Appeal from the Criminal Court for Hawkins County, Hon. James Beckner, Judge.
Brock, J. wrote the opinion. Cooper, C.j., Fones, Harbison and Drowota, JJ., Concur.
The opinion of the court was delivered by: Brock
The defendant, Stephen Leon Williams, was convicted of first degree murder and sentenced to death by electrocution for the killing of James E. Grizzle on or about January 12, 1981.
The victim, James Grizzle, a middle-aged man, apparently had saved some money while employed by a steel company in Indiana and he purchased an old house located near the Holston River in Hawkins County. He set about to remodel the two-story dwelling house and engaged the defendant, Stephen Leon Williams, to assist him in that work. As the remodeling work progressed, these two men lived on the premises, Williams upstairs and the victim, Grizzle, downstairs. Approximately between the hours of 1:00 a.m. and 2:00 a.m. on Thursday, January 15, 1981, the house was totally destroyed by fire. Earlier, at about 10:00 p.m., on the same night neighbors heard an explosion at the house. Firefighting authorities came to the scene but were unable to halt the fire.
When the victim's father did not hear from his son at the end of the week, as was customary, he alerted the police. Police officers called in arson experts and a forensic anthropologist from the University of Tennessee at Knoxville to aid in investigating the debris left from the fire. This investigation disclosed that a liquid accelerant had been used which had caused the fire to reach temperatures exceeding 2,000 degrees Fahrenheit. The forensic anthropologist found a badly burned human skeleton in the debris downstairs; the upper torso and head had been severed from the remainder of the body and lay several feet away from the lower portion of the body. These skeleton remains matched Mr. Grizzle's physique and age and the teeth were consistent with his dental records.
The investigation by the law enforcement officers disclosed that, beginning on the Tuesday next before the fire on Thursday, the defendant Williams had begun to sell or trade various articles of the victim's property, viz., some carpet, a van and a dumpt truck. He told one person that the van belonged to a man down on the river who no longer needed it. He cashed two checks, totaling $1,400.00, written on the victim Grizzle's Virginia bank account and the evidence indicated that these checks were forgeries; in fact, defendant Williams told his girl friend, Barbara Wilson, that he had forged Grizzle's signature on them. The defendant also gave away Mr. Grizzle's suitcase and clothing which it contained.
The officers' investigation also revealed that on Tuesday evening James Moffit, a Kingsport police detective, was visiting a friend who lived near the home of defendant Williams when the detective received a telephone call from the defendant who said that he would "talk with" the detective if the latter would put down his gun. This, the detective refused to do, but shortly thereafter as the detective was leaving the home of his friend he was confronted by the defendant Williams who was armed with a rifle and who again demanded that the detective put down his gun. Detective Moffit refused that demand and threatened to call police headquarters for assistance if Williams continued the confrontation. At this point the defendant Williams left the scene.
Later on that same Tuesday night the defendant was arrested at a restaurant in Kingsport at which time he had on his person three pistols. On the next morning, Wednesday, the defendant told his bondsman that he needed to get out "pretty quick" because "he had something he had to take care of." The bondsman testified that Williams was nervous, upset and vomiting when he saw him that morning.
When asked where the victim, Mr. Grizzle, was, the defendant Williams told one story about how he had gone to Florida and another about his having left for Ohio. Later he told his girl friend, Barbara Wilson, that, although he had been at the house on the night of the killing, he did not do the killing but that Grizzle's "relatives" had done it. He told her also that Grizzle had been shot four times and that the weapon had been thrown into the river.
The defendant was released on bail after his arrest for the murder but he fled to Cincinnati, Ohio, when he read in a newspaper that parts of the victim's body had been found and sent to a laboratory at the University of Tennessee at Knoxville for identification.
Defendant Williams was tried with Tony Flynn, a non-testifying co-defendant, who was acquitted by the jury. Certain of Flynn's statements to officers and others were highly incriminating of defendant Williams but were redacted and admitted into evidence. The redacted version of Flynn's statements indicated that a man had been murdered in a house down on the river; that an explosion had so badly scattered the corpse that Flynn could not remove the body from the house; that the house "smelled like a meat packing plant"; that Doberman pinscher hounds had been brought into the house but would not touch the human flesh. After the fire had destroyed the house in the early morning hours on Thursday, Flynn told a witness that the evidence was destroyed and that the victim's van had been taken out of state.
