Direct Appeal from the Criminal Court for Shelby County No. 93-09760 and 93-09761 John Kerry Blackwood, Judge
The opinion of the court was delivered by: John Everett Williams, Judge
Capital Defendant Preston Carter appeals as of right his sentences of death resulting from the 1993 murders of Thomas and Tensia Jackson. On January 24, 1995, Defendant Carter pled guilty to two counts of first- degree felony murder and, following a separate sentencing hearing, was sentenced to death. On direct appeal, our supreme court affirmed Carter's convictions for first-degree murder but reversed the sentences of death and remanded for a new sentencing hearing. Specifically, the Supreme Court found that, because the verdict forms omitted the beyond a reasonable doubt standard, the verdict forms were illegal, void, and of no effect. See State v. Carter, 988 S.W.2d 145, 153 (Tenn. 1999). Accordingly, the case was remanded to the Criminal Court for Shelby County for re-sentencing. At the conclusion of the resentencing hearing in February 2000, the jury found the presence of two statutory aggravating circumstances, i.e., (1) that the murder was especially heinous, atrocious or cruel, Tenn. Code Ann. § 39-13-204(i)(5), and (2) that the defendant was previously convicted of one or more felonies whose statutory elements involved the use of violence to the person, Tenn. Code Ann. § 39-13-204(i)(2). The jury further determined beyond a reasonable doubt that the aggravating circumstances outweighed the mitigating circumstances and imposed sentences of death. The trial court approved the sentencing verdict. Defendant Carter appeals presenting for our review the following issues: (1) whether the State's introduction of color photographs of the victims' corpses was unduly prejudicial, (2) whether the trial court erred in permitting the introduction of victim impact testimony, (3) whether the trial court improperly restricted the introduction of mitigating evidence, (4) whether the evidence is sufficient to support application of the heinous, atrocious, cruel aggravating circumstance, and (5) whether the evidence is sufficient to support application of aggravating circumstance (i)(2), prior violent felony conviction. After review, we find no error of law requiring reversal. Accordingly, we affirm the jury's imposition of the sentences of death in this case.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed
John Everett Williams, J., delivered the opinion of the court, in which Joe G. Riley and Alan E. Glenn, JJ., joined.
Proof at the Resentencing Hearing
The resentencing hearing commenced on February 14, 2000, during which the following proof was presented. *fn1
Derrick Lott testified that one of the victims, twenty-four-year- old Tensia Jackson, was his sister. She and her husband, twenty-six- year-old Thomas Jackson, had a daughter, Tyranny, who was three-years- old at the time of her parents' murders. Mr. Lott, Thomas Jackson, and Tensia Jackson, had all gone to school together. Derrick Lott testified that in May 1993 he was employed at Seessel's Bakery with the victim, Thomas Jackson. Mr. Lott related that he and Thomas Jackson began work at 4:00 a.m. at the bakery located on Elvis Presley Boulevard. On the morning of May 28, 1993, as customary, Mr. Lott and another co-worker, Donnie Gurnis, drove to the residence of Thomas Jackson to pick him up for work. Upon arriving at the Millbranch Park apartment complex, Mr. Lott observed that the door to the Jacksons' residence was open. Mr. Lott, concerned, got out of his vehicle and approached the apartment. Mr. Lott discovered Thomas Jackson's wallet, his sister's purse, and some papers on the ground. He also noticed that the door had been "kicked off the hinges." The two men continued into the apartment, where they discovered that the Jacksons' bedroom had been "trashed." It also appeared that no one was at home. The two men, next, went into three-year-old Tyranny's bedroom. Inside the bedroom closet, they discovered the body of Thomas Jackson with "his brains hanging out." Mr. Jackson was apparently dead. Mr. Lott then noticed "something move." He "pushed the closet door back some more, and there was Tyranny lying right next to him on a pillow in a puddle of blood." "She started crying, and I grabbed her, . . . she said, `I told my daddy I had to go to the bathroom, but he didn't say nothing,' you know. And she had urinated on herself and stuff, you know." Mr. Lott then telephoned the police and his mother. At this time, Mr. Lott had not located his sister, Tensia Jackson.
Memphis Police Officer James Grigsby arrived at the Millbranch Park apartment of Thomas and Tensia Jackson at 4:30 a.m. Upon entering the apartment, Officer Grigsby confirmed that the kitchen door had been kicked in. The body of Thomas Jackson was found "in the baby's bedroom closet, almost in a squatting position." "[Mr. Jackson] was apparently dead from a gunshot wound." Officer Grigsby next went into the master bedroom. In the bathroom, "[he] found Mrs. Jackson lying in the bathroom naked from the waist down, apparently dead from a gunshot wound."
