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State of Tennessee v. Rickey Alvis Bell, Jr. In Reference To Offense Committed in June 1996).25 the Superior Court of Pennsylvania Has Construed This Statute As “defin[ing] the Crime of Robbery of a Motor Vehicle, Or Carjacking, As the Taking Or Exercise of Unlawful Control Over a Motor Vehicle, From Its Lawful User, By Force, Intimidation Or Fear.” George,705 a.2d At 919. thus, the Pennsylvania Courts Have Concluded That This Crime May Be Committed Through Intimidation Or Fear, Neither of Which Necessarily Involves Violence To the Person As This Court Has Construed That Term.
of the motor vehicle.” Commonwealth v. George, 705 A.2d 916, 918 (Pa.Super.Ct.1998) (quoting 18 Pa. Cons.Stat. Ann. § 3702(a)
As to the Defendant's previous conviction of aggravated assault under Pennsylvania law, the Pennsylvania statute defines aggravated assault as including attempts to cause bodily injury to another. See Commonwealth v. Lopez, 654 A.2d 1150, 1153–54 (Pa.Super.Ct.1995) (quoting 18 Pa. Cons.Stat. Ann. § 2702(a)(1), (4) in reference to offense committed in 1993).26 The Pennsylvania Superior Court has construed this statute as allowing a conviction for aggravated assault when the perpetrator shoots a gun into a vacant house, unaware that the occupant was not present. See Lopez, 654 A.2d at 1152. Clearly, the statutory elements of this crime do not necessarily involve the use of violence to the person.
Finally, Pennsylvania defines “recklessly endangering another person” as a misdemeanor. See 18 Pa. Cons.Stat. Ann. § 2705 (West, Westlaw through end of 2014 Reg. Sess.) (effective June 6, 1973). Accordingly, the Defendant's prior conviction of this crime does not support the application of the (i)(2) aggravating circumstance.
When the statutory elements of the prior felony of which a capital defendant has been convicted, in and of themselves, do not necessarily involve the use of violence to the person, the trial court “must necessarily examine the facts underlying the prior felony” in order to determine whether the (i)(2) aggravating circumstance may be considered by the jury. State v. Sims, 45 S.W.3d 1, 11–12 (Tenn.2001). Because the State adduced no proof of the facts underlying the Defendant's prior convictions, the trial court could not, and did not, undertake this inquiry.27 Accordingly, the trial court erred in
25 This statute became effective in 1993. See H.B. 3, 177th Gen. Assemb., Reg. Sess. (Pa.1993). The quoted provision remains unchanged. See 18 Pa. Cons.Stat. Ann. § 3702(a) (West, Westlaw through end of the 2014 Reg. Sess.).
26 These provisions of the statute remain unchanged. See 18 Pa. Cons.Stat. Ann. § 2702(a)(1), (4) (West, Westlaw through end of the 2014 Reg. Sess.)
27 Admissible proof of the facts underlying a defendant's prior felony convictions is limited in this context
allowing the jury to consider the (i)(2) aggravating circumstance, and the jury's use of this aggravating circumstance was invalid.
2. Felony Murder Aggravating Circumstance
Another aggravating circumstance which may permit the imposition of the death penalty is that
[t]he murder was knowingly committed, solicited, directed, or aided by the defendant, while the defendant had a substantial role in committing or attempting to commit, or was fleeing after having a substantial role in committing or attempting to commit, any first degree murder, arson, rape, robbery, burglary, theft, kidnapping, aggravated child abuse, aggravated child neglect, rape of a child, aggravated rape of a child, aircraft piracy, or unlawful throwing, placing or discharging of a destructive device or bomb[.]
Tenn.Code Ann. § 39–13–204(i)(7) (the “felony murder” aggravating circumstance). The trial court erred in its charge to the jury regarding the felony murder aggravating circumstance.
