Hamilton County. Hon. Douglas A. Meyer, Judge. (First-Degree Murder).
Petition to Rehear Denied August 24, 1995,
Judge David G. Hayes, Concur: Judge Paul G. Summers, Judge Joseph M. Tipton
The opinion of the court was delivered by: Hayes
The appellant, Jeris E. Brag an, appeals from a conviction of first-degree murder entered in the Criminal Court for Hamilton County. The appellant raises the following issues for our review:
(1) whether due process bars retrial of the appellant due to "outrageous" prosecutorial misconduct;
(2) whether the appellant's conviction should be vacated and the indictment dismissed under the court's "inherent supervisory authority";
(3) whether the appellant's conviction should be vacated and the indictment dismissed for prosecutorial vindictiveness;
(4) whether the evidence is sufficient to sustain a verdict of guilty;
(5) whether marital privilege should have barred the testimony of the appellant's wife;
(6) whether the trial court erred in admitting hearsay testimony that the victim thought that the appellant was going to kill him;
(7) whether the appellant's statements to the police were products of an unlawful seizure;
(8) whether the appellant was denied effective cross-examination of a witness;
(9) whether the testimony of a State's expert witness exceeded the scope of his expertise;
(10) whether the testimony of an expert witness for the defense invaded the province of the jury;
(11) whether the trial court improperly limited redirect examination of a defense witness; and
(12) whether certain portions of a stipulated exhibit were improperly redacted.
After a review of the record, we affirm the judgment of the trial court.
In March 1977, the appellant and his wife at that time, Darleen Whary Bragan, were indicted for the November 22, 1976 murder of George Urice. In September of the same year, a Hamilton County jury found the appellant guilty of first-degree murder and his wife guilty of second-degree murder. *fn1 The appellant received a sentence of ninety-nine years. His conviction was affirmed by this court on January 18, 1979, and permission to appeal was denied by the Tennessee Supreme Court on April 9, 1979.
In 1992, the appellant sought habeas corpus relief in the Federal District Court for Middle Tennessee. After conducting an evidentiary hearing, the district court granted the appellant's petition for writ of habeas corpus. The district court found by a preponderance of the evidence that the "State failed to disclose exculpatory evidence to the defendant and failed to correct materially false and misleading statements made at trial by prosecutors and by the State's key witness." Bragan v. Morgan, 791 F. Supp. 704, 721 (M.D. Tenn. 1992). The court ordered the appellant released from custody if a new trial was not granted within sixty days. The appellant was released in compliance with the court's order after serving fifteen years of his ninety-nine year sentence.
The appellant was retried in January, 1994 and was again found guilty of first-degree murder. He received a sentence of ninety-nine years in the Department of Correction.
The following proof was developed at the appellant's second trial in January 1994. In 1976, the appellant and Mr. George Urice were in the private investigation business in Chattanooga. The appellant was president and principal owner of a detective agency named Searchers, Inc., which employed Urice as an investigator. The appellant's wife, Darleen Whary Bragan, worked as a secretary and part-time investigator at the agency. The agency was located in Apartment 116 of the Stratford Apartments in Hixson. The appellant and his wife resided in an apartment located in the same complex. In the fall of 1976, the appellant and Urice contacted Phil Smartt, a local Mormon preacher and insurance salesman, concerning the purchase of a "key man" life insurance policy for the corporation. Eventually, Smartt issued a policy on the lives of both the appellant and Urice, with coverage of $100,000 for each individual. In the event of the accidental death of either party, the policy would pay $200,000. At the request of the appellant, Searchers, Inc. was designated the beneficiary of the policy. Bragan was covered immediately, but Urice's coverage, due to his age, was effective upon completion of a medical review. The policy became effective October 13, 1976.
The record indicates that Urice was unhappy with his business and personal relationship with the Bragans, and had expressed fear and distrust of the couple. On more than one occasion, he told his wife that he felt like the appellant was going to kill him for the insurance proceeds. He told Smartt, who doubled as Urice's minister, that the Bragans were "amoral." Also, his paycheck had bounced on several occasions, and he talked of seeking employment with other detective agencies in the area.
