Sentenced to death on August 28, 1989 after he was
convicted of three counts of felony murder for his role in an October
20, 1987 triple murder during a robbery at a Memphis restaurant. The
victims were Arthur Lee, 24; his grandmother, Kai Ying Chuey, 70; and
Lee's sister-in-law, Man Yin Huang "Amy" Lee, 23.
September 27, 1993
STATE OF TENNESSEE, APPELLEE,
HECK VAN TRAN, DEFENDANT-APPELLANT.
CRIMINAL COURT. SHELBY COUNTY. Hon. L. T. Lafferty,
Judge. (Lower Court Nos. 88-01443, 88-01444, 88-01445, and 88-04384)
Drowota, III, O'Brien, Anderson, Reid, Daughtrey
The opinion of the court was delivered by: Drowota
The Defendant, Heck Van Tran, appeals his
convictions of felony murder in the deaths of Kai Yin Chuey, Amy Lee
and Arthur Lee and the sentences of death imposed in each case by the
jury. On appeal he challenges, inter alia, the sufficiency of the
evidence used to convict him, the failure of the trial court to
suppress certain statements, the use of a relative to act as an
interpreter for an eyewitness, the introduction of a video tape and
color photographs, the refusal of change of venue and individual voir
dire, alleged errors in the Judge's jury instructions, and the
constitutionality of the death penalty. We have carefully considered
all of the issues raised by the Defendant and, for the reasons that
follow, we affirm his conviction of felony murder and his sentence of
death as to Kai Yin Chuey. We affirm his convictions of felony murder
as to Amy Lee and Arthur Lee, but reverse his sentences as to them and
remand for resentencing for the reasons set out later in this opinion.
On the afternoon of October 20, 1987, Arthur Lee,
Amy Lee, and Kai Yin Chuey were found dead in the Jade East Restaurant
in Memphis. The restaurant had not yet opened for business that day,
and the victims had apparently been inside making preparations for the
evening. Jewelry with a wholesale value of $25,000 had been taken from
the restaurant. The State's critical proof included: a statement taken
from the Defendant in which he admitted his involvement in the crimes;
Defendant's fingerprint on one of the jewelry cases taken during the
robbery; and the eyewitness identification of the Defendant by a
survivor of the robbery.
The victims were all related and worked in the
restaurant, which had been owned and operated by the Lee family for
years. The family had emigrated from China. Arthur Lee, 24, managed
the restaurant for his father, the owner. Amy Lee, 24, was married to
Arthur's brother, Chester Lee. Kai Yin Chuey, 74, was Arthur's
maternal grandmother. Ging Sam Lee, 75, Arthur's paternal grandmother,
survived the robbery. She had been beaten and knocked unconscious; and
two diamond rings, a necklace and a watch were taken from her.
The Defendant, Heck Van Tran, was born on November
8, 1966. His mother was Vietnamese; and his father, an American
serviceman, died in Vietnam in 1968. The Defendant started school when
he was six years old but stopped when Saigon fell. In 1983 a Catholic
relief agency resettled the Defendant and his mother in Memphis. The
Defendant briefly attended school before dropping out in 1984.
After his arrest by the Houston, Texas, police,
Defendant gave a statement in which he acknowledged his role in the
robbery and murders. He stated that he had worked briefly at the Jade
East Restaurant a month or two before the crimes and that Mr. Lee had
fired him because "he didn't like me" and "said I cooked too many egg
rolls." The Defendant implicated Hung Van Chung, Kong Chung Bounnam
and Duc Phuoc Doan in the robbery. He stated that the four men entered
the back door of the restaurant and he talked to Arthur Lee "for about
ten minutes before there was any shooting." The Defendant had a .22
revolver, Bounnam a .44, Chung a .22 and Doan a .25.
The Defendant described what happened after the
group pulled out their guns:
Mr. Lee grabbed Nam's [Bounnam's] hand with the gun
and elbowed him in the chest. Nam fell back and hit the old lady. The
old lady fell on me and when she hit me it caused the gun to go off. I
don't know what I hit that time. Mr. Lee then kicked Hung . I heard
Hung Chung shoot one or two times and then Mr. Lee tried to grab the
gun and Hung Chung shoot him. While Mr. Lee was trying to get Hung [Chung's]
gun, I told him not to or I would have to hurt him. He turned and
tried to get my gun and I shot him. He fell and was moving around and
I shot him in the face somewhere. Then I walk through the door where
they kept the money and gold. I looked up and saw the old lady roll
over. I thought she had something in her hand. I shot her in the back
of the head.
While the Defendant was in the office collecting
the jewelry, he heard more shots. He stated that he did not know "who
was shooting or what" or who had shot "the young girl," Amy Lee. Upon
leaving the office, the Defendant saw Bounnam holding Ging Sam Lee.
The Defendant told Bounnam not to hurt her. Bounnam hit Mrs. Lee on
the back of the head, and all the assailants left.
Outside the restaurant, the Defendant discovered
that Bounnam had been shot in the left leg near the groin. Bounnam
claimed the Defendant had shot him. The group fled in Bounnam's Camaro
to an acquaintance's apartment. From there, the Defendant, Bounnam and
Chung drove Chung's car to Washington, D.C. Bounnam's Camaro was left
in Memphis. Doan remained in Tennessee.
From Washington, the trio drove to Houston, Texas.
Once in Houston, the Defendant went to the Saigon Pool Hall and talked
with a Vietnamese man about selling some gold. The man took the gold
and returned in about ten minutes with $4,000.00. The Defendant paid
the man $200 and divided the rest three ways. Later, Bounnam flew to
North Carolina and Chung went to Dallas with a friend.
On April 28, 1988, almost six months after the
robbery, the Defendant was arrested in Houston. At this time, he was
advised of his Miranda rights. When asked if he knew why he was being
arrested, he replied, "For a shooting in Memphis." He was taken to the
main police facility and later to a municipal court Judge who read
Defendant the statutory Miranda warning required by the Texas Code.
His written statement was taken May 2, 1988, after he had been advised
of his rights a third time. On his return to Memphis the Defendant was
fingerprinted. The print of his left ring finger matched a latent
fingerprint found on one of the jewelry cases. A TBI firearms examiner
testified that two .22 lead bullets, one recovered from Mrs. Chuey's
head, the other from Mr. Lee's brain, could have been fired from the
revolver used by the Defendant in the robbery. The two bullets were so
mutilated and damaged, however, that the examiner could not positively
state that they had been fired from that weapon.
Jerry Lee, Arthur Lee's brother and grandson of Mrs.
Chuey and Mrs. Lee, arrived at the restaurant after the robbery and
triple murders. He testified that he ran a jewelry business out of the
restaurant. On the day of the robbery uninsured jewelry with a
wholesale value of about $25,000.00 was stolen from the restaurant
office. At trial, Jerry Lee identified certain jewelry cases taken in
the robbery, one of which had Defendant's fingerprint on it. He
identified the Defendant as a former cook who had worked in the
restaurant for a week, approximately one month before the robbery. He
stated that Defendant had no occasion to go inside the vault and touch
any of the jewelry cases while employed at the restaurant.
Ging Sam Lee was 77 years old at the time of trial
and had lived in the United States for thirty years. She was the only
surviving eyewitness to the robbery-murders. She testified, through a
translator, that three or four oriental men had robbed the restaurant
and identified Heck Van Tran as one the robbers. She also identified
Hung Van Chung as another of the men involved. She stated that Chung,
while not an employee, had helped out at the restaurant. She was
beaten and robbed. She heard gunfire but did not see anyone being shot.
She was knocked unconscious; and, when she awoke, she saw a body lying
in the restaurant.
One of the State's witnesses testified that on
October 20, 1987, he was driving his automobile into the parking lot
of the Jade East Restaurant when he saw a blue 1970 Camaro leaving the
parking lot. The Camaro was four to five feet away from him, and he
identified Bounnam as the driver. He also noticed at least two
passengers in the car.
Bounnam's brother testified that at eight o'clock
on the morning of the robbery his brother and the Defendant drove him
to work in his brother's blue Camaro. He further testified he had not
seen his brother since that time.
Another State witness testified that he knew the
Defendant, Bounnam, Doan and Chung. He stated that Bounnam owned a
blue Camaro and further testified that on the day of the Jade East
robbery, he saw jewelry boxes like those taken from the restaurant in
the dumpster outside his apartment. Another witness testified he was
at a friend's apartment and saw the Defendant trying to get a bullet
out of Bounnam's leg. Chung and Doan were also present at the
During their investigation the police discovered
small pieces of jewelry scattered on the floor of the restaurant and
in the rear parking lot. They also collected six spent .22 caliber
cartridges from the restaurant floor. One of the officers videotaped
the entire inside and outside of the Jade East Restaurant. Another
officer took photographs showing the location of the three bodies, and
the exterior of the restaurant, and the parking lot.
The State's final witness was Dr. O. C. Smith, an
expert in the field of forensic pathology. He had performed autopsies
on the three victims. He testified that Amy Lee died as a result of a
contact gunshot wound to the head. He described a contact wound as one
in which the muzzle of the weapon is up against the skin surface at
the time it is fired. The bullet entered Amy Lee's right forehead
about a half inch below the top of her head and was recovered in the
left back of the head after going through the brain. After being
qualified as an expert in firearms and firearms identification, Dr.
Smith gave his opinion that the recovered projectile was a .22 caliber
Dr. Smith testified that Kai Yin Chuey had bruises
under the right collarbone, over the right chest and breast region, on
the left upper arm, at the left elbow, and over the knees, all of
which were made while she was alive. She died as a result of being
shot twice: once through the jawbone and neck thereby severing her
windpipe (this wound was six inches or less from the muzzle of the gun)
and once through the back of the head through the brain (this was a
Dr. Smith stated that Arthur Lee died as a result
of multiple gunshot wounds. There were eight wound tracks on his body:
to the back of the right hand, to the right chest, to the right side
of the jaw, a grazing wound to the left side of the neck, a wound to
the back left shoulder at the neck, a near wound to the right back, a
wound to the back of the upper right arm and a contact gunshot wound
to the right temple. He identified one of the recovered projectiles as
being a .22 caliber bullet. He also testified that there was no way to
determine the sequence in which these wounds had been inflicted.