As recognized by the Court of Criminal Appeals below, the trial court divided this single aggravating circumstance into two separate aggravating circumstances. However, the felony murder aggravating circumstance may be applied only once to a single murder committed in the course of multiple felonies. See, e.g., State v. Henretta, 325 S.W.3d 112, 145–46 (Tenn.2010) (considering the felony murder aggravating circumstance as a single aggravating circumstance although the murder occurred while the defendant was committing kidnapping, robbery, and rape); State v. Morris, 24 S.W.3d 788, 798–99 (Tenn.2000) (considering the felony murder aggravating circumstance as a single aggravating circumstance when the murder occurred while the defendant was committing another first degree murder, rape, burglary, and kidnapping); State v. Buck, 670 S.W.2d 600, 608–09 (Tenn.1984) (considering the felony murder aggravating circumstance as a single aggravating circumstance when the murder occurred while the defendant was committing rape, robbery, and kidnapping). While the evidence in this case supported the application of the felony murder aggravating circumstance as a single aggravating circumstance, the trial court's error impermissibly allowed the jury to apply twice a single aggravating circumstance.
to the records delineated in Shepard v. United States, 544 U.S. 13, 16, 20 (2005). See State v. Young, 196 S.W.3d 85, 112 (Tenn.2006).
3. Heinous, Atrocious, and Cruel
Our criminal code also permits the imposition of the death penalty on the basis that the murder “was especially heinous, atrocious, or cruel, in that it involved torture or serious physical abuse beyond that necessary to produce death.” Tenn.Code Ann. § 3913–204(i)(5) (the “HAC” aggravating circumstance). Given Dr. Funte's testimony, there is no question that the victim's murder involved “serious physical abuse beyond that necessary to produce death.” The evidence was sufficient to support the jury's application of the HAC aggravating circumstance.
4. Effect of Error
In this case, we conclude that two of the four aggravating circumstances applied by the jury were invalid. When a jury is allowed to consider invalid aggravating circumstances, this Court may not affirm the death sentence unless we determine, beyond a reasonable doubt, that the jury would have imposed the death sentence absent any consideration of the invalid aggravating circumstances. See State v. Howell, 868 S.W.2d 238, 259 (Tenn.1993). In making this determination, we must
completely examine the record for the presence of factors which potentially influence the sentence ultimately imposed. These include, but are not limited to, the number and strength of remaining valid aggravating circumstances, the prosecutor's argument at sentencing, the evidence admitted to establish the invalid aggravator[s], and the nature, quality and strength of mitigating evidence.
Id. at 260–61.
As indicated above, the jury had before it two valid aggravating circumstances: one felony murder aggravating circumstance and the HAC aggravating circumstance. The proof in support of both of these aggravating circumstances was overwhelming. The prosecutor made no closing argument at the sentencing hearing. During his opening statement, he referred to the prior violent felony aggravating circumstance and told the jury that the Defendant had been convicted of robbery of a motor vehicle and aggravated assault in 1997 in Pennsylvania and that there was documentary proof of those convictions. The prosecutor also referred to the HAC aggravating circumstance, including a summary of Dr. Funte's testimony about the injuries the victim suffered. As to the felony murder aggravating circumstance, the prosecutor stated the following:
The next two factors are really the same thing on different crimes;
that the murder was knowingly committed by the defendant while the
defendant had a substantial role in committing kidnapping.
And this looks similar, of course, to the count which you've already
found him guilty of; that is, the felony murder in perpetration of kidnapping. You've already found him guilty of that.
Now, this is up to you. This is your discretion. But I suggest to you, you've already found the defendant guilty of something at least very similar to that; that is, the murder was knowingly committed by the defendant while the defendant had a substantial role in committing kidnapping.
And the last one, the fourth factor for your consideration is similar;
the murder was knowingly committed by the defendant while the defendant had a substantial role in committing rape.
And again, you've already found Rickey Bell guilty of that or in language very similar to that. I'm not going to belabor it. I'm not going to argue it. You've already done it. You have found that he was guilty of a murder or that he had a substantial role in committing rape and that Starr Harris died.