On the evening of November 22, 1976, Dwayne Pitts, an Emergency Medical Technician for Hamilton County, was dispatched to the office of Searchers, Inc. When he arrived, he found George Urice's body lying on the floor directly beneath a carpeted stairway, blocking the front door. Urice had injuries to the face and head, and his body was badly swollen. Splatters of blood were present on the floor and the walls at the bottom of the stairway. Pitts called the police, who arrived shortly thereafter.
Detectives with the Chattanooga Police Department inspected the scene, gathered evidence and took photographs. The detectives observed a broken tooth and fingernail on the stairwell, scuff marks on the wall at the top of the stairs, and what appeared to be blood on soap and a towel in the downstairs bathroom. They also noticed that the appellant had blood on his clothing, and that a chair with two broken legs was on the floor near the victim. The appellant told the detectives that he was not present when Urice was killed, but that Urice had been drunk and that he must have accidentally fallen down the stairs. He also told detectives that when he discovered the body, it was lying over a chair.
Sometime after the police arrived at the scene, the deputy coroner for Hamilton County arrived. The coroner, along with the police, noticed that the victim had indentations around his wrists, and a mark on his back in the pattern of handcuffs. The deputy coroner and detectives attached handcuffs to the victim's wrists, and held them up to his back. The indentations on the victim's wrists and the mark on his back perfectly matched the outline of the officer's handcuffs.
Later that evening, Detective William Dixon took the statement of the appellant at the police station. The appellant told Dixon that he and his wife had planned to fly to Washington D.C. on the night of the 22nd, and that Urice had agreed to drive them to the airport. According to the appellant, when he came to the office between 10:30 and 11:00 a.m., Urice was already there. The appellant's wife showed up a few minutes later, and the three of them stayed in the office until 12:30 p.m., discussing business and drinking coffee with brandy. The appellant told Dixon that at 12:30, they went to a local restaurant, where they ate lunch and had several drinks. They returned to the office around 2:30 p.m., where they talked and drank until 5:15 or 5:30 p.m.. At that time, the appellant and his wife left Urice at the office and went to their apartment to pack. According to the appellant's statement, they were out of cigarettes, so they went to a local restaurant to buy some. Sometime later, they returned to the office and found that the front door was blocked. The appellant told Dixon that he saw blood on the floor and the top of the victim's head, and, realizing that something was wrong, he went around to the back of the office, broke the sliding glass door with a tire iron, entered and found the body of the victim. He then moved the body to determine whether Urice was still alive. The appellant couldn't remember whether the body was lying over a chair. The appellant denied killing the victim, stating that he was his best friend and that the victim's wife was "the closest thing to a mother that his wife has." The appellant also stated that he did not see any handcuffs when he moved the body, and he could not recall the position of the body when he found it.
The appellant's wife at the time of the murder, Darleen Whary, testified for the State. *fn2 Whary testified that early in the fall of 1976, the appellant started discussing with her how he was going to kill Urice. According to her testimony, the appellant told Whary that he was going to kill Urice for the proceeds of the key man insurance policy and because he feared Urice. The appellant told her that he planned to get Urice drunk and push him down the stairs of the office, making it look like an accident. Whary testified that when she arrived at the office on November 22, 1976, the appellant and Urice were there. The three of them talked for awhile, then went to lunch at a local restaurant, where they had several drinks. They then drove back to the office. Whary testified that upon arriving at the office, the appellant went to check the mail, leaving Whary and Urice in the car. Shortly thereafter, the appellant joined Whary and Urice in the office. The three individuals then sat around in one of the upstairs offices and had more drinks. According to Whary's testimony, Urice was not drinking fast enough to suit the appellant, so the appellant urged him to drink. When Urice resisted, the appellant produced a gun and forced him to drink. When Urice again began to resist, the appellant had Whary hold the gun while he handcuffed Urice behind his back and poured scotch into his mouth and forced him to drink. According to Whary, at some point after this, the appellant placed gauze in Urice's mouth and adhesive tape over his mouth, and began "talking mean and ugly to him, like you do someone that you're trying to humiliate or dehumanize." The appellant then got up and led Urice to top of the stairs. Whary testified that at this point, she went downstairs into the kitchen. The next thing she heard was "a crash and a thud." She then went into the entrance area of the office where she saw Urice lying in a crumpled heap on his right side at the bottom of the stairs. The appellant was standing over Urice. Whary testified that the appellant determined that Urice was still alive by checking his pulse, then retrieved a nightstick from a supply closet and "held it up to [Urice's] throat until there was no more air."