In May 1993, Officer Robert G. Moore was assigned to the Crime- Scene Bureau of the Memphis Police Department. On May 28, 1993, Officer Moore was called to the scene at 3584 Millbranch, Apartment No. 4, the residence of Thomas and Tensia Jackson. He confirmed the location and wounds of the victims and testified that he observed a "knife on the bed . . . in the master bedroom."
Captain Mike Houston of the Memphis Police Department testified that, after receiving a tip implicating the Defendant Carter in the murders of the Jacksons, he arrested Preston Carter for the murders of Thomas and Tensia Jackson on May 28, 1993, at 10:15 p.m. At the time of his arrest, the twenty-three-year-old Carter informed Captain Houston that he had an eleventh-grade education and was working toward earning his GED. Defendant Carter read a consent-to-search form and signed the form at 10:20 p.m. Captain Houston recalled that Defendant Carter did not appear to be under the influence of any drugs or alcohol at the time. The Defendant acted calm; "he never raised his voice, never hollered, never screamed - polite, never did anything out of the way." Upon searching the apartment, officers discovered "[a]n Ithaca 12-gauge, sawed-off, double-barrel shotgun." Two spent shells were in the shotgun. The officers also seized clothing worn by Defendant Carter during the double homicides. Defendant Carter was advised of his rights, and at 11:30 p.m. Captain Houston transported Carter to the homicide office. After being again advised of his rights, Defendant Carter "admitted that he was responsible for killing two people down in Whitehaven and that the shotgun that we had was the one that he used to shoot two people with." In a subsequent statement, Defendant Carter related:
This past Friday evening, a guy I know named Tony told me that the guy he was buying his dope from, it was real easy for us to go in there, stick him up for the dope and the money.
So after he told us about that, we asked him where did the guy stay. So he said, `Well, I can show you.' So Tony took me and Louis down there on Millbranch to the apartments. That's the same place where the people got killed. So I told him we couldn't get in these apartments without some kind of a code. I'm talking about the gate in the parking lot. So he punched in the code - was 0377- and got the gate open.
Then we went on around to the front of the apartments, and he pointed out where they lived. And all I had to do was just knock on the door, and this girl would open the door to just anyone who said they wanted to buy some. So we left after he had showed [sic] us where to come to and gave us the code.
So about 12:30 a.m. Friday morning, May 28, me, Louis Anderson, and Darnell Ivory, went back over there to where the people later got killed. Louis Anderson knocked on the door first. So when the guy came to the door, he asked who was it, and Louis said he wanted to get something. The guy said, `I don't have anything. What you talking about?' Then Louis said, `Your brother, Corey, sent me over her[e] to get something.' And after that - after the guy didn't open up the door - he was talking through the door with it closed.
First, I had the sawed-off in my hands, and I thought we had the wrong door, and I started to step down, and then Louis Anderson said, `F-k it. Hand me the shotgun and kick the door in.' After I kicked the door in, Louis went straight in and went straight to the back. So I asked the guy where was the money, and he said he didn't know what we was [sic] talking about. Then Louis told the man, `Yes, you do. Get over in the closet.' Before the guy got in the closet, he told Louis his wife was in the bathroom, and Louis told him to tell her to come on out.
After that, Louis went on into where the wife . . . was in the master bedroom. After I was searching around in the living room, kitchen, looking for money or drugs, and didn't find any, I went back to the back of the room where Louis and the guy's wife was [sic]. As I was going in there, I told him to give me the sawed-off. And when I walked in, Louis was on top of the girl having sex with her on the bed, and the sawed-off shotgun was lying beside Louis on the bed, and I picked it up.
And then - so I came back out to search again around the house to see could I find anything. And while my back was turned - while I was searching, the owner of the house, he tried to come at me, and I shot him.
Then after that I went into the room where Louis was, and by that time, I was a little hysterical from what had just happened, and she was standing in the bathroom door still undressed, and Louis was pulling his pants back up, and he started asking her - Louis started asking her where was the money, and she kept hollering about she didn't know anything about any money.
Then she started hollering and screaming real loud. And I was already upset `cause I had to shoot the guy. And she went on hollering and screaming, and Louis got to asking her again about the money. Then she said she didn't know, and so Louis picked up her little silver jewelry box and threw it at her and told her to shut up and stop doing all that hollering. And she was still doing all that screaming and hollering, so I shot her, too, in the bathroom. She had backed up all the way in there, and before I shot here, she was begging and pleading me, `Please don't shoot me. I'll do anything. Please don't shoot.' But I just turned away from - pointed the gun at her and shot her. It looked like it hit her up side her head somewhere.
