On March 18, 1986, Stephen West, 23, and Ronnie
Martin, 17, were arrested for the murders of Wanda and Sheila Romines.
West was ultimately sentenced to death in 1987 for the murders though
his co-defendant confessed to being the actual killer. However,
because Martin was a juvenile at the time, he was ineligible to
receive the death penalty so he received two life sentences instead.
West and Martin left work at McDonalds in Lake City,
Tennessee, on March 17 and went driving around and drinking in Martin’s
car for several hours. They drove to the home of Sheila Romines, a
classmate of Martin’s who had previously rejected his unwanted
advances. At approximately 5:20 a.m. after Mr. Romines left for work,
Martin knocked on the door with West standing nearby. When the door
was opened, the two then made their way into the house. Between the
hours of 6:00 a.m. and 8:30 a.m., Wanda and Sheila were brutally
murdered. Sheila was raped before she was killed.
The two defendants were tried separately. The
State prosecuted West first. West admitted that he was present with
Martin during the commission of the crimes but denied any
participation in Wanda and Sheila’s deaths. Furthermore, the trial
judge did not allow the jury to hear a tape recording of Martin
confessing to both murders while he was in custody at the jail. On
the tape, Martin discusses his involvement in the crimes with another
inmate and says plainly that he, Martin, killed both women.
No court, state or federal, has ever reviewed West’s
claim that extensive mitigating evidence was never presented at his
trial due to trial counsel’s ineffectiveness. West was the subject of
constant, severe child abuse when he was growing up in a family with a
history of psychiatric illness. In fact, he was born in a mental
institution as his mother was hospitalized at the time. He was
constantly beaten, and his alcoholic father disavowed paternity. None
of this evidence was ever presented to West’s jury because his
attorneys never investigated the issue and were further taking
marching orders from West’s mother, who had hired the lead attorney.
West also had no criminal record at the time of his arrest.
Finally, since 2001, prison officials have
recognized that West suffers from severe mental illnesses that include
auditory hallucinations. Psychological evidence shows that West was
more likely to be a follower who was easily influenced by the more
aggressive Martin. In response to repeated and severe childhood
abuse, West could become a very passive person, susceptible to breaks
with reality in situations of extreme stress.
Prison doctors have diagnosed West as suffering
from major depressive disorder with psychotic features, paranoid
schizophrenia, and schizoaffective disorder. West is prescribed
powerful medications to combat the symptoms of these illnesses. It is
likely that West’s mental illnesses were present long before prison
doctors diagnosed him and could have affected his conduct at the time
of the crime.
No one denies that Stephen West was present during
the commission of these brutal crimes. However, the disparate
sentences received by the defendants provide further evidence of the
arbitrary nature of the death penalty, particularly considering that
the evidence now points to Martin as the leader and the aggressor. It
is patently unfair and disturbing that Stephen West could receive the
death penalty because his co-defendant was ineligible for it.
February 6, 1989
STATE OF TENNESSEE, APPELLEE
STEPHEN MICHAEL WEST, APPELLANT
Union Criminal, SC # 3, Honorable Lee Asbury, Judge
Petition to Rehear Denied March 27, 1989
Wm. H. D. Fones, Justice, Harbison, C.j., Cooper,
Drowota, O'Brien, JJ.
The opinion of the court was delivered by: Fones
WM. H. D. FONES, Justice
A jury in Union County found defendant guilty of
first degree premeditated murder of Wanda Romines and her daughter
Sheila Romines, aggravated kidnapping of Wanda and Sheila Romines and
aggravated rape of Sheila Romines. At the sentencing hearing the jury
found three aggravating circumstances applicable to both victims, to-wit:
the murders were especially heinous, atrocious or cruel; they were
committed to avoid arrest or prosecution; and they were committed
while the defendant engaged in committing first degree murder, rape or
kidnapping. See subsections 5, 6 and 7 of T.C.A. § 39-2-203(i).
Defendant was sentenced to death for each murder and to forty years
imprisonment on each of the three convictions for rape and kidnapping.
These brutal murders were committed by defendant
West and Ronnie Martin at the Romines' home in the Big Ridge community
of Union County, between 6:00 a.m. and 8:30 a.m. on 17 March 1986.
Defendant and Martin both worked at McDonald's in Lake City, Tennessee.
Defendant was twenty-three years of age and Martin was seventeen years
of age at the time of the murders. Defendant was Martin's supervisor
at McDonald's. They had known each other only about two weeks when
they embarked upon an episode of drinking and roaming around the
countryside in the car of Martin's mother.
Defendant testified that Martin told him he knew a
girl who would give them some sex. It appears that defendant had no
prior acquaintance with anyone in the Romines family but Martin was
known to the mother and daughter. They lay in wait in the vicinity of
the Romines' house until Jack Romines, husband and father of the
victims, left the house to go to work about 5:20 a.m. Defendant
testified that they knocked on the door, Mrs. Romines admitted them,
and Martin introduced him to the mother and daughter and announced
that he wanted to borrow some money.
After his arrest defendant made at least five
statements about what occurred in the Romines' house after they were
admitted. In his first statements he insisted that he and Martin had
left the house together after some sexual activity, and that both
mother and daughter were unharmed; that when they got to the car
Martin decided to return and get some money from them; that Martin was
gone approximately thirty minutes; and that when Martin returned to
the car, they drove away. In mid-afternoon on 15 March after his
mother had visited him, he made another statement wherein he said that
he had seen part of a video taped interview of Martin, who was putting
all the blame on him. He then proceeded to put all the blame on Martin.
In his statement of 18 March and later statements,
and at trial, he admitted that he was present when the murders
occurred but denied that he participated to any extent whatever in
inflicting bodily harm upon either victim.
He testified that Martin had a pistol and two
knives and threatened his life numerous times while they were in the
Romines' house if he did not obey Martins' orders; Martin directed
Sheila to "give him head". He then forced her to engage in sexual
intercourse on top of defendant while Martin entered her anally.