Whary testified that after killing Urice, the appellant said "now we have to go and be seen some place so people will see us during this time, and we have to get rid of these handcuffs and nightstick." According to Whary, they then drove toward Chickamauga Lake. On the way, Whary, at the request of the appellant, threw the nightstick into some weeds by the side of the road. The appellant then threw the handcuffs into Chickamauga Lake. After disposing of the handcuffs, the appellant and Whary drove to Denny's restaurant, where Whary entered and bought a pack of cigarettes. Whary testified that they then proceeded to the office and pretended to discover Urice's body. The appellant then broke a chair to make it look like Urice was carrying a chair downstairs and fell down the steps. According to Whary's testimony, the appellant removed the tape and gauze from the victim's mouth, moved the body to deceive the coroner and called paramedics.
Whary testified that she did not know what exactly occurred between the appellant and Urice at the top of the stairs. On cross-examination, Whary testified that she never saw the appellant strike a blow to Urice's head.
Elizabeth Teal Sizer-Haven testified that she lived at the Stratford Apartments, next door to the appellant's office, in 1976. She was sixteen at the time. She testified that at 6:00 p.m. on November 22, 1976, she heard loud sounds from the upstairs portion of the appellant's office. A few minutes later she heard a loud thud or crash coming from the bottom of the stairwell of the appellant's office. At 6:15, she heard the sliding glass door of the appellant's office "hitting and closing really loud." Another resident of the Stratford Apartments at the time testified that around 6:15 or 6:30 on the 22nd, she saw the appellant running around the back of the building with something in his hand. Also, the testimony of the apartment manager at the time of the killing from the 1977 trial was read into the record. The manager testified that at 4:00 or 4:30, she saw a gray-haired man and the appellant's wife get out of a car and go into the appellant's office. *fn3
Dr. George Beckmann, county coroner and county medical examiner for Hamilton County in 1976 testified that a post-mortem examination of Urice was conducted the day after he was killed. Dr. Beckmann testified that Urice had a laceration approximately one and one-half inches long over his left eye, a cut lower lip on the right side of his mouth, contusions around his left eye, multiple contusions and bruising of the head and neck, depression marks from some sort of restraint on both wrists, and an imprint of a handcuff on his back. Dr. Beckmann testified that the victim had liver mortis from the back of his neck to the upper buttocks of his back, meaning that the body had been lying on its back for forty-five minutes to an hour after death. He testified further that the handcuff impressions on the victim's wrists occurred before death, and the imprint on his back occurred after death. The victim was also missing a front incisor, and the gum was still raw in the place where it had been located. Dr. Beckmann testified further that the victim had a large fracture of the skull (four and-a-half inches) over the right parietal area and a marked edema (swelling) to the brain. According to Dr. Beckmann, the victim died as a result of a severe beating to the head and the edema of the brain that resulted from the injuries. He testified that the appellant had received at least four or five blows to the head. Beckmann performed a blood alcohol test, which revealed that the victim had a blood-alcohol content of .23 percent. Finally, Dr. Beckmann testified that the head injuries could not have been caused by a fall down the carpeted stairs in the appellant's office. According to Dr. Beckmann, the only injuries consistent with a fall down those particular stairs were the cut lip and missing tooth.
As part of its case in chief, the prosecution read into the record the 1976 lab reports of two forensic scientists from the Tennessee Bureau of Investigation. The first report revealed that blood on the appellant's clothes matched the victim's blood, that tests on the bathroom towel, nightstick and handcuffs gathered at the scene indicated the presence of human bloodstaining, but the samples were insufficient for further tests, and that there was no indication of bloodstaining on the soap from the office bathroom. The second report revealed that the fingernail found on the stairs of the office was a female fingernail, and that there was no evidence of breaking or tearing of the fingernail.
