State v. Roy Keough

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

SEPTEMBE R SESSION, 1998

FILED

January 13, 1999

STATE OF TENNESSEE, ) C.C.A. NO. 02C01-9708-CR-00317

Cecil Crowson, Jr.

) Appellate C ourt Clerk

Appellee, )

)

) SHELBY COUNTY

VS. )

) HON. L.T. LAFFERTY

ROY E. KEOUGH, ) JUDGE

)

Appe llant. ) (First Degree Murder; Attempted

) Murder; De ath Penalty)

ON APPEAL FROM THE JUDGMENT OF THE

CRIMINAL COURT OF SHELBY COUNTY

FOR THE APPELLANT: FOR THE APPELLEE:

Jam es V. B all John Knox Walkup

Joseph S. Ozment Attorney General & Reporter

217 Exchange Avenue

Memphis, TN 38105 Michael E. M oore

Solicitor General

Kathy M orante

Deputy Attorney General

425 Fifth Avenu e North

Nashville, TN 37243-0493

John W . Pierotti

District Attorney General

Robert Carter

Rosemary Andrews

Assistant District Attorn eys

201 Poplar Avenue

Memphis, TN 38013

OPINION FILED ________________________

AFFIRMED

DAVID H. WELLES, JUDGE

OPINION

The Defen dant, Ro y E. Keo ugh, wa s convicte d in the S helby C ounty

Criminal Court for the premeditated first degree murder of his wife, Betty Keough,

and the attem pted first degree murder of Kevin Berry. The jury found that

Defendant had previous ly been convicted of one or more felonies for which

statutory elements involve the use of violence to the pers on, see Tenn. Code

Ann. § 39-13-204(i)(2); and it sentenced Defendant to death. Defendant also

received a forty-year sentence for the attempted murder count, to be served

conse cutive to his death se ntence .

In this direct appeal, Defendant argues (1) that the trial court erred by

finding that Defen dant’s co mm unication with separate police officers constituted

separa te and distinct statements rather than a single statement, and that the

court therefore erred by disallowing admission of the subsequent communication

following introduction of the prior; (2) that the evidence is insufficient to support

his convictions as a matte r of law; and (3 ) that the trial co urt erred b y failing to

hold the death penalty unconstitutional as applied in this state. We find no error

and affirm the judgm ent of the tria l court.

The decea sed victim in this case , Betty K eoug h, was Defe ndan t’s

estranged wife. Their marriage was troubled, and they separated several months

prior to the m urder. Afte r the sep aration, D efenda nt lived with his girlfriend in a

room that they rented from the girlfriend’s brother, Bobby Holly. A few weeks

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prior to the murder, Defendant and his girlfriend moved; and the surviving victim,

Kevin B erry, mov ed into the residenc e that they had oc cupied .

On the day of her murder, Ms. Keough went to Defenda nt’s former

residence to find her estranged husband. There, she met b oth Be rry and Holly

for the first time. Holly testified at trial that Ms. Keough told him she had a gun

in her ca r and th at she intend ed to k ill Defen dant if s he fou nd him . After th is first

visit, Ms. Keough returned to the hom e twice m ore sea rching for D efenda nt.

During her third visit, Ms. Keoug h convinced Berry to have a drink with her. The

two drove Ms. Keough’s car to Irene’s Grill, where Ms. Keough was a regular

patron. T hey ente red the b ar, found a table, an d each ordered a beer.

Between Ms. Ke ough’s secon d and th ird visits to Berry’s residenc e, Berry

saw Defe ndan t and to ld him that his wife had been looking for him. Shortly after

Ms. Keough and Berry left for Irene’s Grill, Defendant arrived at Berry’s residence

to see if his wife had returned. Holly, who was there at the time, testified that for

some reason, Defendant parked his car where it could not be seen from the

house. Holly told Defendant that his wife had been there but had gone with Be rry

to the bar. H olly testifie d that D efend ant se eme d very c alm and did not appear

to have been drinking.