The last statement defendant gave was at his
request. It began at 11:52 a.m. and terminated at 1:31 p.m. when a
retained lawyer arrived. That statement contained much detail that
defendant had never mentioned before. A portion of the new material
was that after killing Mrs. Romines in one bedroom Martin and
defendant went into Sheila's bedroom where Martin handed defendant one
of the knives and said "I killed the mother and now you kill Sheila";
that defendant refused and threw the knife down on the floor. The
statement continued as follows:
The co-worker , still armed with a gun, got down on
his knees, and Sheila started begging to him and asking him why. Co-worker's
reply was, "I owe you, I owe you." Co-worker was giggling as he said
that co-worker would ease the knife in and would work the handle back
and forth trying to hurt her. This went on for a while. . . .
Defendant was six foot, one inches tall, weighed
one hundred seventy pounds, and had served three years in the military.
Martin was five foot, ten inches tall and weighed one hundred forty
pounds. Defendant related events that occurred after the initial
sexual activity wherein he and one of the victims were in one of the
bedrooms or the living room and Martin and the other victim were in
another room. It is patently obvious that defendant could have gained
the upper hand over Martin and brought the tragic events to a halt if
he had been so inclined. As an alternative, he could have easily
escaped to a neighbor's house for help if he was really as cowardly as
represented. Those opportunities continued to occur after it became
apparent, by defendant's own admissions, that Martin intended to kill
both women. Defendant was asked on direct examination why he did not
try to stop Martin. His response was "I couldn't do nothing". Later on
he said that he was incapable of doing what Martin did, and that he "couldn't
even clean a fish".
Jack Romines testified that he kept a thirty-eight
caliber unloaded pistol in the drawer of a chest in Sheila's bedroom
and that it was missing on the afternoon of the murders, along with an
envelope containing more than $200 in cash. Investigating officers
found a thirty-eight caliber unloaded pistol in a storm drain in
Norris, Tennessee, that was identified as the one belonging to Jack
Romines. The information that led to the recovery of the gun came from
John Allen, who was a friend of Martin's. There was testimony that at
about 4:00 a.m. Martin had stopped at John Allen's house and gone in
and obtained a butcher knife from Allen. Defendant disclaimed any
knowledge that Martin had a butcher knife when they entered the
As an additional excuse for his alleged cowardice
in not preventing the murders, defendant said in his later statements
and at trial that Martin had threatened to have a friend kill his wife.
However, defendant related that threat as occurring the first time
when they left the Romines' house by the back door after both victims
had been murdered. Martin allegedly directed defendant to get the car
and pick up Martin on the other side of a wooded area. It was then
that Martin supposedly threatened that if defendant tried anything "smart,"
Martin would make a phone call and defendant would find his wife and
child dead when he got home. Defendant's wife was pregnant with their
first child at the time.
Dr. Cleland Blake, a forensic pathologist,
testified that Sheila had been stabbed seventeen times in the abdomen.
Fourteen of the stab wounds were described as torture type cuts. She
had three fatal wounds through the chest wall into the heart to a
depth of five and one-half inches. Dr. Blake said that those wounds
were inflicted by knives at least that long. It was his opinion that
the torture wounds to the abdomen were inflicted prior to the fatal
wounds to the heart based upon the manner in which the blood drained.
Some of the torture wounds to the abdomen penetrated the liver and the
mesentery and there was considerable bleeding from those wounds into
the abdominal cavity. Dr. Blake said blood would not have been pumped
into the abdominal cavity if the heart had stopped pumping, which it
did in less than a minute after the fatal heart wounds. Sheila also
had two defensive type wounds, one on her left forearm and one on her
left thumb. Dr. Blake was of the opinion that Sheila had sustained
great pain and suffering from the various stab wounds in the abdomen,
particularly those going into the liver.
Dr. Blake testified that Wanda Romines had suffered
a number of deep stab wounds. One caused the right lung to collapse,
while others cut into the colon, the liver, the gall bladder, etc. The
fatal wound completely severed the right common iliac artery, the
large artery that takes blood under pressure down to the right leg.
That wound caused massive hemorrhaging into the abdominal cavity.
Death followed within five to ten minutes according to Dr. Blake. She
also had torture type wounds.
Dr. Blake visited the crime scene and examined the
bodies and later performed an autopsy on each victim. Based upon the
width, depth and pattern of the wounds inflicted upon Sheila he
concluded two different knives were used and that some of the wounds
were inflicted while she was on the bed in her bedroom and some were
inflicted while she lay on the floor beside the bed where she was
found. Dr. Blake testified that "my Conclusion is that two people were
involved in the infliction of the wounds as well as participating in
keeping these two women separated until they were probably brought to
the end of their lives with these horrible stab wounds."
The only witness, other than the defendant, called
by the defense during the guilt or innocence phase of the trial was
Dr. John Evans, a general pathologist, who had performed "at least
five hundred autopsies." He testified that he had reviewed Dr. Blake's
autopsy report on both victims and that he saw no basis for Dr.
Blake's Conclusion hat the victims had been stabbed by two individuals.
He acknowledged on cross examination that Dr. Blake was a well
qualified, board certified forensic pathologist, but was somewhat
equivocal with regard to whether Dr. Blake, who had seen the bodies at
the crime scene, examined the wounds there and performed the
autopsies, was in a better position than he was to reach that
Defendant's testimony at trial included some
details that had not appeared in any of his pre-trial statements. He
claimed, for the first time, that Martin had cocked the pistol and put
it right between his eyes and said, "I ought to just kill you, and he
was laughing." He said this occurred after Martin had stabbed Sheila
one time. He also claimed that he saw a man standing on the road near
Martin's car as he left the house, that he wanted to tell the man what
had happened, but that he "kept seeing Karen [his wife] like that poor
girl was." Defendant worked his regular shift at McDonald's the day of
the murder and did not tell anyone what had happened at the Romines'
Several neighbors of the Romines positively
identified the blue vehicle that the State proved Martin and West were
using as being parked in the neighborhood from approximately 6:00 a.m.
to 8:30 a.m. on 17 March 1986. Mr. Hicks, a neighbor, testified that
he looked out his front door and saw a car stuck at the end of his
driveway. He went outside and found that two men had taken down a
fence post in his yard to use in getting the car out of the ditch.
