The opinion
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
Assigned on Briefs October 5, 2010
STATE OF TENNESSEE v. ALBERT DORSEY
Direct Appeal from the Criminal Court for Shelby County
No. 08-01634 John T. Fowlkes, Jr., Judge
No. W2010-00115-CCA-R3-CD - Filed June 22, 2011
The Defendant-Appellant, Albert Dorsey, was convicted by a Shelby County jury of first
degree premeditated murder and sentenced to life without the possibility of parole. On
appeal, Dorsey claims: (1) his conviction was not supported by sufficient evidence; (2) the
aggravating circumstance used to impose his sentence of life without the possibility of parole
was not supported by sufficient evidence; and (3) the trial court erred by admitting several
photographs of the victim. Upon review, we affirm the judgment of the trial court.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed
C AMILLE R. M CM ULLEN, J., delivered the opinion of the court, in which A LAN E. G LENN and
J. C. M CL IN, JJ., joined.
Robert W. Jones, Chief Public Defender; Barry W. Kuhn, Assistant Public Defender,
Memphis, Tennessee, for the Defendant-Appellant, Albert Dorsey.
Robert E. Cooper, Jr., Attorney General and Reporter; Cameron L. Hyder, Assistant Attorney
General; William L. Gibbons, District Attorney General; Theresa McCusker and Rachel
Newton, Assistant District Attorneys General, for the Appellee, State of Tennessee.
OPINION
Trial. On December 3, 2007, the partially clothed body of Dianna Franklin, the
victim, was found near the railroad tracks at the dead-end of West Shelby Drive in Memphis,
Tennessee. There were numerous cuts and bruises to the victim’s face, two stabs wounds to
her chest area, and thirty-seven incised wounds or incised wound complexes all about the
victim’s body. The victim died as a result of either strangulation or sharp force injuries.
Around midnight two days earlier, on December 1, was the last time the victim’s
daughter, Pamela Franklin1 , saw her mother. The victim was at home with her daughter and
her live-in boyfriend, David Brown. Pamela said the victim mentioned going to a casino that
night, left the house by herself, and drove away in her white Chevrolet Lumina. Pamela
called the victim several times; however, these calls were not answered. Pamela said the
victim and Brown had a couple of arguments in the past, but no physical altercations. Brown
remained at the house after the victim left for the casino. Pamela claimed she had never
heard of Dorsey.
On cross-examination, Pamela said the victim did not indicate that she was going to
the casino with anyone. Despite being confronted with a prior statement in which Pamela
told authorities that the victim and Brown had an argument before the victim left for the
casino, Pamela maintained at trial that no argument had occurred. Pamela testified that
Brown owned several different types of knives and was present at the house when she woke
up on the morning of December 1.
David Brown confirmed that he was in a relationship with the victim and lived with
her at the time of her death. Brown described his relationship with the victim as “up and
down” and claimed that there were no past incidents of physical violence. Brown said he
came home from work at approximately 1:30 a.m. on December 1. The victim was at the
apartment watching television, planning to go to the casino with her sister, Geraldine. Brown
stated that at 1:45 a.m., the victim left the apartment by herself. The victim drove away in
her white Chevrolet Lumina. Brown said it was unusual for the victim to leave the apartment
so late at night. Brown stayed at the apartment overnight and became concerned when the
victim did not return. Brown also attempted to call the victim several times, but he did not
receive an answer. Brown knew Dorsey through the victim’s sister, Geraldine. Brown said
he went to Dorsey’s house on two occasions with Geraldine and the victim. Brown was
informed that the victim’s body had been found on the night of December 3.
Brown acknowledged that he was questioned as a possible suspect. Although Brown
was not happy that the victim went to the casino, he denied that he argued with the victim
before she left. Brown was questioned about three messages that were left on the victim’s
voice mail after she exited the apartment. The messages contained profanity and accused the
victim of sleeping with other men. Brown threatened the victim in one of the messages.
Brown acknowledged that he “probably” left these messages.
Officer Isaac White of the Memphis Police Department testified that on December 2
he was on patrol and responded to a call regarding a suspicious car at the address of 4080
1
For purposes of clarity, we will refer to Pamela Franklin by her first name.
