State v. Roy Keough

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

SEPTEMBE R SESSION, 1998 FILED January 13, 1999 STATE OF TENNESSEE, ) C.C.A. NO. 02C01-9708-CR-00317 Cecil Crowson, Jr. ) Appellate C ourt Clerk Appellee, ) ) ) SHELBY COUNTY VS. ) ) HON. L.T. LAFFERTY ROY E. KEOUGH, ) JUDGE ) Appe llant. ) (First Degree Murder; Attempted ) Murder; De ath Penalty)

ON APPEAL FROM THE JUDGMENT OF THE CRIMINAL COURT OF SHELBY COUNTY

FOR THE APPELLANT: FOR THE APPELLEE:

Jam es V. B all John Knox Walkup Joseph S. Ozment Attorney General & Reporter 217 Exchange Avenue Memphis, TN 38105 Michael E. M oore Solicitor General

Kathy M orante Deputy Attorney General 425 Fifth Avenu e North Nashville, TN 37243-0493

John W . Pierotti District Attorney General

Robert Carter Rosemary Andrews Assistant District Attorn eys 201 Poplar Avenue Memphis, TN 38013

OPINION FILED ________________________

AFFIRMED

DAVID H. WELLES, JUDGE

OPINION

The Defen dant, Ro y E. Keo ugh, wa s convicte d in the S helby C ounty Criminal Court for the premeditated first degree murder of his wife, Betty Keough, and the attem pted first degree murder of Kevin Berry. The jury found that Defendant had previous ly been convicted of one or more felonies for which statutory elements involve the use of violence to the pers on, see Tenn. Code Ann. § 39-13-204(i)(2); and it sentenced Defendant to death. Defendant also received a forty-year sentence for the attempted murder count, to be served conse cutive to his death se ntence .

In this direct appeal, Defendant argues (1) that the trial court erred by finding that Defen dant’s co mm unication with separate police officers constituted separa te and distinct statements rather than a single statement, and that the court therefore erred by disallowing admission of the subsequent communication following introduction of the prior; (2) that the evidence is insufficient to support his convictions as a matte r of law; and (3 ) that the trial co urt erred b y failing to hold the death penalty unconstitutional as applied in this state. We find no error and affirm the judgm ent of the tria l court.

The decea sed victim in this case , Betty K eoug h, was Defe ndan t’s estranged wife. Their marriage was troubled, and they separated several months prior to the m urder. Afte r the sep aration, D efenda nt lived with his girlfriend in a room that they rented from the girlfriend’s brother, Bobby Holly. A few weeks

-2-prior to the murder, Defendant and his girlfriend moved; and the surviving victim, Kevin B erry, mov ed into the residenc e that they had oc cupied .

On the day of her murder, Ms. Keough went to Defenda nt’s former residence to find her estranged husband. There, she met b oth Be rry and Holly for the first time. Holly testified at trial that Ms. Keough told him she had a gun in her ca r and th at she intend ed to k ill Defen dant if s he fou nd him . After th is first visit, Ms. Keough returned to the hom e twice m ore sea rching for D efenda nt. During her third visit, Ms. Keoug h convinced Berry to have a drink with her. The two drove Ms. Keough’s car to Irene’s Grill, where Ms. Keough was a regular patron. T hey ente red the b ar, found a table, an d each ordered a beer.

Between Ms. Ke ough’s secon d and th ird visits to Berry’s residenc e, Berry saw Defe ndan t and to ld him that his wife had been looking for him. Shortly after Ms. Keough and Berry left for Irene’s Grill, Defendant arrived at Berry’s residence to see if his wife had returned. Holly, who was there at the time, testified that for some reason, Defendant parked his car where it could not be seen from the house. Holly told Defendant that his wife had been there but had gone with Be rry to the bar. H olly testifie d that D efend ant se eme d very c alm and did not appear to have been drinking.

Approximately ten to fifteen minutes behind the victims, Defendant entered the bar. He ordered a beer, but the owner of the bar refused to serve him; although she testified that she did not believe him to be drunk. Defendant then walked over to where the victims were seated and b egan talking loudly w ith his wife. At that time, the owner of the bar asked them all to leave. The owner

-3-testified that she did not overhear any conversation or suspect that there was any “trouble,” but she was concerned because she did not know how D efend ant felt about M s. Keou gh bein g there w ith Berry.

