State v. Smith

• Citation: 868 S.W.2d 561
• Parties: STATE of Tennessee, Appellee, v. Oscar Franklin SMITH, Defendant-Appellant.
• Decision Date: 18 November 1993
• Court: Supreme Court of Tennessee

Page 561

868 S.W.2d 561

STATE of Tennessee, Appellee, v. Oscar Franklin SMITH, Defendant-Appellant.

Supreme Court of Tennessee,

at Nashville.

Nov. 18, 1993.

Rehearing Denied Jan. 5, 1994.

Charles W. Burson, Atty. Gen. & Reporter, Kathy M. Principe, Asst. Atty. Gen., Victor S. Johnson, III, Dist. Atty. Gen., Thomas Thurman, Cheryl Blackburn, Asst. Dist. Attys. Gen., Nashville, for appellee.

Karl F. Dean, Public Defender, Jeffrey A. DeVasher, J. Paul Newman, Sr. Asst. Public Defenders, Nashville, for defendant-appellant.

OPINION

DROWOTA, Judge.

The Defendant, Oscar Franklin (Frank) Smith, age 40, was found guilty by a Davidson County jury of the triple murders of his estranged wife, Judith (Judy) Lynn Smith, age 35, and her two sons by a previous marriage, Chad Burnett, age 16, a sophomore in high school, and Jason Burnett, age 13, an eighth-grader.

The jury found two aggravating circumstances in the premeditated first degree murder of Judy Smith, T.C.A. § 39-2-203(i)(5) and (12)(1982), and four aggravating circumstances in the premeditated first degree murders of Chad and Jason Burnett, T.C.A. § 39-2-203(i)(5), (6), (7) and (12)(1982), ¹ and sentenced the Defendant to death on the murder counts as to all three victims. On appeal, the Defendant cites 20 errors made by the trial court including, but not limited to, the sufficiency of the convicting evidence, the sufficiency of the evidence of the four aggravating circumstances, the admission of testimony regarding the "alternative light source" technique of fingerprint identification, and the admission of the tape recordings and purported transcript of a 911 emergency telephone call allegedly made from the victim's residence just prior to the murders.

It appears that these tragic, brutal and bizarre murders occurred at approximately 11:20 p.m. on Sunday, October 1, 1989, when the Metropolitan Nashville Police Department received a 911 emergency call from 324 Lutie Street, Judy Smith's home in the Woodbine section of Nashville. On the tape of the call, which was later technically enhanced and played at trial, a young male voice, identified at trial as that of Jason Burnett, is heard crying, "Help me!" In the background another male, identified as Chad Burnett, is heard shouting "Frank, no. God, help me!" The call ended abruptly with Jason stating "324 Lutie Street." Officers dispatched to the scene arrived at the house five minutes later. They knocked on the front door and received no answer. Everything appeared quiet so the officers assessed the situation as a "false call" and left.

It was not until 3:00 p.m. the next day, that the bodies of Judy, Jason and Chad were discovered. The body of Chad was found lying face up on the kitchen floor. The room was a wreck; the phone had been ripped off the wall and large quantities of blood were on the floor and wall. An awl, a tool similar to an ice pick and often used in leatherworking, was found in the room. Chad had been shot three times: in the right shoulder, the upper chest, and on the inside left eyebrow. The last two wounds were contact wounds and had been fatal. Chad had also been stabbed several times in his chest, back and abdomen with a sharp, needle-like weapon (such as an ice pick or awl) and with a knife. His neck had been slashed, and there were defensive wounds on his hands. All of his injuries had occurred before death.

Judy Smith's body was found lying on its back on a bed in the front bedroom. There was blood splattered on the panelled wall next to the bed. She had been shot in the left arm and the neck. The latter wound, caused by a gun fired from a range within two feet, had severed her spinal cord and produced instant paralysis, rapid unconsciousness and death. Shortly after death, her neck had been slashed; and, like Chad, she had been stabbed with a knife and a weapon resembling an awl or ice pick. The medical examiner opined that both Judy and Chad had died from multiple gunshot and stab wounds.

The body of Jason, Judy's youngest son, was discovered lying on its left side on the floor at the foot of the bed on which his mother lay. He had not been shot. There were numerous defensive wounds on his hands. His neck had been slashed, and he had been stabbed in the chest and abdomen. Two of the wounds to the abdomen had been fatal because they had cut major veins. His small bowel protruded from his body through these wounds. All of Jason's injuries had occurred before death. The medical examiner testified that Jason had bled to death over a period of several minutes as a result of the multiple stab wounds.

