He was sentenced to life imprisonment for the
killing of Mitchell and to death by electrocution for the killing of
Alexander. The convictions and sentences were affirmed on direct
August 8, 1988
STATE OF TENNESSEE, APPELLEE,
CHARLES WALTON WRIGHT, APPELLANT
Davidson Criminal, Hon. Walter C. Kurtz, Judge, S.
Ct. No. 85-56-I
Petition to Rehear Denied August 29, 1988
William J. Harbison, C.j., Fones, Cooper and Drowota, JJ., Concur.
The opinion of the court was delivered by: Harbison
William J. Harbison, C.J.
Following a lengthy trial in Davidson County,
Tennessee, appellant Charles Walton Wright was found guilty of
premeditated murder in the first degree of Gerald Mitchell and Douglas
Alexander. He was sentenced to life imprisonment for the murder of
Mitchell and to death by electrocution for the murder of Alexander.
After careful examination of the record, we affirm both the
convictions and the sentences.
Testimony in the case was both protracted and
conflicting. Appellant himself gave numerous conflicting and
convoluted versions of the events which led to the homicides in the
afternoon of July 18, 1984, in a public park in Davidson County,
Tennessee. Appellant and both victims were residents at that time of
Murfreesboro, in Rutherford County, Tennessee, although appellant had
in the past resided in Nashville. Appellant and the victim Mitchell
were, by appellant's own admission, involved in trafficking in illegal
narcotics. Alexander may also have been involved. Their involvement
was such that police officials in Murfreesboro had prepared a search
warrant to search the residence of appellant for possession and sale
of marijuana, but the warrant was never actually issued or served
because of the homicides.
It appears without question that all three men came
to Nashville in the afternoon of July 18, 1984, for the purpose of
purchasing contraband narcotics with the intent to traffic therein.
At the trial, appellant admitted shooting and
killing Mitchell and leaving the bodies of both Mitchell and Alexander
in the public park. It was his contention that Mitchell had previously
shot Alexander. The jury obviously concluded otherwise.
The homicides occurred in the late afternoon,
probably around 6 p.m. Several persons in the park heard Three shots.
When the bodies were found, Alexander had been shot twice. One bullet
penetrated his forearm, apparently a defensive wound, and then
penetrated his face, entering at the corner of his mouth on the right
side and being found lodged in the left cheek. This shot apparently
did not cause death and would not necessarily have been fatal. The
second shot was in the left rear portion of his skull. According to
the only medical expert who testified, this shot would have produced
unconsciousness instantly and death within a short time.
Mitchell was shot once, below the left ear. The
medical expert testified that this shot would have produced
unconsciousness immediately and death within a few minutes. The body
of Mitchell was found face down on the top of a knoll in the park. The
body of Alexander was some 50 to 60 feet away, downhill, and near the
top of a flight of steps leading to the knoll from a small parking
A vehicle later identified as that belonging to
Alexander was observed being driven by a single occupant away from the
park. The next day the car was found in Murfreesboro, and appellant
admitted that he drove the vehicle from the park in Nashville to a
park in Murfreesboro where he abandoned it. Appellant admitted
borrowing a pistol from one Jessie King in Murfreesboro. Ballistics
showed that this was the weapon from which the fatal shots were fired.
Appellant admitted being in possession of the pistol after the
homicide and returning it to King. It was his contention, however,
that prior to the homicide he had let Mitchell borrow the pistol. He
said that Mitchell shot Alexander, and appellant then retrieved the
pistol from Mitchell and shot the latter.
Appellant denied any involvement in the homicide
for several days and gave highly misleading and false information to
many witnesses who testified, as well as to investigating police
officials. The numerous discrepancies in the various versions which he
gave of the events of July 18 were explored in depth at the trial,
including introduction at the instance of his own counsel of a lengthy
and admittedly false statement given to the police.