The only new evidence that the State adduced during the sentencing hearing was a stipulation regarding the Defendant's birthdate and the judgment document from the Pennsylvania court, both of which were admitted in support of the invalid prior violent felony aggravating circumstance. The mitigation evidence adduced at sentencing was de minimus.
Initially, we are constrained to express our concern that the defense put on so little mitigating proof. The technical record in this matter reflects that the defense obtained approval and funding for the services of a mitigation specialist. Moreover, although the defense had proof of the Defendant's low I.Q., defense counsel did not present this proof to the jury. We note that, during the oral arguments regarding this case held on March 4, 2015, defense counsel claimed that it was a strategic decision not to introduce certain mitigating proof because doing so would have allowed the State to inquire into the Defendant's behavior during his previous incarceration. It is unclear, however, how the prosecution could have made such inquiries of, for instance, Dr. Hutson.
Nevertheless, considering the record as a whole, we are convinced beyond a reasonable doubt that the jury would have sentenced the Defendant to death absent any consideration of the two invalid aggravating circumstances. As set forth in some detail above, the multiple injuries inflicted upon the victim were horrific. This Court has
upheld the death penalty when the proof supported the single aggravating circumstance of the infliction of serious physical abuse beyond that necessary to produce death. See, e.g., State v. Hall, 8 S.W.3d 593, 601 (Tenn.1999) (defendant beat, strangled, and drowned victim). Indeed, this Court has upheld a death sentence imposed on the basis of the HAC aggravating circumstance even when the jury also applied a second invalid aggravating circumstance. See, e.g., Strouth v. State, 999 S.W.2d 759, 764, 767 (Tenn.1999) (jury's reliance on invalid felony murder aggravating circumstance was harmless where jury applied valid aggravating circumstance that murder was especially heinous, atrocious or cruel in that it involved torture or depravity of mind). Moreover, the proof that the Defendant knowingly killed the victim after abducting her and during the course of a sexual assault was overwhelming.28 Based on our analysis of the Howell factors, we conclude that the errors involving the aggravating circumstances were harmless beyond a reasonable doubt. Accordingly, we hold that the Defendant is not entitled to relief on the basis that the jury considered two invalid aggravating circumstances.
C. Aggravating Circumstances Outweigh Mitigating Circumstances
We also are statutorily required to assess whether “[t]he evidence supports the jury's finding that the aggravating ․ circumstances outweigh any mitigating circumstances.” Tenn.Code Ann. § 39–13–206(c)(1)(C). In this case, the only mitigation proof was the Defendant's mother's testimony, the sum total of which consisted of the following:
Q. Would you state your name for the record, please? A. Belinda Joyce Bell.
Q. Ms. Bell, I know this is very hard. I want to ask you some questions. What is your relationship to [the Defendant]?
A. I'm his mother.
Q. Okay. And you love your son? A. Very much.
Q. Have you always loved your son?
28 “Knowingly” is defined in pertinent part as follows: “A person acts knowingly with respect to a result of the person's conduct when the person is aware that the conduct is reasonably certain to cause the result.” Tenn.Code Ann. § 39–11–302(b) (2010).
A. I always did. I always will.
Q. And that was my next question. You always have and you always will, is what you said?
A. Yes, sir. Right.
Q. I want to ask you, does [the Defendant's] life have meaning to you?
A. For me being his mother, he mean the world to me. I would lay down my life for him. Who wouldn't? I'm a mother, you know what I'm saying?