Berry testified that, once outside, the three walked to Ms. Keou gh’s car; and Defendant and Ms. Keough exchanged some word s. According to B erry, Defendant then shoved the victim with both hands, “and he put some force behind it.” Berry did not see the victim touch Defendant. Berry stated that he reacted by taking a step forward and saying, “[W]ait a minute,” at which time Defen dant, without saying a word, stabbed him in the chest with a bay onet. Berry testified that he did not touch or threaten Defendant before the stabbing. After being stabbed, Berry turned and ran behind a van in the parking lot, but Defendant chas ed him and stabbed him a second time in the thigh. Berry then pushed Defendant aside and fled toward the back door of the bar, but Defendant again ca ught up with him about five feet from the back door and stabbed him a third time in the back. Finally, Berry escaped into the bar, where he asked for some one to ca ll the police a nd an a mbula nce.

The evidence at trial showed that Defendant then returned to Ms. Keough. He stabbed her in the neck with the bayonet and locked her inside the car, where she bled to de ath over the next several minutes. After killing his wife, Defendant disposed of the bayonet. He then called his girlfriend and attempted to borrow enough money to leave town. When he was unsuccessful, he contacted his attorney and waited for the police. A short time later, the police arrested him and took him into cu stody.

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The following d ay, Dete ctive Jam es Nich ols interview ed De fendan t. Nicho ls testified that upon establishing that Defendant was coherent, he informed him of his Miranda rights. Defendant told Nichols th at he had an attorney and wanted him present during any questioning. After conferring with D efend ant, his attorney told Nichols that Defendan t was willing to provide a statem ent. Defendant told Nicho ls that h e had found his wife in a bar with another man. He and his wife started arguing and they were asked to leave. Once outside, the argument escalate d and h e stabb ed his wife with a “rifle knife.” Defendant also admitted that he stabbed Berry when Berry tried to intervene. Nichols testified that Defendant told him he did not remember how many times he stabbed the two individuals because “he was angry or something to the effect that his emotions were so high.” Defendant told Nichols that he had wanted to retrieve the car he had bo ught for h is wife bec ause h e found her with an other m an.

Defe ndant agree d to give a form al typew ritten sta teme nt to po lice. Detective Nichols had to respond to another matter and, therefore, asked two other officers, Serg eants Sullivan and S tewar t, to take the sta teme nt. Nich ols had taken notes from his oral interview, but it does not appear that he gave these notes to Sullivan and S tewart before he left the station. Su llivan and Stewa rt moved Defen dant to an other roo m whe re, in the pre sence of his attorn ey, they re-read Defendant his Miranda rights. They then took a formal statement, which was largely s imilar to the information Defendant had conveyed to Nichols; but Defendant additio nally alleged that his wife carried a gun and had previously shot at him. W hen the State ca lled Dete ctive Nich ols to testify at trial, he recounted the oral sta teme nt that h e had taken and w as su bject to cross-examination thereon. The defense was precluded on cross-examination, however, from

-5-revealing the allegations contained in the statement taken by Sergeants Sullivan and Ste wart.

I. ADMISSIBILITY OF STATEMENT TO POLICE

Defendant first argues that the trial court erred by refusing to allow defense counsel to cross-examine Detective Nichols about the typewritten statement taken by Sergeants Sullivan and Stewar t. The excluded statement, he contends, would have supported his claim of self-defense or the lesser offense of manslaughter because it contained statements that the victim carried a gun and had previously shot at Defendant. Citing Sam bolin v. State , 387 S.W.2d 817 (Tenn. 1965), and State v. Robinson, 622 S.W .2d 62 (Ten n. Crim. App . 1980), Defendant argues that once the State introduces a portion of his statement or confession, he is entitled to introduce the entire statement, including any exculpa tory or self-se rving statem ents.

