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07/24/97 STATE TENNESSEE v. JAMES LLOYD JULIAN

July 24, 1997

STATE OF TENNESSEE, APPELLEE,
v.
JAMES LLOYD JULIAN, II, APPELLANT.



ON APPEAL FROM THE JUDGMENT OF THE CRIMINAL COURT OF LOUDON COUNTY. HON. E. EUGENE EBLEN, JUDGE. (Esp. Agg. Kidnapping, Rape of a Child, and Felony Murder).

David H. Welles, Judge, Concur: David G. Hayes, Judge, Thomas T. Woodall, Judge

The opinion of the court was delivered by: Welles

This is an appeal as of right pursuant to Rule 3, Tennessee Rules of Appellate Procedure. The Defendant, James Lloyd Julian, II, was convicted by a Loudon County jury of rape of a child, especially aggravated kidnapping, and first-degree felony murder. The State sought the death penalty and during the sentencing phase of the trial, the jury found two aggravating circumstances: (1) that the victim was less than twelve (12) years of age and the defendant was over eighteen (18) years of age, and; (2) that the murder was especially heinous, atrocious and cruel. See Tenn. Code Ann. §§ 39-13-204(i)(1),(5). However, the jury determined that the aggravating circumstances did not outweigh the mitigating circumstances and sentenced the Defendant to imprisonment for life without parole. See Tenn. Code Ann. § 39-13-204(f)(2). At a separate sentencing hearing for the two remaining counts, the trial court sentenced the Defendant as a Range I standard offender to twenty-five years (25) for the rape and twenty-five years (25) for the kidnapping to run concurrently with each other but consecutive to the sentence of life without parole. The Defendant appeals his convictions and sentences.

In this appeal, the Defendant presents several issues for review: (1) That the trial court erred by failing to find the especially aggravated kidnapping to be incidental to the rape; (2) that the trial court erred in admitting photographs of the victim at both the guilt and sentencing phases of the trial; (3) that the trial court erred in allowing the jury to consider the victim's age as an aggravating circumstance in sentencing for the felony murder conviction; (4) that the trial court erred by sentencing the Defendant at the top of the applicable ranges for the rape and kidnapping; (5) that the trial court erred by denying his motion to suppress evidence as a result of a search of his automobile; and (6) that the evidence was insufficient to support the conviction for felony murder. During the pendency of this appeal, the Defendant also submitted a supplemental brief asserting that the conviction for rape of a child must be set aside because the indictment charging the offense did not allege the requisite mens rea. In turn, because the indictment for felony murder charged rape and kidnapping, he argues that conviction must also be dismissed.

Factual Background

The State presented the following proof at the guilt phase of the prosecution. The Defendant, James Julian, became acquainted with the victim's parents in early 1993 while working at a fast-food restaurant in Knoxville. The Defendant and the victim's family, including the victim Kaile Lynn Lee, nearly three years old, and a younger brother and sister, began to socialize. He went with the family on trips to the lake and became friends with the children. On one or two occasions he took Kaile with him in his vehicle to get cigarettes at a convenience store down the street from the family's apartment. In May of 1993, the Defendant told Kaile's mother that he abused intravenous drugs. After that, Kaile's parents became concerned and made an effort to distance themselves from the Defendant. They did not observe any unusual behavior. During this time, the victim's parents' marriage was disintegrating and they separated.

Kaile's mother and the children continued to live in the apartment. Kaile turned three on June 29, 1993. The Defendant had no contact with them until he stopped by briefly on July 3, 1993. On the evening of July 10, Kaile's mother and a friend went out to a party and the friend's sister babysat the children. Everyone spent the night in the victim's apartment. The babysitter and the children slept in the living room and the others were in the bedroom. At approximately 6:30 a.m., the babysitter awoke to the Defendant's knocking on the apartment door. She asked who it was and the Defendant said "Jim." He mentioned the names of family members and the babysitter let him in. He sat on the couch and talked with her an hour or less. He was drinking a glass of bourbon and coke and she noticed that he was barefoot. The babysitter persuaded him to leave. She drifted off to sleep again until awakened by knocking on the door sometime around 7:30 a.m. The babysitter did not answer the door right away because "I knew that he was drunk and I didn't trust him." Kaile woke up and asked who was knocking and wanted to open the door. The babysitter let in the Defendant. He sat on the couch with Kaile and talked with her, then they appeared to sleep. The babysitter dozed off and awakened to the Defendant carrying the child in his arms and walking out the door.

