State v. Leach

IN THE SUPREME COURT OF TENNESSEE

AT NASHVILLE

June 1, 2004 Session

STATE OF TENNESSEE v. ROBERT L. LEACH, JR.

Automatic Appeal from the Court of Criminal Appeals

Criminal Court for Davidson County

No. 99-D-2508 J. Randall Wyatt, Judge

No. M2001-01421-SC-DDT-DD - Filed September 8, 2004

In this capital case, the defendant, Robert L. Leach, Jr., was convicted of two counts of first degree

premeditated murder, two counts of first degree felony murder, one count of especially aggravated

robbery, and one count of aggravated rape. The trial court merged the felony murder convictions

with the premeditated murder convictions. The jury imposed sentences of death for the two murder

convictions. The trial court imposed two consecutive sentences of twenty-five years for the

especially aggravated robbery and aggravated rape convictions, which were ordered to run

consecutively to the two death sentences. The Court of Criminal Appeals affirmed Leach’s

convictions and sentences. On automatic appeal under Tennessee Code Annotated section 39-13-

206(a)(1), we designated the following issues for oral argument:1 1) whether the evidence is

insufficient to support convictions for premeditated murder and felony murder; 2) whether the trial

court erred in prohibiting Leach from presenting a witness to discredit the testimony of Joseph

Walker; 3) whether the trial court committed reversible error in instructing the jury to consider

evidence of Leach’s attack on Dorianne Brown to “complete the story”; 4) whether the death penalty

is precluded in this case under Apprendi v. New Jersey, 530 U.S. 466 (2000), because aggravating

circumstances were not set out in the indictment; and 5) whether the sentences of death are

disproportionate or invalid under the mandatory review of Tennessee Code Annotated section 39-13-

206(c)(1). Having carefully reviewed these issues and the remainder of the issues raised by Leach,

we conclude that they do not warrant relief. Accordingly, we affirm the judgment of the Court of

Criminal Appeals.

Tenn. Code Ann. § 39-13-206(a)(1); Judgment of the Court of Criminal Appeals Affirmed

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“Prior to the setting of oral argument, the Court shall review the record and briefs and consider all errors

assigned. The Court may enter an order designating those issues it wishes addressed at oral argument.” Tenn. R. Sup.

Ct. 12(2) (2004) (emphasis added).

JANICE M. HOLDER, J., delivered the opinion of the court, in which FRANK F. DROWOTA , III, C.J.,

and E. RILEY ANDERSON , and WILLIAM M. BARKER, JJ. joined. ADOLPHO A. BIRCH , JR., J., filed a

concurring and dissenting opinion.

Ross E. Alderman, District Public Defender; and Jeffrey A. DeVasher and C. Dawn Deaner (on

appeal), and Laura C. Dykes, Deputy Public Defender (at trial), and Amy D. Harwell, Assistant

Public Defender (at trial), for the appellant, Robert L. Leach, Jr.

Paul G. Summers, Attorney General and Reporter; Michael E. Moore, Solicitor General; Mark A.

Fulks, Assistant Attorney General; Victor S. Johnson, III, District Attorney General; and Thomas

B. Thurman, Deputy District Attorney General; and Kathy Morante and Katrin Novak Miller,

Assistant District Attorneys General, for the appellee, State of Tennessee.

OPINION

FACTUAL BACKGROUND

The State’s proof at trial showed that Leach arrived by bus in Nashville in June 1999. Leach

had left Missouri to pursue a career in music and to avoid revocation of his parole on a Texas

burglary conviction. By early July 1999, he was working as a server at a Denny’s restaurant in south

Nashville and living at a nearby Econo Lodge hotel.

Around 3:00 a.m. on July 8, 1999, Leach forced his way into the room of Dorianne Brown,

an Econo Lodge employee who lived at the hotel, and started to choke her. When someone knocked

on the door, Leach pulled out a knife and told Brown not to say anything. After the person at the

door left, the telephone rang and distracted Leach. Brown ran out of the room to the hotel office and

asked for the police to be called. When the police arrived, Leach was gone.

Around 7:00 a.m. that same morning, Louise Howard telephoned her sister, Sarah McBride,

a sixty-nine-year-old widow who lived about a mile from the Econo Lodge. McBride’s cousin,

seventy-year-old Jean Poteet, was staying with McBride. As a result of a stroke suffered at birth,

Poteet had diminished mental capabilities and her right hand and right leg were partially paralyzed.

Poteet wore a leg brace from her knee to her ankle. McBride indicated on the telephone that there

was a man in her kitchen drinking coffee while he waited for his sister to pick him up. Howard told

McBride, “Sarah, get that man out of the house, and put him on the patio.” McBride responded,

“Okay. I’ll call you later.” Howard left to go shopping. When Howard returned, she was unable

to reach McBride by telephone and went to McBride’s house around 1:00 p.m. The garage door was

up, and McBride’s 1982 Dodge truck was missing. The back door to the house was open. Howard

went inside and discovered the bodies of Poteet and McBride.

Poteet’s wig and a pair of scissors were on the kitchen floor next to the table. A trail of blood

led from the kitchen to the doorway of the master bedroom where Poteet was lying face down with

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her blouse pulled up and knotted around her throat. A pair of black jeans was next to Poteet’s head.

McBride was lying on her back on the bed. She was naked from the waist down, and her legs were

open and bent up over her body. A belt was tightened around her neck. Both women had been

stabbed and showed signs of blunt trauma to the head.