They eventually got the car out of the ditch and drove away from that
point. He identified defendant as one of the men in the car. His wife
identified the car the men were in as the same one the State proved
Martin and West were using on 17 March. The investigating officers
found that the telephone wires at the Romines house had been pulled
out of the wall.
At the sentencing hearing, three persons who had
known defendant for three, twelve and fourteen years respectively,
testified that he was a good person and they did not know anything bad
about his past. His sister testified that he was the baby in the
family and had never been in trouble, and that his mother could not
come to court because she had had a heart attack. Defendant's wife
testified that they had an eleven month old daughter, and that she
loved defendant and he loved her. Defendant testified and again denied
that he had participated in the murders of the two victims. He denied
any prior criminal record and said that he was an honor student in
school and had never had any disciplinary problems.
Defendant contends that the trial Judge erred in
overruling his motion to suppress the five statements given by
defendant to law enforcement officers. Defendant asserts that he was
never advised of his Miranda rights and that there was no knowing and
intelligent waiver of those rights.
Officer Breeding testified that he advised
defendant of his Miranda rights promptly after he was arrested and one
or more of the officers involved in the taking of each of the five
statements testified that preceding the taking of each statement
defendant was informed of the rights mandated in Miranda v. Arizona,
384 U.S. 436, 86 S.Ct. 1602 (1966). In addition to
advising defendant of his rights on 19 March, prior to taking the
fifth statement, Agent Scott had defendant sign a written waiver.
Defendant testified that none of the warnings were given and although
he admitted that his signature was on the waiver dated 19 March 1986,
at 11:52 a.m., defendant denied that it was signed at that time and
under those circumstances.
The proof was that defendant was arrested at his
home about 8:30 a.m. on 18 March 1986, and transported to jail. That
morning he was interrogated by Officer Breeding and T.B.I. Agents
Pressnell and Scott. Later he was shown a portion of Martin's
videotaped statement implicating defendant. Around 3:00 p.m. that day,
after members of his family had been permitted to visit him, he
requested to speak to one of the agents and after giving a statement
to Pressnell in the presence of his mother, Agent Scott interviewed
Defendant testified at the suppression hearing that
he was taken before a magistrate that evening. Around 5:00 a.m. on the
morning of 19 March, Agent Scott sought to interrogate him again but
defendant refused to sign a waiver. However, around noon defendant
sent word that he wished to speak to Agent Scott. That was arranged
and according to Agent Scott, defendant signed the T.B.I form of
Miranda rights, followed by a waiver, before the interrogation began.
Agent Scott wrote out a lengthy rendition of what defendant said at
that time, but defendant's lawyer arrived before the interview was
completed and all interrogation ceased at that point, and defendant
did not sign the statement.
Defendant contends that the failure of the officers
to attempt to obtain a written waiver prior to 5:00 a.m. on 19 March,
and defendant's rejection at that time "tend to preponderate against
the trial court's finding that Miranda warnings were given at all
stages of the interrogation."
The statements that defendant sought to suppress
were acknowledged to have been written by the interrogating officer,
either Pressnell or Scott, and did not purport to be other than the
officers' rendition of the oral information defendant had given at
that particular interview. The date and time of each interview was
noted on the statements. Defendant did not deny that he was
interviewed at the times recorded in the statements and his
disagreements with the accuracy of the contents were trivial and of
the type to be expected when one person writes an essentially
narrative account of what another person has said. In defendant's
trial testimony, he admitted that he was not telling the truth in the
first statements and insisted that he was telling the truth in the
later statements wherein he said that Martin continuously had all
three of the other occupants under his complete dominion and control,
with an unloaded pistol and knives. In connection with a subsequent
issue, counsel for defendant affirmatively asserts that "other than
his initial statements . . . all of the defendant's statements given
subsequently to the offense were extremely consistent."
Defendant also asserts that even if he was given
Miranda warnings on all five occasions, and executed the waiver prior
to the fifth statement, he did not voluntarily, knowingly and
intelligently waive his rights. Defendant testified that he was denied
solid food and refused permission to use the restroom facilities. On
cross examination defendant's implication was that his access to the
restroom was merely delayed by Pressnell and Scott when he was being
interviewed. Sheriff Lloyd testified that defendant was offered food
at every meal but that he refused any solid food, taking only liquids
"because he just didn't have the stomach to eat." Sheriff Lloyd denied
that defendant was refused use of restroom facilities.
The trial Judge resolved the credibility issues
against defendant. In this Court, defendant has the burden of showing
that the evidence preponderates against the ruling of the trial Judge.
See State v. O'Guinn,
709 S.W.2d 561, 565-66 (Tenn.1986). We
find that there was ample evidence to support the trial Judge's ruling.
Defendant complains of a number of incidents of
alleged prosecutorial misconduct. The factors that we consider in
reviewing the alleged misconduct are those adopted in State v. Buck,
670 S.W.2d 600, 609 (Tenn.1984).
Defendant says the district attorney attempted to
inflame the passions and prejudices of the jurors in the opening
statement by a detailed description of the murders and the agony and
terror suffered by the victims as well as by Jack Romines, the husband
and father, upon discovery of the bodies. Defendant also contends that
it was improper for the prosecution to tell the jury that defendant
had lied to his wife and to the investigating officers. Defendant
admitted on the witness stand that he lied to his wife and to the
investigating officers and we find that the prosecutor's opening
statement was within permissible limits of the proof presented.
Next defendant says the trial Judge erred in
refusing to accept defendant's offer to stipulate as to the identity
of all property taken from the Romines' residence at the time of the
murders. That offer was made by defendant in an effort to eliminate
the testimony of Jack Romines which defendant says was anticipated to
be highly emotional and prejudicial to defendant. We rejected a
similar contention in State v. Morris,
641 S.W.2d 883 (Tenn.1982) for the reason
that the State is entitled to prove all of the relevant circumstances
in such manner as it sees fit, within the rules of evidence. "Stipulations
are a matter of mutual agreement and not a matter of right by one
party or the other in an adversary proceeding." Id. at 889. Mr.