The babysitter woke Kaile's mother and they went outside to look for them. This was approximately 8:30 to 9:00 a.m. They did not report the child as missing until approximately 11:00 a.m. because they initially thought the Defendant may have taken her to the store. They reported that the Defendant might be driving a red, older model Maverick. Kaile was last seen wearing a "Beauty and the Beast" shorts outfit. The Defendant took the child to a remote location at the Wear's Bend area of Tellico Lake in Loudon County. He parked his vehicle near a stand of pine trees, blocking the area such that he could see any cars coming into the area. After undressing himself, he took her to swim in the lake. She was still clothed.

After swimming, the Defendant and Kaile went back to the car. He turned the car radio up loudly. He took a green towel out of the car and took the child to the pine thicket. There, he undressed her and positioned her on the towel so he could see the roadway. He attempted penile penetration vaginally, but was unable to do so. The victim squirmed and began to cry. He placed her on her stomach and penetrated her anally. He had penetrated with approximately half of his penis when Kaile began to scream, squirm and cry loudly. He attempted to muffle her screams by using his right hand. When this was unsuccessful, he grabbed her neck and began to choke her. The cries ceased and he "knew he hurt" the victim when she went limp and he saw blood coming from her mouth. He withdrew, then masturbated to ejaculation.

The Defendant picked up the child and took her to the lake, cleaned himself and washed her off, immersing her in the water. He knew she was dead at that point. The Defendant put on a pair of shorts and carried her up the roadway. The underbrush was thick so he could not walk into it, so he tossed the victim's naked body into the underbrush. He returned to the car, picked up the towel and the victim's clothes and put them in the trunk of his car. The Defendant returned home and prepared for a work trip that he was scheduled to begin at 12:00 p.m.

Earlier during the day after Kaile's mother reported her daughter missing, law enforcement officers from Knox and Blount counties located the Defendant's Maverick at Colvin and Sons Heating and Air, his place of employment. Officer Gary Hamilton of the Blount County Sheriffs Department arrived at Colvin and Sons and spoke on the telephone with Investigator Tom Presley of the Knoxville Police Department. Investigator Presley provided more details about the disappearance of the victim. The officers observed a child's toy in plain view on the front seat and mud and grass on the car's exterior. While talking with Investigator Presley, Officer Hamilton became increasingly concerned that the child might be locked in the trunk of the Defendant's vehicle and that she might still be alive. The day was hot and sunny, which contributed to the urgency expressed by Investigator Presley. At this time, the Defendant's grandmother arrived with the keys to the vehicle and gave her consent to open the trunk. The officers opened the trunk, but observed only a child's outfit and a green towel covered with what appeared to be blood, feces, sticks and leaves. They closed the trunk, obtained a search warrant, and towed the Maverick to the crime laboratory in Knoxville.

The Defendant was employed by Colvin and Sons Heating and Air in Blount County and was scheduled to deliver equipment to Savannah, Georgia. He left his vehicle in the company parking lot and left with Dale Sinard in a delivery truck. Mr. Sinard noticed the Defendant was clad only in a pair of shorts, but noted no unusual behavior. The Defendant fell asleep shortly after the trip began. The two stopped at a rest area near Chattanooga and the Defendant placed a call on a pay telephone. He called his grandmother, who told him that the police were looking for him. After that, he appeared nervous and wanted to return home, stating he needed to go to court and to get his car. Sinard did not stop, but the Defendant asked several times how much longer the trip was and what time it was. When they reached Macon, Georgia, the Defendant wanted Sinard to take him to the airport, but he refused. The Defendant gathered his things, put on some clothes and left. He rented a car and drove back to Tennessee.

After returning from Georgia in the rented car, the Defendant revisited the lake area where the killing occurred, then returned to Blount County. Near his home, the Defendant stopped at Red Eye's Market on Highway 411 and called his father on a pay telephone from his car. He then called Blount County law enforcement. The Defendant was arrested by officers of the Blount County Sheriff's Department while still on the phone. He was handcuffed, given Miranda warnings, and placed in the back of a police cruiser. Officer David Maples had the first contact with the Defendant, who initially admitted seeing the victim at her apartment, but denied any further contact. Chief of Detectives Dale Gourley joined them and asked the Defendant where Kaile was located. The Defendant agreed to lead the officers to the body.