The three victims had been dead at least twelve hours before they were found. There were no signs of forcible entry into the house. The back door had been left open. There were signs of a struggle in the house, particularly the kitchen, where a leg had been broken off the table. A .22 caliber cartridge was found on the rug in the den. An identical type of bullet was removed from the bodies of Judy and Chad who, ballistics experts determined, had been shot with the same gun. There were bullet holes in the walls of the front bedroom and the den. A path of splattered blood led from the den down the hall to the kitchen. Drops of blood in the bathroom indicated that someone had cleaned up in that room.

All of the evidence connecting the Defendant to the killings of his estranged wife and step children was circumstantial. The Defendant and Judy Smith were married on August 8, 1985. Frank Smith had two children by his first marriage, Laura, age 18, and Merl, a son age 15, who lived with the Defendant's parents in Pleasant View, Tennessee. In December of 1986, Judy and Frank had twin boys, Chris and Casey. In June of 1989, the Smiths separated and a divorce action was pending at the time of the murders. Judy Smith had been awarded temporary custody of the twins, with the Defendant receiving visitation every other weekend. A key issue in the divorce was which parent would receive custody of the twins.

There was testimony that Judy, Chad and Jason were afraid of the Defendant. In June 1989, the Defendant and Jason had gotten into a fight at the Defendant's trailer on his family's farm in Pleasant View. The Defendant had bitten Jason on the back and held a gun to his head. He had ordered Judy and the older boys out of the trailer and threatened to kill Judy if she tried to take the car or the twins or if she took out a warrant or notified the police. In August 1989, when Judy returned to the trailer to retrieve her clothes, the car and other items, the Defendant had tied her up, raped her, run a knife across her throat and told her he was going to kill her. At the time of the killings, warrants were pending charging the Defendant with aggravated assault based on these two incidents.

During the summer of 1989, the Defendant called Judy several times at the Waffle House restaurant where she worked and, according to a fellow employee who listened to the numerous phone calls at Judy's request, threatened to kill Judy. He told her he would shoot her and stab her. Once he threatened to kill Chad and Jason because "she was better to them than ... she was his twins." The last of these calls occurred in August 1989.

When the Defendant was picking up the twins for visitation two or three weeks before the murders, the Defendant told Judy's father, "You tell Judy that I've been playing with her with kid gloves, but now the gloves are coming off." Another time he said that he would kill Judy if she ever left him.

One of the Defendant's co-workers at Maintenance Service Corporation in Lavergne testified that, in the early summer months of 1988, the Defendant offered to kill his wife if he would in turn kill Judy. Two weeks later the Defendant told his co-worker that they could plan the killings so that each man would be out of town when the other killed his wife. One month before Judy and her sons were killed, the Defendant asked another co-worker if he knew anyone who would kill the Defendant's family. Two weeks later the Defendant told the same co-worker that he would offer $20,000 to have someone kill Judy and his two stepsons. The Defendant specified that his twins were not to be killed.

When police first entered Judy Smith's house, they found a bloody palm print on the sheet beside Judy's body. A latent fingerprint examiner testified that it matched the palm print of the Defendant's left hand, which, like the print on the sheet, was missing the two middle fingers. Other circumstantial evidence connected the Defendant to the crime. A brown cotton work glove found in the front bedroom resembled gloves the Defendant used in his work. The Defendant also owned a .22 caliber revolver and was known to carry a large knife. He engaged in the craft of leatherworking, in which an awl is a basic tool used to punch holes or mark guidelines in leather. In March 1989, he had taken out a life insurance policy with American General on Judy for $20,000 and the boys for $10,000 each. In February of that same year, he had taken out a $20,000 policy on Judy and insured the boys for $5,000 each with Liberty National. He had earlier taken out a policy on Judy for $10,000 and the boys for $4,000 each with United Insurance. He thus was the beneficiary of $88,000 of life insurance on the lives of Judy and her two sons.

The Defendant testified that on October 1, 1989, he drove to Nashville and met Judy, Chad, Jason and the twins for breakfast at Shoney's restaurant. After breakfast, they went to the residence on Lutie Street, where Chad and Jason babysat the twins while he and Judy looked for a used car for Judy. That afternoon, the Defendant and Judy went to a Waffle House at I-40 and Charlotte Avenue and drank coffee there until about 5 p.m. They then ate dinner at the Gold Rush restaurant and later stopped for coffee at another Waffle House, located at I-24 and Harding Place, where they remained until 9:30 p.m. Subse...