Dr. Bruce Levy, the Davidson County Medical Examiner, was called to the scene by the

police and performed autopsies on the victims the following day. Dr. Levy determined that both

women died as a result of ligature strangulation. Dr. Levy opined that the ligature had been placed

around Poteet’s neck in the kitchen and that she had been dragged to the bedroom while she was still

alive. Congestion in her upper chest and face indicated that someone was sitting on her lower chest

or abdomen when tying the ligature around her neck. Poteet had defensive wounds and also had

suffered blunt force injuries to her face. She had been hit at least twice with enough force to cause

bleeding to her brain. Like Poteet, McBride had suffered defensive wounds and had two sets of

paired puncture wounds consistent with her being stabbed with scissors. McBride also had suffered

multiple blunt force injuries to her head, including a laceration over her left eyebrow. Her nose, the

bone between her eyes and brain, her breast bone, and three of her ribs had been broken. She

suffered a laceration to her vaginal wall. Dr. Levy determined that McBride had been sexually

assaulted and had died during the attack. Bruising on her ankles indicated that her legs were held

during the rape.

The police investigation showed that someone had rummaged through the house. Chest

drawers were pulled out, closet doors were open, a mattress had been moved, and jewelry boxes lay

open. Bloody footprints were on the floor in the entrance hall and living room. A pair of socks was

found in the sink in the bathroom off the master bedroom. A pair of men’s underwear was later

retrieved from the sewer line running from the toilet. McBride’s purse and jewelry were missing as

was the Dodge truck.

Forensic testing showed that Leach’s left palm print was on a wall in McBride’s house and

that Leach’s fingerprints were on a coffee mug on the kitchen table. After Leach’s arrest, it was

determined that bloody footprints from the floor in McBride’s house matched Leach’s tennis shoes

and that sperm on the vaginal swab from McBride matched Leach’s DNA.

Around 8:00 p.m. on July 8, Leach appeared in the area of Greenville, Missouri, driving

McBride’s truck. Leach went to the home of a friend, Harold Winberry, and announced that he had

just come from Nashville. Leach, Winberry, Winberry’s wife, and her sister, Becky Allen, went to

the Friendly Tavern in Greenville, where they drank, danced and socialized until 2:00 a.m. Leach

and Allen slept together that night and the next. Leach gave Allen a pair of McBride’s earrings.

Leach also stayed at the home of his aunt, to whom he offered McBride’s leaf blower. During this

time, Leach behaved normally, visited with other people, played his guitar and sang, and showed off

the Dodge truck, claiming it was his own vehicle.

After Leach’s identification had been confirmed by fingerprint evidence, Detective Mike

Roland of the Nashville Police Department contacted Leach’s sister, Cathy Watson, who lived in

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Missouri. Watson in turn contacted Leach, who called Detective Roland on July 13. During the

telephone call, Leach blamed all his problems on the Texas prison and parole system and threatened

to go to Texas and “blow up a whole city block.” Detective Roland had the call traced to a pay

telephone in Wayne County, Missouri, where law enforcement officers were put on the alert for

McBride’s truck. Shortly thereafter, the truck was located outside the Friendly Tavern. Leach was

inside playing guitar on the stage. After he was arrested, Leach said that he “was sorry he did it, but

something just snapped.” He claimed that he had been trying to get help for the past three years.

Detective Roland interviewed Leach in Missouri. Leach denied knowing anything about

McBride and Poteet, but he talked to Roland about the incident with Brown at the Econo Lodge.

Leach claimed that he had been drinking heavily that night and said that he had been talking to

Brown in her room when a man came to the door and tried to rob him. Leach struck the man. When

Brown screamed and ran out of the room, Leach also fled. Leach had no memory of what happened

after he left the motel until he “came to” driving the Dodge truck in Illinois and wearing someone

else’s clothes. Leach said that at most he had stolen the truck and asserted that he would never hurt

anyone except in self-defense. Nonetheless, during the interview, Leach remarked, “If I deserve it,

I deserve it.” He also told Roland that he had suffered headaches, black-outs, and memory loss ever

since a metal plate had been put in his head after an automobile accident. During the trip back to

Nashville, Leach pointed to the road where he had thrown away McBride’s purse.

Joseph Walker, a convicted felon, met Leach while they were housed together in the

Davidson County Jail in late December 1999. Walker testified that Leach asked Walker about the

insanity defense. Leach stated that he was trying to go to a psychiatric facility because it would be

easier to escape and flee to Canada, which would not extradite him if he was facing a death penalty.

According to Walker, Leach related the following details of the murders. Leach told the women that

his car was broken down and that he needed to call for a ride. One of the women recognized him

from Denny’s and offered him a cup of coffee. She received a telephone call instructing her to get

him out of the house. He put a choke hold on one or both of the women, got them down on the floor,

and beat their heads. He raped one woman and fondled the other. He went through the house, took

some jewelry, went to the garage, took some lawn care equipment, and then left in a truck. Leach

told Walker that there was blood all over the house. Leach also said that he had always had a secret

fantasy of committing multiple rapes and homicides.

The only witness for the defense was Leach. He testified at length about his life before the

murders. His parents separated when he was an infant. Leach rarely saw his father whom he

described as a “cattle rustler.” His father sometimes took Leach with him to commit burglaries.

Leach said that his mother had a drinking problem and “hung out at the tavern.” Leach related a

history of sexual abuse by several people, including his babysitter, a neighbor, a stranger, and a

stepbrother. Until Leach was fourteen, he had a bowel problem and would defecate in his pants

almost every day. His mother would punish him by rubbing his nose in his feces; other children

would tease him.

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Leach admitted that when he was a child he set fires and was generally disruptive. He was

placed in state custody at ten or eleven and was eventually transferred to a state hospital school at

twelve. He quit school after the eighth grade. At fourteen he burglarized the same gas station four

nights in a row and was sent to reform school for two years. After his release, he stayed with his

father for only a month, traveled with a carnival for three months, and then moved back with his

mother and grandmother. He returned to reform school for a year and was again released. When

he set fire to a laundromat, he was placed in a mental hospital for evaluation and received a year in

jail. When he was released, he broke into a house and set fire to it. Leach testified that he never

burned anything after that incident.