The officers and the Defendant drove to the site near the lake and directed them to the victim's body in the underbrush. Officer Maples and the Defendant walked down to the bank of the lake, the Defendant smoked a cigarette and recounted the events surrounding the killing of Kaile. Subsequently, the officers made an audiotape of Officer Maples describing the statement made by the Defendant, who agreed to its accuracy. It was determined that the crime occurred in Loudon County, so the Defendant was released to a Loudon County officer.

Subsequent forensic examinations of Kaile's body revealed several areas of trauma. There was bruising and soft tissue injury consistent with strangulation, as well as bruising on her forehead, knees and back. There was swelling and severe tissue damage to the vaginal and anal openings. Semen was detected in the victim's mouth, vagina and anus. The cause of death was found to be asphyxiation, secondary to strangulation.

The Defendant submitted proof in support of a diminished capacity manner of defense. Dr. Worley Fain, a clinical psychologist, described the Defendant's history of polysubstance abuse, including alcohol, marijuana, cocaine, LSD, PCP, and inhalants. The Defendant also was sexually abused as a child by his maternal grandfather. His mother was an alcoholic and divorced his father. The Defendant has had episodes in the past where he became disoriented and violent after ingesting large amounts of alcohol and taking hallucinogens. The Defendant was diagnosed with depressive disorder and a mixed personality disorder with borderline features. Dr. Fain testified that the Defendant claimed to have consumed a fifth of bourbon and smoked marijuana in the hours before the incident. Bennie Fleming, a licensed clinical social worker, concurred with the testimony of Dr. Fain. Other witnesses testified regarding the Defendant's neglect by his mother and his violent outbursts.

The State called Dr. Samuel Craddock, a clinical psychologist from Middle Tennessee Mental Institute, who conducted the forensic mental health evaluation of the Defendant. The evaluation team, under Dr. Craddock's supervision, determined that the Defendant did not suffer from a mental illness such that he was unable to form intent. Dr. Craddock considered substance abuse when conducting the evaluation. Yet, he admitted that he was not a specialist in the area of addictions and drug counseling. The evaluation team did conduct a battery of tests and diagnosed the Defendant similarly to the Conclusions made by Dr. Fain.

The jury found the Defendant guilty of rape of a child, especially aggravated kidnapping, and first-degree felony murder. Tenn. Code Ann. §§ 39-13-522, 39-13-305(a)(2), 39-13-202(a)(2). During the sentencing portion of this capital case, the State admitted evidence of the victim's age and photographs of the victim in support of a finding of statutory aggravating circumstances. See Tenn. Code Ann. § 39-13-204(i). The Defendant called Dr. Eric Engum, a clinical psychologist, who testified regarding the Defendant's dysfunctional family background and current psychological disorders, including substance abuse. The Defendant's mother testified regarding her alcoholism and prescription drug abuse, sexual abuse by her father, her divorce, and the Defendant's history of alcohol abuse. The jury found two aggravating factors, that the victim was under twelve (12) years old and 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. §§ 39-13-204(i)(1),(5). The jury also found that the aggravating circumstances did not outweigh the mitigating circumstances and sentenced the Defendant to imprisonment for life without parole. See Tenn. Code Ann. § 39-13-204(f)(2). The trial court sentenced the Defendant as a Range I standard offender to twenty-five (25) years for the rape conviction and twenty-five (25) years for the kidnapping conviction to run concurrently with each other but consecutive to the sentence of life without parole.

I. Kidnapping Conviction

As his first issue, the Defendant contends that the trial court erred by failing to grant a judgment of acquittal on the kidnapping charge on the ground that the kidnapping was merely incidental to the rape. In State v. Anthony, 817 S.W.2d 299, 300 (Tenn.1991), our supreme court held that due process precludes conviction for kidnapping where the detention of the victim occurs as merely incidental to the commission of another felony such as robbery or rape. Id. The test is "whether the confinement, movement, or detention is essentially incidental to the accompanying felony and is not, therefore, sufficient to support a separate conviction for kidnapping, or whether it is significant enough, in and of itself, to warrant independent prosecution and is, therefore, sufficient to support such a conviction". Id. at 306. "One method of resolving this question is to ask whether the defendant's conduct 'substantially increased [the] risk of harm over and above that necessarily present in the crime of the robbery itself'". Id. Finally, the kidnapping statute is to be narrowly applied to protect due process rights. Id.