The defense offered the theory that it was not the appellant, but the appellant's wife, Darleen Whary, who committed the murder. Several witnesses testified in furtherance of this theory. Rick Sharp testified that he was acquainted with the Bragans and had worked for Searcher's Inc. in 1975-76. After the appellant's conviction, Sharp had become close friends with the appellant through his work with the prison ministry of a Chattanooga area church. Sharp testified that he had a date with Whary shortly after the first trial, while Whary was free on appeal bond. Sharp testified that during their date, Whary related the following account of what transpired on the date of Urice's killing. Whary and Urice were alone in the office after lunch. Urice was drunk, and the two of them started arguing. Whary pushed Urice, who fell and hit his head on a chair. While he was in a semi-conscious state, Whary handcuffed him. She was directing him towards the stairs when he tripped and fell to his death. Sharp testified further that in the fall of 1982, he visited Whary at the state prison for women in Nashville. According to Sharp, during the visit he asked her why she wouldn't tell the truth and let the appellant go free. Whary allegedly became angry at this suggestion, stated that the appellant deserved to be in prison, and "patted down" Sharp for "wires". On cross-examination, Sharp admitted that he had visited Whary in prison at the appellant's request.
The appellant testified in his own defense. He testified that after returning from lunch on the date of the murder, he left his wife and Urice at the office, went to his apartment and fell asleep on the couch. Around 5:00 p.m., he was awakened by his wife, who told him that Urice had fallen down the stairs and was dead. According to the appellant, he then ran down to the office and went in through the sliding glass door in the back. He walked into the living room and saw Urice at the bottom of the stairs. He went to check the victim for a pulse, and discovered that he was handcuffed. The appellant testified that at this point he lifted the appellant's body and removed the handcuffs. He then started to call for medical assistance but was stopped by his wife. According to the appellant, he asked his wife what had happened and she said that Urice was drunk and had approached her from behind and grabbed her breasts and crotch. She had pushed him away, and he had fallen backwards and hit his head on a chair. The appellant testified that Whary told him that she then handcuffed Urice, and led him to the stairs, where he tripped and fell. The appellant admitted that he broke the chair to make it look like an accident and disposed of the handcuffs and nightstick, although he stated that he threw both items into Chickamauga Lake. The appellant testified that he concealed evidence, lied to the police and lied in the first trial in order to "protect his family," and, because of a condition of hypoglycemia, it was difficult for him to think.
In his testimony, the appellant admitted that he had been found guilty of wiretapping, a federal offense, in 1972.
The defense read into the record testimony from the 1977 trial of two doctors to establish that the appellant suffers from hypoglycemia. *fn4 First, Dr. William Kutzner testified that he had diagnosed the appellant as hypoglycemic in 1975. Dr. Carl E. Humiston testified that after the appellant was arrested, he performed a series of tests on him and discovered that he was "allergic" to several foods, including foods and alcohol that he had ingested on the day of the murder. According to Dr. Humiston, ingestion of these foods has various effects on the appellant, including making him dizzy and affecting his ability to think.
The defense called two doctors to contradict the cause of death as determined by the medical examiner. Both doctors' medical opinions were based upon their examination of the autopsy report prepared by the medical examiner's office and the autopsy photographs. Dr. Myron Mills, an emergency physician, testified that the victim was not killed by blows to the head and that the edema to the victim's brain was probably not caused by the fracture to the skull. Mills testified further that the victim most likely died as a result of "some type of compromise in the victim's airway or anything that would have affected his ability to breathe." Dr. Mills also testified that the autopsy was neither thorough nor complete. Dr. Kris Lee Sperry, a forensic pathologist from Atlanta, also testified that head injury was not the cause of death. *fn5 He testified that there was no evidence of strangulation, and that the injury to the victim's neck was too low to cause strangulation. He further stated that the adhesive tape would have left marks and bits of adhesive material on the appellant's face, none of which was evident in the photographs. Dr. Sperry also testified that many of the injuries suffered by the victim were consistent with falling down the stairs of the office, and that the injuries to the right side of the head, lower lip and forehead were consistent with being kicked by a hard soled shoe. Finally, Dr. Sperry testified that he could not state the cause of death with reasonable medical certainty.
At the Conclusion of the testimony, the jury returned a verdict of guilty. The appellant was sentenced to ninety-nine years imprisonment, and now appeals from the verdict.