The Defendant was indicted for felony (robbery)
murder and premeditated murders of Kai Yin Chuey, Amy Lee and Arthur
Lee and also for robbery with a deadly weapon of Ging Sam Lee. Based
upon the above-described evidence, the jury found Heck Van Tran guilty
on three counts of felony murder and fixed his punishment at death for
each offense. The same two aggravating circumstances were found in all
three cases: (1) the murder was especially cruel in that it involved
depravity of mind; and (2) the Defendant committed "mass murder."
T.C.A. § 39-2-203(i)(5) and (12) (1982).
The Defendant was also convicted of robbery by use
of a deadly weapon. The trial court sentenced the Defendant to 30
years imprisonment as a standard of fender, Range I, to be served
concurrently with the above sentences.
I. Sufficiency of the Convicting Evidence
The Defendant initially argues that, while the
evidence admitted at trial may be sufficient to support the guilty
verdicts when tested against the standard enunciated in Rule 13(e),
T.R.A.P., and Jackson v. Virginia,
443 U.S. 307,
99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979),
if the Court holds certain evidence inadmissible, such as the
Defendant's confession or the eyewitness's identification of the
Defendant by Ging Sam Lee, the proof may no longer be sufficient. We
shall treat these evidentiary questions in Sections II and VI.
The Defendant also contends that the evidence is
insufficient to support the sentence of death because it does not
support the two aggravating circumstances found by the jury. We shall
address these issues in Sections XI, XII, and XV.
II. Motion to Suppress Confession
The Defendant avers that the trial court erred in
denying his motion to suppress his written and oral statements given
to the authorities in Texas. The Defendant filed a pretrial motion to
suppress his confession given to the Houston police on May 2, 1988,
four days after his arrest. In his motion, Defendant asserts that,
because he was born in Vietnam, his knowledge, understanding and
comprehension of the English language is limited, and his
understanding of legal terms is so poor that he was unable to make a
knowing and intelligent waiver of his constitutional rights to remain
silent and to have the assistance of counsel.
At the evidentiary hearing on the motion the State
presented six witnesses while the defense offered four. The
Defendant's mother, Mia Tran, testified that Defendant was presently
21 years of age. She explained that the Defendant, had been ill as a
child and that he had not spoken until he was six. The Defendant had
not studied English in Vietnam, where he had attended school until the
third grade. After his arrival from Vietnam in 1983, he attended
American high school for only one year. There he made mostly D's.
Tests indicated that his comprehension level was below the fourth
The Defendant testified through a court-appointed
interpreter that he learned no English in Vietnam, that he was the
sole child of Mia Tran and an American soldier killed by the Viet Cong,
and that he never knew his father. He further testified that when he
was arrested in April 1988, it was the first time he had been arrested
for any offense; that when Sergeant Yarbrough began to interview him,
he requested an attorney twice; and that although he understands and
speaks some English, he does not speak it very well. During cross-examination,
Heck Van Tran stated that when he went before a Judge in Texas, he was
not sure what the Judge was saying but that he nodded at everything
the Judge said.
The trial court made detailed and extensive
findings of fact and Conclusions of law in denying the Defendant's
motion to suppress the confession. We cite portions of the court's
findings of fact.
The Defendant was arrested on April 28, 1988, at
approximately 5:00 p.m. by officers John Chen, B. A. Piel, Sergeant
Poale, and Special Agent Barbara Babcock, FBI. The officers had a
photo of the Defendant. The Defendant gave a false name upon inquiry.
Officer John Chen spoke to the Defendant in English after the
Defendant had been advised by Sergeant B. A. Piel of the Miranda
rights. According to Sergeant Piel, he would read each right to the
Defendant and upon the Defendant answering yes, he would proceed on to
the next right. Sergeant Piel was of the opinion that the Defendant
was responsive to his questions and responded as if he understood. The
Defendant responded in English that he was aware of why he was
arrested - "For the shooting in Memphis." The Defendant told Officer
Chen that one companion was in Dallas, Texas, and not in Houston.
Officer Chen asked the Defendant if he understood English and
Defendant said, "Yes, I do." Officer Chen was of the opinion that the
Defendant understood and spoke English well. At the reading of his
rights the Defendant did not request an explanation of his rights.
The Defendant can speak and communicate in the
English language in most everyday situations. The Defendant's ability
to read is limited and he does have difficulty in understanding the
meaning of certain words in the warnings of rights.
The Defendant was taken to police headquarters and
later that evening the Defendant was taken before a Judge Dodier
pursuant to Texas procedure for advice of his rights under Texas law.
Judge Dodier inquired if the Defendant spoke and understood English,
to which the Defendant answered yes. There was no request by the
Defendant for an interpreter.
On May 2, 1988, at approximately 11:40 a.m.,
Sergeant J. Yarbrough interviewed the Defendant. He was of the opinion
that the Defendant could speak English well enough for him to
understand and had no problem communicating. Sergeant Yarbrough
advised the Defendant of the Miranda rights. The Defendant orally
explained his involvement in the Jade East robbery and drew a map of
the restaurant. The Defendant had talked to his mother by phone and
she advised him to tell the truth. The Defendant agreed to give a
written statement which Sergeant Yarbrough typed. After going over the
written statement with the Defendant, Sergeant Yarbrough and Sergeant
Ken Williamson and Dennis Gafford talked to the Defendant.
The Defendant told Sergeant Williamson that he
could not read English but he could speak and understand English.
Sergeant Williamson read the written statement so the Defendant would
be sure that the statement given to Sergeant Yarbrough was what he
said. Sergeant Gafford asked the Defendant about the warnings at the
top of the page and the Defendant responded: "Yes, don't have to talk
if don't want to." Sergeant Gafford explained to the Defendant each
right individually and had the Defendant initial each one.
In its Conclusions of law, the court began by
In analyzing the admissibility of the written
statement in this cause the State has a heavy burden to show that a
waiver of the Miranda rights was freely, voluntarily and knowingly
exercised. Courts should indulge every reasonable presumption against
waiver of fundamental constitutional rights, Lee v. State,
560 S.W.2d 82 (Tenn. Crim. App. 1977). In
order for the State to overcome the presumption, the State need only
prove by a preponderance of the evidence that the constitutional
standards were met. McPherson v. State,
562 S.W.2d 210 (Tenn. Crim. App. 1977);
Lego v. Twomey,
404 U.S. 477,
92 S. Ct. 619 (30 L. Ed. 2d 618), (1972);
and State v. Stearns,
620 S.W.2d 92 (Tenn. Crim. App. 1981)."
In denying the motion to suppress and holding that
the Defendant had knowingly and intelligently waived his Miranda
rights, the trial court found three aspects of the proof particularly
telling: (1) the Defendant's response to Sergeant Gafford that he did
not have to talk if he did not want to; (2) his reply that he was
speaking with Sergeant Yarbrough because his mother told him to tell
the truth; and (3) the logical narrative of the events of the offense
contained in the written statement itself. The court also noted that,
during the Defendant's cross-examination, he understood some of the
questions asked and was ready to answer in English before the
questions had been translated. The court concluded that the Defendant
had sufficient knowledge of English to understandably, knowingly and
intelligently waive his rights.
To be valid, a waiver of Miranda rights must be
voluntarily, knowingly, and intelligently made. Miranda v. Arizona,
384 U.S. 436, 479,
86 S. Ct. 1602, 1630, 16 L. Ed. 2d 694
(1966). Once it is determined, under the totality of the circumstances
surrounding a waiver, that a suspect's decision not to rely on his
rights was uncoerced, that he at all times knew he could stand mute
and request a lawyer and that he was aware of the State's intention to
use his statements to secure a conviction, a court may conclude that
Miranda rights have been waived. Moran v. Burbine,
475 U.S. 412,
106 S. Ct. 1135, 1141, 89 L. Ed. 2d 410
(1986); see also Fare v. Michael C.,
442 U.S. 707,
99 S. Ct. 2560, 2572, 61 L. Ed. 2d 197
(1979). Language difficulties encountered by a defendant are
considered in determining if there has been a valid waiver. See, e.g.,
United States v. Hernandez,
913 F.2d 1506, 1509-1510 (10th Cir.
1990); United States v. Boon San Chong,
829 F.2d 1572, 1574-1575 (11th Cir.
1987); Perri v. Director, Department of Corrections, State of
817 F.2d 448, 452-453 (7th Cir. 1987);
United States v. Bernard S.,
795 F.2d 749, 751-753 (9th Cir. 1986);
United States v. Short,
790 F.2d 464, 469 (6th Cir. 1986).
Findings of fact made by a trial court on issues surrounding the
giving of a custodial statement are binding upon appellate review if
there is any evidence to support them. State v. O'Guinn,
709 S.W.2d 561, 566 (Tenn. 1986); State
547 S.W.2d 918, 923 (Tenn. 1977).
Having studied the transcript of the suppression
hearing, we are of the opinion that the evidence presented at the
hearing supports the Conclusion of the trial Judge that the Defendant
voluntarily, knowingly, and intelligently waived his Miranda rights.
Defendant argues that the fact that the court found it necessary to
afford him an inter preter contradicts the holding of the trial court.
The provision of a translator, however, is not inconsistent with such
a finding, see United State v. Abou-Saada,
785 F.2d 1, 10 (1st Cir. 1986); and the
record shows that the Defendant understood English sufficiently to
waive his rights. Like wise, the fact that the Defendant may not have
understood all the consequences of his waiver and was unfamiliar with
the American legal system is insufficient to invalidate the waiver so
long as the proof shows, as it did here, the requisite level of
comprehension (i.e., that he need not talk, that he could have a
lawyer, and that any statements can be used against him). Colorado v.
479 U.S. 564,
107 S. Ct. 851, 857-858, 93 L. Ed. 2d 954
(1987); United States v. Yunis,
859 F.2d 953, 964-966 (D. C. Cir. 1988).
III. Change of Venue and Individual Voir Dire
The Defendant's next two issues are related in that
they stem from the allegation that the present case, received
extensive and prejudicial pretrial publicity. The case had been
featured on the television program America's Most Wanted, which aired
locally in Shelby County. The Defendant filed pretrial motions for
change of venue and for individual voir dire. A hearing was held on
the motion for change of venue at which time a market researcher
testified concerning a poll he had conducted of 428 Shelby County
residents in April 1989. Almost 90 percent of those surveyed had heard
something about the case, with 29.5 percent having seen the America's
Most Wanted episode featuring the crime. Those surveyed who had heard
of the crime were twice as likely to feel that an employee had
committed the crime. The trial court denied the motion for change of
venue with the proviso that, if difficulties arose in finding an
untainted jury, it would reconsider its decision.