Q. And would it hurt you to have to lose [the Defendant], to have [the Defendant] put to death?
A. Yes. Yes. It sure would. It really would.
Q. Can you even fathom that?
A. Huh?
Q. Can you even imagine that happening–
A. No.
Q. –and how you would feel as a result of that?
A. No, not in my biggest dream I wouldn't imagine that.
As we have set forth above, there was sufficient evidence in the record to support two of the four aggravating circumstances charged to the jury. The mitigation proof consisted of the Defendant's mother testifying that she loved her son and did not want to see him executed.29 We hold that the record supports the jury's conclusion that the
29 Although the defense put on no other proof of mitigating circumstances, the trial court, at defense counsel's behest, instructed the jury as follows:
Tennessee law provides that in arriving at the punishment, the jury shall consider
․ any mitigating circumstance raised by the evidence, which shall include but not be limited to:
Significant and detrimental effects from the parents' separation or divorce;
aggravating circumstances outweighed the mitigating circumstances. The Defendant is not entitled to relief on this basis.
D. Proportionality Review
Finally, we are statutorily required to review the Defendant's sentence of death in order to determine whether it is excessive or disproportionate to the penalty imposed in similar cases. Our review is intended to determine whether the Defendant's death sentence is aberrant, arbitrary, or capricious insofar as it is “disproportionate to the punishment imposed on others convicted of the same crime.” State v. Bland, 958 S.W.2d 651, 662, 665 (Tenn.1997) (quoting Pulley v. Harris, 465 U.S. 37, 43 (1984)). Our review employs the precedent-seeking method of comparative proportionality review, in which we compare this case with other cases involving similar crimes and similar defendants.30 The pool of cases into which we peer consists of “those first degree murder cases in which the State sought the death penalty, a capital sentencing hearing was held, and the jury determined whether the sentence should be life imprisonment, life imprisonment without possibility of parole, or death.” Rice, 184 S.W.3d at 679 (citing State v. Godsey, 60 S.W.3d 759, 783 (Tenn.2001); Bland, 958 S.W.2d at 666).
While no crimes or defendants are identical, a death sentence is disproportionate if the case is “plainly lacking in circumstances consistent with those in cases where the death penalty has been imposed.” Bland, 958 S.W.2d at 668. Thus, in our proportionality review, we examine “the facts and circumstances of the crime, the
treatment for depression; correlation of mental health problems to anger; denied continued relationship with father; rejection by stepmother; effects of strained parental relationships; low IQ; denied stable, loving environment; effects of juvenile transfer to out-of-state facility; lack of family contact during incarceration; turned to gang activity as a result of feelings of alienation and neglect; development of self worth was impaired by father's abandonment or perceived abandonment; lack of appropriate life skills or maturity to effectively make good choices and decisions; developed positive relationships following release; sought out and maintained employment; desire for normal family and effects of execution on family members; and any other reason that a juror may find not to impose the death penalty, even if it cannot be put into words.
This Court has made clear that a trial judge should instruct the jury on only those mitigating circumstances that have been raised by the evidence. See State v. Hodges, 944 S.W.2d 346, 353–55 (Tenn.1997).
30 The Defendant asks that we modify our methodology for conducting our proportionality review, contending that “the Bland method is flawed and unreliable” and “produces an unconstitutionally flawed result.” This Court recently rejected the Defendant's argument and reaffirmed the Bland approach to proportionality review. See State v. Pruitt, 415 S.W.3d 180, 217 (Tenn.2013). We decline the Defendant's invitation to overturn our decisions in either Bland or Pruitt.
characteristics of the defendant, and the aggravating and mitigating circumstances involved.” State v. Stevens, 78 S.W.3d 817, 842 (Tenn.2002). More specifically, we consider
(1) the means of death; (2) the manner of death; (3) the motivation for the killing; (4) the place of death; (5) the victim's age, physical condition, and psychological condition; (6) the absence or presence of premeditation; (7) the absence or presence of provocation; (8) the absence or presence of justification; and (9) the injury to and effect upon non-decedent victims.
Reid, 164 S.W.3d at 316 (citing Bland, 958 S.W.2d at 667). We also consider several factors about the Defendant, including his (1) record of prior criminal activity; (2) age, race, and gender; (3) mental, emotional, and physical conditions; (4) role in the murder; (5) cooperation with authorities; (6) level of remorse; (7) knowledge of the victim's helplessness; and (8) potential for rehabilitation. Id. at 316–17.
