State v. Strouth

• Decision Date: 08 June 1981
• Citation: 620 S.W.2d 467
• Parties: STATE of Tennessee, Appellee, v. Donald Wayne STROUTH, Appellant.
• Court: Tennessee Supreme Court

Page 467

620 S.W.2d 467

STATE of Tennessee, Appellee, v. Donald Wayne STROUTH, Appellant.

Supreme Court of Tennessee.

June 8, 1981.

Petition to Rehear Denied Aug. 31, 1981.

Larry R. Dillow, Dillow, Minor & Assoc., Kingsport, J. Klyne Lauderback, Bristol, Patrick D. O'Rourke, Southern Prisoners Defense Committee, Jackson, Miss., for appellant.

Robert L. Jolley, Jr., Asst. Atty. Gen., William M. Leech, Jr., Atty. Gen. & Reporter, Nashville, for appellee.

OPINION

COOPER, Justice.

This case is before us on appeal by Donald Wayne Strouth from a judgment entered in the Criminal Court for Sullivan County, Tennessee. See T.C.A. § 39-2406. ¹ Specifically, the judgment approved the jury's verdicts (1) finding appellant guilty of robbery by the use of a deadly weapon and fixing his punishment at forty years in the state penitentiary, and (2) finding appellant guilty of murder in the first degree and fixing his punishment at death by electrocution.

Appellant was convicted of killing James Keegan in the course of the robbery of the Budget Shop in Kingsport, Tennessee. On February 16, 1978, Mr. Keegan's body was found on the floor of his place of business. His throat had been cut and there was evidence of a severe blow to his head. Death was due to the throat wound which, according to medical testimony, was inflicted while Mr. Keegan was unconscious from the head injury. Mr. Keegan's pockets were turned inside out, and his billfold and "roll" of money were missing.

Appellant and Jeffrey Stuart Dicks subsequently were arrested and charged with the robbing and killing of Mr. Keegan. The defendants were tried separately ² to avoid the possibility of a Bruton ³ violation inherent in the fact that each of the defendants gave investigating officers statements implicating the other. On trial, appellant was found guilty of murder in the perpetration of a robbery and robbery with a deadly weapon. In the subsequent sentencing hearing on the felony murder conviction, the jury found the following aggravating circumstances:

The murder was especially heinous, atrocious or cruel in that it involved torture and depravity of mind; ⁴ and

The murder was committed while the defendant was engaged in committing robbery. ⁵

The jury also found that "there (were) no mitigating circumstances sufficiently substantial to outweigh the aggravating circumstance or circumstances," and sentenced appellant to death.

The trial judge approved the death sentence on the felony-murder conviction, and also approved the sentence of forty years imposed by the jury on its finding appellant guilty of robbery with a deadly weapon.

Appellant does not question the sufficiency of the convicting evidence as to either offense, but does question rulings by the trial judge on pre-trial motions, voir dire, admission of evidence, conduct of the officer in charge of the jury, and comments by the prosecutor during the course of the trial. Appellant also challenges the constitutionality of the Tennessee Death Penalty Act on several bases, and insists that his conviction of both robbery and felony murder are violative of the Fifth Amendment to the Constitution of the United States and Article 1, Section 10 of the Constitution of the State of Tennessee. We find no merit in any of the charged errors except the latter.

In Briggs v. State, 573 S.W.2d 157 (Tenn.1978) this court held that dual convictions of felony-murder and the underlying felony are offensive to the double jeopardy clause of the Fifth Amendment to the Constitution of the United States and of Article 1, Section 10 of the Constitution of the State of Tennessee and that the conviction of the underlying felony can not stand. Accordingly, the conviction of appellant for armed robbery is vacated.

The several bases of appellant's challenge to the constitutionality of the Tennessee Death Penalty Act have been considered in detail and have been rejected by this court in cases decided during the time appellant's case has been on appeal. For example, the contentions now made with respect to the alleged vagueness of the statutes, mandatory imposition of the death penalty, use of hearsay evidence in the sentencing hearing, and that the statute gives the jury "unguided and unrestrained" discretion in imposing the death penalty were considered and rejected in Houston v. State, 593 S.W.2d 267 (Tenn.1980), cert. denied, --- U.S. ----, 101 S.Ct. 251, 66 L.Ed.2d 117 (1980). See also State v. Dicks, 615 S.W.2d 126 (Tenn.1981). The contention that the Death Penalty Act is defective in that it does not specifically require notice to the accused of the particular aggravating circumstances upon which the State intends to rely in seeking the death penalty was considered in State v. Berry, 592 S.W.2d 553 (Tenn.1980), and in State v. Houston, supra, and was rejected. Likewise found to be without merit was the challenge to the efficacy of T.C.A. § 39-2406(c) and Rule 46 (now Rule 12) of the Rules of the Supreme Court of Tennessee to provide for adequate comparative review of sentences imposed on defendants found guilty of murder in the first degree. See State v. Groseclose, et al., 615 S.W.2d 142 (Tenn.1981).