The court took the motion for individual voir dire
under advisement. After the jury selection process began, the
Defendant renewed his motion for individual voir dire. The court
continued to take it under advisement until it saw how the prospective
jurors responded to questions. Forty-eight prospective jurors were
voir dired. Approximately half had heard something about the incident;
a few were familiar with the restaurant. Almost all were able to set
aside what little they had heard and stated they had formed no opinion
as to Defendant's guilt based on what they had seen or read. The most
notable exception was Peggy Ingram, the only prospective juror who
said she had seen the episode of America's Most Wanted featuring the
crime. She was excused for cause.
Whenever the Defendant asked a prospective juror
what he or she had heard, the prospective juror was called to the
bench where defense counsel questioned the juror more thoroughly out
of the hearing of the panel. The record does not reveal that
individual voir dire was required in this case or that the trial court
abused its discretion. See State v. Simon,
635 S.W.2d 498, 506 (Tenn. 1982).
With reference to the motion for change of venue,
there was no showing that the majority of prospective jurors had been
extensively exposed to prejudicial pretrial publicity. In fact, the
record itself contains little evidence of pretrial publicity. The
Defendant has not carried his burden of showing the clear abuse of
discretion required to reverse the trial court's actions. See e.g.,
State v. Bates,
804 S.W.2d 868, 877 (Tenn. 1991); State
v. Simon, 635 S.W.2d at 505; State v. Hoover,
594 S.W.2d 743 (Tenn. Crim. App. 1979).
IV. Right to Jury Trial
The Defendant next avers that the Tennessee
statutes concerning exemptions from jury duty and the policies of the
Shelby County Jury Commission denied him his right to a jury trial.
The Defendant raised these issues in a pretrial motion. After an
evidentiary hearing, the motion was denied by the trial court.
The Defendant first contends that the method used
by the Shelby County jury commissioner to choose prospective jurors
deprived him of his right to a jury composed of a fair cross section
of the community because it excluded college students and was more
likely to procure as prospective jurors persons who owned assets like
telephones, cars and houses. The jury commissioner testified he used
five sources for jurors: property tax rolls, voter registration rolls,
motor vehicle rolls, the telephone directory and the city directory.
Names were chosen randomly from these sources. The names were then "processed"
to assure that the persons chosen were eligible to serve as jurors.
The Defendant's second argument is that the
statutory exemptions in T.C.A. § 22-1-103, § 63-5-123, § 63-8-117, and
§ 63-3-118 infringe on his right to a jury composed of a fair cross
section of the community. He points out that the exemptions granted
certain professionals, if exercised, could remove large numbers of
college-educated individuals from juries in Shelby County.
A defendant has a constitutional right to a jury
drawn from a venire representing "a fair cross-section of the
community." Taylor v. Louisiana,
419 U.S. 522,
95 S. Ct. 692, 42 L. Ed. 2d 690 (1975).
The proof presented by the Defendant fails to establish a prima facie
violation of the Sixth Amendment on the ground that the jury fails to
reflect a fair cross-section of the community. See Duren v. Missouri,
439 U.S. 357,
99 S. Ct. 664, 668, 58 L. Ed. 2d 579
(1979); State v. Thompson,
768 S.W.2d 239, 246 (Tenn. 1989); State
745 S.W.2d 858, 860-861 (Tenn. 1988);
State v. Blunt,
708 S.W.2d 415, 417-418 (Tenn. Crim. App.
1985); State v. Nelson,
603 S.W.2d 158, 161 (Tenn. Crim. App.
V. Opening Statement
The Defendant next contends that the trial court
erred in denying his counsel's request to reserve opening statement
until the beginning of the defense proof. After the prosecutor had
given the State's opening statement at the guilt phase, the Defendant
asked to reserve his opening statement until the close of the State's
proof. The trial court refused on the ground that Tennessee law
requires opening statements be made prior to the introduction of any
evidence. The Defendant then waived his opening statement.
The Defendant avers that such action by the trial
court not only violates his right against self-incrimination, but also
requires him to actively defend himself before the State has carried
its burden of proof. T.C.A. § 20-9-301 grants the parties "the right
prior to the presentation of any evidence in the case to make an
opening statement to the court and jury setting forth their respective
contentions, views of the facts and theories of the lawsuit." In State
772 S.W.2d 440, 441 (Tenn. Crim. App.
1989), the Court of Criminal Appeals held that this statute requires
opening statements to be made prior to the presentation of any
evidence. We agree.
Opening statements are not evidence. See Harris v.
Baptist Memorial Hospital,
574 S.W.2d 730, 732 (Tenn. 1978). They
are statements by counsel setting forth the contentions, views of the
facts and theories of the lawsuit that will be presented by each
party. The trial court did not err in holding that under the statute a
defendant has no right to reserve his opening statement until the
close of the State's evidence.
VI. Appointment of an Interpreter
The Defendant objected at trial to the State using
Jerry Lee as an interpreter for his paternal grandmother, Ging Sam
Lee. Defendant avers that the trial court erred in allowing Lee, who
was related to the victims Arthur Lee (brother), Amy Lee (sister-in-law)
and Kai Yin Chuey (grandmother), to act as interpreter during the
testimony of Ging Sam Lee, the only survivor of the robbery. Counsel
for Defendant contended that allowing Jerry Lee to act as interpreter
would be highly prejudicial to his client.
The State argued that counsel for Defendant had
been advised prior to trial that the State was forced to use Lee
because another translator could not be found. Ging Sam Lee does not
speak English and understands very little of the language. She speaks
a rural dialect of Chinese called "Hoi San" (phonetically). The trial
Judge conducted a jury-out hearing on the issue during which Jerry Lee
testified that the few people in this state who speak this rare
dialect do not speak English well.
On cross-examination by Defendant's counsel, Lee
was asked, "Can you clearly, faithfully, and appropriately translate
from your grandmother?" Jerry Lee responded: "I understand that this
will be recorded, and I will not add anything to it." When asked again
if he could be fair and impartial in the translation, he responded: "I
would not say anything more than what my grandmother will say."
The State argued at trial that the Defendant had
had ample opportunity "to find somebody to come in and dispute the
translation." On appeal the State argues that there was little
opportunity for mistranslation since, less than three months earlier,
Jerry Lee had translated Ging Sam Lee's testimony in a related case
before the same trial Judge. The State points out that the testimony
of Ging Sam Lee was limited, establishing only her presence at the
scene of the murders, her eyewitness identification of the Defendant
and one co-defendant, and the items of jewelry stolen from her person.
These were the same matters which Ging Sam Lee had testified about in
the trial of Hien Huynh, a former employee of the Jade East Restaurant
who had been charged as an accessory before the fact to the murders.
In that trial Huynh was found not guilty.
The trial court, in allowing Jerry Lee to serve as
a Chinese language interpreter for his grandmother, noted for the
record that Lee had performed his duties "in a neutral, detached way"
in the prior trial of Hien Huynh. Before translating, Lee swore that
he would translate from Chinese to English to the best of his ability
and skill. He then gave the oath to Mrs. Lee.
This is an issue of first impression in Tennessee.
Appointment of an interpreter of a witness's testimony in a criminal
case is a matter for the trial court's discretion subject to reversal
only for abuse of that discretion. We realize that it sometimes may be
necessary, as in this case, to appoint an interested interpreter where
no competent disinterested interpreter is available. However, the
better practice is to avoid appointing a friend or relative of a party
or witness as an interpreter. The court should attempt to appoint a
neutral, unbiased interpreter, one who has no interest in the outcome
of the trial. Almon v. State,
21 Ala. App. 466,
109 So. 371, 372 (Ala. Ct. App. 1926) (Disinterested
interpreter should be used when possible); Western & A.R. Co. v.
136 Ga. 46,
70 S.E. 798 (Ga. 1911) (Where possible, a
disinterested interpreter should be used); Kley v. Abell, supra at 628
(" most competent and least biased person should be appointed [as
interpreter]"); State In Interest of R. R., supra at 86 (Interpreters
should be disinterested because interested parties may distort
translations). In this case the trial Judge was satisfied that no
disinterested person was available who could adequately translate the
witness' testimony, and he was also convinced that Lee would give an
accurate and unbiased translation.
Because the Defendant has not demonstrated that the
translation was inaccurate, there has been no showing that Jerry Lee's
service as an interpreter caused any prejudice to the Defendant's
case. Ms. Lee's testimony and Jerry Lee's translation were recorded.
This audio recording of the trial proceedings was and is available to
both parties. The audio recording could have been verified by an
interpreter who may not have been available at trial. See Kay v. State,
260 Ark. 681,
543 S.W.2d 479 (Ark. 1976). However, this
has not been done and we are left to speculate as to the accuracy of
the translation. A party contending prejudice must show prejudice.
The voir dire examination of Jerry Lee established
his expertise in understanding the Chinese dialect spoken by his
grandmother. His own expertise with the English language had been
demonstrated during his earlier testimony. He also took an oath to
render a true translation to the best of his skill and ability.
Nothing in the record suggests that Jerry Lee failed to abide by his
oath. Although Tenn. R. Evid. 604 was not in effect at the time of
this trial (effective January 1, 1990), the requirements of the rule
were met and support the trial court's ruling on this issue.
VII. Admission of Revolver
The Defendant avers the trial court erred in
allowing a .22 caliber revolver into evidence at trial. The weapon had
been seized at the residence of Hien Huynh during the search of his
apartment. The Defendant objected to the admission of the revolver on
the ground that the proper predicate had not been laid. The Defendant
argues that "the weapon was in no way linked to the Defendant nor to
any of the co-defendants." The proof, however, clearly shows that the
Defendant stated he had shot two of the victims with a .22 caliber
revolver, which belonged to Huynh and which he returned to Huynh.
Spent .22 caliber casings were found at the restaurant, and a TBI
firearms examiner testified that two of the bullet fragments found
inside the bodies of Arthur Lee and Kai Yin Chuey could have been
fired from this revolver. Lee and Chuey were the two victims whom
Defendant admitted shooting. We find no error in the trial court's
admitting the revolver into evidence.