I. Prosecutorial Misconduct, the Court's Inherent Supervisory Power and Retrial of the Appellant
The appellant's first three assigned errors deal with the issue of whether the appellant should have been retried after his conviction was vacated by the federal district court in a habeas corpus proceeding. The appellant contends that a new trial was improper for the following reasons: (1) the misconduct of the prosecutors in the first trial was so outrageous that due process principles bar the State from obtaining a second conviction; (2) the prosecutorial misconduct in the first trial is sufficiently egregious to order dismissal based upon the judiciary's inherent supervisory authority; and (3) the record shows a prima facie case of prosecutorial vindictiveness, which has not been rebutted by the State.
A key witness for the prosecution in the 1977 trial was William Harold "Buggy" Torbett. Torbett had been indicted the previous year for burglary and receiving stolen property. Attached to the latter charge was an habitual criminal count, which, under then-existing Tennessee law, would have enhanced Torbett's sentence to life imprisonment if proved by the State. *fn6 Before the State was aware of any connection between Torbett and the appellant, the State had offered to dismiss the receiving stolen property charge and the habitual criminal count which accompanied it. However, on the date that Torbett was to plead guilty to the burglary charge, he escaped during the court's lunch recess and fled the State. He was arrested a month later and indicted on an additional charge of fraudulent breach of trust. After he was recaptured, he found himself in the same cell as the appellant, and shortly thereafter he approached the prosecution with information concerning the appellant's involvement in the murder of Urice.
During its opening statement, the prosecutor informed the jury that there was no agreement to extend leniency with any particular witness. On direct examination of Torbett, the State elicited the following testimony:
Q. Now, you have some cases pending against you right now. Do you recall what the offenses are that you're charged with right now?
A. One burglary and larceny, and one receiving and concealing stolen drugs, breach of trust;
Q. All right, breach of trust. That's fraudulent breach of trust?
Q. All right, and a habitual criminal statute is attached to one of those cases, is that right?
Later in direct examination, the following exchange took place:
Q. Now, Mr. Torbett, you're charged with some offenses here in Hamilton County right now. Has anything been promised to you in regard to those charges against you for your testimony here in court?
Q. Have you been promised any leniency in the form of probation or parole, to reduce sentences?
On cross-examination, Torbett again testified that he had not been promised anything by the State and that he faced a life sentence as a habitual criminal at his trial scheduled later that month. In closing arguments, the prosecutor asserted that no bargain had been made with Torbett, reiterated that the State had not promised to drop the habitual criminal count and stated that he would be treated like any other defendant.
Approximately one month after the appellant was convicted in 1977, Torbett entered the plea he had negotiated with the State prior to his escape nearly eight months earlier. Upon his plea of guilty to the burglary charge, the stolen property charge was dismissed, along with the attached habitual criminal count. Torbett was sentenced to five to eight years, and was placed in the county workhouse, where he was granted the status of trusty. Less than a year after being sentenced, Torbett escaped from the workhouse. As of 1992, no arrest warrant had been issued for his capture, and he remained at large.
After his 1977 conviction, the appellant filed a motion for a new trial. Among the grounds alleged in the motion were that the prosecution did not disclose Torbett's plea bargain and that the prosecution knowingly allowed perjured testimony at trial. The trial court overruled the motion after a hearing, and this court affirmed the judgment of the trial court. With regard to the first allegation, this court stated:
There was sufficient evidence adduced at trial and at the new trial hearing to support the Conclusion that even though Torbett's testimony in this case did not affect the terms of his pre-existing plea bargain, the assistant district attorney general did disclose that Torbett had charges pending against him and that an agreement had been reached with regard to those charges.
With regard to the second allegation, this court stated:
The contention that the state knowingly allowed perjured testimony is also unfounded. Torbett's testimony that he still faced the habitual criminal charge was elicited by the defense on cross-examination to weaken his testimony that he had received no promise of leniency. The charges against him had not been disposed of, and to the extent that he misunderstood the charges with which he was faced, the appellants were assisted in casting doubt on his testimony.
After exhausting his state remedies, the appellant filed a petition for writ of habeas corpus in federal district court, seeking to have his 1977 conviction overturned based upon the prosecutor's misconduct concerning Torbett's testimony. The district court found merit in the appellant's argument, and reversed his convictions under Brady v. Maryland, 373 U.S. 83, 10 L. Ed. 2d 215, 83 S. Ct. 1194 (1963) and Giglio v. United ...