Approximately ten to fifteen minutes behind the victims, Defendant entered

the bar. He ordered a beer, but the owner of the bar refused to serve him;

although she testified that she did not believe him to be drunk. Defendant then

walked over to where the victims were seated and b egan talking loudly w ith his

wife. At that time, the owner of the bar asked them all to leave. The owner

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testified that she did not overhear any conversation or suspect that there was any

“trouble,” but she was concerned because she did not know how D efend ant felt

about M s. Keou gh bein g there w ith Berry.

Berry testified that, once outside, the three walked to Ms. Keou gh’s car;

and Defendant and Ms. Keough exchanged some word s. According to B erry,

Defendant then shoved the victim with both hands, “and he put some force

behind it.” Berry did not see the victim touch Defendant. Berry stated that he

reacted by taking a step forward and saying, “[W]ait a minute,” at which time

Defen dant, without saying a word, stabbed him in the chest with a bay onet. Berry

testified that he did not touch or threaten Defendant before the stabbing. After

being stabbed, Berry turned and ran behind a van in the parking lot, but

Defendant chas ed him and stabbed him a second time in the thigh. Berry then

pushed Defendant aside and fled toward the back door of the bar, but Defendant

again ca ught up with him about five feet from the back door and stabbed him a

third time in the back. Finally, Berry escaped into the bar, where he asked for

some one to ca ll the police a nd an a mbula nce.

The evidence at trial showed that Defendant then returned to Ms. Keough.

He stabbed her in the neck with the bayonet and locked her inside the car, where

she bled to de ath over the next several minutes. After killing his wife, Defendant

disposed of the bayonet. He then called his girlfriend and attempted to borrow

enough money to leave town. When he was unsuccessful, he contacted his

attorney and waited for the police. A short time later, the police arrested him and

took him into cu stody.

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The following d ay, Dete ctive Jam es Nich ols interview ed De fendan t.

Nicho ls testified that upon establishing that Defendant was coherent, he informed

him of his Miranda rights. Defendant told Nichols th at he had an attorney and

wanted him present during any questioning. After conferring with D efend ant, his

attorney told Nichols that Defendan t was willing to provide a statem ent.

Defendant told Nicho ls that h e had found his wife in a bar with another man. He

and his wife started arguing and they were asked to leave. Once outside, the

argument escalate d and h e stabb ed his wife with a “rifle knife.” Defendant also

admitted that he stabbed Berry when Berry tried to intervene. Nichols testified

that Defendant told him he did not remember how many times he stabbed the two

individuals because “he was angry or something to the effect that his emotions

were so high.” Defendant told Nichols that he had wanted to retrieve the car he

had bo ught for h is wife bec ause h e found her with an other m an.

Defe ndant agree d to give a form al typew ritten sta teme nt to po lice.

Detective Nichols had to respond to another matter and, therefore, asked two

other officers, Serg eants Sullivan and S tewar t, to take the sta teme nt. Nich ols

had taken notes from his oral interview, but it does not appear that he gave these

notes to Sullivan and S tewart before he left the station. Su llivan and Stewa rt

moved Defen dant to an other roo m whe re, in the pre sence of his attorn ey, they

re-read Defendant his Miranda rights. They then took a formal statement, which

was largely s imilar to the information Defendant had conveyed to Nichols; but

Defendant additio nally alleged that his wife carried a gun and had previously shot

at him. W hen the State ca lled Dete ctive Nich ols to testify at trial, he recounted

the oral sta teme nt that h e had taken and w as su bject to cross-examination

thereon. The defense was precluded on cross-examination, however, from

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revealing the allegations contained in the statement taken by Sergeants Sullivan

and Ste wart.

I. ADMISSIBILITY OF STATEMENT TO POLICE

Defendant first argues that the trial court erred by refusing to allow defense

counsel to cross-examine Detective Nichols about the typewritten statement

taken by Sergeants Sullivan and Stewar t. The excluded statement, he contends,

would have supported his claim of self-defense or the lesser offense of

manslaughter because it contained statements that the victim carried a gun and

had previously shot at Defendant. Citing Sam bolin v. State , 387 S.W.2d 817

(Tenn. 1965), and State v. Robinson, 622 S.W .2d 62 (Ten n. Crim. App . 1980),

Defendant argues that once the State introduces a portion of his statement or

confession, he is entitled to introduce the entire statement, including any

exculpa tory or self-se rving statem ents.