It is not necessary here to review the convoluted
and often confusing testimony. Essentially, appellant insisted that
the three men had come to Nashville to purchase drugs and to sell them
later in Murfreesboro. He admitted his own rather extensive
involvement in illicit narcotics. Appellant said, however, that
Mitchell knew the contact in Nashville from whom the marijuana was to
be purchased. He testified that he did not accompany Alexander and
Mitchell in making the purchase, although both he and Mitchell
supplied substantial funds for the purchase. He remained where they
let him out of the car. He said that when Alexander and Mitchell
returned to pick him up in Alexander's automobile, they were
quarreling. He testified that the drug transaction was only partly
completed, and the parties were going to have to wait for about an
hour to obtain the rest of the marijuana. Appellant testified that he
suggested that they go to the park, which is located not far from the
residence of appellant's mother, and that they proceed to bag such
marijuana as had already been obtained. He said that Mitchell and
Alexander went to the top of the knoll while he stayed in the car,
that he heard two shots and then ran up the steps. There he found that
Alexander had been shot by Mitchell. He took the pistol from Mitchell,
struck the latter with his fist, and then shot him behind the ear.
It is clear that the jurors were not bound to
accept this testimony, which was given at trial but which was markedly
different from the numerous previous accounts which had been given by
appellant. There was abundant testimony from which the jury could have
found, as it did, that appellant committed both murders. The jury
acquitted appellant of counts of murder committed in the perpetration
of robbery in connection with each homicide, but it found that each
homicide was premeditated murder in the first degree.
In the numerous issues presented on appeal by
counsel for appellant, the sufficiency of the evidence to sustain the
verdicts at the guilt hearing is not questioned and need not be
further discussed in detail.
At the sentencing hearing the State announced that
it would not seek the death penalty in the homicide of Mitchell. It
was the theory of the State that Mitchell and appellant had had a
quarrel over previous drug transactions. There was hearsay testimony,
not objected to, that some children in the park had heard quarreling
taking place just before the shots were fired in the present case. It
was one theory of the State that appellant shot Mitchell as a result
of this quarrel and then shot Alexander to eliminate him as a witness
or to prevent appellant's apprehension and arrest. The other theory of
the State was that the two homicides were intimately connected and
that, regardless of the order in which they occurred, the second was
committed while appellant was in the course of committing, attempting
to commit or escaping from the first homicide.
Only two aggravating circumstances were relied upon
by the State in its pre-trial notice that the death penalty would be
sought. At the sentencing hearing the trial Judge submitted both
circumstances to the jury, the two provisions being T.C.A. §
39-2-203(i)(6), to the effect that the murder was committed for the
purpose of avoiding, interfering with, or preventing a lawful arrest
or prosecution of the accused or of another, and T.C.A. §
39-2-203(i)(7), to the effect that the homicide was committed while
the accused was engaged in committing, attempting to commit, or
fleeing after committing another first degree murder.
The jury did not find the evidence sufficient to
sustain the first of the foregoing statutory provisions but did find
that the second was supported by the evidence. It found no mitigating
circumstances sufficient to outweigh this aggravating circumstance and
recommended the death penalty. The trial Judge concurred in the
Conclusion of the jury.
In addition to the extensive testimony adduced both
on direct examination, through cross-examination and in rebuttal at
the guilt hearing, the State introduced one additional witness at the
sentencing hearing. This was the medical examiner, Dr. Charles Harlan,
who had already testified at the guilt hearing as to the positions of
the bodies when he arrived at the scene on the evening of July 18, the
nature and extent of the gunshot wounds, the results of his autopsy
and the cause of death. At the sentencing hearing, Dr. Harlan ventured
the opinion that the most probable sequence of events was that
Mitchell was shot first and that the two shots which wounded, then
killed, Alexander followed thereafter. The only real factual basis for
this opinion, however, was that the body of Alexander was found
downhill and on a lower level than that of Mitchell. Dr. Harlan
admitted freely that other sequences could have occurred, including
the sequence that Alexander was shot first and that Mitchell was then
shot while fleeing the scene. Earlier Dr. Harlan had testified that
none of the gunshot wounds was fired at point-blank range, all of them
apparently having been fired from at least 24 inches or more from the
bodies of the victims. This opinion was based upon the absence of
stippling or powder burns upon either victim.