In this case, the proof established that the Defendant went to the victim's home and asked to speak with Husband about his pay. By doing so, the Defendant established that Husband was not at home. The Defendant engaged in a short phone call with Husband at 1:10 p.m. Apparently, the Defendant then left, because the victim subsequently engaged in another phone call and some text messages. An eyewitness established that the Defendant returned to the House at approximately 1:30 p.m. He obtained admittance and some form of altercation ensued, during which the home office furniture was disturbed. The Defendant brandished the handgun replica at the victim and forced her to leave the House by the back door. The Defendant forced the victim to the assault area, where he struck the victim in the head with a branch. The Defendant also inflicted numerous other severe injuries on the victim, eventually killing her through a combination of blunt force trauma and strangulation. At some point during the assault, the Defendant engaged in some form of sexual activity with the victim. Either before or after killing her, the Defendant dragged the victim to another area in the woods and dumped her body. The victim was a thirty-seven-year-old wife and mother. There was no apparent motivation, provocation, or justification for her murder.
After killing the victim, the Defendant returned home and changed his clothes. When questioned, he denied assaulting the victim. The record contains no expression of remorse and no evidence that the Defendant might be rehabilitated. The Defendant is an African American who was thirty-three years old when he killed the victim. His parents were divorced when he was young, and he spent the majority of his adolescent and young adult years in institutional settings, including a mental hospital and boarding school.31
31 We glean this information from Dr. Hutson's pre-trial testimony.
His I.Q. score at age fourteen was 77, described by Dr. Hutson as “borderline retarded.” The Defendant has three previous convictions, all of which occurred in Pennsylvania more than ten years before he committed the instant crimes.
Based on our thorough review of the record and Supreme Court Rule 12 reports,32 we conclude that the death sentence imposed in this case is not excessive or disproportionate when compared to the penalty imposed in similar cases. We have upheld the death sentence in numerous cases where the defendant beat and/or strangled a woman to death. See, e.g., State v. Faulkner, 154 S.W.3d 48 (Tenn.2005) (defendant murdered victim by hitting her in the head and face with a skillet; prior violent felony aggravating circumstance); Hall, 8 S.W.3d at 593 (defendant murdered the victim by beating, strangling, and drowning her; HAC aggravating circumstance); State v. Cauthern, 967 S.W.3d 726 (Tenn.1998) (defendant and co-defendant broke into victim's home and raped and strangled her; HAC aggravating circumstance); State v. Nichols, 877 S.W.2d 722 (Tenn.1994) (defendant murdered woman by beating her in head with a piece of lumber during rape; prior violent felony aggravating circumstance; jury's application of invalid felony murder aggravating circumstance harmless beyond a reasonable doubt); State v. Cazes, 875 S.W.2d 253 (Tenn.1994) (defendant raped woman and murdered her by beating her head with a hammer; prior violent felony and HAC aggravating circumstances; jury's application of invalid felony murder aggravating circumstance harmless beyond a reasonable doubt); State v. Alley, 776 S.W.2d 506 (Tenn.1989) (defendant abducted victim and took her into a park where he beat, strangled, and raped and stabbed her with a branch; HAC and felony murder aggravating circumstances); State v. Barber, 753 S.W.2d 659 (Tenn.1988) (defendant beat woman in head with crescent wrench during home-invasion burglary; HAC and felony murder aggravating circumstances); State v. McNish, 727 S.W.2d 490 (Tenn.1987) (defendant beat woman in head with vase; HAC aggravating circumstance); State v. Harbison, 704 S.W.2d 314 (Tenn.1986) (defendant killed victim during home burglary by striking her on the head multiple times with a vase; felony murder aggravating circumstance).