In his late teens, Leach went to Texas, then to New Orleans, and back to Missouri to his

mother. He became a Christian and worked at a Christian camp for a year and one-half. Leach

testified that he left the camp at nineteen after he “fell away from God.” After moving back to

Missouri, he committed a robbery and served two years in prison before being paroled. He went to

Texas, where he was convicted of burglary and sentenced to seven years on probation. He violated

probation and was sent to a Texas prison, where he was gang raped.

Leach was on parole from 1988 until 1992. During that time, he bought a house and worked

in the heating and air conditioning business. In 1993, he was in an automobile accident and had a

metal plate put in his head. He violated parole and returned to prison for three and one-half years.

While incarcerated, Leach was transferred from prison to prison. He described the Texas prisons

as violent places full of beatings, killings, and rapes.

In February 1997, he was again released on parole and lived with his sister in Missouri until

he felt that he was about to “snap” and went to live alone in the woods. Leach claimed to have won

Star Search in 1997 and then to have gone to Branson, Missouri, where he was doing well until

December 1998, when he was arrested for assault and resisting arrest. He was threatened with

revocation of parole unless he participated in alcohol treatment. Although he successfully graduated

from treatment, he continued to have trouble with his parole officer, and a parole violation warrant

was issued against him. Frightened of returning to prison in Texas, Leach hid in the woods and took

a bus to Nashville in June 1999.

Leach gave the following testimony concerning the events of July 8, 1999. Prior to that time,

he had been suffering from headaches and depression until he felt “just like exploding.” He said that

he had gone out to drink after work, became intoxicated, and returned to the motel, where he saw

Brown. He knocked on her door and went into her room, where they talked for several minutes. As

he turned around to leave, “something controlled” him, and the next thing he knew he was on top

of her. Brown pleaded with him not to hurt her, and he promised that he would not. A man knocked

on the door. Afraid that the man would hurt him, Leach pulled out his pocket knife. The man left,

but then the telephone rang. When Leach dove at Brown as she moved toward the telephone, Brown

ran out the door. Leach fled until he came to an apartment complex, where he spent the rest of the

night sleeping in the shrubbery.

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When Leach awoke, he was angry and stressed. He went to a pay telephone at a convenience

store to call his sister but left when a police officer arrived. As he walked along, he saw McBride

watering flowers in her yard. Leach told McBride that his car had broken down and asked to use her

telephone to call his sister. When his sister did not answer, Leach wanted to “buy time” and made

up a story that his sister was on her way to get him. Leach drank some coffee while sitting with

McBride on the front porch. When the telephone rang, McBride told Leach to go into the kitchen

and get himself another cup of coffee while she answered the call. Leach saw Poteet sitting in the

kitchen. Leach testified,

I don’t know what happened. I – I – the same thing at the hotel. It’s

something came over me. I heard a loud bang. The next thing I know

I had Ms. Poteete [sic] in my arms. When I realized what had

happened, I let go of her as she dropped to the floor. And I freaked

out. I didn’t understand it because I didn’t plan it. And I heard a

slam of a door. And I turned around and it was Ms. McBride, or

that’s her name, I think. And I just – I went blank.

Leach stated that he woke up in the shower with water hitting his face. He did not know where he

was and was horrified to see the victims’ bodies. He changed out of his bloody clothes. He took

McBride’s jewelry box and purse. He went outside, thought about setting the house on fire but “just

blew it off,” and left in McBride’s truck. He blacked out again and awoke under a bridge on the

Kentucky-Missouri border. He then drove several miles in the wrong direction before turning around

and heading to Greenville, Missouri. On cross-examination, Leach denied ever talking with Walker

about the facts of the case and said that Walker approached him with the idea of an insanity defense.

Based upon the above evidence, the jury convicted Leach of first degree premeditated murder

of Jean Poteet, first degree premeditated murder of Sarah McBride, first degree felony murder

(during the perpetration of robbery) of Jean Poteet, first degree felony murder (during the

perpetration of robbery) of Sarah McBride, especially aggravated robbery of Sarah McBride, and

aggravated rape of Sarah McBride. The trial court merged the felony murder convictions with the

premeditated murder convictions.

At the penalty phase, the State presented proof that Leach was convicted in August 2000 of

reckless aggravated assault and in May 1983 of robbery in the second degree. The State recalled Dr.

Levy, who repeated that Poteet was conscious when the ligature was applied and that the victims

would have remained conscious for thirty to forty seconds until they died three to four minutes later.

He described strangulation as a very painful form of death. Dr. Levy also testified that the scissor

stab wounds suffered by both victims would have been painful. Dr. Levy further stated that,

although McBride may have been unconscious when the belt was placed around her neck, she was

conscious when beaten and would have suffered pain from the vaginal tear and injuries to her head

and chest.

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The State presented three victim impact witnesses. The first witness was McBride’s older

sister, Louise Howard. She testified that McBride enjoyed working in her yard. She said that

McBride was her best friend and that they did things together almost daily. She expressed her deep

grief at losing her sister. The next witness was Poteet’s cousin and legal guardian, William Harris.

He described his relationship with Poteet as almost that of a brother. He testified that Poteet had the

mental capacity of a very bright child and had gone to school through the sixth or seventh grade.

Despite her handicaps, she was an excellent housekeeper and had faithfully cared for her parents and

Harris’ mother until they died. The last witness for the State was McBride’s stepson, Robert

McBride. He testified that his father and McBride had been married for twenty-seven years until his

father’s death in 1992. Although McBride grieved for her husband, she had eventually come to

enjoy life again. He stated that the murder had a horrible impact on him and related how his

youngest daughter, who was eight when the killings occurred, wanted to avoid going near McBride’s

house.