Counsel for appellant strenuously objected to the
admission of the opinions of Dr. Harlan relating to the sequence of
events as offered at the sentencing hearing. Dr. Harlan had told one
of the attorneys for the appellant that his opinion was based more on
logic than anything else and that it was not anything more than a
personal opinion. Dr. Harlan agreed that he was not an expert in the
reconstruction of crime scenes.
In our opinion, the trial Judge erred in admitting
Dr. Harlan's opinion as to the sequence of events. His testimony as to
the nature and extent of the wounds and the effect of the gunshots
upon the victims was obviously within the range of his expertise. His
Conclusion that Alexander was shot later than Mitchell was based on
the assumption that Alexander had fled downhill. This Conclusion is
nothing more than speculation. Any police officer or other lay person
could have ventured an opinion which would have been just as probative,
and it would hardly be argued that an opinion from a lay witness on
this subject would be admissible. See Blackburn v. Murphy,
737 S.W.2d 529 (Tenn. 1987). Since the
opinion was given by a highly qualified medical expert, the error was
made even more egregious. We would order a new sentencing hearing if
the jury had sustained the State's theory that Alexander was shot
after Mitchell for the purpose of preventing the arrest or
apprehension of appellant.
The jury, however, rejected this aggravating
circumstance, T.C.A. § 39-2-203(i)(6). It did not recommend the death
penalty thereon and found that this circumstance had not been
established. Obviously, it gave no weight to Dr. Harlan's opinion, or
at least insufficient weight to accept his theory.
The sequence of the two homicides was, and remains,
speculative and uncertain. There was evidence from which the jury
could have concluded that the murders occurred in the sequence urged
by the State, wholly apart from the testimony of Dr. Harlan, but there
was ample evidence from which it could have concluded otherwise.
Under the one aggravating circumstance which the
jury did find, however, the sequence of death was not critical. The
jury found, upon abundant evidence, that appellant committed both
homicides. Under all of the proof, the two murders occurred
practically simultaneously or, at most, within a short time of each
other. Even under appellant's own testimony as to the killing of
Mitchell, that homicide occurred within a few seconds after Alexander
had been shot. No witness testified to having heard more than three
shots. Alexander was shot twice and Mitchell once. It is clear beyond
a reasonable doubt that if appellant committed both murders, the
second in time had to have been committed in connection with the
commission of the first or while appellant was attempting to commit
the first or fleeing therefrom.
Since the jury rejected the aggravating
circumstance for which the testimony of Dr. Harlan was primarily
offered, in our opinion the admission of that testimony at the
sentencing hearing was harmless beyond a reasonable doubt. As
previously stated, Dr. Harlan was forced to admit that his opinion as
to the sequence of events was based more upon logic and deduction than
upon any expertise, medical or otherwise. He was also forced to admit
that other sequences were possible. While we are of the opinion that
he should not have been allowed to suggest the probable sequence of
events, in our opinion reversible error has not been shown.
For the same reason, we are of the opinion that the
trial Judge did not err in denying the request of counsel for
appellant that they be permitted funds to employ an expert witness in
the reconstruction of crime scenes. Numerous photographs of the bodies
of the victims and of the terrain were introduced into evidence. There
was no dispute as to the nature, extent or location of the wounds to
the two victims. Both sides were free to argue, as they did, their
theories as to whether appellant committed both of the homicides or
only one of them, as he contended. Counsel for appellant have not
demonstrated how a crime scene expert could have assisted in the
development of their theory that Alexander was shot first and that
appellant then shot Mitchell.
The issue presented by appellant with respect to
the employment of an expert and with respect to the admission of the
testimony of Dr. Harlan is overruled.