Romines' testimony was particularly relevant with respect to where he
kept the money that was stolen, where he kept the pistol, that it was
unloaded, his identification of the pistol and the location and
description of the other guns that he kept in the house.
Defendant says the prosecution conducted an
improper cross examination of defendant wherein he was accused of
giving ten different versions of what happened, and badgered about
differences between the statements and his direct testimony, and about
why he didn't report the killings and why he left his pregnant wife
alone that night. Defendant also continues to complain of several
prosecution questions that defense counsel objected to, the objections
promptly sustained by the trial Judge. The cross examination of
defendant was vigorous and on several occasions the district attorney
badgered the witness by approaching too close to the witness chair and
by, according to defendant's brief, his tone of voice which the record
does not confirm. But so far as the record shows, each time defendant
objected to such activities the trial Judge sustained the objection
and several times ordered the district attorney to return to his place
at the counsel table. The district attorney improperly asked defendant
if he denied seeing the video wherein Martin accused him of committing
the murders, but the trial Judge promptly sustained defendant's
objection. However, the jury already knew that Martin had accused
defendant of the murders because it was in defendant's third statement,
implicitly offered by defendant as one of the reasons why he was
changing his story.
We have carefully examined the record relevant to
the numerous other alleged instances of improper cross examination and
we find that no prejudicial error occurred during the cross
examination of defendant.
Finally, defendant contends that prosecutorial
misconduct occurred during the district attorney's closing argument.
Defendant says it was improper to call defendant a liar; to make
comments implying that defense counsel was misleading the jury; to
imply that defendant and Martin were under the influence of drugs as
well as alcohol at the time of the murders; to state that Jack Romines
was a necessary witness; and to state that defendant was guilty of
character assassination in making the statement that Sheila Romines
had consented to have sex with him. Defendant also charged that the
prosecutor told the jury that a neighbor right across the road was
caring for her elderly mother, had a telephone and was "ready to come
to the aid of the Romines family", and complains of several other
instances wherein defendant says the prosecutor argued matters not
supported by the evidence.
In State v. Beasley,
536 S.W.2d 328 (Tenn.1976), we held that
a prosecutor's argument should be supported by evidence introduced at
trial and the reasonable inferences to be drawn from that evidence and
that a lawyer's personal opinion as to the credibility of witnesses
should not be injected into argument. However, we cited with approval
a number of cases wherein remarks of counsel in argument making
reference to "lying" defendants or defense witnesses were allowed, if
based upon evidence in the record. Id. at 330.
There were a few instances when the district
attorney's remarks were not supported by any direct evidence, such as
the comment that he didn't "know whether Mr. West or Mr. Martin, or
both, had taken anything other than alcohol." However, the manager of
the McDonald's where defendant worked testified that on 17 March, the
day of the murders, defendant acted strange, told her he did not feel
well and at one time acted like he "was having flashback from an acid
trip". That evidence, together with the grossly inhuman brutality
inflicted upon the victims, can be said to give rise to an inference
that a substance more potent in deadening human consciousness than
beer was used.
There were other instances where the district
attorney's remarks had borderline support through reasonable inference
to be drawn from evidence and a few that were not based upon evidence
or proper inferences therefrom. It was improper for the district
attorney to tell the jury that defense counsel was "trying to throw
sand in the eyes of the jury" and "blowing smoke in the face of the
jury." However, viewed in the context in which the improper remarks
occurred and in light of the overwhelming evidence of defendant's
guilt the instances of prosecutorial misconduct were harmless beyond a
Defendant contends that the trial Judge erred in
excluding testimony of Libby Woods that Martin allegedly had
threatened to kill Sheila Romines on several occasions and in
excluding a tape recording of Steve Hunley, a cellmate of Martin's,
wherein Hunley said that Martin allegedly admitted that he committed
both murders. pretrial Judge excluded both offers of proof on the
ground that such testimony was inadmissible hearsay.
Defendant contends that the testimony of Libby
Woods was admissible under this Court's holdings in Green v. State,
154 Tenn. 26,
285 S.W. 554 (1926) and Hensley v. State,
28 Tenn. 243 (1848), wherein threats made
against victims by a person, other than the defendant, who was not on
trial and who was in a better position to commit the crime, were held
admissible. In Hensley, proof that a third person had threatened to
burn the mill defendant was charged with burning was held admissible
when such proof "would have been legal against the individual upon
whom it is attempted to place it if he had been upon trial therefor,"
and it was a "legitimate defense for the prisoner to show that another
and not herself perpetrated the crime." Id. at 245. The State
distinguishes this case from Hensley and Green by noting that here the
hearsay testimony would be attributed to a co-defendant so that any
such proof would be cumulative where the State concedes the co-defendant's
guilt and where the proof would not prove the defendant's innocence.
Similar reasoning was followed by this Court in
Sible v. State,
50 Tenn. 137 (1871) as one ground for
distinguishing Hensley. There the declarations were made by a person
jointly indicted with defendant who could not have been examined as a
witness by either party if he had been personally present in court.
Under those circumstances allowing such testimony "would hold out
temptation, and afford facilities for simulating such defense." Id. at
Defendant insists that the Hunley tape was
admissible on two grounds: first, refusal to admit the recording
deprives him of due process under Chambers v. Mississippi, 410 U.S.
93 S.Ct. 1038 (1973); and second, it was
a declaration against penal interest.
In Chambers, defendant was charged with murdering a
policeman. McDonald had given a sworn statement acknowledging that he
had killed the policeman but repudiated that confession one month
later at his preliminary hearing, where he was charged with the murder.