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Ponca Street. Officer White said the suspicious car, a Chevrolet Lumina, was parked on a
residential street. He identified a photograph of the victim’s car, exhibit one, as the car he
investigated. Officer White looked inside of the car and “observed a purse and a knife that
was bent. Both appeared to have red spots on them that appeared to be blood.” He described
the knife as a “black handled kitchen knife.” Officer White determined that the identification
from the purse belonged to a person who had been reported missing. The testimony of
Officer White was corroborated by Officer Thomas Ellis, a crime scene investigator for the
Memphis Police Department.
Mary Jean Howard, Dorsey’s close friend, lived at 4070 Ponca Street. Although
Howard could not recall the specific date, she recalled that Dorsey visited her home early one
morning sometime before 6:00 a.m. Dorsey did not own a car, and Howard was unsure of
how he got to her home. Howard testified that Dorsey stayed with her until later that
morning, and she drove him home on her way to work. During Dorsey’s visit, Howard
noticed something on his shirt. She stated:
He just had a little something on his shirt and stuff and I asked him what
happened and he said well, him and the guy that he went to the casino with that
they got into a little misunderstanding and that was it.
Howard testified that Dorsey appeared to have blood on his shirt, and she washed it that same
morning. Howard said Dorsey did not have any visible injuries. She stated that Dorsey’s
behavior during the visit was not out of the ordinary. When Howard was pressed regarding
the time Dorsey arrived at her home, she stated “it would have been about two or three
o’clock in the morning. I’m guessing now. I don’t know. I didn’t look at the clock.”
Linda Shields lived on the same street as Dorsey and was his “hanging partner[].”
Shields received a phone call from Dorsey at around 1:00 a.m. on December 1 in which
Dorsey claimed that he had been stabbed by a man in the neck. Shields believed that a
woman was also with Dorsey at the time. Shields stated, “I said you been stabbed? And he
said yes. The female that he was with had stabbed him. And I said female? He said no I
was with a male.” Shields told Dorsey to call the police or an ambulance; however, Dorsey
refused her advice. He asked Shields to come pick him up, but Shields declined his request.
Dorsey then said he was going to call his brother. Shields believed that Dorsey was with a
woman on the night of the offense because she could hear a woman’s voice while on the
phone with Dorsey. Shields stated, “[W]hen he called me and told me had been stabbed, he
switched it around and said it was a male.”
Shields testified that Dorsey continued to call her on the morning of December 1. He
told her to go outside and see if there was a LeSabre in front of his apartment building.
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Dorsey also wanted to know whether anyone was standing around his apartment. Dorsey
instructed Shields to continue watching over his apartment and to call him if she saw anyone.
Later that same day, Shields went to Dorsey’s apartment to check on his injury. She
described the stab wound as “real deep” and told Dorsey that he needed to go to the hospital.
They eventually sat down, started drinking beer, and Dorsey mentioned that Geraldine’s
sister, the victim, was missing. Dorsey was in a relationship with Geraldine and stated that
the victim had been on her way to the casino but never made it. Dorsey denied that he was
with the victim that night and claimed he learned this information from the news. Shields
told Dorsey that she had not seen anything on the news about the victim. Dorsey then stated
that Geraldine told him about the victim.
Shields spoke with Dorsey again at 5:00 or 6:00 p.m. that same day. Dorsey told her
that the victim’s car had been found on Raines Road. Shields recalled her last conversation
with Dorsey that night:
[T]he last thing he told me that Saturday night, is that they might find the car
but it [was] going to take a while for them to find the body. And when they do
find the body it will be shredded up so bad that they wouldn’t recognize her[.]
When Shields went back to Dorsey’s apartment on December 2, he told her that the
victim’s body had been found. Shields stated:
[L]ater on that Sunday, that’s when he told me they had found her body . . . by
a railroad track or something. And I’m going like, Albert, I said you did
something to that woman. I said, you’re not going to get away with it. And
he said, . . . I already done got away with it. And then, later on, he turned
around and said, well, the bitch got what she deserved. And it’s a whole lot
of more bitches going to get what they deserve by talking to me the way they
do.
Shields acknowledged that she did not contact the police following her conversations with
Dorsey.