This C ourt has stated,

“When a confession is admissible, the whole of what the accused said upon th e subjec t at the time of making the confession is adm issible and s hould be tak en tog ether; a nd if the prosecution fails to prove the whole statement, the accused is entitle d to pu t in evidence all that was said to and by him at the time which bears upon the subject of controversy including an y exculpa tory or self- serving d eclaration s conn ected the rewith.”

Espitia v. State, 288 S.W.2d 731, 733 (Tenn. 1956) (emphasis added) (quoting 20 Am. Jur. § 488 ). Neve rtheless, this Cou rt rejecte d the p ropos ition tha t “all statem ents by a defendant becom e admiss ible at trial upon introduction of a part of one of them .” State v. Ralph Eugene Jenkins, No. 98, 1986 WL 6267, at *2 (Tenn. Crim. App ., Knoxville, June 3, 198 6). The determ inative q uestio n here is

-6-whether Defendant’s communications with the different officers amounted to a single statement or separate statements.

Defendant argues that the typewritten statement was merely a continuation or reduction to writing of the oral interview conducted by Dete ctive Nich ols. To support this assertion, Defen dant relies heavily on the tem poral pro ximity of the statements. Although possibly relevant when examining admissibility of two statem ents made to the same officer, we conclude that the temporal proximity of the statem ents is no t controlling h ere.

As noted above, the material difference between the statements was Defe ndan t’s allegation in the latter statement that his wife carried a gun and had previo usly shot at him. It is precisely because of this substantive difference that Defendant wanted the trial court to adm it the se cond statem ent. H owev er, this difference also militate s agains t a finding that the second statem ent wa s me rely a reduction to writing of the first—the two were simply no t the sam e statem ent.

Nor was the second statement a continuation of the first. The second statement was taken in a different room by differ ent offic ers, wh o were appa rently unaware of what Defendant had told Detective Nichols. Despite the presence of Defendant’s counsel, S ullivan a nd Ste wart ag ain info rmed Defe ndan t of his rights. Any continuity between the two statements was thereby broken. As noted above, the cases hold that other statements made “at the time of making the confession” are adm issible. The reco rd clearly reflects that Defe ndant gave statem ents at two distinct “times” when the appellant gave a statement.

-7-According ly, the seco nd statem ent was neither a p art of, nor a c ontinuation of, the first.

Furthermore, because Nichols was not present during the second interview, it would have been inappropriate for him to testify regarding the substance of the statement obtained by Sullivan and Stewar t. See Tenn. R. Evid. 602; see also State v. Catherine Wa rd, No. 01C01-9307-CC-00224, 1996 W L 38867, at *8 (Tenn. Crim. App., Nashville, Feb. 2, 1996) (concluding that “[n]either [the officer’s] participation in the investigation nor his role as lead investigato r permitte d him to te stify to facts ou tside his pe rsonal kn owledg e”).

For these reasons, we co nclud e that D efend ant’s statem ent to Se rgeants Sullivan and Stewart constituted a separate statement for the purpose of admissibility. The trial court did no t err by precluding cross-examination of Nicho ls regardin g the con tent of the s ubseq uent state ment. In addition, w e note that even if the exclus ion of th e latter s tatem ent we re erro r, we wo uld find no prejudice because Defendant was able to introduce through another witness testimony that the victim had claimed to be carrying a gun a nd had threaten ed to kill Defend ant. This issue lack s merit.

II. SUFFICIENCY OF THE EVIDENCE

Defendant next contends that the evidence is insufficient to support his convictions for premeditated first degree murder and attempted first degree murder. Specifically, Defendant argues that he conceived h is decision to execu te the attacks during the heat of passion . He argues that evidence of his impassioned state, re sulting from th e “hea ted” ar gum ent with his wife outside the

-8-bar, was su fficient to negate the element of premeditation. Similarly, he further argues that proo f of his intoxica tion was s ufficient to ne gate his a bility to form an intent to kill. Thus, D efendant submits that the proof supports only a finding a voluntary m anslau ghter for th e killing of his w ife, Betty Ke ough.