The Defendant argues that the kidnapping was incidental to the rape in this case. First, the Defendant claims that the victim willingly went with him such that any restraint of liberty constituting kidnapping occurred after he instigated the sexual assault. Second, he claims that he brought the victim to the remote location knowing that he intended to have sex with her, therefore, the actions that were considered to be kidnapping were actually perpetrated in pursuance of the rape. Furthermore, he contends that, because the kidnapping charge should properly be dismissed, the conviction for felony murder also fails because the underlying felonies of rape and kidnapping were charged conjunctively. See State v. Cox., 644 S.W.2d 692 (Tenn. Crim. App. 1982); Turner v. State, 50 Tenn. 452 (1871). The indictment charging first-degree felony murder contained the following language: "On the 11th day of July, 1993 and in the State and County aforesaid, the said JAMES LLOYD JULIAN, II aforesaid, did unlawfully and recklessly kill Kaile Lynn Lee during the perpetration of Kidnapping and Rape, in violation of T.C.A. 39-13-202." (emphasis added).

We cannot agree that because the three-year-old victim went willingly with the Defendant, she was capable of consent such that the actions taken by the Defendant did not constitute kidnapping from the time her took her from her home. Also, even though the Defendant stated that he took the child with the intent to rape her, this does not necessarily mean that the kidnapping was purely incidental to the rape. The State argues that the kidnapping "substantially increased [the] risk of harm over and above that necessarily present in the [accompanying felony] itself." Anthony, 817 S.W.2d at 306. The State cites two opinions from this Court where the kidnappings were considered separate offenses from the rapes. State v. Michael Eugene Duff, 1996 Tenn. Crim. App. LEXIS 78, C.C.A. No. 03C01-9501-CR-00008, Knox County (Tenn. Crim. App., Knoxville, Feb. 8, 1996), perm. to appeal denied (Tenn. 1996); Thomas Ray Tarpley v. State, 1993 Tenn. Crim. App. LEXIS 854, C.C.A. No. 03C01-9303-CR-00067, Hamilton County (Tenn. Crim. App., Knoxville, Dec. 20, 1993), perm. to appeal denied (Tenn. 1994). In Tarpley, the defendant kidnapped the victim while she was walking along a roadside, drove her to an isolated cemetery and raped her. Slip op. at 2-3. In Duff, the victim was tricked into pulling her car off the road. She was forced to the floorboard of the car while her attackers drove it around to the back of restaurant where she was raped. Slip op. at 3.

In the case sub judice, the Defendant took the victim from her home in Knoxville and drove her to an isolated lake area miles away that was only approachable by rutted dirt roads. At that location, the Defendant substantially reduced the probability of being detected and allowed ample time to perpetrate the sexual assault. This also increased the risk of harm to the victim, which resulted in Kaile's death. We conclude that this is sufficient to support the conviction for kidnapping and that it was not "essentially incidental" to the rape. As a result, the conviction for felony murder remains valid as based on the underlying kidnapping charge. This issue has no merit.

II. Photographs

Next, the Defendant challenges the trial court's allowing the State to introduce photographs of the victim at both the guilt and sentencing phases of the trial. The admissibility of photographs is governed by Tennessee Rule of Evidence 403 and State v. Banks, 564 S.W.2d 947 (Tenn.1978). "Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury...." Tenn. R. Evid. 403. Whether to admit the photographs is within the discretionary authority of the trial court and will not be reversed absent a clear showing of an abuse of discretion appearing on the face of the record. Banks, 564 S.W.2d at 949; State v. Braden 867 S.W.2d 750, 758 (Tenn. Crim. App. 1993); State v. Dickerson, 885 S.W.2d 90, 92 (Tenn. Crim. App. 1993).