Eddie Prewitt, a security guard at Dorsey’s apartment building, spoke with Dorsey on
the evening of December 1. Dorsey claimed to have been robbed and stabbed by a man who
lived across the street. Dorsey showed Prewitt a stab wound on his back, which Prewitt
described as being “pretty bad.” Dorsey claimed his brother was going to take care of the
wound, and told Prewitt that his girlfriend’s sister was missing.
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On December 2, Dorsey came to Prewitt’s office and asked to use his phone. While
dialing the phone number, Dorsey explained that the body of his girlfriend’s sister was found
by railroad tracks. Dorsey described how the sister’s face “was messed all up” and how “the
knife was on top of the purse in the car with blood on it but no fingerprints.” Prewitt said
Dorsey called him an hour later and wanted to know how to spell “forensics.” Dorsey called
again a couple hours later and wanted to know how long it took to perform an autopsy.
Prewitt asked Dorsey whether he killed somebody. In response, Dorsey “just kind of like
laughed, just said huh . . . and that was it.” Prewitt described Dorsey as being “kind of
nervous” at the time He testified that Dorsey kept walking up and down the stairs of the
apartment building. Prewitt contacted the police because he was bothered by his
conversations with Dorsey.
Sergeant Anthony Mullins of the Memphis Police Department’s homicide bureau
testified that early in the investigation Brown was approached as a possible suspect based on
his status as the victim’s live-in boyfriend. However, Sergeant Mullins explained the focus
of the investigation shifted after two people reportedly overheard Dorsey talking about the
homicide. These conversations took place before the victim’s body had been discovered by
the police. Sergeant Mullins testified that the victim’s car was found approximately two
miles from the victim’s body. Sergeant Mullins said the victim’s body was discovered on
December 3. He believed news organizations would not have reported the murder until
December 4 or 5.
Sergeant Mullins interviewed Dorsey on two occasions. He first interviewed Dorsey
on December 6. Although Dorsey admitted that he knew the victim, he denied having seen
her for a couple of months. Dorsey admitted that he had discussions on December 1 about
the victim’s whereabouts and the location of her car. However, Dorsey claimed he learned
this information from friends, family, and the news. Sergeant Mullins testified that Dorsey
had cuts on his palm, thumb, and neck and described the cut on the palm as “a decent sized
laceration.” Dorsey claimed these injuries were “construction-related.” Dorsey denied
having a sexual relationship with the victim.
Sergeant Mullins interviewed Dorsey again later that same afternoon. He confronted
Dorsey with information that conflicted with his prior statements. Sergeant Mullins asked
Dorsey how he knew information about the murder before the victim was reported missing.
Sergeant Mullins stated that Dorsey’s demeanor changed and Dorsey “began telling us that
his life was over. He said, you know it and I know it. He appeared to be a little more
serious, more despondent, maybe.” Sergeant Mullins stepped out of the interview room and
gave Dorsey a few minutes to collect his thoughts. When the interview reconvened, Dorsey
provided a different explanation for what had occurred.
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Sergeant Mullins stated:
[Dorsey] admitted to having seen [the victim] that weekend. He said
they were headed to Tunica, going to the casinos, and along the way he said
they were accosted, I guess you could say by–he said it was her boyfriend and
another male, kind of came along side and forced him to pull off the road and
after a physical encounter between those two and him and [the victim], he fled.
And ran to Mary Howard’s house and that was the last he could tell us about
anything that happened to her, her car, anything.
Dorsey acknowledged that he did not contact the police and alleged that the attack occurred
somewhere close to where the victim’s body was found.
Officer Newton Morgan, a crime scene investigator with the Memphis Police
Department, testified that he responded to the crime scene where the victim’s body was
found. Officer Morgan testified that several items were found around the victim’s body:
black shoes, panties, a knife, a white baseball cap, a brown glove, a purple robe, a black
jacket, a wristwatch, a hammer, and a used condom. The panties were found inside one of
the black shoes. Officer Morgan said he collected all of these items and took them to the
property room as evidence.
Sean Lester of the Shelby County Medical Examiner’s Office also responded to the
scene where the victim’s body was found. He testified that the victim was partially clothed.
and not wearing shoes. Lester described the ground as wet and muddy. The victim’s clothes
were also wet. Although he expected to see more blood due to the victim’s injuries, Lester
stated that there was not a significant amount of blood underneath or around the victim. He
said it was possible that the blood was washed away by the rain or that the victim was injured
at a different location.