VIII. Admission of Video Tape
The Defendant also contends that the trial court
erred in admitting a videotape of the crime scene made by Officer
Garner of the homicide division, Memphis Police Department. The video
recording, taken during the early stages of the investigation before
the scene was disturbed, depicts the interior and exterior of the Jade
East Restaurant and shows the victims as they were found. At trial the
videotape was introduced through Officer Garner and played with sound
for the jury, over the Defendant's objections that the tape included
inadmissible narration and was inflammatory. While the trial court
agreed with the Defendant that the narration by Officer Garner
included inadmissible Conclusions, because the narration also told the
viewer what was being seen, rather than turning the volume off, the
trial court instructed the jurors that the narrator's Conclusions had
no weight or value and were to be disregarded. After the tape was
played, Officer Garner was cross-examined by the Defendant.
The admissibility of authentic, relevant videotapes
of the crime scene or victim is within the sound discretion of the
trial Judge, and his ruling on the admissibility of such evidence will
not be overturned without a clear showing of abuse of discretion.
State v. Teague,
645 S.W.2d 392, 397 (Tenn. 1983); see
also, State v. Bates, 804 S.W.2d 868, 878-879 (Tenn. 1991); State v.
791 S.W.2d 10, 19-20 (Tenn. 1990); State
v. Thompson, 768 S.W.2d 239, 248 (Tenn. 1989) (death penalty cases in
which videotapes of the crime scene and victim were used). See
generally Annot. 41 A.L.R.4th 877, § 11 (1985); Annot. 60 A.L.R.3d 333
In this case the trial court did not abuse its
discretion in admitting the visual portion of the videotape. The tape
is neither gruesome nor inflammatory and is highly probative as to the
condition and appearance of the crime scene. The trial court, however,
should not have allowed the jury to hear Officer Garner's narration.
Officer Garner made numerous conclusory statements. A sampling
includes: "[the dining room area] doesn't appear to be disturbed or
that anyone has been in this area"; "ring laying on floor appears to
have been dropped there during the robbery"; "two black boxes possibly
contained large amounts of jewelry, this room . . . appears to be
where the victims might have been prior to being killed"; "rear door
apparently where employees came in during daylight hours." The better
practice would have been for the trial court to have turned off the
volume and had Officer Garner narrate the tape from the witness stand.
We are of the opinion, however, that allowing the jury to hear the
narration was harmless error because the objectionable narration
pertained mainly to minor matters or facts established by proper
evidence elsewhere in the record and because of the clear evidence of
the Defendant's guilt as established by the other evidence.
IX. Admission of Photographs of Victim
The Defendant avers that the trial court erred in
admitting into evidence color photographs of the deceased victims
taken at the scene of the incident. The Defendant points out that
immediately prior to admitting these photographs, the court had
admitted an extensive color videotape showing the victim's bodies as
they were found. The Defendant argues that the photographs were
cumulative, gruesome and unfairly prejudicial, and contends that their
probative value was outweighed by their prejudicial effect. We do not
find the photographs excessively gruesome or unnecessarily cumulative.
The trial court did not abuse its discretion in admitting the
photographs. See State v. Banks,
564 S.W.2d 947 (Tenn. 1978).
X. Jury Instructions During Penalty Phase
The Defendant avers that the trial court erred in
instructing the jury during the penalty phase because the instructions
varied from the language of T.C.A. § 39-2-203. At the time of trial
Section 203 provided that a death sentence could be given if the
aggravating circumstances proved beyond a reasonable doubt were not
outweighed by any mitigating circumstances. T.C.A. § 39-2-203(g)
(1982)[now § 39-13-204(g)(1991)]. Alternatively, life was the
appropriate sentence where aggravating circumstances were outweighed
by one or more mitigating circumstances. T.C.A. § 39-2-203(f) [now §
The Defendant contends that the court erred in not
charging the language of the statute. The charge given by the court
was consistent with the recommended charge contained in the Tennessee
Pattern Jury Instructions (Criminal). The Pattern Jury Instructions
provide that aggravating circumstances must outweigh any mitigating
circumstances before a sentence of death can be imposed. T.P.I. (Crim.)
Instructions following the pattern instruction have
been previously approved by this Court despite the patterns' variance
from the statutory language. See, e.g., State v. Boyd,
797 S.W.2d 589, 597 (Tenn. 1990); State
746 S.W.2d 441, 451 (Tenn. 1988); see
also State v. Irick,
762 S.W.2d 121, 133 (Tenn. 1988) (cert.
489 U.S. 1072,
109 S. Ct. 1357, 103 L. Ed. 2d 825 (1989)
(encouraging trial courts to use the pattern instructions). We find no
error in this case.
The Defendant also avers that the trial court erred
in failing to instruct the jury that aggravating circumstances must
outweigh mitigating circumstances "beyond a reasonable doubt" or must
substantially" outweigh mitigating circumstances. The Defendant seems
to be arguing that the court's instruction left the jury without any
guidance as to the standard by which aggravating circumstances must
outweigh mitigating circumstances. This challenge has been previously
rejected. See, e.g., Boyd, 797 S.W.2d at 595; State v. Payne, 791 S.W.2d
10, 21 (Tenn. 1990); State v. Thompson, 768 S.W.2d. 239, 251-252 (Tenn.
XI. Mass Murder
The Defendant next avers that the trial court erred
by instructing the jury on the mass murder aggravating circumstance
found in T.C.A. § 39-2-203(i)(12)(1982)[§ 39-13-204(i)(12) (1991)].
That statutory provision reads as follows:
Defendant committed "mass murder" which is defined
as the murder of three or more persons within the State of Tennessee
within a period of forty-eight months, and perpetrated in a similar
fashion in a common scheme or plan.
In State v. Bobo,
727 S.W.2d 945 (Tenn. 1987), a majority
of this Court upheld the constitutionality of the mass murder
aggravating circumstance. The Defendant urges this Court to adopt the
Dissent in Bobo. This we recently refused to do in State v. Black,
815 S.W.2d 166 (Tenn. 1991), in which a
majority of this Court held the mass murder circumstance applicable to
a similar set of facts. In Black, the defendant murdered three persons
within a period of minutes. In the present case the killings were
committed by the Defendant and his accomplices within minutes, while
engaged in the commission of a robbery. In the guilt phase, the
Defendant was found guilty of the murders of Arthur Lee, Amy Lee and
Kai Yin Chuey. We find the trial court was not in error when it
charged the mass murder aggravating circumstance at the sentencing
XII. Cruel - Depravity of Mind
The Defendant avers that the trial Judge erred in
charging the jury that the murders were especially cruel in that they
involved depravity of mind. Aggravating circumstance T.C.A. §
39-2-203(i)(5)(1982)[§ 39-13-204(i)(5)(1991)] provides: "The murder
was especially heinous, atrocious, or cruel in that it involved
torture or depravity of mind." The trial court and the prosecutor
concluded that the murders did not involve torture. See, e.g., State
690 S.W.2d 517 (Tenn. 1985); State v.
621 S.W.2d 127, 139 (Tenn. 1981) (instantaneous
death by gunshot wound not torture). The Court, however, decided to
charge a portion of circumstance (5), because it felt that "when one
takes a pistol and puts it to somebody's head, there is a question of
cruelty and depravity of mind." The Court thereupon charged the jury
an edited form of (i)(5): "The murder was especially cruel in that it
involved depravity of mind." It then gave the Williams definition of
"cruel" and "depravity."
First, the Defendant contends that the court erred
by tailoring the language of circumstance (i)(5) so that it fit the
proof of his case. Defendant asserts that it was improper for the
court to "dissect" this circumstance by omitting "heinous" and "atrocious"
from its instruction. We have previously held that a trial court
should charge only those aspects of an aggravating circumstance
supported by the evidence in a case. See State v. Pritchett, 621 S.W.2d
at 140; cf. State v. Laney,
654 S.W.2d 383, 388-389 (Tenn. 1983)(trial
court should charge only those aggravating circumstances the evidence
supports). For example, the trial court in this case correctly deleted
"torture" from its instruction since none of the evidence supported a
finding of "torture" as that term has been defined. See, e.g., State
v. Williams, 690 S.W.2d at 529; State v. Pritchett, 621 S.W.2d at 139.
Less certain is the correctness of the trial
court's deletion of "heinous" and "atrocious" from the instruction. As
used in circumstance (i)(5), the three adjectives "heinous," "atrocious,"
and "cruel" are complementary. Although listed disjunctively, they
state a unitary concept defined and limited by "torture or depravity
of mind." See State v. Williams, 690 S.W.2d at 529. The better course
would be to instruct all three adjectives to further clarify the
nature of that type of murder addressed in circumstance (i)(5). Any
error in the omission in this case is harmless, however, because we
are convinced beyond a reasonable doubt that the failure to include "heinous"
and "atrocious" in the instruction had no effect on the result. See
Clemons v. Mississippi,
494 U.S. 738,
110 S. Ct. 1441, 1451, 108 L. Ed. 2d 725
The issue critical to a finding of aggravating
circumstance (i)(5) in the present case is whether the murder involved
"depravity of mind." The charge as given did not, as Justice
Daughtrey's Dissent concludes, direct the jurors' attention from the
state of the Defendant's mind at the time of the killing or mislead
the jury regarding what it must find to support a finding of this
aggravating circumstance. While the definitions of "heinous" and "atrocious"
are superficially more consonant with the concept of depravity,
nothing this Court said in Williams would limit "cruel" only to those
circumstances where torture occurs; and common sense makes no such
distinction. A state of mind may be described as "cruel." We find that
there is no reasonable likelihood that the jurors in this case were so
confused by the instruction that they were misdirected or misled
regarding the requirements that must be met before aggravating
circumstance (i)(5) could be found. Cf. Boyde v. California,
494 U.S. 370,
110 S. Ct. 1190, 1198, 108 L. Ed. 2d 316
(1990). (In jury deliberations "common sense understanding of the
instructions in the light of all that has taken place at the trial
likely to prevail over technical hairsplitting.")
We also do not agree with the Dissent that the
facts in this record fail to establish "cruelty" as defined in
Williams. One, like the Defendant, who could brutally execute a
helpless, elderly woman can readily be described as a person "disposed
to inflict pain or suffering" on another.