McDonald was present at Chambers' trial and when the state did not
call him as a witness, Chambers moved the court to be allowed to call
him as an adverse witness, which motion was denied because of the
voucher rule. Nevertheless, Chambers put McDonald on as his witness
and introduced the sworn statement that McDonald had made confessing
to the murder. On cross examination, the state elicited from McDonald
his repudiation of the confession at his preliminary hearing, the
promises made to him to induce the confession, and what he was doing
during the episode that resulted in the murder of the policeman.
Chambers again sought to cross examine McDonald as an adverse witness,
which was denied. He then sought to introduce three witnesses to whom
McDonald had allegedly confessed, under circumstances that the United
States Supreme Court found provided considerable assurance of their
reliability". Id. 93 S.Ct. at 1048. The trial Judge excluded the
testimony of the three proffered witnesses. The United States Supreme
Court concluded that Chambers had been denied a fair trial by the
Mississippi Court's application of the hearsay rule totally excluding
statements against penal interest and the voucher rule to prevent
Chambers from having the benefit of the testimony of the three
witnesses and the cross examination of McDonald.
A strong factual circumstance that clearly
influenced the court in reaching that Conclusion was the finding that
"o the extent that McDonald's sworn confession tended to incriminate
him, it tended also to exculpate Chambers". Id. at 1047. That was
because the evidence made it clear that only one person was
responsible for the shooting death of the policeman.
In the instant case, the guilt of Martin does not
exonerate defendant, who was present, participating, aiding and
abetting and his defense that his participation was commanded at gun
point by Martin would not have been corroborated by the excluded
evidence. Also, in Chambers, the declarant, McDonald, was available
for cross examination, whereas Martin, the declarant here, was
unavailable to the State or the defendant as he would have
Unquestionably invoked the privilege against self-incrimination.
Finally, there is the question of corroboration and
reliability. The so-called Hunley tape was a conversation between
Martin and Hunley, a prison inmate, and was recorded by some other
unidentified person in the prison, without Martin's knowledge. This
record is completely silent as to any corroboration whatever of the
alleged statements of Martin on the Hunley tape. In Smith v. State,
587 S.W.2d 659 (Tenn.1979) we held that "hearsay
declarations against penal interests made by an unavailable declarant,
to be admissible, must be proven trustworthy by independent
corroborative evidence that bespeaks reliability." Id. at 661. After
analyzing Chambers extensively in Smith this Court noted as follows:
"The contention that Chambers requires the
admission of uncorroborated hearsay statements against penal interest
has no validity, and has been rejected by many courts, federal and
state. See Commonwealth v. Carr, (supra)
No error occurred in excluding the testimony of
Libby Woods or the alleged Hunley tape.
Defendant asserts the trial court erred in failing
to give the jury a limiting instruction that they could only consider
defendant's prior inconsistent statements for purposes of impeachment,
not as substantive evidence.
Defendant did not request a limiting instruction
and did not raise this issue in his motion for a new trial. Defendant
relies upon State v. Reece,
637 S.W.2d 858 (Tenn. 1982). In Reece the
prior inconsistent statements were extremely damaging and the State's
case against defendant was weak. Thus the failure to give the limiting
instruction was fundamental error even in the absence of a special
request. In the instant case, the error was neither fundamental nor
prejudicial, and was waived.
Defendant relies on Enmund v. Florida, 458 U.S.
102 S.Ct 3368 (1982) and Tison v.
Arizona, U.S. ,
107 S.Ct. 1676 (1987) for the contention
that defendant cannot be subjected to the death penalty because the
proof failed to show that defendant directly participated in the
We interpret those cases and Cabana v. Bullock,
474 U.S. 376,
106 S.Ct. 689 (1986) as requiring that a
defendant who did not actually commit the murder may not be given a
death sentence unless shown to be a major participant therein, that
his mental state was one of reckless indifference to human life and
that a reliable determination be made by the state courts that those
factors have been met.
It is beyond question that defendant was a major
participant in the underlying felonies of rape and kidnapping and was
present throughout the rather substantial time period during which the
numerous stabbings of the two victims took place. Defendant's claim
that he was an unwilling participant and was himself under threat of
harm by Martin was rejected by the jury and we find it totally
unworthy of belief. By defendant's own admission, he had accompanied
Martin for many hours while they drank to excess and planned to get
some sex. Defendant offered no explanation as to why he failed to try
to get away, call for help, or attempt to overpower or get the drop on
Martin, even though by his own description of the activities of the
four persons in the house he was obviously presented with the
opportunity to do each and all of those things that could have
prevented the two murders. He failed to report the murders after he
was free of any possibility of harm from Martin, and his claim that
Martin's threats of harm to his wife prevented him from doing so is
likewise unworthy of belief. Defendant had given numerous
substantially different versions of what took place at the Romines
house pre-trial, and yet another version at trial. He was found to be
without credibility by the jury and the trial Judge, and properly so.
There was no corroboration whatever for his trial version that he was
an unwilling participant in the killings and the known circumstances
before and after the murders render that version incredible.
We find defendant was a major participant in the
felonies of rape, kidnapping and murder and that his mental state was
one of reckless indifference to the value of human life.