Lisa Funte, a medical examiner, testified that she reviewed the victim’s autopsy
report. Funte stated that the victim’s body had two stabs wounds and thirty-seven incised
wounds or incised wound complexes. The stab wounds were located to the middle of the
chest and to the right buttocks. The incised wounds were found on both hands, the left arm,
both legs, the back, the right buttocks, and the abdomen. The victim also had abrasions to
the left hip and buttocks region. Funte testified that an internal examination of the neck
revealed evidence of strangulation. The victim had numerous abrasions and incised wounds
to the head and neck. Funte determined that some of the wounds were inflicted before the
victim’s death due to the hemorrhaging, blood loss, and “defense type wounds” to the hands
and forearms.
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Numerous photographs from the autopsy were introduced into evidence and examined
by Funte. A photograph of the victim’s hooded sweatshirt had defects to the material that
corresponded to some of the incised wounds and red discoloration from the blood. A
photograph of the clothes found on the victim’s body at the scene of the offense. showed the
victim’s jeans, a black jacket, black shoes, and a torn bra. Funte testified that the autopsy
report found no specific evidence of sexual activity. Additionally, there was no definitive
evidence that the victim was dragged.
Funte testified that the cause of the victim’s death was either strangulation or sharp
force injuries and could not state with certainty which of the two types of injury caused the
victim’s death. A toxicology report showed that the victim was not under the influence of
alcohol and drugs. Funte said she expected to see defects to the victim’s clothes in the area
covering the buttocks. The absence of such defects suggested that this area was not covered
when the wounds were inflicted. Funte stated that the victim’s vagina and rectum had no
signs of blunt force trauma.
Donna Nelson, a forensic scientist for the Tennessee Bureau of Investigation,
examined vaginal swabs and rectal swabs that were taken from the victim. The swabs
contained sperm that matched Dorsey’s deoxyribonucleic acid (DNA) profile. Nelson
testified that she examined a knife2 that had the victim’s DNA. She said the condom
discovered by the railroad tracks was not tested.
Charity Wright, a records custodian for a cellular phone company, examined the
phone records for Dorsey and the victim from December 1. Wright stated that Dorsey called
the victim on December 1, 2007 at 12:30 a.m., with the call duration at nearly five minutes.
Dorsey called the victim again at 12:46 a.m., with this call duration at one minute and
nineteen seconds. Wright testified that Dorsey called the victim five times between 1:01 a.m.
and 1:16 a.m.; however, the victim did not answer these calls. Wright said the victim called
Dorsey at 1:39 a.m., with the call duration of one minute and thirty-five seconds. Dorsey
called the victim at 1:43 a.m. for approximately eleven minutes. Wright said Dorsey called
the victim two more times, at 7:30 a.m. and 11:27 a.m. These calls were not answered.
Wright testified that the victim called an unidentified number at 3:12 a.m., 5:33 a.m, 5:39
a.m., and 5:41 a.m. Wright said Dorsey and the victim came within range of the same cell
phone tower at 1:55 a.m. The radius of a cell phone tower is ten miles.
Following the proof at trial, the jury convicted Dorsey of first degree premeditated
murder. Dorsey was ordered to serve a life sentence in the Tennessee Department of
2
It is unclear from the transcript which knife had the victim’s DNA.
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Correction. The trial court held a hearing to address whether Dorsey would be entitled to
the possibility of parole.
Sentencing Hearing. Several witnesses testified at the sentencing hearing, including
the victim’s daughter, Pamela. Pamela explained that the loss of her mother had a significant
emotional and financial impact on the family. Miguel Laboy, the medical examiner who
performed the autopsy, corroborated the trial testimony of his colleague, Funte. Laboy
described in detail how the victim had defensive wounds on her arms and hands. He said
defensive wounds are incurred while trying to protect oneself during an attack. Laboy
testified that the wounds on the victim’s body would have been painful to a person with
normal senses. He could not pin-point the exact time in which the victim died and agreed
that the cause of death was a combination of strangulation and sharp force injuries.