During the guilt phase of the trial, the State introduced a photograph depicting the victim as she was found at the crime scene. The photograph consisted of the victim's naked body, lying face down in the underbrush. The Defendant argues that this photograph was overly prejudicial such that it outweighed any probative value. He also contends that the State was unable to support that the photograph was probative of a contested issue of fact. When photographs are gruesome in nature and are not probative of some contested issue of fact, they are not admissible. State v. Harbison, 704 S.W.2d 314, 317 (Tenn. 1986). Here, however, although the photograph in question is disturbing, it is not shocking or gruesome in nature. In fact, it was taken at some distance from the victim and revealed no details of trauma to her body. Furthermore, it showed the location and position of the body supporting the investigating officers' testimony describing the crime scene. See State v. Caughron, 855 S.W.2d 526, 536 (Tenn. 1993); State v. Wilcoxson, 772 S.W.2d 33, 37 (Tenn. 1989); Harbison, 704 S.W.2d at 317. We find no clear evidence of an abuse of discretion in admitting this photograph. In fact, the trial court admitted only one objected-to photograph during the guilt phase.

The Defendant also asserts that the photographs of the victim admitted by the trial court during the sentencing phase were severely prejudicial. Two photographs show the victim's head and torso from two angles. Dried blood is evident in and around the child's mouth, nose and eyes, there are numerous insect bites, as well as effects from exposure and rigor mortis. The third photograph shows the victim's vaginal/anal area, which is swollen, red and evidences the tearing of the vagina and anus as described by the medical examiner. The Defendant argues that the photographs showing the postmortem effects unrelated to the cause of death are misleading. He also asserts that the photographs evoked strong emotions in the jurors (in fact, several jurors were visibly upset) and that the State did not justify their introduction.

Although the photographs are graphic and gruesome, they accurately depict the nature and extent of the victim's injuries. This evidence was relevant to support the State's proof of the aggravating circumstance 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. § 39-13-204 (i)(5); State v. McNish, 727 S.W.2d 490, 495 (Tenn. 1987). They clarify the testimony of the medical examiner regarding the severity of the injuries. Similarly to the Harbison case, they indicate that the degree of injury inflicted in perpetration of the rapes was more damaging than as described in the Defendant's confession. Harbison, 704 S.W.2d at 317. Although the photographs were prejudicial to the Defendant's case, they were highly probative in determining an aggravating circumstance. We cannot conclude that the trial Judge abused his discretion by admitting these photographs during the sentencing process. See Tenn. R. Evid. 403; State v. Evans, 838 S.W.2d 185 (Tenn.1992); State v. Banks, 564 S.W.2d 947 (Tenn.1978).

This issue is without merit.

III. Sentencing for Felony Murder

Next, the Defendant argues that the trial court erred by allowing the jury to consider the victim's age as an aggravating circumstance for felony murder. The indictment for felony murder for which he was convicted alleges that he "did unlawfully and recklessly kill Kaile Lynn Lee during the perpetration of Kidnapping and Rape, in violation of T.C.A. 39-13-202." The felonies for which the Defendant was convicted are rape of a child and especially aggravated kidnapping. Tenn. Code Ann. §§ 39-13-522, 39-13-305. Both felonies, as charged, included age as an element of the crimes. *fn1 The Defendant was convicted of first-degree felony murder based on the above indictment. The State sought the death penalty in this case and submitted two aggravating circumstances for the jury's consideration during a separate sentencing procedure. See Tenn. Code Ann. § 39-13-204(i). Those submitted were that (1) the murder was committed against a person less than twelve (12) years of age and the defendant was eighteen (18) years of age, or older; and (5) 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. § 39-13-204(i)(1),(5). The jury found both aggravating circumstances, but determined that they did not outweigh the mitigating circumstances and sentenced the Defendant to life without parole. See Tenn. Code Ann. § 39-13-204(f)(2). The Defendant urges that, because the underlying felonies for which he was - convicted contained the victim's age as essential elements, it was improper for the trial court to allow age to be considered as an aggravating circumstance for felony murder, citing State v. Middlebrooks, 840 S.W.2d 317 (Tenn. 1992).

The constitutional concern in Middlebrooks was that the class of death-eligible murderers be narrowed so that only the worst offenders receive the death penalty. See Middlebrooks, 840 S.W.2d at 341-47. The supreme court observed that the felony murder aggravating circumstance duplicates the crime of felony murder and thereby makes all felony murderers susceptible to the death penalty. That result violates the Eighth Amendment to the United States Constitution, as well as Article I, Section 16 of the Tennessee Constitution. Id. at 346. When an aggravating circumstance is improperly injected into the process by which the jurors must weigh aggravating and mitigating circumstances to determine a sentence, the integrity and ...


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