As we were walking out, Louis reached in the closet in the master bedroom and took some stuff out. . . . When we got downstairs, Ivory was sitting in the back seat of the car - a Cadillac we had stole. When I got close to my house, I got out of the car and walked over to my cousin's house and left the sawed-off with my cousin's boyfriend. . . . I told them to put it up for me, and he must have brought it back to my apartment yesterday morning . . .
Defendant Carter later admitted to the officers that the victim, Thomas Jackson, "ran back in the kid's room, and I ran in the closet, and that's where he was when I shot him." Defendant Carter also admitted that the victims' three-year-old daughter was in the apartment at the time of the homicides, however, no harm was done to the child. Captain Houston described Defendant Carter's attitude during the "five hours and seventeen minutes" that he had contact with him as cooperative, "calm and cool."
Evidence was admitted revealing that on October 20, 1994, Defendant Carter was convicted in the Shelby County Criminal Court of aggravated robbery. The offense was committed on March 9, 1993, less than three months prior to the double homicide. The indictment contained information indicating that a shotgun was used to perpetrate the aggravated robbery.
Dr. O.C. Smith performed the autopsies on both Thomas and Tensia Jackson. Dr. Smith concluded that Thomas Jackson "died as a result of a shotgun wound to the head; that wound was at a contact range which [sic] the muzzle of the weapon was up against the skin at the time it was discharged." Specifically, "the shotgun wound was above his right eye just inside the hairline." Dr. Smith opined that Mr. Jackson's death was instantaneous. Tensia Jackson, similarly, died as a result of "a shotgun wound to the head." "This entered through her left eye and destroyed the orbit." Dr. Smith concluded that Mrs. Jackson's death was also instantaneous. Both Thomas and Tensia Jackson's blood tested negative for drugs and/or alcohol.
Betty Mister, the mother of Tensia Jackson, testified that she and her husband, Leb, have custody of the Jacksons' daughter, Tyranny, now ten-years-old. Tyranny receives Social Security in the amount of $485.00 per month. The child also attends Harding Academy, which costs approximately $5,000.00 per year. Betty Mister and her husband provide for Tyranny's tuition. She added that Tyranny misses her parents very much and states that "she wishes that her mama and daddy was here so they could see the girl she is now" and that they would be proud of her.
Tensia Jackson was Betty Mister's first-born child. Betty Mister related that she and her daughter were "real close" and that Thomas Jackson was "like a son of mine." Betty Mister stated that Tensia and Thomas had been high school sweethearts. She testified that Tensia was one of four children in the family and had a large extended family. Ms. Mister related that Tensia was especially close with her brother Derrick, the second born child. Her death has been hard on all of the children. Describing their lives since Tensia and Thomas' deaths, Betty Mister stated:
It's like I said - it's like holiday times, it's just a void without Thomas and Tensia being with the family. And our home, it's like every- Tensia and Thomas was real close. They was just - when you saw one, you saw the whole family - you saw the three. And every Saturday, Tensia and Thomas and Tyranny would always come over to our house. So it's like, on Saturdays and days when, you know, you expect to see them, and you don't see them anymore because, you know, they are not there. So it's just like a - there's a void there. And the holidays, you know, Tensia and Thomas always would be the first somebody to come over when we have dinners and things. And Tensia would always come over and help make the slaw. And you know, she's not there for that.
And Thomas always came over to help Leb with the charcoal and all that kind of stuff. You know, they are missing very much in our lives.
Thomas Jackson's brother, Kenneth, testified that Thomas and Tensia had met in junior high and "were just in love with one another." He stated that he and his brother shared a very close relationship and were co-workers at Seessel's Bakery. The two brothers carpooled to work every morning. Kenneth Jackson was present when his brother and sister- in-law's bodies were discovered. In remembering his brother, Kenneth stated:
Thomas was a beautiful person. He never . . . been to jail, never been to a club. Like I said, he was like a celebrity, I mean, to a lot of people, too, because he was a good person - I mean a good-hearted person - I mean always wanted to keep you with a smile on your face. And his main priority was his wife and his little girl. I mean we could probably go shoot ball at the gym. I would probably leave my kids with their mom; but Tyranny, she got to go and she got to go with us.
This concluded the State's proof.
As mitigation evidence, Defendant Carter presented the testimony of Dr. Joseph Charles Angelillo, a clinical psychologist. Prior to the resentencing hearing, Dr. Angelillo interviewed Defendant Carter. Before interviewing Defendant Carter, Dr. Angelillo reviewed various background materials on the Defendant, including interviews with family members and friends and the Defendant's records from the Shelby County School System. Dr. Angelillo administered three tests to the Defendant.