Appellant has assigned as error the refusal of the
trial Judge to give a requested jury instruction regarding "imperfect
self-defense." Counsel requested an instruction, based on Wooten v.
171 Tenn. 362,
103 S.W.2d 324 (1937) that if the jurors
did not sustain the theory of self-defense entirely, they still might
find mitigating circumstances to reduce the homicide to manslaughter.
The trial Judge declined this request, but he gave
full instructions to the jury on the subject of self-defense and on
the crime of manslaughter, both voluntary and involuntary. There was
no objection to the charge as given, and, in our opinion, the
requested instruction was fully covered therein.
Counsel for appellant have raised two issues
regarding jury instruction at the sentencing phase. The first of these
is the failure of the trial Judge specifically to instruct on
mitigating factors not listed in the death penalty statutes. The trial
Judge instructed the jurors that they might consider any circumstance
offered in mitigation; but the trial Judge refused specific
instructions that particular facts or circumstances, not listed in the
statutes, would constitute such mitigating factors for jury
The instructions given by the trial Judge and his
refusal to instruct specifically on non-statutory factors are in
accordance with the previous holdings of this Court. We find no error.
See State v. King,
718 S.W.2d 241, 249 (Tenn. 1986); State
699 S.W.2d 538, 550-551 (Tenn. 1985). [Withdrawn,
703 S.W.2d 106 ]
The failure of the trial Judge sua sponte to give
to the jurors a definition of the term "mitigating circumstances" is
assigned as error. Such an instruction is not mandatory in this state.
See State v. Groseclose,
615 S.W.2d 142, 148 (Tenn. 1981). In
addition, the trial Judge in this case told the jurors that mitigating
circumstances would include, but not be limited to, the fact that the
victim participated in the defendant's conduct and
any aspect of the defendant's character or record,
or any of the circumstances of the defense favorable to the defendant
which is supported by the evidence.
The final issue regarding the jury instructions is
the failure of the trial Judge to redefine murder in the first degree
at the Conclusion of the sentencing phase. A full definition had been
contained in the written instructions given to the jury at the
Conclusion of the guilt phase, and the jury had in fact returned
verdicts of murder in the first degree as to both homicides. Failure
to repeat that instruction in connection with the aggravating
circumstance contained in T.C.A. § 39-2-203(i)(7) was not reversible
error. See State v. Carter,
714 S.W.2d 241, 250 (Tenn. 1986); State
654 S.W.2d 383, 388-389 (Tenn. 1983).
Several other issues presented on appeal may be
disposed of briefly. It is insisted that the trial Judge improperly
excluded at the sentencing hearing evidence that before trial the
State had offered to accept a life sentence in these cases in return
for a plea of guilt to murder in the first degree.
While there is no clear proof that such an offer
was ever made, in our opinion refusal to admit testimony on this
subject before the jury was proper. Such evidence is expressly
precluded by Rule 11(e)(6), T.R.Cr.P. Further, such an offer by the
State would in all events have been subject to approval by the trial
Judge before any plea bargain could have been consummated. In our
opinion, the testimony was both irrelevant and inadmissible. It did
not constitute admissible evidence of a "mitigating circumstance" as
offered by the appellant.
Appellant insists that T.C.A. § 39-2-203(g) is
unconstitutional because it mandates the death penalty and limits the
discretion of the jury in imposing punishment where the mitigating
factors do not outweigh the aggravating circumstances.
This Court has repeatedly considered this issue and
has consistently upheld the constitutionality of the statute. See
State v. Teague,
680 S.W.2d 785, 790 (Tenn. 1984); State
615 S.W.2d 126 (Tenn. 1981), cert. denied,
454 U.S. 933 (1981). We do not deem it necessary to repeat here
the earlier Discussions of this statutory provision.