Jeannette Stanback, an investigator for the Shelby County Public Defender’s Office,
examined a mental health report from the Memphis City Schools. The report was taken when
Dorsey was fifteen years old. Dorsey was forty-nine years old at the time of the hearing. The
report showed that Dorsey was a patient at a mental health center. The report stated that
Dorsey had an Intelligence Quotient (“IQ”) of sixty-five. Dorsey’s sister testified that he had
been hospitalized in the past for psychiatric problems and was taking medicine for
depression and other physical ailments. Dorsey’s nephew testified that Dorsey was abused
and raped when he was young.
Following the proof at the sentencing hearing, the jury sentenced Dorsey to life
without the possibility of parole. The jury found 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.
Dorsey filed a motion for new trial, which was denied. He then filed a timely notice
of appeal.
ANALYSIS
I. Sufficiency of the Evidence. Dorsey claims the evidence did not support his
conviction for first degree premeditated murder. He argues that the State failed to prove that
he killed the victim. Dorsey contends the evidence merely established that he had sex with
the victim and that he called her several times that night. In response, the State argues that
a rational juror could have found the elements of the offense beyond a reasonable doubt.
Upon review, we agree with the State.
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The State, on appeal, is entitled to the strongest legitimate view of the evidence and
all reasonable inferences which may be drawn from that evidence. State v. Bland, 958
S.W.2d 651, 659 (Tenn. 1997). When a defendant challenges the sufficiency of the evidence,
this court must consider “whether, after reviewing the evidence in the light most favorable
to the prosecution, any rational trier of fact could have found the essential elements of the
crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781,
2789 (1979). Similarly, Rule 13(e) of the Tennessee Rules of Appellate Procedure states,
“Findings of guilt in criminal actions whether by the trial court or jury shall be set aside if
the evidence is insufficient to support a finding by the trier of fact of guilt beyond a
reasonable doubt.” The requirement that guilt be found beyond a reasonable doubt is
applicable in a case where there is direct evidence, circumstantial evidence, or a combination
of the two. State v. Matthews, 805 S.W.2d 776, 779 (Tenn. Crim. App. 1990) (citing State
v. Brown, 551 S.W.2d 329, 331 (Tenn. 1977) and Farmer v. State, 343 S.W.2d 895, 897
(Tenn. 1961)). The Tennessee Supreme Court has adopted the United States Supreme Court
standard that direct and circumstantial evidence should be treated the same when reviewing
the sufficiency of the evidence. See State v. Dorantes, 331 S.W.3d 370, 379 (Tenn. 2011).
The trier of fact must evaluate the credibility of the witnesses, determine the weight given
to witnesses’ testimony, and must reconcile all conflicts in the evidence. State v. Odom, 928
S.W.2d 18, 23 (Tenn. 1996).
When reviewing issues regarding the sufficiency of the evidence, this court shall not
“reweigh or reevaluate the evidence.” State v. Philpott, 882 S.W.2d 394, 398 (Tenn. Crim.
App. 1994) (citing State v. Cabbage, 571 S.W.2d 832, 836 (Tenn. 1978), superseded by
statute on other grounds as stated in State v. Barone, 852 S.W.2d 216, 218 (Tenn. 1993)).
This court has often stated that “[a] guilty verdict by the jury, approved by the trial judge,
accredits the testimony of the witnesses for the State and resolves all conflicts in favor of the
theory of the State.” Bland, 958 S.W.2d at 659 (citation omitted). A guilty verdict also
“removes the presumption of innocence and replaces it with a presumption of guilt, and the
defendant has the burden of illustrating why the evidence is insufficient to support the jury’s
verdict.” Id. (citation omitted).
According to Tennessee Code Annotated section 39-13-202(a)(1), first degree murder
includes the “premeditated and intentional killing of another.” Premeditation is defined,
under subsection (d), as follows:
As used in subdivision (a)(1) “premeditation” is an act done after the exercise
of reflection and judgment. “Premeditation” means that the intent to kill must
have been formed prior to the act itself. It is not necessary that the purpose 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
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must be carefully considered in order to determine whether the accused was
sufficiently free from excitement and passion as to be capable of
premeditation.
T.C.A. § 39-13-202(d). A person’s actions are “intentional” if it is the person’s “conscious
objective or desire to . . . cause the result.” Id. § 39-11-106(a)(18).