This C ourt has stated,

“When a confession is admissible, the whole of what the accused

said upon th e subjec t at the time of making the confession is

adm issible and s hould be tak en tog ether; a nd if the prosecution fails

to prove the whole statement, the accused is entitle d to pu t in

evidence all that was said to and by him at the time which bears

upon the subject of controversy including an y exculpa tory or self-

serving d eclaration s conn ected the rewith.”

Espitia v. State, 288 S.W.2d 731, 733 (Tenn. 1956) (emphasis added) (quoting

20 Am. Jur. § 488 ). Neve rtheless, this Cou rt rejecte d the p ropos ition tha t “all

statem ents by a defendant becom e admiss ible at trial upon introduction of a part

of one of them .” State v. Ralph Eugene Jenkins, No. 98, 1986 WL 6267, at *2

(Tenn. Crim. App ., Knoxville, June 3, 198 6). The determ inative q uestio n here is

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whether Defendant’s communications with the different officers amounted to a

single statement or separate statements.

Defendant argues that the typewritten statement was merely a continuation

or reduction to writing of the oral interview conducted by Dete ctive Nich ols. To

support this assertion, Defen dant relies heavily on the tem poral pro ximity of the

statements. Although possibly relevant when examining admissibility of two

statem ents made to the same officer, we conclude that the temporal proximity of

the statem ents is no t controlling h ere.

As noted above, the material difference between the statements was

Defe ndan t’s allegation in the latter statement that his wife carried a gun and had

previo usly shot at him. It is precisely because of this substantive difference that

Defendant wanted the trial court to adm it the se cond statem ent. H owev er, this

difference also militate s agains t a finding that the second statem ent wa s me rely

a reduction to writing of the first—the two were simply no t the sam e statem ent.

Nor was the second statement a continuation of the first. The second

statement was taken in a different room by differ ent offic ers, wh o were appa rently

unaware of what Defendant had told Detective Nichols. Despite the presence of

Defendant’s counsel, S ullivan a nd Ste wart ag ain info rmed Defe ndan t of his

rights. Any continuity between the two statements was thereby broken. As noted

above, the cases hold that other statements made “at the time of making the

confession” are adm issible. The reco rd clearly reflects that Defe ndant gave

statem ents at two distinct “times” when the appellant gave a statement.

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

the first.

Furthermore, because Nichols was not present during the second

interview, it would have been inappropriate for him to testify regarding the

substance of the statement obtained by Sullivan and Stewar t. See Tenn. R. Evid.

602; see also State v. Catherine Wa rd, No. 01C01-9307-CC-00224, 1996 W L

38867, at *8 (Tenn. Crim. App., Nashville, Feb. 2, 1996) (concluding that

“[n]either [the officer’s] participation in the investigation nor his role as lead

investigato r permitte d him to te stify to facts ou tside his pe rsonal kn owledg e”).

For these reasons, we co nclud e that D efend ant’s statem ent to Se rgeants

Sullivan and Stewart constituted a separate statement for the purpose of

admissibility. The trial court did no t err by precluding cross-examination of

Nicho ls regardin g the con tent of the s ubseq uent state ment. In addition, w e note

that even if the exclus ion of th e latter s tatem ent we re erro r, we wo uld find no

prejudice because Defendant was able to introduce through another witness

testimony that the victim had claimed to be carrying a gun a nd had threaten ed to

kill Defend ant. This issue lack s merit.

II. SUFFICIENCY OF THE EVIDENCE

Defendant next contends that the evidence is insufficient to support his

convictions for premeditated first degree murder and attempted first degree

murder. Specifically, Defendant argues that he conceived h is decision to execu te

the attacks during the heat of passion . He argues that evidence of his

impassioned state, re sulting from th e “hea ted” ar gum ent with his wife outside the

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bar, was su fficient to negate the element of premeditation. Similarly, he further

argues that proo f of his intoxica tion was s ufficient to ne gate his a bility to form an

intent to kill. Thus, D efendant submits that the proof supports only a finding a

voluntary m anslau ghter for th e killing of his w ife, Betty Ke ough.