In mitigation, the defense presented the testimony of several witnesses who corroborated

Leach’s account of his life before the murders. Leach’s aunt, Jane Henson, testified that Leach’s

father had been a womanizer who cared nothing for his children and that Leach’s mother was mean

to Leach because he resembled his father. Another aunt, Judy Waltz, stated that Leach came to live

with her when he was twenty-six or twenty-seven. He was very courteous, but she had to ask him

to leave because of his drinking and his infatuation with her daughter. After he moved out, Leach

had a successful roofing business but lost it because of his drinking. Leach’s childhood friend,

Richard Bennett, told how Leach’s mother would beat Leach and punish him by putting him in a

closet. Bennett described Leach as a troubled child, tortured by other children because he was

passive and soiled his pants. Bennett related that Leach frequented the home of a known pedophile

when he was a child. Leach’s sister, Cathy Watson, testified that, when Leach was paroled from the

Texas prison in 1997, he had changed and was paranoid and scared. Watson also stated that on the

morning of July 8, 1999, she had heard her telephone ring but did not answer it because she was sick.

Two other defense witnesses, Carol Duma and Reverend Harry Duma, testified about their

contact with Leach. Mrs. Duma taught Leach in kindergarten and described him as fearful and

apprehensive. Both testified about their positive experience with Leach when he worked for them

at a Christian camp in his late teens. Leach seemed to do well, but at times he would “snap” and

frighten people. Reverend Duma described Leach as “very, very lonely.”

Another mitigation witness was Ann LaPoint, a nurse and licensed social worker from Texas,

who counseled Leach for seven to eight years while he was on parole. LaPoint characterized Leach

as immature, depressed, angry, needy, delusional, and suffering from low self-esteem. Describing

him as “a five-year-old in a twenty or thirty-year-old body,” she said that she had to teach Leach how

to dress appropriately and comb his hair. She confirmed that Leach was afraid of going back to

prison because he had been beaten and sexually assaulted there. She testified that Leach had tried

to commit suicide by jumping off a bridge, hanging himself, and running his car into a bridge

embankment. On cross-examination, LaPoint admitted that Leach had played mind games with her

“like a typical substance abuser,” had attempted to falsify a urinalysis, had trouble with authority,

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and “wanted to blame the world and society for his shortcomings instead of accepting responsibility

for his actions.”

Based upon this proof, the jury found that the State had proven beyond a reasonable doubt

the following statutory aggravating circumstances with regard to both victims: 1) the defendant was

previously convicted of one or more felonies (reckless aggravated assault and robbery), other than

the present charge, whose statutory elements involve the use of violence to the person; 2) the murder

was especially heinous, atrocious, or cruel in that it involved torture or serious physical abuse beyond

that necessary to produce death; and 3) the murder was knowingly committed by the defendant while

the defendant had a substantial role in committing or attempting to commit robbery or aggravated

rape. Tenn. Code Ann. § 39-13-204(i)(2), (5), (7) (1997). As to victim Jean Poteet, the jury also

found that the State had proven beyond a reasonable doubt a fourth statutory aggravating

circumstance: the victim was seventy years of age or older or was particularly vulnerable due to a

significant handicap or significant disability, whether mental or physical, and at the time of the

murder the defendant knew or reasonably should have known of such handicap or disability. Tenn.

Code Ann. § 39-13-204(i)(14) (Supp. 1998). The jury further found that the State had proven that

the aggravating circumstances outweighed any mitigating circumstances beyond a reasonable doubt.

As a result, the jury sentenced Leach to death for the murders of Jean Poteet and Sarah McBride.

ANALYSIS

Sufficiency of Evidence

Leach challenges the sufficiency of the evidence to support the convictions for first degree

premeditated murder and first degree felony murder. He does not dispute that he killed the victims.

Instead, he argues that the evidence is insufficient to support the convictions for premeditated murder

because the State failed to prove premeditation. He argues that the evidence is insufficient to support

the convictions for felony murder because the State failed to prove that he intended to rob the victims

either prior to, or contemporaneous with, their murders.

When the sufficiency of the evidence is challenged, the standard of review is whether,

considering 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. Tenn. R. App. P. 13(e);

Jackson v. Virginia, 443 U.S. 307, 319 (1979); State v. Reid, 91 S.W.3d 247, 276 (Tenn. 2002). The

State is entitled to the strongest legitimate view of the evidence and all reasonable inferences which

may be drawn from it. State v. Davidson, 121 S.W.3d 600, 614 (Tenn. 2003). Questions regarding

the credibility of witnesses, the weight and value of the evidence, and any factual issues raised by

the evidence are resolved by the trier of fact. Id.

First Degree Premeditated Murder

First degree murder includes a “premeditated and intentional killing of another.” Tenn. Code

Ann. § 39-13-202(a)(1) (1997). Premeditation is defined as follows:

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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 must be carefully

considered in order to determine whether the accused was sufficiently

free from excitement and passion as to be capable of premeditation.

Tenn. Code Ann. § 39-13-202(d) (1997).

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). Davidson, 121 S.W.3d at 615. We previously

have identified the following circumstances 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 after a killing. See State v. Bland, 958 S.W.2d 651, 660

(Tenn. 1997). However, these factors are not exhaustive. Davidson, 121 S.W.3d at 615.

Establishment of a motive for the killing is a factor from which the jury may infer premeditation.

State v. Nesbit, 978 S.W.2d 872, 898 (Tenn. 1998). Premeditation also may be inferred from the use

of multiple weapons in succession. State v. Bush, 942 S.W.2d 489, 501-502 (Tenn. 1997).

Moreover, evidence of repeated blows is relevant to establish premeditation, although this evidence

alone is not sufficient to establish premeditation. State v. Sims, 45 S.W.3d 1, 8 (Tenn. 2001).

We conclude that the evidence, when examined in the light most favorable to the State, was

sufficient to support a finding of premeditation. Leach inflicted multiple wounds upon each victim

during the particularly cruel killings. Leach used two weapons – scissors and a ligature – on each

of the unarmed victims. Leach attempted to dispose of evidence by flushing his underwear down

the toilet. Leach exhibited calmness after the murders by showering, changing his clothes, looking

for valuables, and then driving to Missouri where he socialized with friends at a tavern that night.