The defendant presented no proof of any kind.
The defendant argues that the evidence is insufficient to support his conviction; we conclude otherwise. Although the evidence in this case is mostly circumstantial and was presented in a very fragmented manner, we conclude that a reasonable trier of fact could find that the defendant committed the offense of first degree murder beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979); State v. Melson, Tenn., 638 S.W.2d 342 (1982); Rule 13(e), Tennessee Rules of Appellate Procedure.
A jail mate of the defendant, William Douglas Helton, testified that he overheard the defendant state to Julius Hollifield, another inmate, that he had shot the deceased while attempting "to rob" him: "I shot him because I got caught at it, didn't want to get caught at it" and "he went in there to rob him and then he got into an argument over the robbery."
The defendant's girl friend, Barbara Wilson, testified that he told her that he was present when Mr. Grizzle had been killed by some members of the Grizzle family; she also testified that the defendant told her that the victim had been shot only four, not seven times, explaining, "you can't shoot a person seven times; it would take two guns, a gun only shoots six bullets." Moreover, he told her that the murder weapon would never be found, that it was in the river.
The witness Helton testified that the defendant told him that he blew up the body of the victim to get rid of it and that he "jumped" bond and went to Cincinnati, Ohio, when he heard that parts of the victim's body had been found and sent to a laboratory at the University of Tennessee in Knoxville.
Other evidence indicates that shortly following Mr. Grizzle's death the defendant depleted the victim's bank account by means of forged checks and that the defendant also sold the victim's van and dump truck.
We conclude that the evidence was sufficient, measured by the authorities above cited.
Next, the defendant urges error in the failure of the trial court to sever his trial from that of co-defendant, Flynn. The prosecution had in its possession and introduced into evidence several statements made by Flynn. These statements strongly implicated defendant in the murder. The trial Judge elected to follow the procedure outlined in Rule 14(c)(1)(ii), Tennessee Rules of Criminal Procedure, by deleting from Flynn's statements all references to the defendant Williams and allowing the statements, as thus altered, to be admitted into evidence.
The defendant's primary complaint in this regard concerns the redaction and subsequent introduction into evidence of an oral statement allegedly made by co-defendant Flynn to his friend, the witness, John Frazier. In pertinent part, Rule 14(c)(1)(ii) is as follows:
"If a defendant moves for a severance because an out of court statement of a co-defendant makes reference to him but is not admissible against him, the court shall determine whether the state intends to offer the statement in evidence at trial. If so, the court shall require the prosecuting attorney to elect one of the following courses:
"(ii) A joint trial at which the statement is admitted into evidence only after all references to the moving defendant have been deleted, if, as deleted, the confession will not prejudice the moving defendant; and . . . ."
It is clear from the record that the trial court did redact from the statement in question all references to defendant Williams but the defendant argues, nonetheless, that even with the deletions, the oral statement of co-defendant Flynn was prejudicial to defendant Williams, in that, it rendered too hazardous the effort of defendant Williams' attorney to cross-examine the witness Frazier. He argues that cross-examination might have elicited from the witness, inadvertently, a response that would bring out incriminating matters that the court had attempted to excise. Our review of the record discloses that Frazier's testimony did not implicate appellant Williams and that Frazier was clearly aware of the limitations placed upon his testimony by the trial Judge. Thus, this claim of error is denied. *fn1
Defendant Williams also complains that certain prospective jurors who expressed reservations respecting the imposition of the death penalty were improperly excused by the court during voir dire. Defendant complains, primarily, of the dismissal of prospective juror Mrs. Willis whose voir dire, in pertinent part, was as follows:
"The Court: Mrs. Willis, when you expressed mental reservations about the death penalty then that triggers some questions that I must ask you.
Would your mental reservations about capital punishment prevent your from making an impartial decision as to the defendant's guilt or innocence in this case?
"Juror No. 3 Mrs. Willis: I can find them guilty, but I couldn't impose . . . .
"The Court: Would you be able to make an impartial decision as to their guilt or innocence?
"Juror No. 3 Mrs. Willis: I don't know.
"The Court: Because of your mental reservations about capital punishment, do you state that you automatically could never vote to impose the death penalty in this or any other case?