Appellant insists that the trial court erred in
denying his motion to prohibit the "death qualification" of the
prospective jurors. Both the Supreme Court of the United States and
this Court have rejected this argument. See Lockhart v. McCree, 476
U.S. 162 (1986); State v. McKay,
680 S.W.2d 447, 450, 453-55 (Tenn. 1984).
We find without merit the argument advanced by
counsel for appellant that the mitigating circumstances in this case
outweigh the aggravating circumstances. In this regard it is insisted
that the evidence clearly showed that Alexander was a participant in
the defendant's conduct, T.C.A. § 39-2-203(g)(3). According to the
appellant's own testimony, however, Alexander had primarily furnished
transportation and was not the instigator of the drug transaction
involved in the case. All of the circumstances urged by counsel in
mitigation were fully presented to the jury, including appellant's
alleged remorse, lack of economic means in childhood, lack of
education, etc. There was evidence from which the jury could have
concluded that the appellant in cold blood shot both Mitchell and
Alexander, escaped in Alexander's automobile, left the victims to die
and abandoned their bodies, concealed the crimes and told numerous
deceitful and misleading falsehoods concerning the circumstances of
the crime. We find no merit to the argument that the mitigating
circumstances outweigh the aggravating circumstance which was clearly
Also we find no merit in the argument advanced by
counsel for appellant that acquittal by the jury of the felony-murder
counts of the indictment precluded the State from seeking the death
penalty under the statute prescribing the single aggravating
circumstance which was found, T.C.A. § 39-2-203(i)(7).
The indictments in this case charged appellant with
murder in the first degree of both Mitchell and Alexander.
Alternatively, it charged him with murder in the perpetration of
robbery of each of these individuals. The jury acquitted appellant of
the robbery charge. Nothing in that acquittal, however, precluded the
State from going forward with proof that the murder of Alexander was
committed in connection with or while appellant was attempting to
escape from the murder of Mitchell under the death penalty statute.
The language of the statutory aggravating circumstance is somewhat
similar to the felony-murder statute, but the two are not identical.
Acquittal of murder in the commission of robbery is in no sense
acquittal of the aggravating circumstance of killing a second person
in connection with the murder of a first.
The language of T.C.A. § 39-2-203(i)(7) in
connection with commission of a second murder in connection with a
first was construed by this Court in State v. Pritchett,
621 S.W.2d 127, 140 (Tenn. 1981). There
the Court said:
However, we are confident that the Legislature
intended that use, as an aggravating circumstance, of the crime of
first degree murder listed in subsection (i)(7) would be limited to
the murder or attempted murder, etc. of another person or persons
while committing or attempting to commit, etc. the murder of the
victim involved in the crime on trial. That is the way that this Court
construes the subsection and so construed, we are of the opinion that
it is constitutional.
In our opinion, the statute was properly applied by
the trial Judge and by the jury at the trial of this case. Appellant's
issue, numbered "X" and all of its subdivisions, dealing with T.C.A. §
39-2-203(i)(7), are overruled.
Appellant has assigned error with respect to the
jury selection, especially the alleged extensive rehabilitation of
prospective jurors by the trial Judge.
The jury examination in this case consumed several
days and comprises ten volumes of the transcript. We have examined
each of the instances in which appellant contends that the trial court
erroneously excused jurors for cause, and in each instance we find
that the trial Judge carefully and conscientiously considered the
answers of the jurors. We find no error under the principles of
Wainwright v. Witt, 469 U.S. 412 (1985), or Witherspoon v.
Illinois, 391 U.S. 510 (1968). See also State v. Williams,
690 S.W.2d 517, 522-523 (Tenn. 1985).
In our opinion, the trial Judge properly controlled
the scope of the voir dire proceedings and committed no error in the
exclusion or refusal to exclude individual members of the panel.
Appellant has presented numerous issues regarding
alleged prosecutorial misconduct at both the guilt and the sentencing
hearings. We have examined each of these and find no merit therein. We
find almost superficial the argument of counsel for appellant that the
prosecutors referred to the defense offered by appellant as "concocted."
