

Considering the entire record of the sentencing hearing, we find the errors found therein involve substantial rights and more probably than not affected the sentencing judgment or would result in prejudice to the judicial process. Tenn. R.App. P. 36(b). Accordingly, the sentence of death is vacated, and the cause is remanded for a new sentencing hearing.


The defendant does not challenge the sufficiency of the convicting evidence. Nevertheless, a brief summary of that evidence, adduced at the guilt phase, will put the issues in perspective. Other evidence will be discussed as is appropriate to specific issues.

The record indicates that at approximately 1:15 p.m. on May 10, 1991, Ms. Mina Ethel Johnson left the residence of her sister, Ms. Mary Louise Long, to keep a 2:30 p.m. appointment with her podiatrist, Stanley Zellner, D.P.M. She agreed to purchase a few groceries while she was out. Johnson had not returned at 5 p.m.; this delay prompted Long to call Zellner. He told Long that Johnson had not kept her appointment. As a result of a subsequent call from Long, Zellner agreed to return to his office and look for Johnson's car in the parking garage. He located her car in the parking garage and observed her body inside. He went immediately to the Union Avenue police precinct and notified officers.

Investigating officers found Johnson's body on the rear floorboard of her car with her face down in the back seat. Her dress was up over her back, and an undergarment was around her ankles. One of several latent fingerprints lifted from the "left rear seat belt fastener" of Johnson's car matched a fingerprint belonging to the defendant, Richard Odom, alias Otis Smith.

The medical examiner testified that Johnson had suffered multiple stab wounds to the body, including penetrating wounds to the heart, lung, and liver. These wounds caused internal bleeding and, ultimately, death. The medical examiner noted "defensive" wounds on her hands. Further examination revealed a tear in the vaginal wall and the presence of semen inside the vagina. In the medical examiner's opinion, death was neither instantaneous nor immediate to the wounds but had occurred "rather quickly."

Three days after the incident, Sergeant Ronnie McWilliams of the Homicide Unit, Memphis Police Department, arrested the defendant. As a result of a search incident to arrest, McWilliams confiscated a large, open, lock-blade knife from the defendant. When they arrived at the homicide office, McWilliams told the defendant of the charges against him and read his Miranda rights to him. The defendant executed a "Waiver of Rights" form, signing "Otis Smith." A short time later he acknowledged having identified himself falsely, executed a second rights waiver by signing "Richard Odom" and gave McWilliams a complete, written statement.

In his statement, the defendant said that his initial intention was to accost Johnson and "snatch" her purse after having seen her in the parking garage beside her car. He ran to her and grabbed her; both of them fell into the front seat. He then pushed her over the console into the rear seat. He "cut" Johnson with his knife. Johnson addressed him as "son." This appellation apparently enraged the defendant; he responded that "[he] would give her a son." He penetrated her vaginally; he felt that Johnson was then still alive because she spoke to him. Beyond the first wound, the defendant claimed not to have remembered inflicting the other stab wounds. Thereafter, the defendant climbed into the front seat and rifled through Johnson's purse. He found nothing of value to him, except the car keys, which he later discarded. He then went to an abandoned building where he had clothing and changed clothes.

The defendant presented no evidence at this phase of the trial. Based on the evidence above, the jury convicted the defendant of first-degree murder committed in the perpetration of rape.


Pretrial, the defendant moved to suppress the statements he had given to police following his arrest. He claimed that he had been threatened and coerced into confessing and that his repeated requests for an attorney were refused. At the suppression hearing, McWilliams testified that the defendant was never threatened or coerced and that he never requested an attorney. The trial court weighed the credibility of the witnesses and accredited the testimony of McWilliams. The trial court found that the defendant knew and understood his constitutional rights and had voluntarily waived those rights before giving his confession. The Court of Criminal Appeals in reviewing this issue stated:

The determination by a trial court that a confession was given knowingly and voluntarily is binding on the appellate courts unless the defendant can show that the evidence preponderates against the trial court's ruling. State v. O'Guinn, 709 S.W.2d 561, 566 (Tenn.1986). There is no proof in the record which preponderates against the findings of the trial court.

In our consideration of this issue, we note that appellate courts of this state have not been consistent in the choice of standard under which a trial court's findings of fact and conclusions of law on suppression issues are reviewed. Some courts, as did the Court of Criminal Appeals in this case, have applied a "preponderance of the evidence standard." See, e.g., State v. Stephenson, 878 S.W.2d 530, 544 (Tenn.1994)("[A] trial court's determination at a suppression hearing is presumptively correct on appeal.... [T]he presumption of correctness may only be overcome on appeal if the evidence in the record preponderates against the trial court's findings."); State v. Kelly, 603 S.W.2d 726 729 (Tenn.1980)("[T]he Court of Criminal Appeals and this Court are bound to accept that determination [by the trial court that a confession was freely and voluntarily given] unless the evidence in the record preponderates against that finding."); State v. Adams, 859 S.W.2d 359, 362 (Tenn.Crim.App.1992)("Findings of fact made by the trial judge after an evidentiary hearing of a motion to suppress are afforded the weight of a jury verdict, and this court will not set aside the trial court's judgment unless...

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