The Tennessee Supreme Court has stated that “premeditation may be established by
any evidence from which a rational trier of fact may infer that the killing was done ‘after the
exercise of reflection and judgment’ as required by Tennessee Code Annotated section
39-13-202(d).” State v. Davidson, 121 S.W.3d 600, 615 (Tenn. 2003). The Court identified
the following factors as supporting a finding of premeditation:
The use of a deadly weapon upon an unarmed victim; the particular cruelty of
a killing; the defendant’s threats or declarations of intent to kill; the
defendant’s procurement of a weapon; any preparations to conceal the crime
undertaken before the crime is committed; destruction or secretion of evidence
of the killing; and a defendant’s calmness immediately after a killing.
Id. (citing Bland, 958 S.W.2d at 660). These factors, however, are not exhaustive. Id. The
trier of fact may also consider evidence of the defendant’s motive and the nature of the
killing. State v. Nesbit, 978 S.W.2d 872, 898 (Tenn. 1998).
Here, there was more than sufficient proof adduced at trial which supported Dorsey’s
conviction for first degree premeditated murder. Most compelling was the testimony of
several witnesses who were surprised at Dorsey’s knowledge of the details about the murder
before the victim had been reported missing and prior to the discovery of her body. Dorsey
knew the victim’s body was located near railroad tracks, described how the victim’s face
“was messed all up,” and further described how a bloody knife and a purse were in a car.
Dorsey told Shields that the victim’s body was “shredded up” and unrecognizable and further
bragged that he had “already gotten away with it.” The language he used to describe the state
of the victim’s body was eerily consistent with the thirty-seven incisive wounds or wound
complexes about the victim’s body. Dorsey made all of these comments on December 1 or
2. The victim’s body was not found until December 3.
Additionally, Dorsey conceded that he was with the victim on the night of the offense.
He acknowledged that he and the victim were in a car together on the way to a casino. A
custodian from a phone company testified that Dorsey called the victim numerous times after
midnight on December 1. The custodian said there was a phone call at 1:43 a.m. that lasted
eleven minutes. After this phone call ended, Dorsey and the victim came within range of the
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same cell phone tower. A forensic scientist from the Tennessee Bureau of Investigation
testified that Dorsey’s DNA was found on vaginal and rectal swabs taken from the victim.
Officer Morgan testified that the victim’s body was discovered partially-clothed by railroad
tracks. The victim’s bra was torn and panties were found in one of her shoes.
The victim’s car was discovered two miles from the victim’s body at 4080 Ponca
Street and Howard, Dorsey’s close friend, lived at 4070 Ponca Street. Dorsey admitted that
he went to Howard’s house in the early morning hours of December 1. Howard testified that
Dorsey arrived unannounced at around 2:00 or 3:00 a.m. She said Dorsey appeared to have
blood on his shirt. Later that day, both Shields and Prewitt saw Dorsey with a deep stab
wound. Dorsey also wanted to know about forensics and how long it took to perform an
autopsy.
In regard to premeditation, the forensic scientist described in detail how the victim
suffered two stab wounds and thirty-seven incised wounds or incised wound complexes.
These wounds were located on nearly every part of the victim’s body. Many of these wounds
were inflicted while the victim was still alive. The victim had numerous defensive wounds,
suggesting that the victim attempted to fight off Dorsey. Evidence was also presented that
Dorsey was calm after the killing. Howard testified that Dorsey came to her home around
2:00 or 3:00 a.m. on December 1. She recalled that Dorsey did not act out of the ordinary.
Dorsey’s remarks to Shields after the killing further demonstrate premeditation. Shields
testified that Dorsey said, “I already done got away with it. And then, later on, he turned
around and said, well, the bitch got what she deserved. And it’s a whole lot of more bitches
going to get what they deserve by talking to me the way they do.”
Given the above proof, a reasonable juror could have found that after exercising
reflection and judgment Dorsey killed the victim beyond a reasonable doubt. Dorsey is not
entitled to relief on this issue.
II. Sentence. Dorsey argues that the evidence did not support his sentence of life
without the possibility of parole. He claims the State failed to prove the aggravating
circumstance that “[t]he murder was especially heinous, atrocious, or cruel, in that it involved
torture or serious physical abuse beyond that necessary to produce death[.]” T.C.A. §
39-13-204(i)(5). Dorsey sets forth the following argument in his brief:
The problem with the verdict is that the medical examiners were unable to say
what caused the death of the victim. They testified that [the victim’s] death
could have been caused by the wounds that the victim received or by
strangulation. Without knowing what was the cause of death, the jury is
unable to know what is the aggravating factor.