Although Leach made no prior threats or declarations of intent to kill McBride and Poteet, he told

Walker after the murders that he had always had a secret fantasy of committing multiple rapes and

homicides. Even without Walker’s testimony, however, the jury could have reasonably inferred that

Leach acted with premeditation when, desperate to leave Nashville to escape arrest for attacking

Brown, he killed McBride and Poteet to obtain the means of facilitating his flight and to prevent

them from alerting the police.

First Degree Felony Murder

First degree murder includes a “killing of another committed in the perpetration of or attempt

to perpetrate any . . . robbery.” Tenn. Code Ann. § 39-13-202(a)(2) (1997). Robbery is defined as

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“the intentional or knowing theft of property from the person of another by violence or putting the

person in fear.” Tenn. Code Ann. § 39-13-401(a) (1997).

To support a felony murder conviction, the intent to commit the underlying felony must exist

prior to or concurrent with the commission of the act causing the death of the victim. State v. Buggs,

995 S.W.2d 102, 107 (Tenn. 1999). Although the intent to commit the underlying felony cannot be

presumed from the act of committing the felony, a jury may reasonably infer from a defendant’s

actions immediately after a killing that the defendant had the intent to commit the felony prior to or

concurrent with the killing. Id. at 108.

We conclude that the evidence, when viewed in the light most favorable to the State, was

sufficient to establish that the intent to commit the underlying felony of robbery existed prior to the

acts causing the victims’ deaths. On the morning of the murders, Leach was evading the police

because of his attack on Brown. His telephone call to his sister went unanswered. Leach lied to

McBride about the success of the call in order to “buy time.” After the murders, Leach had the truck

and money he needed to flee Nashville. From this evidence, the jury could have reasonably inferred

that Leach had formed the intent to rob the victims prior to their murders.

Evidence to Discredit Testimony of Joseph Walker

Leach asserts that the trial court erred in prohibiting him from presenting a witness to

discredit the testimony of Joseph Walker. As noted above, Walker testified about incriminating

statements made by Leach while they were incarcerated in the Davidson County Jail. Walker stated

on cross-examination that while at Middle Tennessee Mental Health Institute (“MTMHI”) in

December 1999 he had refused to answer certain questions. He denied telling evaluators at MTMHI

that he had only been arrested for minor offenses, that he could not read, and that he had only a sixth-

grade education. Leach sought permission from the trial court to call Dr. Joseph Mount, a

psychologist at MTMHI, to impeach Walker with evidence that he had lied to evaluators about his

criminal record and personal information. Leach also requested that Dr. Mount be permitted to

testify that he diagnosed Walker as suffering from an adjustment disorder and concluded that Walker

was malingering and attempting to manipulate the evaluation process. The trial court ruled that,

under the plain language of Rule 608(b)2 of the Tennessee Rules of Evidence, Leach was precluded

from presenting extrinsic evidence regarding Walker’s alleged lies. Even if Dr. Mount’s proffered

testimony was admissible, the trial court ruled that it should be excluded under Rule 403 of the

Tennessee Rules of Evidence because it could confuse and mislead the jury and cause undue delay.

On appeal, Leach has abandoned his argument that Dr. Mount’s testimony was proper

impeachment evidence under Rule 608 and now contends that the testimony was admissible under

Rules 613 and 616 of the Tennessee Rules of Evidence. These theories were not presented to the

2

Rule 608(b) provides in pertinent part: “Specific instances of conduct of a witness for the purpose of attacking

or supporting the witness’s credibility, other than convictions of crime as provided in Rule 609, may not be proved by

extrinsic evidence.”

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trial court. In his motion for a new trial, Leach argued that the trial court’s exclusion of Dr. Mount’s

testimony violated Leach’s rights to confrontation, to a fair trial before an impartial jury, and to due

process. As a general rule, a party may not litigate an issue on one ground, abandon that ground

post-trial, and assert a new basis or ground on appeal. Johnson v. State, 38 S.W.3d 52, 60 n.8 (Tenn.

2001). We hold that the issue of whether Dr. Mount’s testimony was admissible under Rules 613

and 616 is waived because Leach did not raise it in the trial court or in his motion for a new trial.

See Tenn. R. App. P. 3(e), 36(a).

Moreover, we conclude that Leach would not be entitled to relief even if the issue had been

properly preserved. Leach argues that Dr. Mount’s testimony was admissible under Rule 613(b) as

evidence of prior inconsistent statements by Walker and under Rule 616 as evidence of Walker’s

prejudice against Leach. The State responds that the inconsistent statements were not admissible as

extrinsic evidence under Rule 613 because they related to collateral facts and that Dr. Mount’s

testimony failed to establish bias or prejudice within the meaning of Rule 616. At the time of

Leach’s trial, Rule 613(b) provided: “Extrinsic evidence of a prior inconsistent statement by a

witness is not admissible unless the witness is afforded an opportunity to explain or deny the same

and the opposite party is afforded an opportunity to interrogate the witness thereon, or the interests

of justice otherwise require.”3 Rule 616 states: “A party may offer evidence by cross-examination,

extrinsic evidence, or both, that a witness is biased in favor of or prejudiced against a party or

another witness.” We agree with the State’s position.

Under the collateral fact rule, the statement of a witness made during cross-examination as

to a collateral fact may not be impeached by extrinsic evidence of a prior inconsistent statement as

to that fact. See State v. Hill, 598 S.W.2d 815, 820 (Tenn. Crim. App. 1980); see generally Neil P.

Cohen, Sarah Y. Sheppeard & Donald F. Paine, Tennessee Law of Evidence § 6.13[6] (4th ed.