Appellant insists that the jury selection procedure followed by the trial judge, and the statute upon which the procedure was based, operated to systematically exclude women from the venire, thus depriving appellant of the constitutional right to be tried by a jury representative of the community. The record does not bear out appellant's charge. The statute in effect at the time of appellant's trial, T.C.A. § 22-101, granted women the option of serving on the jury or not. The trial judge, being cognizant of the decision in Taylor v. Louisiana, 419 U.S. 522, 95 S.Ct. 692, 42 L.Ed.2d 690 (1975) voicing disapproval of a blanket exclusion of women from service on the jury, did not follow the statute in selecting the jury venire for appellant's trial, but only excluded jurors "for cause," whether man or woman. Further, the record shows that three of the twelve jurors selected to hear the charges against appellant, and both alternate jurors, were women. This is a fair representation of women on the jury and that is all that is required by the Constitution of the United States. See State v. Jefferson, 529 S.W.2d 674 (Tenn.1975).

Appellant also insists the trial judge erred in refusing to order the clerk to prepare and present to appellant a list of prospective jurors, together with information required by Rule 24(g) of the Tennessee Rules of Criminal Procedure, prior to the initiation of appellant's trial. We find no basis in the record for this charge. The names and addresses of prospective jurors were given to appellant several weeks prior to the date of trial. Additional information relative to the jurors, such as occupation, name of spouse, occupation of spouse, and whether a prospective juror had served previously on a criminal court jury, was delivered to appellant as soon as the information could be collected and collated, and the information was delivered prior to the date the trial began. The record then shows that the action taken by the trial judge and the clerk to get information concerning prospective jurors into the hands of appellant was as expeditious as possible and that appellant was not prejudiced in any way.

Appellant further charges that the jury selected was oriented to conviction and to the imposition of the death penalty, and that the orientation was due to errors committed by the trial judge in conducting the voir dire. Appellant also insists that the trial judge committed error in refusing to continue the case to give appellant the opportunity to present evidence indicating that a jury of persons without conscientious objections to the death penalty is biased in favor of conviction.

In Smith v. State, 205 Tenn. 502, 524-25, 327 S.W.2d 308, 318 (1959), cert. denied, 361 U.S. 930, 80 S.Ct. 372, 4 L.Ed.2d 354, this court pointed out that:

A voir dire examination is for the purpose of advising counsel of the juror's qualification, interest, or bias, as a matter of fact, presupposing his statutory competence, that is, age, residency, etc. The subjacent purpose is to enable the exercise of one's peremptory challenges (citations omitted). In this process, it has been held, and it seems to us fairly so, that proper fields of inquiry include the juror's occupation, habits, acquaintanceships, associations, and other factors, including his experiences, which will indicate his freedom from bias.

No restrictions were placed by the trial judge upon appellant's examination of prospective jurors concerning these subjects. The court, however, did refuse to permit appellant to question jurors concerning their understanding of the unanimity necessary to reach a verdict and sentence of death. The trial judge's ruling was in accord with T.C.A. § 39-2404(h), which provides that "(t)he judge shall not instruct the jury, nor shall the attorneys be allowed to comment at any time to the jury, on the effect of the jury's failure to agree on a punishment."

The trial judge also prohibited counsel from asking the following question of prospective jurors: "Do you realize that if Mr. Strouth is sentenced to die that he will actually be killed?" We see no prejudicial error in this ruling. Speculation on whether a sentence will be carried out is foreign to the issue of guilt and is not a proper consideration for the jury in determining the sentence to be imposed. See Farris v. State, 535 S.W.2d 608, 614 (Tenn.1976).

Appellant further contends the trial judge erred in refusing to allow him "to examine and rehabilitate the voir dire of a prospective juror, Mary J. Penley," who was excused from jury service "for cause." Rule 24(b) of the Tennessee Rules of Criminal Procedure directs the trial judge to excuse a juror from the trial of a case where the examination of the juror reveals grounds for challenge for cause. Commission...