When an appellant challenges the sufficiency of the evidence, this C ourt must determine whether, after viewing the evidence in a light mo st favorab le to the prosecution, “any rational trier of fact could have fou nd the e ssential e lemen ts of the crime be yond a reas onable dou bt.” Jack son v. V irginia, 443 U.S. 307, 319 (1979); see State v. Duncan, 698 S.W.2d 63, 67 (Tenn. 1985); Tenn. R. App. P. 13(e). “[T]he State is entitled to the strongest legitimate view of the trial evidence and all reasonable or legitimate inferences which may b e drawn therefrom .” State v. Cabbage, 571 S .W .2d 83 2, 835 (Ten n. 197 8). Th e cred ibility of witnesses, the we ight an d value to be g iven to th e proo f, and a ll factual issues raised by the evidence are resolved by the trier o f fact. See id. This C ourt will not re-weigh or re-evalu ate the ev idence . “A guilty verdict by the jury, approved by the trial judge, accredits the testimony of witnesses for the State and resolves all conflicts in favor of the theory of the State.” State v. Grace, 493 S.W.2d 474, 476 (Tenn. 1973). Moreover, a guilty verdict removes the presumption of innocence enjoyed by defendants at trial and replaces it w ith a presumption of guilt. See id. Thus, a de fendant cha llenging the sufficiency of the evidence carries the burden of illustrating to this Court why the evidence is insufficient to support the verdict. See State v. Freeman, 943 S.W.2d 25, 29 (Tenn. Crim. App. 1996).

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At the time of Defendant’s offense, first degree murder was defined as the “premeditated and intentional killing of another.” Tenn. Code Ann. § 39-13-202(a)(1). “Intentional” is defined as the “consciou s objective or desire to engage in the conduc t or cause the re sult.” Id. § 39-11-10 6(a)(18). Premeditation requires “the exercise of reflection a nd judgm ent,” id. § 39-13-20 2(d), and “a previo usly formed design o r intent to kill.” State v. West, 844 S.W.2d 144, 147 (Tenn. 1992) (citing McGill v. State, 475 S.W.2d 223, 227 (Tenn. Crim. App. 1971)). H oweve r,

It is not nec essary th at the pur pose to kill pre-exist in the mind of the accused for any definite period of time. The mental state of the accused at the time the accused allegedly decided to kill must be carefu lly considered in order to determine whether the accused was sufficie ntly free from excitement and passion as to be capable of preme ditation.

Tenn. C ode Ann . § 39-13-202 (d).

The existence of prem editation and inten t are questions for the jury. Like other elements of a crime, these may be established by circums tantial proo f. See State v. Brown, 836 S.W.2d 530, 541 (Tenn. 1992) (finding that “the necessary eleme nts of first-degree murder may be shown by circumstantial evidence”). Some pieces of evidence in the case at bar that have been recognized as supportive of the existen ce of pre medita tion and in tent includ e the use of a dead ly weapon upon an unarmed victim; calmness immediately after the killing; facts that indicate planning, such as Defe ndant’s a rrival at the ba r armed ; facts about Defe ndan t’s prior re lations hip with the victim from which motive may be inferred; and facts about the nature of the killing. See, e.g., State v. Bland, 958 S.W.2d 651, 66 0 (Ten n. 1997 ); State v. Bord is, 905 S.W.2d 214, 222 (Tenn.

-10-Crim. App. 1995) (citing 2 W. L aFave & A. Sc ott, Jr., Substantive Criminal Law § 7.7 (19 86)).

In the present case, the eviden ce mo st favorab le to the Sta te demonstrated that when Defendant heard that his wife was looking for him, he went to his former residence to find her and parked his car where it could not be seen from the house. When he learned that Ms. Keough and Berry had gone to the bar, he remained calm and collected and went there to find them. At some time prior to arriving at the bar, Defendant armed himse lf with a bayo net. Although Defendant and the victims were asked to leave the bar, the owner of the bar testified that there was no indication of trouble, and that Defendant appeared calm and not intoxicated . Once ou tside, Defenda nt pushed h is wife. Whe n Berry attempted to nonviolently intervene, Defendant stabbed him in the chest without warning and then chased him through the parking lot, stabbing him twice more. Finally, Defen dant retu rned to his wife, stabbe d her, an d locked her in her c ar to bleed to death. The record reflects no p roof that either victim threatened, assau lted, or othe rwise pro voked D efenda nt while ou tside of the bar.