2000). A collateral fact is one which affords no reasonable inference as to the principal matters in

dispute. Saunders v. City & Suburban R. Co., 41 S.W. 1031, 1034 (1897). A fact is collateral for

purposes of the collateral fact rule if it is relevant only because it contradicts something said in court;

it is not collateral if it is relevant independent of any contradiction. See Tennessee Law of Evidence

at § 6.07[4][c].

Prior to the enactment of the Rules of Evidence, the collateral fact rule was an established

part of the common law in Tennessee. See, e.g., State v. Rogers, 703 S.W.2d 166, 170 (Tenn. Crim.

App. 1985); State v. Marlow, 665 S.W.2d 410, 412 (Tenn. Crim. App. 1983). This rule of evidence

was founded upon the just conclusion that the introduction of such evidence tends to confuse the jury

and uselessly to protract and increase the expense of judicial investigations. Decherd v. Morrison,

32 Tenn. 305, 306-07 (1852). Although the Rules of Evidence do not mention the collateral fact

rule, it continues to be applied by courts in this state. See, e.g., State v. Perkinson, 867 S.W.2d 1,

7 (Tenn. Crim. App. 1992).

3

Rule 613(b) was amended in 2003 to add the phrase “and until,” making the rule clearly indicate that extrinsic

evidence of the prior statement is inadmissible “unless and until” the witness is afforded an opportunity to explain or

deny it. The amendment does not affect the analysis in this case.

11

The collateral fact rule is essentially a rule of relevancy. Under Rule 402 of the Tennessee

Rules of Evidence, “[e]vidence which is not relevant is not admissible.” Relevant evidence is

defined as “evidence having any tendency to make the existence of any fact that is of consequence

to the determination of the action more probable or less probable than it would be without the

evidence.” Tenn. R. Evid. 401. Even relevant evidence may be excluded “if its probative value is

substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading

the jury, or by consideration of undue delay, waste of time, or needless presentation of cumulative

evidence.” Tenn. R. Evid. 403. Rules 402 and 403 embody the principles underlying the collateral

fact rule. We conclude, therefore, that the collateral fact rule remains viable through Rules 402 and

403.

As with any type of proof, admissibility of extrinsic evidence depends on relevancy.

Impeachment by extrinsic evidence as contemplated by Rule 613 must relate to facts relevant to a

material issue at trial. Allowing the introduction of extrinsic evidence for the purpose of

contradicting a witness’s testimony about merely trivial facts would not only waste time but could

also confuse the jury. The motive of a witness, however, is always relevant to the main issue. See

Creeping Bear v. State, 87 S.W. 653, 654 (1905). Therefore, extrinsic evidence that is inadmissible

for other purposes may be admissible to prove bias or prejudice under Rule 616.

In this case, Walker’s inconsistent statements involved collateral facts. Proof that Walker

lied to mental health evaluators about his criminal record and personal information would not have

been relevant to a material issue at trial. Walker was thoroughly cross-examined about his criminal

record and motive for testifying. Proof that Walker was evasive and manipulative during his mental

health evaluation would also have had little probative value in showing that he was biased in favor

of the State or prejudiced against Leach. As the Court of Criminal Appeals observed, introduction

of Dr. Mount’s testimony would have resulted in a mini-trial concerning Walker’s actions during his

mental health evaluation and potentially confused the issues of Leach’s capital murder trial. We

conclude, therefore, that the trial court properly excluded the evidence under Rule 403, regardless

of the theory of admissibility. Finally, we conclude that any error would be harmless because,

assuming Dr. Mount had discredited Walker’s testimony, the remaining evidence was sufficient to

support the convictions.

Instruction Regarding Evidence of Attack on Dorianne Brown

The trial court admitted evidence of Leach’s attack on Dorianne Brown at the Econo Lodge

under Rule 404(b) of the Tennessee Rules of Evidence to show motive. Leach did not object to

admission of the evidence on this ground. At the jury charge conference, however, the State

requested the trial court to instruct the jury that it could consider this evidence not only to show

motive but also to provide “the complete story of the crime.” The trial court agreed and charged the

jury as follows:

If from the proof you find that the defendant has committed a crime

other than that for which he is on trial, you may not consider such

12

evidence to prove his disposition to commit such a crime as that on

trial.

This evidence may only be considered by you for the limited purpose

of determining whether it provides:

(a) the complete story of the crime; that is, such evidence may be

considered by you where the prior crime and the present alleged crime

are logically related or connected, so that proof of the other tends, or

is necessary to prove the one charged, or is necessary for a complete

account thereof.

(b) motive; that is, such evidence may be considered by you if it tends

to show a motive of the defendant for the commission of the offense

presently charged.

Such evidence of the other crime, if considered by you for any

purpose, must not be considered for any purpose other than that,

specifically, stated.

On appeal, the Court of Criminal Appeals held that the trial court erred in not conducting a

jury-out hearing as required by State v. Gilliland, 22 S.W.3d 266, 272 (Tenn. 2000), to determine

whether the evidence was admissible to show contextual background. In addition, the Court of

Criminal Appeals held that the evidence in question was not properly admitted as contextual

background evidence under Gilliland. The Court of Criminal Appeals concluded, however, that the

error was harmless because the evidence was admissible to prove motive. In this Court, Leach

submits that admission of the evidence on another ground did not render harmless the trial court’s

instruction that the evidence could be used for the purpose of providing “the complete story of the

crime.” Leach contends that this instruction invited the jury to consider the attack on Brown as

establishing Leach’s propensity to commit the crimes in this case, in violation of this Court’s holding

in State v. Parton, 694 S.W.2d 299, 302 (Tenn. 1985).

In Gilliland, the Court set forth the following standard for determining when background

evidence involving other crimes, wrongs or acts may be offered “for other purposes” under Rule

404(b):

[W]hen the state seeks to offer evidence of other crimes, wrongs, or

acts that is relevant only to provide a contextual background for the

case, the state must establish, and the trial court must find, that (1) the

absence of the evidence would create a chronological or conceptual

void in the state’s presentation of its case; (2) the void created by the

absence of the evidence would likely result in significant jury

confusion as to the material issues or evidence in the case; and (3) the

13

probative value of the evidence is not outweighed by the danger of

unfair prejudice.