When an appellant challenges the sufficiency of the evidence, this C ourt

must determine whether, after viewing the evidence in a light mo st favorab le to

the prosecution, “any rational trier of fact could have fou nd the e ssential e lemen ts

of the crime be yond a reas onable dou bt.” Jack son v. V irginia, 443 U.S. 307, 319

(1979); see State v. Duncan, 698 S.W.2d 63, 67 (Tenn. 1985); Tenn. R. App. P.

13(e). “[T]he State is entitled to the strongest legitimate view of the trial evidence

and all reasonable or legitimate inferences which may b e drawn therefrom .”

State v. Cabbage, 571 S .W .2d 83 2, 835 (Ten n. 197 8). Th e cred ibility of

witnesses, the we ight an d value to be g iven to th e proo f, and a ll factual issues

raised by the evidence are resolved by the trier o f fact. See id. This C ourt will

not re-weigh or re-evalu ate the ev idence . “A guilty verdict by the jury, approved

by the trial judge, accredits the testimony of witnesses for the State and resolves

all conflicts in favor of the theory of the State.” State v. Grace, 493 S.W.2d 474,

476 (Tenn. 1973). Moreover, a guilty verdict removes the presumption of

innocence enjoyed by defendants at trial and replaces it w ith a presumption of

guilt. See id. Thus, a de fendant cha llenging the sufficiency of the evidence

carries the burden of illustrating to this Court why the evidence is insufficient to

support the verdict. See State v. Freeman, 943 S.W.2d 25, 29 (Tenn. Crim. App.

1996).

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At the time of Defendant’s offense, first degree murder was defined as the

“premeditated and intentional killing of another.” Tenn. Code Ann. § 39-13-

202(a)(1). “Intentional” is defined as the “consciou s objective or desire to engage

in the conduc t or cause the re sult.” Id. § 39-11-10 6(a)(18). Premeditation

requires “the exercise of reflection a nd judgm ent,” id. § 39-13-20 2(d), and “a

previo usly formed design o r intent to kill.” State v. West, 844 S.W.2d 144, 147

(Tenn. 1992) (citing McGill v. State, 475 S.W.2d 223, 227 (Tenn. Crim. App.

1971)). H oweve r,

It is not nec essary th at the pur pose to kill pre-exist in the mind of the

accused for any definite period of time. The mental state of the

accused at the time the accused allegedly decided to kill must be

carefu lly considered in order to determine whether the accused was

sufficie ntly free from excitement and passion as to be capable of

preme ditation.

Tenn. C ode Ann . § 39-13-202 (d).

The existence of prem editation and inten t are questions for the jury. Like

other elements of a crime, these may be established by circums tantial proo f. See

State v. Brown, 836 S.W.2d 530, 541 (Tenn. 1992) (finding that “the necessary

eleme nts of first-degree murder may be shown by circumstantial evidence”).

Some pieces of evidence in the case at bar that have been recognized as

supportive of the existen ce of pre medita tion and in tent includ e the use of a

dead ly weapon upon an unarmed victim; calmness immediately after the killing;

facts that indicate planning, such as Defe ndant’s a rrival at the ba r armed ; facts

about Defe ndan t’s prior re lations hip with the victim from which motive may be

inferred; and facts about the nature of the killing. See, e.g., State v. Bland, 958

S.W.2d 651, 66 0 (Ten n. 1997 ); State v. Bord is, 905 S.W.2d 214, 222 (Tenn.

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Crim. App. 1995) (citing 2 W. L aFave & A. Sc ott, Jr., Substantive Criminal Law

§ 7.7 (19 86)).

In the present case, the eviden ce mo st favorab le to the Sta te

demonstrated that when Defendant heard that his wife was looking for him, he

went to his former residence to find her and parked his car where it could not be

seen from the house. When he learned that Ms. Keough and Berry had gone to

the bar, he remained calm and collected and went there to find them. At some

time prior to arriving at the bar, Defendant armed himse lf with a bayo net.

Although Defendant and the victims were asked to leave the bar, the owner of the

bar testified that there was no indication of trouble, and that Defendant appeared

calm and not intoxicated . Once ou tside, Defenda nt pushed h is wife. Whe n Berry

attempted to nonviolently intervene, Defendant stabbed him in the chest without

warning and then chased him through the parking lot, stabbing him twice more.