This was certainly a legitimate argument in view of the admitted
numerous false statements which appellant had given to a great many
witnesses. Like the trial Judge, we find no improper reflection upon
defense counsel. The State simply argued that appellant, after having
learned what the State's proof would be, attempted to manufacture a
story which would not conflict with irrefutable evidence in possession
of the prosecution.
We have considered each of the numerous arguments
advanced by counsel for appellant in connection with alleged
misconduct by the prosecution, and we find none of these to contain
merit or to warrant reversal. In many instances there was no objection,
and in most instances the remarks of counsel for the prosecution were
in response to arguments advanced by the defense.
It is clear that counsel for the State erred in
requesting "Jencks statements" of the defendant himself before
entering upon cross-examination. The trial court immediately sustained
the objection of counsel for the defense, however, and instructed the
jury that the State would not be entitled to any such statements.
The trial Judge carefully monitored the conduct of
counsel for both sides in this case, and we are unable to conclude
that any of the alleged remarks or action by prosecuting attorneys
affected the results in this case.
During the course of the presentation of their
case-in-chief, counsel for appellant discovered that one of their
witnesses, Jackie King, was hospitalized. They sought and obtained
permission from the trial Judge to take his deposition pursuant to
Rule 15, T.R.Cr.P. The deposition was duly taken, and its contents
were apparently. extremely disappointing to counsel for appellant.
They stated to the trial Judge that the witness had "changed" his
testimony, and they concluded not to use the deposition as part of the
defendant's case-in-chief. The State then announced that it would use
the deposition in rebuttal. Counsel for appellant objected, apparently
contending that the deposition was taken at their instance. They also
insisted that they had not been permitted to lead or cross-examine the
witness as they would be permitted to do if the State had taken the
deposition and they had been permitted to cross-examine.
Thereupon the trial Judge directed that the
deposition be resumed and that counsel for the defendant be permitted
to examine the witness as upon cross-examination. This action was
taken, and the State introduced both the original deposition and the
supplemental deposition in rebuttal.
The witness King, a homosexual partner of appellant,
contradicted the testimony of appellant in several material respects
and furnished strength to the argument of the State that the appellant
had materially changed his version of the facts in a number of
The deposition, once taken pursuant to court order,
of course, did not "belong" to either party. It was taken for use in
evidence and was subject to the rules of evidence. We find no merit in
the insistence of appellant that the State was required to retake the
initial deposition in its entirety after the defense had already done
so. Any rights of the defense were fully protected by the procedure
which was followed by the trial Judge, and we find no error in
connection with the deposition of the witness King. The two deposition
sessions were videotaped, and the jury was afforded every opportunity
to see and observe the manner and demeanor of the witness as well as
to hear his testimony.
During the initial deposition of King, the
prosecuting attorney asked him about cocaine use by appellant Wright.
The State intended to eliminate this portion of the testimony when the
videotaped deposition was played to the jury. By inadvertence the
operator did not totally block out each of the questions asked the
witness or one of the answers. The trial Judge instructed the jury to
disregard the one answer which was given, however, and we find no
reversible error in the action of the trial Judge in declining to
declare a mistrial.
The fact that appellant may have used drugs could
hardly have been a surprise to the jury. The deposition was played
after appellant himself had testified and had explained in detail his
extensive involvement in illicit drug traffic and numerous
transactions in which he and Mitchell had gone to Nashville for the
purpose of purchasing drugs.
The cautionary instructions given by the trial
Judge were adequate, and no reversible error occurred in connection
with the deposition of this witness.
We have considered all of the extensive arguments
advanced by counsel for appellant who have most zealously and
thoroughly briefed and argued this case. We are of the opinion that
the verdict of the jury was fully sustained by the evidence. Our
independent review of the record convinces us that the death penalty
was not disproportionate in this case and was not the result of any
arbitrary or improper action by the jury.
The convictions of appellant are sustained. The
execution of appellant will be carried out as provided by law on
October 20, 1988, unless stayed by further orders of this Court or
other appropriate authority.