The Defendant next contends that the trial court
erred when it charged the jury aggravating circumstance (i)(5) because
the evidence does not support a finding of "depravity of mind." "Depravity"
as used in circumstance (i)(5) means "moral corruption; wicked or
perversive act"; it is not limited to the infliction of torture; and,
as just noted, the critical inquiry is the murderer's state of mind at
the time of killing. State v. Williams, 690 S.W.2d at 529. In State v.
Black, 815 S.W.2d 166, 182 (Tenn. 1991), a majority of this Court held
that the "brutal and senseless execution style murder of a helpless
child, who could not protect herself, evinces torture or depravity of
mind." In State v. Zagorski,
701 S.W.2d 808, 814 (Tenn. 1985), the
Court stated that the infliction of gratuitous violence and the
needless mutilation of victims already helpless from fatal wounds
indicated a depraved mind. See also State v. Williams, supra, 690 S.W.2d
at 528, citing State v. Gretzler,
135 Ariz. 42, 659 P.2d 1 (1983) (depravity
involves infliction of gratuitous violence on victim, senselessness of
crime and helplessness of victim).
In determining whether the evidence is sufficient
to support a finding of depravity, we must consider the three murders
separately. Arthur Lee was shot seven to eight times at close range
during the course of his struggle with Bounnam, Chung and the
Defendant. The cause of death was multiple gun shot wounds. The
Defendant confessed to inflicting two of the wounds. During the
struggle, when Lee tried to get the Defendant's gun, the Defendant
shot Lee, who fell. The Defendant immediately shot Lee again, in the
face, as he moved around on the floor. While the proof discloses that
Arthur Lee was intentionally and deliberately killed, it is
insufficient to establish "depravity of mind" beyond that found in any
first-degree murder. See State v. Pritchett, 621 S.W.2d 127, 139 (Tenn.
The record shows only that Amy Lee died as the
result of a single contact gunshot wound to the head. It is otherwise
silent regarding the circumstances of her death or her killer's state
of mind. As in the case of Arthur Lee, the evidence is insufficient to
establish "depravity of mind" under circumstance (i)(5).
Inasmuch as we find the evidence insufficient to
support one of the two aggravating circumstances found by the jury in
the murders of Arthur and Amy Lee, we proceed to a harmless error
analysis. See Clemons v. Mississippi, 494 U.S. 738, 110 S. Ct. 1441,
108 L. Ed. 2d 725 (1990). Under the principles set forth in State v.
813 S.W.2d 420, 424-425 (Tenn. 1991), we
hold that the jury's erroneous consideration of aggravating
circumstance (i)(5) was not harmless error. As in Terry, once the "especially
heinous, atrocious, or cruel" aggravating circumstance is removed from
the sentencing determination, only one aggravating circumstance
remains to be weighed against the substantial amount of mitigating
evidence presented in this case. The persuasive quality and weight of
the sole remaining aggravating circumstance is affected by the fact
that the defendant did not personally commit the murder of Amy Lee,
one of the murders necessary to support a finding of "mass murder"
under T.C.A. § 39-2-203(i)(12)(1982). Furthermore, although not the
aggravating circumstance most relied upon by the prosecution during
final argument at the penalty phase, the prosecution did briefly
emphasize the invalid aggravator in its closing argument. See Clemons
v. Mississippi, 494 U.S. at 753-754, 110 S. Ct. at 1451. The
prosecution also discussed this circumstance and the evidence
supporting it in great detail during opening statement at the
sentencing hearing. For these reasons we reverse Defendant's sentences
as to Amy and Arthur Lee and remand these two cases for re-sentencing.
The killing of Kai Yin Chuey does, however, evince
"depravity of mind" under State v. Black, supra. In her case we have a
helpless 74-year-old woman, who had already been shot by the Defendant
and was lying on the floor unable to protect herself when the
Defendant put a gun to the back of her head and shot her a second
time. We find the evidence of this brutal and senseless execution of a
helpless old woman sufficient to support this aggravating circumstance
in the murder of Kai Yin Chuey. See also State v. Harris,
839 S.W.2d 54 (Tenn. 1992); State v.
620 S.W.2d 467 (Tenn. 1981); Houston v.
593 S.W.2d 267 (Tenn. 1980).
XIII. Instructions by the Trial Court
The Defendant contends that the giving of an anti-sympathy
instruction violated his rights under the state and federal
constitutions. Similar arguments were rejected in State v. Boyd, 797
S.W.2d 589, 598 (Tenn. 1990); State v. Payne, 791 S.W.2d 10, 20 (Tenn.
1990); State v. Porterfield, 746 S.W.2d 441, 450 (Tenn. 1988) (citing
California v. Brown,
479 U.S. 538,
107 S. Ct. 837, 93 L. Ed. 2d 934 ).
The Defendant next avers that the trial court's
instructions at sentencing on unanimity of the verdict led the jury to
believe they must unanimously agree on mitigating circumstances in
violation of Mills v. Maryland,
486 U.S. 367,
108 S. Ct. 1860, 100 L. Ed. 2d 384
(1988), and Tenn. Const. Art. I, §§ 6, 9, 16 and 19. This argument was
raised and rejected in State v. Thompson, 768 S.W.2d 239, 250-251 (Tenn.
The Defendant also alleges that the instruction at
sentencing that "the sentence shall be death" violates the state and
federal constitutions because it inadequately informed the jury of its
discretion and can be interpreted as creating a mandatory death
penalty. This argument was rejected in State v. Boyd, 797 S.W.2d 589,
596-597 (Tenn. 1990).
The Defendant concludes by alleging that the trial
court erred by failing to instruct the jury that they should presume
the Defendant would actually serve a life sentence if sentenced to
life imprisonment. We held such an instruction to be improper in State
638 S.W.2d 342, 367 (Tenn. 1982). See
also State v. Payne, 791 S.W.2d 10, 21 (Tenn. 1990).
XIV. Constitutionality of Tennessee Death
Out of an abundance of caution the Defendant has
raised six issues challenging the constitutionality of the Tennessee
Death Penalty Statute upon various grounds, all of which have been
previously determined by this Court. The first contention is that the
"shall" language of the statute in T.C.A. § 39-2-203(i)(f) and (g)
violates Article I, § 19 of the Tennessee Constitution. This argument
was recently rejected in State v. Black, 815 S.W.2d 166 (Tenn. 1991).
The Defendant's next contention is that the death
penalty, as applied in Tennessee, is "cruel and unusual punishment"
under both the Eighth Amendment of the United States Constitution and
Article I, § 16 of the Tennessee Constitution. Defendant asks this
Court to adopt the Dissent of Justice Brock in State v. Dicks,
615 S.W.2d 126, 132-142 (Tenn. 1981). A
similar argument was made in Black, 815 S.W.2d at 188-91, and a
majority of this Court found no violation of either the state or
The Defendant avers that T.C.A. § 39-2-203 places
the burden of proof on the Defendant to prove that mitigating
circumstances outweigh aggravating circumstances. This proposition has
previously been considered and rejected in State v. Thompson, 768 S.W.2d
239, 251-252 (Tenn. 1989), and State v. Boyd, 797 S.W.2d 589, 595-596
The Defendant alleges that the statute
impermissibly interferes with the jury's discretion by creating a "presumption
of death." The statute specifically requires that the jury return a
sentence of life imprisonment if it determines that no statutory
aggravating circumstances have been proved beyond a reasonable doubt,
or that a statutory aggravating circumstance or circumstances have
been proved beyond a reasonable doubt but said circumstance or
circumstances are outweighed by one or more mitigating circumstances.
T.C.A. § 39-2-203(f). The statute authorizes the jury to return a
sentence of death only if the jury finds that the aggravating
circumstance or circumstances which have been proved beyond a
reasonable doubt are not outweighed by any mitigating circumstances.
T.C.A. § 39-2-203(g). There is no merit to this issue. See State v.
Boyd, 797 S.W.2d 589, 596-597 (Tenn. 1990).
The Defendant's next contention is that the
Tennessee Death Penalty Statute is unconstitutional because it fails
to apply the reasonable doubt standard to the sentencing determination.
This claimed defect is not constitution ally mandated. The Supreme
Court of the United States has repeatedly upheld the constitutionality
of "weighing" statutes such as the one adopted by Tennessee. See Gregg
428 U.S. 153,
96 S. Ct. 2909, 49 L. Ed. 2d 859 (1957);
Proffitt v. Florida,
428 U.S. 242,
96 S. Ct. 2960, 49 L. Ed. 2d 913 (1976);
and Jurek v. Texas,
428 U.S. 262,
96 S. Ct. 2950, 49 L. Ed. 2d 929 (1976);
see also State v. Payne, 791 S.W.2d 10, 20-21 (Tenn. 1990).
The Defendant next complains that the Tennessee
Death Penalty Statute does not sufficiently narrow the class of
persons eligible for the death sentence in the case of felony murder.
This Court recently addressed this issue in State v. Middlebrooks,
840 S.W.2d 317 (1992), and upheld the
validity of the death penalty under the felony murder statute. A
majority of the Court, however, found that T.C.A. §§ 39-2-203(i)(7)
(1982) and 39-13-204(i)(7) (1991) do not narrow the class of death
eligible murderers sufficiently under the Eighth Amendment to the
United States Constitution, and Article I, § 16 of the Tennessee
Constitution by using felony murder as an aggravating circumstance and
thereby duplicating the elements of the offense. The Court held that "it
would simply require that an aggravating circumstance other than that
in (i)(7) support the death penalty for a felony murder." In this case
the jury found two aggravating circumstances neither of which were
XV. Proportionality Review
Under T.C.A. § 39-13-206(c)(1)(D) [formerly T.C.A.
§ 39-2-205(c)(4)], this Court is charged with determining whether the
sentence of death in each capital case is excessive or
disproportionate to the penalty imposed in similar cases, considering
both the nature of the crime and the defendant. Because we find it
necessary to remand the cases involving the murders of Arthur and Amy
Lee for resentencing, we forego proportionality review in those cases.
However, we have examined the killing of Kai Yin Chuey and hold that
the penalty imposed in that case is not excessive or disproportionate
to the penalty imposed in comparable cases.