Id. at 272 (emphasis added). By its own terms, this standard is limited to “evidence of other crimes,

wrongs, or acts that is relevant only to provide a contextual background for the case.” Id. (emphasis

added). The State did not offer evidence of the attack on Brown as contextual background for the

case. The evidence was offered and properly admitted to show motive, a material issue in the case.

Therefore, no error occurred relative to admission of this evidence.

The trial court properly instructed the jury that the evidence could be considered for the

limited purpose of determining whether it tends to show a motive. Evidence proving motive

necessarily serves the purpose of completing the story of the crime. Therefore, the portion of the

instruction allowing the evidence to be considered for the purpose of providing “the complete story

of the crime” was superfluous. Moreover, contrary to Leach’s assertion, the instruction did not invite

the jury to consider the attack on Brown as propensity evidence. In determining whether instructions

are erroneous, this Court must review the charge in its entirety and read it as a whole. State v.

Hodges, 944 S.W.2d 346, 352 (Tenn. 1997). The instruction regarding the use of this evidence

specifically directed the jury that it “may not consider such evidence to prove [Leach’s] disposition

to commit such a crime as that on trial.” The jury is presumed to have followed this instruction. See

State v. Williams, 977 S.W.2d 101, 106 (Tenn. 1998). We therefore conclude that, viewed as a

whole, the instruction regarding evidence of the attack on Brown was not erroneous.

Failure to Charge Aggravating Circumstances in Indictment

Leach contends that Apprendi v. New Jersey, 530 U.S. 466 (2000); Rule 12.3(b) of the

Tennessee Rules of Criminal Procedure; Article I, section 9 of the Tennessee Constitution; and

Tennessee Code Annotated section 40-13-202 require that an indictment for capital murder reflect

that the grand jury found the existence of one or more statutory aggravating circumstances. Leach

acknowledges that we rejected this argument in State v. Dellinger, 79 S.W.3d 458, 467 (Tenn. 2002),

but asks that we reconsider our ruling in Dellinger. We addressed this issue in detail in our recent

decision in State v. Berry, __ S.W.3d __ (Tenn. 2004). We noted that our statement in Dellinger that

“[t]he death penalty is within the statutory range of punishment prescribed by the legislature for first

degree murder,” 79 S.W.3d at 466, is not entirely accurate in light of Ring v. Arizona, 536 U.S. 584

(2002), and Blakely v. Washington, 124 S.Ct. 2531 (2004), both of which were decided after

Dellinger. See Berry, __ S.W.3d at __ n.14. We concluded, however, that Ring and Blakely do not

affect our ruling in Dellinger that the State is not required to charge aggravating circumstances in

the indictment. For the reasons stated in Berry, we hold that no error occurred in this case.

Mandatory Review

We are bound by statute to review the application of the death penalty to determine whether:

(A) The sentence of death was imposed in any arbitrary fashion;

14

(B) The evidence supports the jury’s finding of statutory aggravating

circumstance or circumstances;

(C) The evidence supports the jury’s finding that the aggravating

circumstance or circumstances outweigh any mitigating

circumstances; and

(D) The sentence of death is excessive or disproportionate to the

penalty imposed in similar cases, considering both the nature of the

crime and the defendant.

Tenn. Code Ann. § 39-13-206(c)(1) (1997). Having thoroughly reviewed the record, we find no

indication that the sentence of death was imposed in an arbitrary fashion. We also conclude that the

State presented sufficient proof to uphold the jury’s finding that Leach had prior convictions for

felonies whose statutory elements involve the use of violence to the person, see Tenn. Code Ann.

§ 39-13-204(i)(2) (1997), that the murders in this case were especially heinous, atrocious, or cruel

in that they involved torture or serious physical abuse beyond that necessary to produce death, see

Tenn. Code Ann. § 39-13-204(i)(5) (1997), that the murders in this case were knowingly committed

by Leach while he had a substantial role in committing or attempting to commit robbery or

aggravated rape, see Tenn. Code Ann. § 39-13-204(i)(7) (1997), and that victim Jean Poteet was

seventy years of age or older or was particularly vulnerable due to a significant handicap or

significant disability, whether mental or physical, and at the time of the murder Leach knew or

reasonably should have known of such handicap or disability, see Tenn. Code Ann. § 39-13-

204(i)(14) (Supp. 1998). We further hold that the evidence supports the jury’s finding that the

aggravating circumstances outweighed any mitigating circumstances beyond a reasonable doubt.

Next, we must determine whether the sentence of death in this case is disproportionate to the

penalty imposed in similar cases, considering the nature of the crime and the defendant. Tenn. Code

Ann. § 39-13-206(c)(1)(D) (1997). We are mindful of the following principles applicable to

proportionality review:

In conducting a comparative proportionality review, we begin

with the presumption that the sentence of death is proportional with

the crime of first degree murder. A sentence of death may be found

disproportionate if the case being reviewed is “plainly lacking in

circumstances consistent with those in similar cases in which the

death penalty has been previously imposed.” A sentence of death is

not disproportionate merely because the circumstances of the offense

are similar to those of another offense for which a defendant has

received a life sentence. Our inquiry, therefore, does not require a

finding that a sentence “less than death was never imposed in a case

with similar characteristics.” Our duty “is to assure that no aberrant

death sentence is affirmed.”