"Juror No. 3 Mrs. Willis: Yes, I don't think . . . .
"The Court: Would you automatically refuse to consider the imposition of capital punishment in this case regardless of the law and the evidence in the case?
"Juror No. 3 Mrs. Willis: Yes.
"The Court: You get to go back with the children. You may be excused."
We hold that the excusal of juror Willis was proper under our decision in State v. Harrington, Tenn., 627 S.W.2d 345, 350 (1981) and under Wainwright v. Witt, decided by the United States Supreme Court on January 21, 1985 (see slip opinion). In Wainwright, the Supreme Court expanded the discretion which Witherspoon v. Illinois, 391 U.S. 510, 88 S. Ct. 1770, 20 L. Ed. 2d 776 (1968) had allowed trial courts in excusing jurors in death penalty cases on grounds that they opposed, to one degree or another, the imposition of the death penalty. Now, the test is whether the juror's views would "prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and oath." In our opinion, however, the excusal of Mrs. Willis would have been proper under the stricter standard set out in Witherspoon. We find no error in the excusal of Mrs. Willis.
Next, the defendant argues that the trial court erred in refusing to permit his counsel during voir dire examination to ask prospective jurors:
"How many of you believe that if [the death penalty were imposed] something or someone thereafter would probably intercede to see that it wasn't carried out?"
Essentially the same question was held to be improper in State v. Strouth, Tenn., 620 S.W.2d 467, 471 (1981). There the defendant attempted to ask jurors: "Do you realize that if Mr. Strouth is sentenced to die that he will actually be killed?"
We hold, for the same reasons expressed in Strouth, that the court did not err in refusing to allow defense counsel to ask the question above quoted in the instant case.
During his opening statement, the prosecuting attorney stated:
"He [detective James Moffit] saw that Leon Williams was there and he told him at that time, he told Mr. Grizzle, he said 'I know Leon Williams.' He said, 'you had better not have nothing to do with him.'"
Counsel for defendant Williams objected and the court sustained the objection as follows:
"The Court: Sustained. That is not proper argument, that is not proper opening statement and, members of the jury, it may become relevant at some period of time; but I will ask you to disregard that remark entirely and not consider it for any purpose."
Defense counsel did not move for a mistrial but did object to the prosecutor's statement. We are satisfied that the trial court's sustaining of the objection and his admonition to the jury to disregard the improper statement of the prosecuting attorney prevented error. The jurors are presumed to have heard and followed the trial Judge's instruction.
We find no merit in the defendant's insistence that the trial court erred in admitting evidence concerning the defendant's confrontation with Detective Moffit on the evening following the murder of the deceased. That incident was relevant to show that, shortly after the killing, the defendant apparently thought that the police were looking for him, thus evidencing a consciousness of guilt for the killing. The trial Judge properly instructed the jury concerning a correct consideration of this evidence. We find no error.
After the defendant and his co-defendant Flynn were arrested for this murder and while they were occupying the same jail cell, police officers eavesdropped and recorded their conversation on tape and the tape was played at trial. The defendant bases his attack, not on constitutional grounds, but upon the basis of 18 U.S.C., § 2510, et seq., which makes it illegal for any person to willfully intercept any "wire or oral communication" and imposes criminal and civil sanctions for so doing. This statute also prohibits the admission into evidence of illegally intercepted wire or oral communications before either federal or state courts. 18 U.S.C., §§ 2515, 2518(10)(a). The State argues that, insofar as the act purports to prescribe a rule of evidence for the state courts on non-constitutional grounds, it is unconstitutional; but, we do not reach that question because we interpret the act to have no application to this taped conversation.
A protected "oral communication" is one "uttered by a person exhibiting an expectation that such communication is not subject to interception under circumstances justifying such expectation." Several times during the taped conversation the defendant stated that "there is probably a bug in here," clearly demonstrating that he had no actual expectation of privacy. Moreover, such an expectation of privacy is not justified in a jail cell. Lanza v. New York, 370 U.S. 139, 82 S. Ct. 1218, 8 L. Ed. 2d 384 (1962); 1968 U.S.C. & A.N. 2177; People v. Suttle, 90 Cal. App. 3d 572, 153 Cal. Rptr. 409 (1979); People v. Califano, 5 Cal. App. 3d 476, 85 Cal. Rptr. 292 (1970).