Defendant contends that the trial Judge erred in
overruling his objection to a portion of the district attorney's
rebuttal argument that defendant labels a misstatement of the law and
an unconstitutional shifting of the burden of proof. Defendant has
erroneously labelled the argument. The district attorney merely argued
that the evidence at the scene of the crime indicated that more than
one person was a participant and that unless defendant's explanation
created a reasonable doubt he should be convicted. The evidence
supported that argument. When the trial Judge overruled defendant's
objection he reminded the jury that it was argument, correctly charged
the jury that the mere presence of a person at the scene of a crime
does not make such person an aider or abettor and correctly charged
the burden of proof. Defendant waived this issue by not including it
in his motion for new trial, but considered on its merit, it is
Defendant asserts that the trial Judge erred in not
granting a mistrial because of a question the district attorney asked
defendant on cross examination at the sentencing hearing. First the
prosecutor asked defendant if it was not true that "just before this
happened," his wife was about to leave him, which he denied. Defendant
was then asked "isn't it true that she is still afraid that you will
get out someday?". Defendant objected at that point and the trial
Judge promptly sustained the objection. After completion of the
district attorney's cross examination, defendant moved for a mistrial,
which the trial Judge denied, but he expressly instructed the jury to
"disregard the question and any inference to be drawn from the
question." The question was improper, but the action taken by the
trial Judge cured the error and he did not abuse his discretion in
denying a mistrial. See State v. Compton,
642 S.W.2d 745 (Tenn.Crim. App. 1982).
Defendant says the trial Judge erred in overruling
his motion for a change of venue. He contends the publicity at the
time of the offense, defendant's arrest and again as the trial time
approached was intense, sensational and inflammatory; that many of the
prospective jurors indicated they had heard about the case through the
media or friends or neighbors; that the trial Judge rehabilitated many
of those jurors; and that defendant was required to use peremptory
challenges to remove them from the jury panel. Defendant's brief fails
to identify the jurors he contends were rehabilitated or were
challenged peremptorily when they should have been excused for cause.
The victims were murdered on 17 March 1986, and the
trial began on 16 March 1987. Defendant introduced into the record
seven articles that appeared in the Knoxville News Centennial between
18 March 1986 and 19 September 1986, eight articles that appeared in
the Knoxville Journal between 18 March 1986 and 1 July 1986, six
articles carried by the Clinton Courier between 20 March 1986 and 5
June 1986, two articles from the Appalachian Observer and one from The
Town Crier, a Lake City paper. Defendant's brief does not specify what
he considers inflammatory. We have read the articles and are of the
opinion that they may be accurately labelled as routine reporting of a
crime involving the rape, kidnapping and murder by multiple stabbings
of a mother and daughter in their home between 6:00 a.m. and 8:00 a.m.
The headlines were not sensational, but the body of several of the
articles noted that the stabbings were unusually brutal. Defendant's
own lawyer was quoted in an article as saying that the stabbings "may
have been some sort of Satanic, cult worship act". That was the
closest approach to sensationalism that we observed in the articles.
Our reading of the voir dire reveals that the
questioning about any bias or prejudice based upon publicity or
community comment was carefully explored and the trial Judge's
participation was clarifying rather than rehabilitative. We find that
the trial Judge correctly denied defendant's motion to change venue.
See State v. Melson,
638 S.W.2d 342 (Tenn.1982) and State v.
594 S.W.2d 743 (Tenn.Crim.App.1979)
Defendant attempts to make another issue out of the
Hunley tape that allegedly contained Martin's conversation with Hunley
incriminating himself and exculpating defendant. The trial Judge ruled
that defendant could introduce the Hunley tape at the sentencing
hearing, a ruling in accord with Green v. Georgia, 442 U.S. 95,
99 S.Ct. 2150 (1979). However, the trial
Judge also ruled that if defendant introduced the tape, the State
could introduce the recordings of Martin's statements to the
investigating officers wherein he incriminated defendant. Faced with
that ruling, defendant made the decision not to introduce the Hunley
tape and now attempts to label the trial Judge's ruling as "effectively
suppressing the tape," which he asserts to be reversible error. It
would be a violation of fundamental fairness to permit defendant to
introduce a hearsay statement favorable to him and preclude the State
from introducing directly contradictory statements from the same
declarant, neither party being able to cross examine the declarant.
This Court will not countenance such basic unfairness and we find no
merit to this issue.
Defendant contends that the district attorney's
closing argument at the sentencing phase of the trial impermissibly
minimized or shifted elsewhere the responsibility of the jury with
respect to the death sentence, in violation of the principles
announced in Caldwell v. Mississippi, 472 U.S. 320,
105 S.Ct. 2633 (1985).
During closing argument at the sentencing phase,
the district attorney made the following statements:
The decision you are going to be called upon to
make obviously is very serious, it is one of the most serious you will
ever make. But, on the other hand, if you will listen to what the
Judge tells you the law is, you will see that it is not necessarily a
difficult decision in that sense. In the application of the law.
Because the law provides certain guidelines, certain perimeters within
which you are to consider the verdict, your secondary verdict in this
case. And basically that rests with a decision of fact. The weighing
of fact, the discerning of what side proofwise outweighs the other.
See, the law in Tennessee, and the law of the land,
in this sense, is self-executing, in the sense that the law mandates,
require a death sentence in certain situations, unless it is out-weighed
by other factors.
The law is clear. Your responsibility once again is
to weigh proof, to make a finding of fact, apply the applicable law to
those facts and the law provides the punishment, not you, not you. You
do not set punishment in this case, per se. You make decisions based
upon fact and the law, self-executing, based upon your weighing the
The district attorney then discussed the
aggravating factors shown by the proof and the jury's role in weighing
aggravating and mitigating factors under the statute. He then
As the law states, and the Judge will tell you this,
once the State proves aggravating circumstances, one or more, beyond a
reasonable doubt, if they are not outweighed by mitigating
circumstances the defendant shows you, the punishment shall be death.
That is a matter of law. It is a matter of law.
I am not going to stand here and tell you that that
is an easy application of the law, because it is not. It is a
difficult application. But, just keep in mind, you don't impose the
sentence, the law provides the sentence, you are merely finders of
Defendant expressly complains of the portions
Defendant asserts that this portion of the State's
argument violates the holding in Caldwell v. Mississippi, supra, that
it is constitutionally impermissible to rest a death sentence on a
determination by a sentencer who has been led to believe that the
responsibility for determining the appropriateness of a defendant's
death rests elsewhere. In Darden v. Wainwright, 477 U.S. 168,
106 S.Ct. 2464 (1986), the Court
commented that its holding in Caldwell is relevant to those comments "that
mislead the jury as to its role in the sentencing process in a way
that allows the jury to feel less responsible than it should for the
sentencing decision." Id., 106 S.Ct. at 2473, n. 15.
The concerns voiced in Caldwell are triggered when
a jury is misled as to its role in the capital sentencing scheme. The
two steps in reviewing an alleged Caldwell violation are determining
(1) whether the prosecutor's comments to the jury were such that they
would "minimize the jury's sense of responsibility for determining the
appropriateness of death" and (2) whether the trial Judge in the case
sufficiently corrected the impression left by the prosecutor. Mann v.