The murder of Kai Yin Chuey, as described earlier
in this opinion, involved the intentional and senseless killing of a
helpless, elderly victim during a robbery. We are not unaware that the
nature of the Defendant in this case initially compares favorably with
that of other defendants in similar capital cases. The Defendant here
had a good employment record as shown by the testimony of the
personnel manager and the Defendant's immediate supervisor at his
former place of employment. He cooperated with the F.B.I. and
expressed remorse for the killings. He is a young man with no prior
criminal background. We also recognize his personal history as the
child of a Vietnamese mother and an American father, his difficult
childhood, and educational problems.
Nevertheless, at the time of Kai Yin Chuey's death,
the Defendant had already knowingly and intentionally killed one
victim to effectuate a robbery. Whatever might be said about the
circumstances of the first killing, the record establishes that, after
the struggle with Arthur Lee had ended and the search for the money
and gold kept in the restaurant had begun, the Defendant chose without
provocation to shoot a second, unresisting victim in the back of the
head. We find imposition of the death penalty neither excessive nor
disproportionate in the present case under T.C.A. §
39-13-206(c)(1)(D). See, e.g., State v. Matson,
666 S.W.2d 41 (Tenn. 1984); State v.
632 S.W.2d 542 (Tenn. 1982); State v.
Simon, 635 S.W.2d 498 (Tenn. 1982); State v. Houston, 593 S.W.2d 267 (Tenn.
Pursuant to the directives of § 39-2-205(c)(4) [as
amended now § 39-13-206(c)(1)], we further find that the sentence of
death in the case of Kai Yin Chuey was not imposed in an arbitrary
fashion; that the evidence supports the jury's findings of two
statutory aggravating circumstances; and that the evidence supports
the jury's finding of the absence of any mitigating circumstances
sufficiently substantial to outweigh the aggravating circumstances so
found. We therefore affirm the sentence of death in the case of Kai
In summary, we affirm Defendant's convictions of
felony murder as to Amy Lee and Arthur Lee but reverse his sentences
in those cases and remand for resentencing. We affirm both Defendant's
conviction of felony murder and his sentence of death as to Kai Yin
The sentence of death will be carried out as
provided by law on the 7th day of December, 1993, unless otherwise
ordered by this Court or by other proper authority. Costs are adJudged
against the Defendant.
FRANK F. DROWOTA, III
O'Brien and Anderson, JJ.
Reid, C.J., Concurring and Dissenting in separate
Daughtrey, J., Dissenting in separate opinion.
CONCURRING AND DISSENTING OPINION
I concur with the majority's holdings that the
three convictions of first degree murder be affirmed and that the
sentences of death for the murders of Amy Lee and Arthur Lee be
reversed, because the evidence is insufficient to support a finding
that they were especially heinous, atrocious, or cruel. T.C.A. §
I also would reverse the sentence of death for the
murder of Kai Yin Chuey and impose a sentence of life imprisonment
upon each conviction, for the reasons stated in Justice Daughtrey's
Dissent and for the additional reasons that the evidence is
insufficient to support the aggravating circumstance of mass-murder,
T.C.A. § 39-13-204(i)(12) (1991) (formerly T.C.A. § 39-2-203(i)(12)
(1982)), the proof does not establish that the defendant was death-eligible
under the holding of State v. Middlebrooks, 840 S.W.2d 317 (Tenn.
1992), and the sentence of death is disproportionate to the penalty
imposed in similar cases, T.C.A. § 39-13-206(c)(1)(D) (1991) (formerly
T.C.A. § 39-2-205(c)(4) (1982)).
The evidence summarized in the majority opinion
shows that the homicides were committed during a melee that resulted
when the four victims forcibly resisted the three would-be robbers
turned murderers. The brawl began when one victim, Arthur Lee, grabbed
robber Bounnam's hand and elbowed him in the chest. Bounnam fell
against another victim, "the old lady," who in turn fell against the
defendant, "causing the gun to go off." Arthur Lee then kicked robber
Chung causing him to "shoot one or two times." Then Arthur Lee was
shot by Chung when he "tried to grab the gun." When the defendant told
Mr. Lee not to try for Chung's gun, Mr. Lee "tried to get [the
defendant's] gun" and the defendant shot him. Mr. Lee fell, but "was
moving around" and the defendant shot him again. When the defendant
walked into another room, he saw the "old lady roll over." He "thought
she had something in her hand" and shot her in the head. Upon leaving
the room, the defendant saw Bounnam holding Ging Sam Lee and "told
Bounnam not to hurt her." There is no evidence in the record as to who
killed Amy Lee, only that she died of a single gunshot wound.
The record shows that the defendant initially
intended to rob, not kill. This intent is demonstrated by three
incidents that occurred during the event: when the defendant told
Arthur Lee not to grab Chung's gun; when he shot the "old lady" only
because he thought she had something in her hand; and when he told
Bounnam not to hurt Ging Sam Lee. The absence of intent to kill is
reflected in the jury's verdict of not guilty on the three charges of
premeditated murder, and in the jury's finding that the evidence did
not support the charge of aggravating circumstance (i)(3), that the
defendant knowingly created a great risk of death to two or more
persons other than the victim during his act of murder.
The majority opinion recognizes that these facts
are not sufficient to support the sentence of death as to Arthur Lee
or Amy Lee. The evidence found by the majority to be sufficient to
justify the death sentence for the murder of Kai Yin Chuey, the victim
identified by the defendant as the "old lady," was that she "was lying
on the floor unable to protect herself when the defendant put a gun to
the back of her head and shot her." Omitted from this account is the
defendant's statement that he "thought she had something in her hand."
In any event, these facts do not establish a constitutional basis for
imposing a sentence of death.
That mass-murder as an aggravating circumstance is
unique to Tennessee may be seen as an indication of its lack of
usefulness in determining those first-degree murderers who are
deserving of death as a punishment. A majority of this Court, after
essentially re-writing the statute, found the aggravating circumstance
of mass murder to be constitutional in State v. Bobo, 727 S.W.2d 945 (Tenn.
1987). Again, a majority of this Court found in State v. Black, 815
S.W.2d 166, 184 (Tenn. 1991) that mass murder as an aggravating
circumstance may be applicable to multiple murders "committed close in
time." However, neither the language of the statute nor either case
demonstrate how this circumstance has, in the words of the Dissent in
Bobo, 727 S.W.2d at 957, added anything of "substance" to the process
of narrowing the class of death-eligible murderers. Since its use in
this case added nothing to the constitutionally required procedure,
reliance upon mass murder as justification for the sentence of death
was error of constitutional dimension. Middlebrooks v. State, 840 S.W.2d
For the reasons stated above and also those stated
in Justice Daughtrey's Dissent, the facts of this case do not show
that the defendant is a member of the death-eligible class of
murderers. In Middlebrooks v. State, the Court articulated the
standards of proof required to impose a sentence of death. The Court
found that the imposition of a sentence of death upon a conviction of
felony murder does not, per se, violate the constitutional prohibition
against cruel and unusual punishment. Id. at 323. However, in that
case the Court also found that for a sentence of death to be valid,
the aggravating circumstances must in fact narrow the class of death-eligible
persons. The Court stated as follows:
As a constitutionally necessary first step under
the Eighth Amendment, the Supreme Court has required the states to
narrow the sentencers' consideration of the death penalty to a smaller,
more culpable class of homicide defendants than the pre-Furman class
of death-eligible murderers. A state, however, must not only genuinely
narrow the class of death eligible defendants, but must do so in a way
that reasonably justifies the imposition of a more severe sentence on
the defendant compared to others found guilty of murder. A proper
narrowing device, therefore, provides a principled way to distinguish
the case in which the death penalty was imposed from the many cases in
which it was not, and must differentiate a death penalty case in an
objective, even-handed, and substantially rational way from the many
murder cases in which the death penalty may not be imposed. As a
result, a proper narrowing device insures that, even though some
defendants who fall within the restricted class of death-eligible
defendants manage to avoid the death penalty, those who receive it
will be among the worst murderers--those whose crimes are particularly
serious, or for which the death penalty is peculiarly appropriate.
Id. at 343 (citations omitted).
The aggravating circumstances found by the jury in
this case do not, in fact, narrow the class of death-eligible
defendants, and the imposition of the sentence of death violates the
constitutional prohibition against cruel and unusual punishment.
I also would hold that the majority's comparative
proportionality review does not meet the standards set forth in T.C.A.§
39-13-206(c)(1)(D), which requires a consideration of "both the nature
of the crime and the defendant." See State v. Harris, 839 S.W.2d 54,
84-85 (Tenn. 1992) (Reid, C.J., Dissenting). The proportionality
review in this case is entirely conclusory. It merely recites, in
summary fashion, the facts of the killing and then states as
justification for the sentence of death, that "the defendant chose
without provocation to shoot a second, unresisting victim in the back
of the head." Even here, the majority omits, perhaps as being
immaterial, that the defendant thought the victim had something in her
hand. The record falls far short of establishing the crime to be, in
comparison with other first-degree murders, one of the most egregious.
The defendant, as a person, obviously is not one of
the worst of the bad. He is a native of Vietnam and, at the time the
murders were committed, he was 20 years of age. He was the child of a
Vietnamese woman and an American soldier who died in Vietnam in 1968.
When the defendant was a small child, he was very sick and did not
talk until he was six years of age. According to the clinical
psychologist and professor of psychiatry at the University of
Tennessee Medical School who had interviewed and tested the defendant,
the defendant described to him a very difficult childhood in Vietnam,
where he had lived in an orphanage and also with an aunt, who
disciplined him by tying him naked to a tree where ants bit him.
According to his account to the psychiatrist, the defendant had lived
for some time on the street and had become exposed to marijuana at an
early age. He stopped school when Saigon fell in 1975.
Under the auspices of a program sponsored by the
Catholic Church, the defendant and his mother arrived in Memphis in
1983, when he was 17 years of age. He dropped out of school after one
year. His American sponsor, Mrs. Mitchell, testified that the
defendant lived with her for one and a half years, during which time
he cooked and cared for Mrs. Mitchell, who was ill with cancer, and
her children. She described the defendant as "very, very humble" and
honest. The personnel manager of the defendant's former employer and
his immediate supervisor described him as a very good employee,
responsible and well-mannered. An FBI agent testified that he had
cooperated with the FBI in their search for Chung and Bounnam. The
defendant had no prior criminal record or history of arrest. The
psychiatrist described the defendant as depressed, suffering from low
esteem, and truly remorseful for the crimes he had committed. This is
not the portrait of a person for whom, pursuant to a rigorous and
searching proportionality review, the death sentence is warranted.