After the murder, Defendant left the scene, disposed of the murder weapon, and tried to borrow enough m oney to flee. Noth ing in the record sugge sts that he ever expressed any remorse. To the contrary, when he was arrested and told that he was being charged for murder, he callously asked, “Which one did I get?” W e conclude that, along with the sp ecific factors cited above, the totality of these circumstances was clearly sufficient to support the jury’s finding o f preme ditation an d intent be yond a re asona ble dou bt.

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Having concluded that the proof was initially sufficient to support the jury verdicts, we address the Defendant’s specific contentions regarding passion and intoxication. It is sufficient to note that, although the jury heard conflicting evidence on both issues, the evidence tending to disprove passion and intoxication was clearly sufficient for the jury to determine the issues acc ordingly. It was th e jury’s p rerog ative to c redit the eviden ce in favor of the State’s theory and to d iscredit the evidenc e in favor of D efenda nt.

With regard to passion , we add only that even if Defendant became impassioned upon hearing that Ms. Keough was w ith Berry, he had numerous opportu nities to cool down prior to the killing. On the other hand, if he became impassioned later, but “the intent to kill was formed as a result of premeditation . . . prior to the crime, it is immaterial that the act was carried out in a state of passion .” State v. Edwin Jesperson, No. 03C01-9206-CR-00212, 1993 WL 305781, at *7 (Tenn. Crim. App., Knoxville, Aug. 11, 1993) (citing Leonard v. State, 292 S.W.2d 849, 852 (Tenn. 1927)), perm. to appeal denied (Tenn. 199 3). As discussed above, the evidence was sufficient for the jury to find premeditation, even prior to the circumstances imm ediate ly relate d to the killing. T hus, in addition to finding that the evidence was sufficient for the jury to conclude that Defendant was not impassioned, the evidence was also sufficient for the jury to conclude either that h e had s ufficient op portunity to cool down subsequent to any impassioned state, or that premeditation and the intent to kill were formed prior to any im passion ed state.

Finally, we note that although this case centers around a marital dispute, that fact alone does not discredit the existence of a previously form ed intent to

-12-kill. See, e.g., State v. Cooper, 718 S.W .2d 256 (Tenn . 1986); State v. Jon Douglas Hall, No. 02C01-9703-CC-00095, 1998 WL 20805 1 (Ten n. Crim. A pp., Jackson, Apr. 29, 1998). Moreover, this was not a typical marita l relationship. Defendant and his wife we re separa ted, and Defendant lived with another woman. For the reasons discussed, w e find th at the e videnc e was clearly sufficient to support the jury’s verdict on both counts. This issue is without m erit.

III. CONSTITUTIONALITY OF THE DEATH PENALTY

Relying upon arguments from his pretrial motions, Defendant also challenges the constitution ality of Ten nesse e’s death penalty statute. This issue is without m erit. See State v. S mith, 893 S.W.2d 908 (Tenn. 1994); State v. Brimmer, 876 S.W .2d 75 (Ten n. 1994); State v. Cazes, 875 S.W.2d 253 (Tenn. 1994); State v. S mith, 857 S.W.2d 1 (Ten n. 1993 ); State v. Black, 815 S.W.2d 166 (Tenn . 1991); State v. Boyd, 797 S.W .2d 589 (Tenn . 1990); State v. Teel, 793 S.W .2d 236 (Tenn . 1990); State v. Thompson, 768 S.W .2d 239 (Tenn. 1989).

IV. SUFFICIENCY OF THE EVIDENCE T O SUPPORT DEATH PENA LTY AND PROPORTIONALITY REVIEW

Although Defendant does not raise the issue, we also note that the evidence suppo rts the jury’s imposition of the death penalty. At sentencing, the State introduced Defendant’s prior convictions for assault to com mit voluntary manslaughter in 1974 and for manslaughter in 198 9. Def enda nt was on pa role for the latter o ffense at th e time he comm itted the pre sent offen se.