This Court also has upheld a death sentence imposed on defendants who suffered from some mental disabilities or childhood issues. For instance, in State v. Odom, 336 S.W.3d 541 (Tenn.2011), the defendant was convicted of first degree felony murder in the perpetration of rape. In mitigation, the defendant presented evidence that, at the age of fourteen, he was diagnosed with “a moderate to severe personality disturbance” and was determined to be reading at a second grade level. Id. at 551. He also presented evidence that he had been abandoned by his mother, abused and ridiculed by his adopted parents and grandmother, and spent a significant amount of time in state custody. Id. We
32 Tennessee Supreme Court Rule 12 requires trial courts to file extensive reports in all cases in which the defendant is convicted of first degree murder. These reports include data about the crime, the defendant, and the punishment imposed. See Tenn. Sup.Ct. R. 12(1) and the appendix thereto.
upheld the death sentence imposed on the basis of the prior violent felony aggravating circumstance and the felony murder aggravating circumstance. Id. at 547–48.
In State v. Rollins, 188 S.W.3d 553 (Tenn.2006), the defendant stabbed to death an elderly man. The defendant presented proof that his I.Q. fell within “the borderline defective range, slightly above mentally retarded”; that he could not read or write; that his mother was physically and mentally unwell; and that his parents were divorced while he was a child and that he had lived with his grandmother. Id. at 563. We upheld the death sentence on the basis of four valid aggravating circumstances found by the jury: the victim was over sixty-nine years old; the felony murder aggravating circumstance; the murder was committed to avoid prosecution; and the HAC aggravating circumstance. Id. at 564, 574.
In Rice, 184 S.W.3d at 646, the defendant was convicted of alternative counts of first degree premeditated and first degree felony murder for stabbing a thirteen year old girl to death. The defendant presented proof of a low I.Q. and that he “suffered a delusional and paranoid disorder.” Id. at 678. This Court upheld the death sentence on the basis of two valid aggravating circumstances found by the jury: the HAC aggravating circumstance and the felony murder aggravating circumstance. Id. at 653, 677–78.
In State v. Middlebrooks, 995 S.W.2d 550 (Tenn.1999), the defendant was convicted of first degree felony murder for participating in beating, cutting, stabbing, burning, and mutilating the fourteen-year-old male victim. The defendant presented proof that he suffered from “a severe borderline personality disorder” and brain impairment and that he had spent time in a children's home and in prison before age twenty-four. Id. at 555. His home life as a child was unstable and he was sexually abused. Id. This Court affirmed the defendant's death sentence on the basis of a single valid aggravating circumstance found by the jury, the HAC aggravating circumstance. Id. at 553.
In State v. Hines, 919 S.W.2d 573 (Tenn.1995), the defendant was convicted of first degree felony murder for stabbing a woman to death. The defendant had also raped the woman. The defendant presented proof of “a troubled childhood” and that he suffered from self-destructive behavior, paranoid personality disorder, and chronic depression. Id. at 577. This Court affirmed the death sentence on the basis of two valid aggravating circumstances found by the jury: the prior violent felony and the HAC aggravating circumstances. Id. at 582 n.3, 584.
Based upon our close review of the entire record in this case, combined with our review of these and other cases in which the death penalty was imposed and upheld, we hold that the sentence of death imposed in this case for the brutal murder of Starr Harris
is not disproportionate to the penalty imposed for similar crimes under similar circumstances. The Defendant is entitled to no relief on this basis.
Conclusion
For the reasons set forth above, we affirm the Defendant'?s convictions and sentence of death.33
The sentence of death shall be carried out as provided by law on the 18th day of October, 2016, unless otherwise ordered by this Court or other proper authority. It appearing that the Defendant Rickey Alvis Bell, Jr., is indigent, the costs of this appeal are taxed to the State of Tennessee.
33 The Defendant has not challenged his other sentences.
JEFFREY S. BIVINS, JUSTICE
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Decided: September 10, 2015
Court: Supreme Court of Tennessee,
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