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The State contends the sentence of life without the possibility of parole was supported by the
record. The State argues that the aggravating circumstance was met irrespective of whether
the medical examiner identified the exact cause of death. Upon review, we agree with the
State.
In cases where the State does not seek the death penalty, the following sentencing
procedure must be followed:
In any first degree murder case in which the state does not seek the death
penalty but is seeking imprisonment for life without the possibility of parole
as the maximum punishment, should the jury find the defendant guilty of first
degree murder, the jury shall fix the punishment in a separate sentencing
proceeding to determine whether the defendant shall be sentenced to
imprisonment for life without the possibility of parole or imprisonment for life.
Such sentencing proceeding shall be conducted in accordance with the
provisions of § 39-13-204, excluding references to the death penalty.
T.C.A. § 39-13-207(a). If the jury unanimously determines that the State has proven one or
more of the statutory aggravating circumstances, the jury shall, in its discretion, sentence the
defendant to either imprisonment for life or to imprisonment for life without the possibility
of parole. Id. § 39-13-207(c). In exercising its discretion, the jury is required to “weigh and
consider the statutory aggravating circumstance or circumstances proven by the state beyond
a reasonable doubt and any mitigating circumstance or circumstances.” Id. § 39-13-207(d).
This court shall determine that a sentence of imprisonment for life without parole is
appropriate “if the state proved beyond a reasonable doubt at least one (1) statutory
aggravating circumstance contained in § 39-13-204(i), and the sentence was not otherwise
imposed arbitrarily, so as to constitute a gross abuse of the jury’s discretion.” Id. § 39-13-
207(g).
Here, the jury found that aggravating circumstance (5) was established under
Tennessee Code Annotated section 39-13-204(i). Under this circumstance, the jury considers
whether “[t]he murder was especially heinous, atrocious, or cruel, in that it involved torture
or serious physical abuse beyond that necessary to produce death[.]” The Tennessee
Supreme Court has provided additional guidance in analyzing this aggravating circumstance:
This Court has previously defined “torture” as “the infliction of severe
physical or mental pain upon the victim while he or she remains alive and
conscious.” State v. Pike, 978 S.W.2d 904, 917 (Tenn. 1998); State v.
Williams, 690 S.W.2d 517, 529 (Tenn. 1985). With respect to “serious
physical abuse beyond that necessary to produce death,” we have previously
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explained that “serious” alludes to a matter of degree, and that physical, rather
than mental, abuse must be “beyond that” or more than what is “necessary to
produce death.” See State v. Nesbit, 978 S.W.2d 872, 887 (Tenn. 1998);
Odom, 928 S.W.2d at 26.
State v. Rollins, 188 S.W.3d 553, 572 (Tenn. 2006).
In viewing the record, the State proved beyond a reasonable doubt that aggravating
circumstance (5) was applicable. The medical examiner at trial provided extensive testimony
regarding the victim’s injuries. She said the victim’s body had two stabs wounds and thirty-
seven incised wounds or incised wound complexes. There were also numerous abrasions and
areas of discoloration. These wounds covered almost every part of the victim’s body and
were inflicted before the victim’s death. The victim had defensive wounds on her arms and
hands. The medical examiner opined that the victim lost a considerable amount of blood
during the attack and concluded that the victim died from sharp force injuries or
strangulation. Her testimony was corroborated at the sentencing hearing by the medical
examiner who performed the autopsy. The testimony of the two medical examiners provided
ample support for the jury’s determination that the murder was especially heinous, atrocious,
and cruel. The number of wounds, as well as the location of the wounds, shows that the
victim endured physical abuse beyond what was necessary to produce her death.
Aggravating circumstance (5) was applicable even though the medical examiners could not
state whether the victim died from strangulation or sharp force injuries. Dorsey is not
entitled to relief on this issue.