Dugger, 844 F.2d 1446, 1456 (11th Cir. 1988).
We agree that the district attorney's statements
that "the law is self-executing", that the law "provides the
punishment, not you", and the concluding statement that "you don't
impose the sentence, the law provides the sentence, you are merely
finders of fact", violate Caldwell. Such statements minimize the
jury's role and allows them to feel that the responsibility for a
death sentence rests elsewhere.
We must determine whether the trial Judge
sufficiently corrected the impression left by the prosecutor. The
trial Judge responded to defendant's objection by reminding the jury
that the court "was the proper source from which you get the law", and
that statements concerning the law should not be "considered
authoritative when presented by argument of counsel". The trial Judge
correctly instructed the jury with respect to their responsibility in
determining the death penalty. Other portions of the State's argument
and the defendant's argument correctly set forth the responsibility of
the jury, in accord with Tennessee's capital sentencing procedure. We
are of the opinion that the three or four brief erroneous
characterizations of the jury's role in determining the
appropriateness of a death sentence were sufficiently corrected by the
trial Judge and the accurate portions of the district attorney's and
the defendant's arguments stressing the proper responsibility of the
jury. These clarifying measures contrast sharply with the situation
bin Caldwell v. Mississippi, supra, where the trial Judge endorsed the
prosecutor's remarks. Thus we find that the errors were harmless
beyond a reasonable doubt.
Defendant contends the trial Judge erred in denying
his motion to authorize the hiring of a psychologist at State expense
to testify as to the viability of defendant's duress defense to the
Prior to that motion, defendant had sought and the
court had authorized an investigator, a statistician, and a
seriologist, all at State expense. Also, the trial Judge ordered a
mental evaluation of defendant, sua sponte. Defendant was opposed to
the mental evaluation and pursued an interlocutory appeal to the Court
of Criminal Appeals where the trial Judge's order was reversed on the
ground that the undisputed medical evidence found the evaluation
unnecessary. It was subsequent to the Court of Criminal Appeals'
ruling that defendant sought the services of a psychologist and
defendant asserts in this Court that the trial Judge denied his
request because defendant had successfully appealed the mental
We find it unnecessary and inappropriate to comment
on this speculative motivation because the trial Judge's ruling was
correct. The issue of whether defendant was forced to have sexual
intercourse with Sheila Romines under threat of death or injury from a
deadly weapon employed by Martin was a pure fact issue upon which no
expert testimony would be admissible. The statute authorizing a trial
Judge, in his discretion, to provide expert services, limits such
services to those "necessary to ensure that the constitutional rights
of the defendant are properly protected." T.C.A. § 40-14-207(b).
Defendant's request for a psychologist for the purpose articulated
herein wholly fails to fall within that category.
Defendant contends the trial Judge erred in failing
to order Martin to be brought into court for the sole purpose of
allowing the jury to compare the size of Martin and defendant. The
State introduced proof of the weight and height of the two men by
data, a chart and photographs, one of which clearly reveals their
relative sizes, taken within a few days after the murder.
Defendant's brief contains the following statement:
The defendant asserts that this evidence was
extremely misleading and did not accurately portray to the jury the
relative sizes of the two men. . . . The defendant did not wish to
examine the co-defendant or do anything other than allow the jury to
see the exact sizes of the co-defendants for themselves.
Defendant's counsel failed to inform the trial
Judge that it was defendant's position that the State's evidence on
the relative sizes of Martin and defendant was "extremely misleading".
No specifics are given in defendant's brief as to what evidence
introduced by the State was inaccurate or misleading. We copy from the
transcript defendant's entire presentation on this issue at the trial
of this case:
MR. McALEXANDER: Your Honor, we have one additional
matter we would like to take up with the court prior to the recess. Of
course, the Judge remembers Friday, the State introduced pictures of
Ronnie Martin, Stephen West and had a drawing up on the board. We
would like to move that Mr. Martin be brought up from the jail so that
the jury can see for themselves what he looks like, his size or
whatever they were trying to prove with their evidence on Friday.
Because this is the only conclusive way for the jury to get in their
minds the relative size of the two men.
THE COURT: Do you believe that to be proper in view
of the fact that his counsel isn't present and that sort of thing?
MR. McALEXANDER: Your Honor, yes. I do for the
simple reason that the purpose he would be brought up for is
identification. It involves no constitutional rights. It involves no
incrimination on his part. He is not putting himself in a position to
be incriminated, not putting himself in a position to be identified by
someone who is a witness in this case.
THE COURT: If either party wishes to present him
for the purposes you suggest, the Court certainly would not resist
that in any way, but the Court will not participate in presenting the
proof in this case and will not order anyone brought before the Court
to testify or to be observed.
MR. McALEXANDER: Thank you, Your Honor.
THE COURT: To that extent, the motion is overruled.
With your due exception noted, of course.
In Bacon v. State,
215 Tenn. 268,
385 S.W.2d 107 (1964), this Court quoted
with approval from 97 C.J.S. Witnesses § 9 the following comment on
the constitutional right to compulsory process:
A court is not required to issue compulsory process
for anyone whom accused may designate as a witness; the constitutional
right to compulsory process requires such process for, and only for,
competent, material, and resident witnesses whose expected testimony
will be admissible. Within these limitations the accused may obtain
the attendance of any witnesses he cares to use. . . .
Id., 385 S.W.2d at 107.
First, defendant was not denied compulsory process
by the trial Judge. Only his motion that the court order Martin's
attendance was denied. Defendant could have subpoenaed Martin. The
motion for Martin's ordered appearance was made at the end of the
State's proof and before defendant put on any proof and the record
indicates more than twenty-four hours expired prior to the close of
the evidence and the beginning of oral argument in the case. In Bacon,
this Court also held that a trial Judge has no discretion as to whom
he shall allow a defendant to subpoena and where a trial Judge refuses
compulsory process on the ground that the witness or witnesses have no
knowledge of the facts under investigation, the burden shifts to
defendant to show the nature of the testimony expected from the
prospective witness. We find defendant has failed to show any
violation of the right to compulsory process.