The first test, the Wechsler Adult Intelligence Scale, commonly referred to as an I.Q. test, measures an individual's aptitude. From this test, Dr. Angelillo discerned that Defendant Carter's "full-scale I.Q. was in the borderline range, and the verbal I.Q. was in the lower end of the below-average range. The performance I.Q. was also in the borderline range." He explained that the average range was from 90 to 109; scores between 80 and 89 would be below average range. "Borderline" is used to refer to borderline retardation. Scores below "borderline" would be mild retardation. Dr. Angelillo reported that Defendant Carter's full-scale I.Q. was 78.
The second test, the Woodcock Johnson Test of Achievement, measures what a person knows, not what that person is capable of knowing. In other words, it measures your current knowledge and not your potential. The test is comprised of multiple sub-tests involving areas of mathematics, reading, passage comprehension, science, humanities, grammar, etc. The Defendant was given two tests in mathematics and two tests in the reading area. On the mathematical calculation test, Defendant Carter's "score was percentile rank of twenty-four, which means his score would have been higher than twenty-four percent of the people, corresponding to a grade level of 7.3." In applied mathematics, Defendant Carter's percentile rank was seven, or a grade equivalency of 5.8. The two mathematics tests combined corresponded to twelfth percentile, or a grade equivalent of 6.6. The first test in reading involved "encoding." Dr. Angelillo explained, "It's actually quite simple. You've just got to read a bunch of words. The words get more difficult as it goes along, so it really taps your ability to sound out the words." Defendant Carter performed in the 9th percentile, or a grade equivalent of 7.6. The second reading test involved passage comprehension, i.e., passages are a couple of sentences long, you've got to put the word in that goes there, it shows you are understanding what you've read. Defendant Carter scored in the twenty-third percentile, or a grade equivalent of 11. The two reading tests combines corresponded to fifteenth percentile, or a grade equivalent of seven.
The final test administered by Dr. Angelillo was the Milan Clinical Multi Axial Inventory, Third Edition (MCM-MCMI). The MCM-MCMI is basically a personality test consisting of 175 true and false answers. According to Dr. Angelillo, Defendant Carter's tests results revealed that "he was experiencing some anxiety." Specifically, the diagnosis was "generalized-anxiety disorder." "Generalized-anxiety disorder is a - the most prominent feature is anxiety - fear, worry, trepidation. There's also symatic [or physical] symptoms that are common - like palpitations, rapid heartbeat, upset stomach, diarrhea." The test also indicated the following personality traits: obsessive-compulsive personality traits; histrionic personality features, and schizotypal personality features. Dr. Angelillo explained the features of the personality traits, beginning with the "obsessive-compulsive personality traits":
Obsession means a thought that a person has that kind of runs through their mind over and over again. And compulsive means that they're driven to perform a certain action. The difference between the personality trait in the diagnosis of an obsessive-compulsive disorder is this is a part of the individual's makeup. It's a developmental characteristic. . . . Tony Randall, in "The Odd Couple," would be a good example of an obsessive-compulsive person.
Histrionic is kind of dramatic, shallow, difficulty with empathy - that is understanding other people's feelings.
Schizotypal is a very rare personality disorder. It is seen - behaviors or characteristics of individuals who prefer solitude and have somewhat eccentric beliefs and sometimes eccentric behaviors - fantasies- that kind of thing. It's views as a - it's not a benign disorder.
On cross-examination, Dr. Angelillo stated that he only spent approximately seven hours interviewing Defendant Carter. He also conceded that, although Defendant Carter "was not the smartest guy around," he was not mentally retarded and was fully capable of understanding what was going on around him. Furthermore, regarding his diagnosis for "generalized-anxiety disorder," Dr. Angelillo admitted that this result would be consistent with someone who was in prison for killing two people.
In his own behalf, Defendant Carter testified that he was twenty- nine-years-old and is the father of three children, ages seven, eight, and nine. He conceded that a month prior to the murders of Tensia and Thomas Jackson he had been involved in a robbery during which he used a gun. Defendant Carter explained that, although not an excuse for his actions, during this time he "was living a lifestyle of just drinking and using drugs and taking things that I wanted." Carter's employment in the landscaping business was conducive to his lifestyle as he explained he did not work regular hours, he went to work when he wanted to and stayed at home when he wanted. On the date of the murders, Carter stated that he had been "drinking and using drugs all day." He admitted that after he, Anderson and Ivory decided to commit the robbery, he returned to his apartment to retrieve the sawed-off shotgun. Carter also conceded that the weapon was purchased for "the lifestyle that I was living and the things I was doing. . . ." He stated that the plan was to rob drug dealers, but when he realized that they had the wrong apartment, the plan was not thwarted because they believed they could still obtain money.