The process followed by the majority in its
proportionality review and the proof relied upon in affirming the
sentence of death are further subject to the criticisms made in
Middlebrooks v. State, 840 S.W.2d at 354-55 (Reid, C.J., Concurring
I would reverse the sentence of death and impose
three sentences of life imprisonment.
Lyle Reid, C.J.
There are several aspects of this appeal that are
troubling. In my judgment, the trial court's failure to permit
individual voir dire of the jury under the circumstances of this case
(or to change the venue of the trial), the failure to mute the audio
portion of the videotape of the crime scene when it was shown to the
jury, and the failure to provide an independent, unbiased interpreter
for the only eye-witness who testified at trial constitute such
substantial errors that they cannot be brushed aside as merely
harmless, especially in a case in which the death penalty is sought.
These errors undermine confidence in the integrity of the defendant's
conviction for first-degree murder. But, the single most obvious (and
prejudicial) error in the record now before us is the trial court's
faulty instruction to the jury at the sentencing phase of the trial,
regarding the basis for imposition of the death penalty.
At the time of this trial, the aggravating
circumstance in question, T.C.A. § 39-2-203(i)(5) (1982), encompassed
a murder that was "especially heinous, atrocious, or cruel in that it
involved torture or depravity of mind." Having correctly concluded
that, under Tennessee law, the murders for which Heck Van Tran had
been convicted did not involve "torture," the trial Judge truncated
the statutory language of subsection (i)(5) and charged the jury that
it could find as an aggravating circumstance that the murder of each
victim "was especially cruel in that it involved depravity of mind."
Many challenges for vagueness and overbreadth have
been mounted against Tennessee's "heinous, atrocious and cruel"
aggravating circumstance, beginning as early as 1981. See e.g., State
v. Dicks, 615 S.W.2d 126, 131-32 (Tenn. 1981). None, so far, have been
successful. Perhaps the most complete Discussion of circumstance
(i)(5) to date is found in State v. Williams, 690 S.W.2d 517 (Tenn.
1985), in which the Court based its interpretation of the language of
circumstance (i)(5) on dictionary definitions of the terms found in
that subsection of the statute, as follows:
The words of the statute must be given their
ordinary and natural meaning. In determining that meaning, we refer to
the American Heritage Dictionary of the English Language where we find
the following definitions:
Heinous - "Grossly wicked or reprehensible;
abominable; odious; vile."
Atrocious - "Extremely evil or cruel; monstrous;
exceptionally bad; abominable."
Cruel - Disposed to inflict pain or suffering;
causing suffering; painful."
Torture: - "The infliction of severe physical pain
as a means of punishment or coercion; the experience of this; mental
anguish; any method or thing that causes such pain or anguish; to
inflict with great physical or mental pain."
Depravity - "Moral corruption; wicked or perverse
Our statute provides that it is the murder which
must be especially heinous, atrocious, or cruel. The second clause of
this statutory provision, viz., ". . . in that it involved torture or
depravity of mind," qualifies, limits and restricts the preceding
words "especially heinous, atrocious or cruel." This second clause
means that to show that the murder was especially heinous, atrocious
or cruel the State must prove that it involved torture of the victim
or depravity of mind of the killer.
"Torture" means the infliction of severe physical
or mental pain upon the victim while he or she remains alive and
conscious. In proving that such torture occurred, the State,
necessarily, also proves that the murder involved depravity of mind of
the murderer, because the state of mind of one who willfully inflicts
such severe physical or mental pain on the victim is depraved.
However, we hold that "depravity of mind" may, in
some circumstances, be shown although torture, as hereinabove defined,
did not occur. If acts occurring after the death of the victim are
relied upon to show depravity of mind of the murderer, such acts must
be shown to have occurred so close to the time of the victim's death,
and must have been of such a nature, that the inference can be fairly
drawn that the depraved state of mind of the murderer existed at the
time the fatal blows were inflicted upon the victim. This is true
because it is "the murderer's state of mind at the time of the killing
" which must be shown to have been depraved. (Emphasis supplied.)
State v. Lujan, supra; State v. Ortiz, supra.
Williams, 690 S.W.2d at 529-30.
From this Discussion, it can be gleaned that there
are two aspects to circumstance (i)(5) -- one objective and the other
subjective. In order to establish that a murder is "cruel," it must be
shown that objective conduct by the defendant resulted in "torture" to
the victim. On the other hand, to demonstrate that it is "heinous or
atrocious," the proof must establish the defendant's "depravity" as a
subjective state of mind. Cf. State v. Graham,
135 Ariz. 209, 212, 660 P.2d 460, 463
(1983), in which the Arizona Supreme Court, interpreting a similar
statutory provision, held that "cruelty" involves the pain and
distress visited on the victim, while the terms "depraved" and "heinous"
go to the perpetrator's mental state and attitude, as reflected in his
words and actions.
According to Williams, the "apples" of objectivity
can be mixed with the "oranges" of subjectivity, but only to a limited
extent: torture can be used to establish depravity of mind, on the
theory that one must be depraved to engage in the torture of another
human being. But there is nothing in Williams that would authorize the
specific instruction given the jury in this case, i.e., that cruelty
could be shown by nothing more than "depravity of mind." In this
convolution of subsection (i)(5), the subjective state of mind would
be used to establish the existence of an objective result, cruelty,
and would thus, proverbially, "mix apples with oranges."
Such a result is clearly improper. Cruelty, as
defined in Williams, requires the infliction of pain and suffering, or
torture. It is not defined by Williams in the same terms as depravity
of mind, although heinousness and atrocity are. Moreover, in
legislative action that appears to concede the vague nature of the
term "depravity," the Tennessee General Assembly eliminated that
element of circumstance (i)(5) in 1989 and reworded the subsection so
that it now reads: "The murder was especially heinous, atrocious, or
cruel in that it; involved torture or serious physical abuse beyond
that necessary to produce death. " T.C.A. § 39-13-204 (i)(5) (Supp.
1990)(emphasis added). Thus, an entirely subjective standard may no
longer be used as the basis for imposition of the death penalty in
The new, wholly objective standard is obviously an
improvement, in terms of clarity and rationality. But it may do no
more than restate what has been the law in Tennessee since the Court
first passed on the constitutionality of circumstance (i)(5) in 1981,
in State v. Dicks. In that case, the Court noted that Tennessee's "heinous,
atrocious and cruel" circumstance was similar to those in Florida and
Georgia that had been approved by the United States Supreme Court in
Gregg v. Georgia, 428 U.S. 153, 49 L. Ed. 2d 859, 96 S. Ct. 2909
(1976), and Proffitt v. Florida, 428 U.S. 242, 49 L. Ed. 2d 913, 96 S.
Ct. 2960 (1976). Going farther, we specifically "approved" the
construction placed on the Florida statute by the Florida Supreme
Court in State v. Dixon,
283 So. 2d 1, 9 (Fla. 1973), to the
effect that this type of aggravating circumstance was directed at "the
conscienceless or pitiless crime which is unnecessarily torturous to
the victim." Dicks, 615 S.W.2d at 131-32.
There was no proof of "unnecessary torture" or
excessive physical abuse of the victims in this case. The proof shows
that Amy Lee was shot once in the head, "execution style"; Kai Yin
Chuey suffered a potentially fatal wound to her throat and at about
the same time was fatally shot in the back of the head, "execution-style,"
by the defendant. The two women were rendered immediately unconscious
by these wounds. Arthur Lee suffered eight bullet wounds as the result
of his attempts to seize his assailants' guns. The defendant admitted
shooting Lee point blank in the head, which would have rendered Lee
immediately unconscious. Hence, the killing of Arthur Lee does not
involve "depravity of mind" beyond that found in any first-degree
murder. Indeed, the fact that the defendant told Bounnam not to kill
Ging Sam Lee and the fact that the shooting may have been precipitated
by Arthur's struggle are both factors against a finding of "depravity."
As previously noted, the facts in this record do
not establish "cruelty," as that term is defined in Williams to
require the infliction of pain and suffering. Certainly they do not
meet the test of State v. Dixon. Rather, in this case, if where there
was no "torture" shown (and thus the sole basis for an instruction
under subsection (i)(5) was the defendant's alleged "depravity of mind"),
and where the victims did not suffer pain beyond that experienced in
any death by gunfire, the more applicable terms in (i)(5) would have
been "heinous" and "atrocious," rather than "cruel." By truncating the
instruction as he did, the trial Judge may have confused the jury.
Certainly, this flawed instruction, coupled with Dr. Smith's testimony,
may well have directed the jurors' attention away from the state of
the defendant's mind at the time of the murders, which was ostensibly
the relevant aspect of the charge, and directed it toward the physical
effect of murder on the victims, which, strictly speaking, was not
But even if this confusion of terms in the
instruction could be overlooked, as the majority proposes, there
remains a serious constitutional question about reliance on a
defendant's "depravity of mind" as a circumstance supporting
imposition of the death penalty. As noted previously, we have defined
depravity in only the vaguest of terms, as conduct evincing "moral
corruption" or constituting a "wicked or perverse act." Williams, 690
S.W.2d at 529. We have developed no standards for determining the
existence of a depraved, morally corrupt, wicked or perverse act,
other than to say that it is necessarily proven whenever the state
proves torture of the victim, and that it "may, in some circumstances,
be shown although torture, as hereinabove defined, did not occur." Id.