Defendant asserts that "the sentence imposed upon
the defendant is unconstitutional because it forces the defendant to
be incarcerated on death row". Defendant relies upon a federal
district court case holding that the conditions on Tennessee's death
row violate the Eighth Amendment's prohibition against cruel and
inhuman treatment. Groseclose v. Dutton,
609 F.Supp. 1432 (M.D. Tenn. 1985). The
Sixth Circuit Court of Appeals has reversed and remanded that case and
that litigation is pending in the trial court. Groseclose v. Dutton,
829 F.2d 581 (6th Cir. 1987). Also, the unconstitutionality of
conditions on death row have not been adJudged by any court to have
the effect of rendering a conviction of murder and sentence of death
unconstitutional. What effect a final adjudication of unconstitutional
conditions on death row may have on carrying out such sentences
remains to be adjudicate by the United States Supreme Court.
Defendant contends the trial Judge erred in
allowing Dr. Blake, a forensic pathologist to express the opinion that
"the sum and total of the injuries" were inflicted by two individuals.
Defendant says that opinion was outside the scope of Dr. Blake's
expertise and because of his unfair prejudice violated Federal Rule of
Evidence 403 which Tennessee has adopted,
Dr. Blake's opinion was based upon the positions of
the victims bodies at the scene, the fact that Sheila Romines had been
stabbed while on the bed and on the floor, the presence of torture
wounds to different depths indicating two knives were used, the need
to keep the two women under control during the attacks, and the
absence of "fighting marks" which indicated the victims were
restrained during the attack. While the Conclusion that there were two
individuals involved in inflicting the wounds may be on the fringe of
Dr. Blake's realm of expertise, he clearly stated the reasons for his
Conclusions to the jury testifying to facts that were arguably within
his expertise as a forensic pathologist. The factual basis for Dr.
Blake's opinion was thoroughly explored on cross examination and the
jury was correctly instructed on expert testimony. We are of the
opinion that the jury was able to give Dr. Blake's testimony on that
issue the weight that it was entitled to, without prejudice to the
defendant, and that even if technically outside Dr. Blake's expertise,
the error was harmless.
Defendant insists the death penalty cannot be
imposed upon West because Martin only received two life sentences.
Martin was a juvenile when these murders were committed and under
Tennessee statutes, the death penalty cannot be imposed upon
juveniles. Defendant says that does not provide a rational basis for
the disproportionate sentences because the proof in the light least
favorable to defendant still shows Martin as culpable or more culpable
than defendant. We find that the statutes prohibiting imposition of
the death penalty on juveniles provides a rational basis for the
disparity in sentences. See also State v. Carter,
714 S.W.2d 241 (Tenn.1986) and State v.
615 S.W.2d 142 (Tenn.1981).
Defendant contends that the diagrams and photos
introduced by the State showing the relative size of defendant and
Martin were inadmissible and prejudicial. The admissibility of the
photographs was beyond question. See State v. Banks,
564 S.W.2d 947 (Tenn.1978). Also
defendant introduced a picture of Martin and defendant at the jail
that is indistinguishable from the State's photos to which he objects.
The admission of demonstrative exhibits is within the discretion of
the trial Judge. See State v. Delk,
692 S.W.2d 431 (Tenn.Crim.App.1985).
Defendant asserts that the trial court erred in
failing to provide him with a transcript of the suppression hearing
for use at the trial.
The hearing to suppress the statements given police
by defendant was held on 5 February 1987, and defendant filed a motion
on 25 February 1987 to be furnished a transcript of that hearing at
State expense for use at trial. On 16 March 1987, the first day of
trial, the trial Judge denied the motion, finding no necessity for
providing the transcript at that time and noting that the court
reporter who would have to prepare the transcript would be engaged in
reporting the trial.
The State must provide an indigent defendant a
transcript of prior proceedings in his case when it is needed for an
effective defense or appeal. State v. Elliott,
524 S.W.2d 473 (Tenn.1975); Britt v.
North Carolina, 404 U.S. 226,
92 S.Ct. 431 (1971). The need for such
transcripts varies with the circumstances of each case. Defendant says
that he needed the transcript to prepare for the impeachment of the
State's witnesses that testified at the suppression hearing and at the
trial. The transcript of the 5 February 1987 hearing is a part of the
record on this appeal. Ray Pressnell and Charles Scott, T.B.I. agents,
William Breeding, a criminal investigator for Union County, and Earl
Loy, Sheriff of Union County, testified at the suppression hearing and
at the trial. The transcript of the suppression hearing shows that
both of defendant's lawyers and the defendant were present. The
testimony of the four witnesses at trial is, of course, in this record
on appeal. Defendant makes no attempt to point the finger at any
discrepancy between the testimony of these witnesses at the
suppression hearing and at trial or to articulate how he could have
used the testimony of any one of the witnesses given at the
suppression hearing for impeachment purposes at trial if the
transcript had been available. Defendant has the burden in this Court
of showing that the transcript was needed to vindicate a legal right.
See State v. Elliott, supra. Defendant has failed to make that showing.
Our reading of both transcripts discloses that defense counsel's cross
examination of those witnesses was not impaired and we failed to note
any overlooked opportunities for impeachment that a transcript of the
suppression hearing might have afforded. There is no merit to this
We find that the evidence of defendant's guilt
fully satisfies the standard prescribed in Jackson v. Virginia, 443
99 S.Ct. 2781 (1979) and T.R.A.P. 13(e).
Pursuant to T.C.A. § 39-2-205 we have reviewed the
sentence of death in this case and are of the opinion that it was
neither excessive nor disproportionate to the penalty imposed in
The conviction of murder in the first degree and
the sentence of death are affirmed. The death sentence will be carried
out on the 8th day of May, 1989, unless stayed by appropriate
authority. The other convictions are also affirmed, including grand
Stephen Michael West