Defendant Carter testified, "I know I have to be punished for what I did." However, he wants to live because "[m]aybe I can help somebody - prevent the things that I did- - stop them from doing the things that I did." He also asked for forgiveness from the family of his victims. Defendant Carter stated that, during his seven years on death row, he has learned "[h]ow precious life is." He has learned "to respect other people and respect authority and learned to - how to love and [have] compassion toward people." He "thinks about [Thomas and Tensia Jackson] all the time." Defendant Carter continued to explain his typical day on death row. He stated that he works at Track Well on computers doing data processing. He is permitted outside "a couple hours a day." Other than this time outside and his time spent at work, he is in his cell.
Since Defendant Carter has been incarcerated, he has not had any disciplinary problems. He has attempted twice to earn his G.E.D., but "missed it by a point." Defendant Carter also "write[s] poetry a lot." He attends Christian worship twice a week. Defendant Carter has also changed his name to Akil Jahi on January 4, 1996. He explained that the name Akil means "one who uses reason" and Jahi means "dignity." He believes that he is no longer "Preston Carter." On March 27, 1999, Defendant Carter married; his wife visits him on a weekly basis.
On cross-examination, Defendant Carter admitted to the following prior convictions: aggravated robbery, 1994, and breaking into and burglarizing a vehicle, 1991. He conceded that, at the time of the homicides, he was on probation for a felony offense.
Brenda K. Morrison, the Inmate Relations Coordinator at Riverbend Maximum Security Institution, testified that Defendant Carter is classified as Level A. "Level A" is the least secure level at the death row facility. She stated that Defendant Carter reached this status in the "minimum amount of time." Ms. Morrison confirmed that Defendant Carter has not had any disciplinary write ups since being incarcerated. She described Defendant Carter as "very helpful. He volunteers to do jobs in other areas where we're maybe short, or if an inmate is not there or ill or something, he will volunteer to help. I've asked him, on several occasions, to help do different things, and I have never had any problems with him." Since his incarceration at Riverbend, Defendant Carter has entered the "arts and crafts program." Ms. Morrison concluded her testimony by stating that she believed Defendant Carter "would not have a problem fitting in with the general [prison] population [if a sentence of life was returned.]"
Cheryl Donaldson, the unit manager at Riverbend Maximum Security Institution, was previously a counselor for Unit 2, death row inmates, at Riverbend. She explained that she counseled these inmates once a month, although she was accessible to the inmates at anytime. While a counselor, Ms. Donaldson met Defendant Carter. She explained that she had daily interaction with Defendant Carter as he "worked for us in E pod." Ms. Donaldson testified that, through his actions, Defendant Carter demonstrated that he was trustworthy. An ex-smoker, Ms. Donaldson assisted Defendant Carter in his effort to stop smoking. She concluded her testimony by stating that, while incarcerated, Defendant Carter has never exhibited any violent tendencies.
The final mitigation witness presented was Melita Padilla, an ordained United Methodist minister. Ms. Padilla testified that she met Defendant Carter in January 1996 while she was a student at Vanderbilt Divinity School. She explained that she volunteered for a program where prisoners who desired visitors would make an initial request to the organization. Ms. Padilla initially began correspondence with Defendant Carter through written letters, then she began visiting him at the prison. In describing a typical meeting with the Defendant, Ms. Padilla stated:
I'd ask him about his family, his children, how his week had been, how his day had been. I could usually tell if it hadn't been a good week. He's asked me about mine. . . . And he'd ask about my daughter, and we talked about the church I was appointed to did not want a woman pastor, and my first year was terrible. And Akil [Preston Carter] . . . [would] write me letters of poetry, and he makes cards and draws things.
She described his personality:
. . . he's the same age as my daughter, so some of the same issues of not being able to handle things that come your way - impatience some anger. . . .[T]here were issues of trying to deal with people in the system. . . people who were incarcerated who push - who want to fight. I watched him grow over the four years into someone who could - who could handle that better knowing that. . . .
During the period of their visitations, Ms. Padilla watched Defendant Carter "grow as a person," "grow spiritually," and grow intellectually. Ms. Padilla related that through her visits with Defendant Carter, the two have become friends. To exemplify her testimony, Ms. Padilla read into evidence a letter written to her by the Defendant in ...