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At the sente ncing hearin g, one of Def enda nt’s sisters testified on his beha lf that he was one of eight siblings and that their parents were deceased. She stated that Defendant was fifty-three years old, tha t he was a co rdial and very nice person, and that she loved him. She then asked the jury to spare his life. Another sister testified that Defendant and Ms. Keough had experienced a “stormy” relationsh ip from the beginn ing. She mentio ned tha t Defendant had undergone stomach surgery and that he had had his jaw wired shut as result of a car accident. She, too, asked the jury for leniency and said that Defendant could be rehabilitate d.

A former co-wo rker tes tified tha t Defe ndan t had p erform ed his work w ell. He also recalled a time about a month prior to the murder when Ms. Keough came to the body shop where he and Defendant worked. The witness stated that she and Defendant began to argue about a car he had bought for her and that Ms. Keough had grabbed an air ratchet and “rared back” to hit him before another employee intervened and took the tool from her.

The State’s senten cing evidence was sufficient to establish the prior violent felony aggrava ting circum stance . See Tenn. Code Ann. § 39-13-204(i)(2). Evidence that Defendant had previously killed another person and feloniously assaulted yet another victim clearly outweighed the brief character testimony introduced by the defense. Therefore, we conclude that the evidence was sufficient to s upport im position o f the death penalty.

Defendant also does not challenge the proportionality of his death penalty in comp arison to similar ca ses. In ac cordan ce with Tennessee Code Annotated

-14-§ 39-13-206, we nevertheless examine the issue. When this Court conducts a proportio nality review, we must consider the characteristics of Defendant and the nature and circumstances of the crime in comparison to other first degree murder cases in which a capital sentencing hearing was conducted, regardless of the sentence actually impose d. See State v. Bland, 958 S.W.2d 651, 666 (Tenn. 1997). A senten ce of dea th is not disproportionate unless “the case taken as a whole is plainly lacking in circumstances consiste nt with those in cases where the death penalty has be en impos ed.” Id. at 668 (taking language from State v. Ramsey, 864 S.W.2d 320, 328 (Mo. 1993) (en banc)). That is not the case here.

Defen dant, armed with a bayonet, sought out his estranged wife. The o nly testimony regard ing his state of mind when he learned that his wife was at the bar with Berry indicated that he was calm and collected. He stabb ed his wife in c old blood, locked her in her car, and left her to bleed to death. He has shown no remorse for his a ctions . He ha s two p rior con victions involving the killing or attempted killing of other persons. Prior e fforts to r ehab ilitate him were o bvious ly unsu cces sful. Finally, no o ther cha racteristic of D efenda nt in any w ay sugg ests that his sentence is disproportionate. The mitigating proof, as delineated above, was hardly co mpelling , and the ju ry’s decisio n not to de fer to such proof does not indicate a dispropo rtionate se ntence .

The sole a ggrav ating circum stanc e was that D efend ant ha d prev iously been convicted of one or more felon ies for which statutory eleme nts involve the use of violence to the pers on. See Tenn . Code Ann. § 39-13-204(i)(2). The death penalty has been sustained in a number of prior decisions in consideration

-15-of this factor. See, e.g., State v. King, 718 S.W.2d 241 (T enn. 19 86); State v. Goad, 707 S.W .2d 846 (Tenn . 1986); State v. McKay, 680 S.W.2d 447 (Tenn. 1984). Moreover, the death penalty has been sustained when, as here, this was the only aggravating factor. See, e.g., State v. Martin , 702 S.W.2d 560 (Tenn. 1985); State v. Cald well, 671 S.W.2d 459 (Tenn. 1984). We conclude that the sentence of death in the present case is not disproportionate.

The judgment and sentences1 of the trial court are affirmed in all respects.

____________________________________ DAVID H. WELLES, JUDGE

CONCUR:

Not Participating PAUL G. SUMMERS, JUDGE

___________________________________ JOE G. RILEY, JUDGE

1 The appellant does not challenge the appropriateness of the forty-year consecutive sentence for attempted murder.

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