The prosecution sought to show that two checks totaling $1,400.00 and written on the victim Grizzle's bank account were not genuine but had been forged by the defendant Williams. In support of this theory, the State offered the testimony of Mrs. Vivian Luney, vice president of the loan department at Mr. Grizzle's bank, to testify concerning the genuineness of the drawer's signature. The defendant contends that she was not qualified to give an opinion. For a period of 22 years the witness had examined from four to five signatures per year to determine their authenticity and she had seen and compared Mr. Grizzle's signature card and other checks which he had written although she was not familiar with his signature prior to this case. She was allowed to testify that in her opinion the signatures on these two checks were not in the handwriting of Mr. Grizzle. The trial Judge instructed the jury respecting the weight they were to give to this testimony of the witness and we find no error in allowing her testimony. Allen v. The State, 22 Tenn. 367, 368 (1842); McCormick on Evidence, § 221 (2d ed. 1972). The testimony was admissible; its weight was for the jury.
One of the key witnesses for the prosecution was William Douglas Helton who testified that while in jail he overheard defendant Williams make incriminating statements to another prisoner, Julius Hollifield. Prior to trial, the defendant moved the court for an order requiring the State to disclose all witnesses to whom it had offered immunity or other favors in exchange for testimony in this case. The order was granted and the District Attorney, with respect to witness Helton, denied that any promises of leniency or other favor had been offered to Helton in exchange for his testimony against the defendant in this case. The defendant argues that, in fact, the District Attorney had agreed to a plea bargain with Helton whereby he would receive a very lenient sentence in exchange for his testimony in the case at bar.
Helton had already been convicted of stealing cattle from hs father and at the time of the events here at issue he was in jail for a second theft of his father's cattle and was awaiting trial on the new charges. The District Attorney admitted that he had discussed Helton's case with Helton's attorney and with Helton's father, who happened to be the prosecuting witness on the pending charges, and that the date which had been fixed for Helton to enter his plea of guilty and to receive a sentence on the pending charges had been passed from a date prior to the trial of the instant case until some time after the case at bar should have been concluded but denied that he had talked to the witness Helton or had made any plea bargain with him whatsoever.
After this trial was concluded and at the hearing of the defendant's motion for a new trial, it was shown that subsequent to this trial Helton had in fact entered a plea of guilty to the pending larceny charges and, as the result of an agreement approved by the office of the District Attorney General, he had received a minimum sentence of three years on all three grand larceny charges, including the first and the second charges of stealing his father's cattle.
The defendant contends that the failure or refusal of the District Attorney General to disclose the alleged plea bargain agreement that he had with the witness Helton to the jury in the case at bar constitutes a denial of due process the the defendant Williams. See Giglio v. United States, 405 U.S. 150, 92 S. Ct. 763, 31 L. Ed. 2d 104 (1972); Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963).
When the reliability of a witness may well be determinative of guilt or innocence, the non-disclosure of evidence affecting his credibility may justify a new trial, regardless of the good or bad faith of the prosecutor. Giglio v. United States, 92 S. Ct. 763, 766. The difficulty with the defendant's argument is that the record does not support his insistence that leniency had been promised to the witness Helton in exchange for his testimony. When specifically asked about the matter, the District Attorney General positively asserted that no leniency had been promised to Helton and the record is devoid of any evidence that plea negotiations had in fact taken place or that the State had offered anything in exchange for a guilty plea from Helton. The fact that Helton's case had been passed over for Disposition to a time following the trial in the case at bar and at that hearing he had entered a plea of guilty and was sentenced to the minimum sentence of three years does not establish the defendant's theory; a suspicion, yes, but nothing more.
Next, the defendant argues that the trial court erred in failing to grant a mistrial because of improper argument made by the prosecuting attorney in closing argument. As he neared the end of his argument, the prosecutor stated to the jury:
"You know, there is one other thing that I didn't understand until late yesterday afternoon. I kept sitting there, and Mr. Christiansen (co-counsel) every once in a while, you know, he helped me, I guess, or at least he caused me to think about it, and they kept saying, 'your house burned,' 'your house burned,' and, you know, I got to thinking about it. I appreciate that ...