(emphasis added). Based on Tennessee case law, that is all we know
about what is legally required to prove "depravity," except for the
ruling in Williams that depraved acts occurring after death "must be
shown to have occurred so close to the time of the victim's death, and
must have been of such a nature, that the inference can be fairly
drawn that the depraved state of mind of the murderer existed at the
time the fatal blows were inflicted upon the victim." Id. at 530. Of
course, this latter restriction governs the timing of a "wicked act"
alleged to reflect depravity, but it adds nothing that would help a
fact-finder determine whether the murder in question was actually the
product of a depraved mind, that is, whether it was "morally corrupt"
Because the "depravity of mind" prong of aggravated
circumstance (i)(5) is so vague, the instruction given in this case
allowed the jury to exercise the sort of unguided discretion condemned
by the United States Supreme Court in Godfrey v. Georgia,
446 U.S. 420, 64 L. Ed. 2d 398,
100 S. Ct. 1759 (1980), and Maynard v.
486 U.S. 356, 100 L. Ed. 2d 372,
108 S. Ct. 1853 (1988). In Godfrey, the
defendant murdered his wife and mother-in-law with single shotgun
blasts. The prosecutor did not allege that torture occurred, yet
sought the death penalty under Georgia's statute permitting it when a
murder is "outrageously or wantonly vile, horrible or inhuman in that
it involved torture, depravity of mind, or an aggravated battery to
the victim." The jury sentenced the defendant to death based on a
truncated version of the statute, stating that the murders were "outrageously
or wantonly vile, horrible and inhuman." In its review, the United
States Supreme Court found that the jury's version of the statute was
an unconstitutional basis for imposing the death penalty, because
there is "nothing in these few words, standing alone, that implies any
inherent restraint on the arbitrary and capricious infliction of the
death sentence." Id. at 428. Holding that Godfrey's "crimes cannot be
said to have reflected a consciousness materially more 'depraved' than
that of any person guilty of murder," the Court reversed the death
sentence. Id. at 443. The Court concluded that "there is no principled
way to distinguish this case, in which the death penalty was imposed,
from the many cases in which it was not." Id.
In Maynard v. Cartwright, another shotgun murder
not involving torture or aggravated battery of the victim, the Court
found Godfrey to be "very relevant" as it reviewed Oklahoma's statute
allowing a death sentence to be imposed for murders that are "especially
heinous, atrocious, or cruel." The Court observed that Furman v.
408 U.S. 238, 313, 33 L. Ed. 2d 346,
92 S. Ct. 2726 (1972), requires "the
channeling and limiting of the sentencer's discretion in imposing the
death penalty." See Maynard, 486 U.S. at 362. It further noted that
Godfrey "rejected the submission that a particular set of facts
surrounding a murder, however shocking they might be, were enough in
themselves, and without some narrowing principle to apply to those
facts, to warrant the imposition of the death penalty." Id. at 363.
The Court in Maynard ultimately held that the Oklahoma statute "gave
no more guidance than the . . . language that the jury returned in its
verdict in Godfrey, " and that appellate review of the facts "did not
cure the constitutional infirmity of the aggravating circumstance." Id.
It is true that since the release of Maynard, we
have reviewed and upheld the constitutionality of circumstance (i)(5)
against challenges for vagueness, distinguishing the Tennessee statute
on the theory that it, unlike the Georgia and Oklahoma statutes,
qualified the terms "heinous, atrocious or cruel" by requiring a
finding of "torture or depravity of mind" to support the existence of
the circumstance. See, e.g., Williams, 690 S.W.2d at 527; State v.
793 S.W.2d 236, 251 (Tenn.), cert. denied,
498 U.S. 1007, 112 L. Ed.
111 S. Ct. 571 (1990); State v. Henley,
774 S.W.2d 908, 918 (Tenn. 1989), cert
497 U.S. 1031 (1990); and State v.
Thompson, 768 S.W.2d 239, 252 (Tenn. 1989), cert. denied, 497 U.S.
1031, 111 L. Ed. 2d 796,
110 S. Ct. 3288 (1990). This distinction
may be sound, to the extent that "torture" can be defined in terms
that will guide the jury in making a subsection (i)(5) determination.
It is not valid in a case, like the one now before us, in which the
jury is asked to determine only whether the record reflects "depravity
of mind" and in which that term is defined for the jury in the
amorphous terms of Williams, i.e., "wickedness," "perversity," and
"moral corruption." Such undefined (and apparently indefinable) terms,
without explication of what factor or factors must be present in order
to establish depravity, renders the Tennessee capital punishment
scheme unconstitutionally vague, to the extent that a sentence is
based on circumstance (i)(5).
Recent rulings by the United States Supreme Court
indicate that when a capital case is submitted to a jury on
alternative theories, the unconstitutionality of any of the theories
requires that the conviction or verdict be set aside where the
reviewing court is uncertain as to which theory was relied on the by
the jury in reaching its verdict. See e.g., Shell v. Mississippi, 498
U.S. 1, 3, 112 L. Ed. 2d 1,
111 S. Ct. 313 (1990) (Marshall, J.,
Concurring); Mills v. Maryland, 486 U.S. 367, 376-7, 100 L. Ed. 2d
384, 108 S. Ct. 1860 (1988); Leary v. United States,
395 U.S. 6, 30-32, 23 L. Ed. 2d 57,
89 S. Ct. 1532 (1969); Stromberg v.
283 U.S. 359, 75 L. Ed. 1117,
51 S. Ct. 532 (1931).
Except for the Discussion in Williams, this Court
has never expressly set forth any standards for what must be shown to
establish depravity of mind. Other than abuse of the body close to the
time of death, State v. O'Guinn, 709 S.W.2d 561, 567-568 (Tenn.), cert.
479 U.S. 871 (1986); State v. Williams,
690 S.W.2d at 529-530, the Court, in determining if depravity of mind
has been proved, has referred to "vicious and massive stab wounds" to
the body, State v. Miller,
771 S.W.2d 401, 405 (Tenn. 1989), cert
denied, 497 U.S. 1031 (1990); repeated striking of the victim, State
v. Melson, 638 S.W.2d 342, 367 (Tenn. 1982), cert. denied,
459 U.S. 1137, 74 L. Ed. 2d 983,
103 S. Ct. 770 (1983); the senselessness
of the killing, State v. Thompson, 768 S.W.2d 239, 252 (Tenn. 1989),
cert. denied, 497 U.S. 1031, 111 L. Ed. 2d 796, 110 S. Ct. 3288
(1990); and the gratuitous infliction of violence and needless
mutilation of a fatally wounded and helpless victim, State v. Zagorski,
701 S.W.2d 808, 814 (Tenn. 1985), cert. denied,
478 U.S. 1010, 92 L. Ed. 2d 722,
106 S. Ct. 3309 (1986), as evidence of
depravity. The Oklahoma court's similar description of the killing,
however, was found not to cure the constitutional infirmity of the
aggravating circumstance in Maynard v. Cartwright, 486 U.S. 356, 100
L. Ed. 2d 372, 108 S. Ct. 1853.
The majority in this case refers to the botched
(i)(5) jury instruction as harmless error. However, it is apparent
from the United States Supreme Court decisions that the sentencer in a
capital trial (the jury in Tennessee) must be adequately informed of
the constitutionally limiting construction of a vague term used as a
capital aggravator. See Shell v. Mississippi, 498 U.S. 1, 112 L. Ed.
111 S. Ct. 313; Maynard v. Cartwright,
486 U.S. 356, 100 L. Ed. 2d 372,
108 S. Ct. 1853; Godfrey v. Georgia, 446
U.S. 420, 64 L. Ed. 2d 398, 100 S. Ct. 1759. Where a sentencer in a "weighing"
state, one that requires the weighing of aggravating and mitigating
factors, weighs an invalid circumstance, the Eighth Amendment is
violated. Espinosa v. Florida,
112 S. Ct. 2926, 2928 (1992); Clemons v.
Mississippi, 494 U.S. 738, 752, 108 L. Ed. 2d 725, 110 S. Ct. 1441
(1990). An aggravating circumstance is invalid if its description is
so vague as to leave the sentencer without sufficient guidance for
determining the presence or absence of the factor. Stringer v. Black,
112 S. Ct. 1130, 1140 (1992).
It is possible for an appellate court in a weighing
state like Tennessee to affirm the death penalty, but it can do so
only by constitutional harmless error analysis or a reweighing of
aggravating and mitigating circumstances at the trial or appellate
level. Stringer v. Black, 112 S. Ct. at 1137; Clemons v. Mississippi,
494 U.S. at 750-3. The appellate court must make a thorough analysis
of the role the invalid aggravating circumstance played in the
sentencing process and may not automatically assume that the invalid
factor has not infected the weighing process. Stringer v. Black, 112
S. Ct. at 1136-7, At the present time, the United States Supreme Court
has indicated that it will require that the process by which the
appellate court in a weighing state examines a death sentence skewed
by an invalid mitigator must be clearly stated and explained. See
Richmond v. Lewis,
113 S. Ct. 528 (1992) (reweighing);
Sochor v. Florida,
112 S. Ct. 2114, 2123 (1992) (appellate
court must clearly indicate that harmless error analysis is being
made); see also Clemons v. Mississippi, 494 U.S. at 753 (under certain
circumstances "it would require a detailed explanation based on the
record" for the Court to agree that the error in giving the "especially
heinous" instruction was harmless). To the extent that Williams
appears to have defined "torture" in specific terms that can be
explained to a jury, circumstance (i)(5) may be upheld as
constitutional. But where, as here, "depravity of mind" is the only
basis submitted to the jury to support a finding under subsection
(i)(5), the constitutional validity of the resulting sentence is
highly doubtful, in the absence of a consistent standard that can be
applied to determine whether the murder resulted from "depravity."
None has been developed by the Court to date -- certainly none was
supplied to the jury in this case -- and given the fact that the "heinous,
atrocious or cruel" circumstance was submitted on the "depravity of
mind" prong only, the sentence in this case should not be permitted to
As pointed out above, the Tennessee General
Assembly has implicitly recognized the uncertainty inherent in the "depravity"
language formerly found in subsection (i)(5), and has substituted
substituted a new, objective standard, as follows:
The murder was especially heinous, atrocious, or
cruel in that it involved torture or serious physical abuse beyond
that necessary to produce death.
T.C.A. § 39-13-204(i)(5) (Supp. 1990) (emphasis
added). This change constitutes sound policy, and I believe that it
should be recognized as a constitutional mandate by this Court and
applied in this case.
The result would be a remand for resentencing under
a proper subsection (i)(5) instruction, at least as to those counts in
which the proof is arguably sufficient to support the death penalty.
Otherwise, the proper procedure would be for the Court to set aside
the sentences of death set in the trial court and impose life
sentences against the defendant.
For these reasons, I respectfully Dissent from the
Martha Craig Daughtrey, Justice.
Heck Van Tran