III. Photographs. Dorsey claims the trial court erred by admitting several
photographs of the victim at trial and at the sentencing hearing. He asserts that the
photographs “were of such a gruesome character that they only served to prejudice and
inflame the jury.” Dorsey further contends the photographs were inadmissible under Rule
403 of the Tennessee Rules of Evidence because the danger of unfair prejudice substantially
outweighed their probative value. In response, the State argues that the trial court did not
abuse its discretion by admitting the photographs. The State contends the photographs were
particularly relevant because they corroborated the medical examiner’s testimony and showed
the extent of the victim’s injuries. Upon review, we agree with the State.
The trial court has discretion regarding the admissibility of photographs, and a ruling
on this issue “will not be overturned on appeal except upon a clear showing of abuse of
discretion.” State v. Banks, 564 S.W.2d 947, 949 (Tenn. 1978). First, a photograph must
be “verified and authenticated by a witness with knowledge of the facts” before it can be
admitted into evidence. Id. Second, a photograph must be relevant to an issue that the jury
must determine before it may be admitted. State v. Vann, 976 S.W.2d 93, 102 (Tenn. 1998)
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(citing State v. Stephenson, 878 S.W.2d 530, 542 (Tenn. 1994); Banks, 564 S.W.2d at 951).
However, if the photograph’s prejudicial effect outweighs its probative value, it should not
be admitted. See Tenn. R. Evid. 401 and 403; Banks, 564 S.W.2d at 951. A relevant
photograph “may be excluded if its probative value is substantially outweighed by the danger
of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of
undue delay, waste of time, or needless presentation of cumulative evidence.” See Banks,
564 S.W.2d at 951. Unfair prejudice has been defined by the Tennessee Supreme Court as
“an undue tendency to suggest decision on an improper basis, commonly, though not
necessarily an emotional one.” Id. Photographs must never be used “solely to inflame the
jury and prejudice them against the defendant.” Id.
Dorsey contests the admission of five photographs at trial. These photographs show
wounds to the victim’s head and neck. One of the photographs was taken at the scene of the
offense. The other four photographs were from the autopsy. At trial, defense counsel
objected to these photographs based on Rule 403. The trial court overruled the objection,
finding that the probative value of the photographs was not substantially outweighed by the
danger of unfair prejudice.3
Upon our review, there was no abuse of discretion by the admission of the
photographs at trial. The probative value of the photographs was considerable in light of
how the victim died. Dorsey was linked to the murder by his post-murder conversations with
Shields and Prewitt. Dorsey discussed how the victim’s body was “shredded up” and
unrecognizable. According to Prewitt, Dorsey described how the victim’s face “was messed
all up.” The photographs provided visual evidence of the injuries to the victim’s face and
neck. They showed that Dorsey had first-hand knowledge of the murder and further
corroborated the testimony of the medical examiner. We recognize that the photographs are
graphic in nature. In particular, the photograph from the scene of the offense shows a
gruesome wound to the victim’s neck. The graphic nature of the photographs, however, did
not substantially outweigh their probative value. Id. at 950-51 (stating that “photographs of
the corpse are admissible in murder prosecutions if they are relevant to the issues on trial,
notwithstanding their gruesome and horrifying character” and that exclusion is warranted if
the prejudicial effect of the photograph substantially outweighs its probative value). The trial
court acted within its discretion by admitting the photographs at trial.
Dorsey also contests the admission of two autopsy photographs at the sentencing
hearing. These photographs show gruesome wounds on the victim’s head and neck, and are
3
We note that the photographs were not individually labeled when the trial court made its rulings.
The trial court did provide a brief description of each photograph. However, we cannot state for certain
which photograph corresponds with each of the trial court’s findings.
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different than the photographs admitted at trial. Defense counsel objected to these
photographs under Rule 403. The trial court overruled the objection, concluding that the
relevance of the photographs to aggravating circumstance (5) was not outweighed by their
prejudicial effect. We hold that the trial court did not abuse its discretion by admitting these
photographs. In sentencing Dorsey, the jury had to consider whether “[t]he murder was
especially heinous, atrocious, or cruel, in that it involved torture or serious physical abuse
beyond that necessary to produce death[.]” T.C.A. § 39-13-204(i)(5). The injuries shown
in the photographs were highly relevant to this determination. Although the photographs
were gruesome, they were necessary for the jury to understand the extent of the victim’s
injuries. Dorsey is not entitled to relief on this issue.
CONCLUSION
Based on the foregoing, the judgment of the trial court is affirmed.
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CAMILLE R. McMULLEN, JUDGE
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