15

State v. Hall, 976 S.W.2d 121, 135 (Tenn. 1998) (citations omitted). We have found the following

factors helpful in identifying and comparing similar cases: 1) the means and manner of death; 2) the

motivation for killing; 3) the place of death; 4) the similarity of the victims and treatment of the

victims; 5) the absence or presence of premeditation, provocation, and justification; and 6) the injury

to and effects on non-decedent victims. See Bland, 958 S.W.2d at 667. In comparing defendants,

we consider the following non-exclusive factors: 1) prior criminal history; 2) age, race, and gender;

3) mental, emotional, and physical condition; 4) role in the murder; 5) cooperation with authorities;

6) remorse; 7) knowledge of helplessness of victim; and 8) capacity for rehabilitation. See id.

The proof in this case showed that Leach brutally beat, stabbed, and strangled two elderly

women. He raped one victim, sixty-nine-year-old widow Sarah McBride, as she was dying. The

other victim, seventy-year-old Jean Poteet, was both mentally and physically disabled. The murders

were committed during a robbery at McBride’s home and were motivated by Leach’s desire to obtain

the means for fleeing Nashville and to prevent the victims from alerting the police. The evidence

also indicated that Leach had always had a fantasy of committing multiples rapes and homicides.

The murders were premeditated, unprovoked, and unjustified.

Leach, a white male, was thirty-seven years old at the time of the murders and had a prior

criminal history including convictions for aggravated assault, robbery, and burglary. He cooperated

minimally with authorities and expressed horror, but no remorse, about the murders. Leach

presented mitigating evidence that he suffered from low self-esteem, depression, and suicidal

tendencies. He was neglected and tormented as a child. He claimed to have been physically and

sexually abused, starting from childhood and continuing into his adult years in prison. Despite these

problems, Leach experienced periods of relative calm in his life when he was gainfully employed.

Based upon an exhaustive review of the record and Supreme Court Rule 12 reports, we

conclude that the sentences of death imposed in this case are not excessive or disproportionate when

compared to the penalty imposed in similar cases. See State v. Mann, 959 S.W.2d 503 (Tenn. 1997)

(defendant raped and murdered sixty-two-year-old widow during burglary, death sentence upheld

based upon (i)(5) and (i)(7) aggravating circumstances); State v. Bush, 942 S.W.2d 489 (Tenn. 1997)

(defendant murdered seventy-nine-year-old widow, death sentence upheld based upon (i)(5) and

(i)(6) aggravators); State v. Smith, 893 S.W.2d 908 (Tenn. 1994) (defendant raped and murdered

elderly widow, death sentence upheld based upon (i)(2), (i)(5), and (i)(7) aggravators); State v.

Cazes, 875 S.W.2d 253 (Tenn. 1994) (defendant raped and murdered elderly woman, death sentence

upheld based upon (i)(2), (i)(5), and (i)(7) aggravators); State v. Barber, 753 S.W.2d 659 (Tenn.

1988) (defendant murdered elderly woman, death sentence upheld based upon (i)(5) aggravator);

State v. McNish, 727 S.W.2d 490 (Tenn. 1987) (defendant murdered seventy-two-year-old widow,

death sentence upheld based upon (i)(5) aggravator); State v. Harbison, 704 S.W.2d 314 (Tenn.

1986) (defendant murdered sixty-two-year-old woman, death sentence upheld based upon (i)(5)

aggravator); and State v. Cone, 665 S.W.2d 87 (Tenn. 1984) (defendant murdered elderly couple,

death sentence upheld based upon (i)(2), (i)(5), and (i)(6) aggravators). Leach contends that, despite

the horrible nature of the crimes he committed, the sentences of death are disproportionate in this

case given the history of abuse he suffered. He argues that a jury imposed a life sentence in a similar

16

case where the defendant had a less extensive history of abuse, citing State v. J. Y. Sepulveda, 1997

WL 351107 (Tenn. Crim. App., June 26, 1997).4 We reiterate, however, that our analysis does not

require a determination of whether a given case is subjectively “more or less” like other “death”

cases or other “life” cases. Davidson, 121 S.W.3d at 623 (citation omitted). Instead, our review

requires that we identify an aberrant death sentence by determining whether the case is plainly

lacking in circumstances consistent with those in similar cases in which the death penalty previously

was imposed. Id. After reviewing the cases discussed above, and many others not specifically cited,

we are of the opinion that the sentences of death in this case are not excessive nor disproportionate

to the penalty imposed in similar cases, considering both the nature of the crime and the defendant.

CONCLUSION

In accordance with Tennessee Code Annotated section 39-13-206(c)(1) and the principles

adopted in prior decisions, we have considered the entire record in this case and conclude that the

sentences of death have not been imposed arbitrarily, that the evidence supports the jury’s finding

that the statutory aggravating circumstances have been proven by the State beyond a reasonable

doubt, that the evidence supports the jury’s finding that the aggravating circumstances outweigh any

mitigating circumstances beyond a reasonable doubt, and that the sentences are not excessive or

disproportionate.

We have reviewed all of the issues raised by Leach and conclude that they do not warrant

relief. With respect to issues that were raised in this Court but not addressed in this opinion, we

affirm the decision of the Court of Criminal Appeals. Relevant portions of that opinion are

incorporated herein and are attached as an appendix. Leach’s convictions and sentences are

affirmed. We note, however, that the judgment for the especially aggravated robbery conviction in

Count 5 incorrectly refers to Count 6, and the judgment for the aggravated rape conviction in Count

6 incorrectly refers to Count 5. The case is remanded to the trial court for correction of these clerical

errors. The sentences of death shall be carried out as provided by law on the 12 th day of April,

2005, unless otherwise ordered by this Court or other proper authority. It appearing that defendant

Robert L. Leach, Jr., is indigent, costs of this appeal are taxed to the State of Tennessee.

___________________________________

JANICE M. HOLDER, JUSTICE

4

In Sepulveda, the nineteen-year-old defendant murdered his ninety-five-year-old neighbor by beating and

kicking her during a burglary of her home. Sepulveda is distinguishable from the present case. Sepulveda had a long

history of significant drug problems; he did not use a weapon on his victim, and his victim survived the attack for several

weeks.

17