Finally, Defen dant retu rned to his wife, stabbe d her, an d locked her in her c ar to

bleed to death. The record reflects no p roof that either victim threatened,

assau lted, or othe rwise pro voked D efenda nt while ou tside of the bar.

After the murder, Defendant left the scene, disposed of the murder

weapon, and tried to borrow enough m oney to flee. Noth ing in the record

sugge sts that he ever expressed any remorse. To the contrary, when he was

arrested and told that he was being charged for murder, he callously asked,

“Which one did I get?” W e conclude that, along with the sp ecific factors cited

above, the totality of these circumstances was clearly sufficient to support the

jury’s finding o f preme ditation an d intent be yond a re asona ble dou bt.

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Having concluded that the proof was initially sufficient to support the jury

verdicts, we address the Defendant’s specific contentions regarding passion and

intoxication. It is sufficient to note that, although the jury heard conflicting

evidence on both issues, the evidence tending to disprove passion and

intoxication was clearly sufficient for the jury to determine the issues acc ordingly.

It was th e jury’s p rerog ative to c redit the eviden ce in favor of the State’s theory

and to d iscredit the evidenc e in favor of D efenda nt.

With regard to passion , we add only that even if Defendant became

impassioned upon hearing that Ms. Keough was w ith Berry, he had numerous

opportu nities to cool down prior to the killing. On the other hand, if he became

impassioned later, but “the intent to kill was formed as a result of premeditation

. . . prior to the crime, it is immaterial that the act was carried out in a state of

passion .” State v. Edwin Jesperson, No. 03C01-9206-CR-00212, 1993 WL

305781, at *7 (Tenn. Crim. App., Knoxville, Aug. 11, 1993) (citing Leonard v.

State, 292 S.W.2d 849, 852 (Tenn. 1927)), perm. to appeal denied (Tenn. 199 3).

As discussed above, the evidence was sufficient for the jury to find premeditation,

even prior to the circumstances imm ediate ly relate d to the killing. T hus, in

addition to finding that the evidence was sufficient for the jury to conclude that

Defendant was not impassioned, the evidence was also sufficient for the jury to

conclude either that h e had s ufficient op portunity to cool down subsequent to any

impassioned state, or that premeditation and the intent to kill were formed prior

to any im passion ed state.

Finally, we note that although this case centers around a marital dispute,

that fact alone does not discredit the existence of a previously form ed intent to

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kill. See, e.g., State v. Cooper, 718 S.W .2d 256 (Tenn . 1986); State v. Jon

Douglas Hall, No. 02C01-9703-CC-00095, 1998 WL 20805 1 (Ten n. Crim. A pp.,

Jackson, Apr. 29, 1998). Moreover, this was not a typical marita l relationship.

Defendant and his wife we re separa ted, and Defendant lived with another

woman. For the reasons discussed, w e find th at the e videnc e was clearly

sufficient to support the jury’s verdict on both counts. This issue is without m erit.

III. CONSTITUTIONALITY OF THE DEATH PENALTY

Relying upon arguments from his pretrial motions, Defendant also

challenges the constitution ality of Ten nesse e’s death penalty statute. This issue

is without m erit. See State v. S mith, 893 S.W.2d 908 (Tenn. 1994); State v.

Brimmer, 876 S.W .2d 75 (Ten n. 1994); State v. Cazes, 875 S.W.2d 253 (Tenn.

1994); State v. S mith, 857 S.W.2d 1 (Ten n. 1993 ); State v. Black, 815 S.W.2d

166 (Tenn . 1991); State v. Boyd, 797 S.W .2d 589 (Tenn . 1990); State v. Teel,

793 S.W .2d 236 (Tenn . 1990); State v. Thompson, 768 S.W .2d 239 (Tenn.

1989).

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

AND PROPORTIONALITY REVIEW

Although Defendant does not raise the issue, we also note that the

evidence suppo rts the jury’s imposition of the death penalty. At sentencing, the

State introduced Defendant’s prior convictions for assault to com mit voluntary

manslaughter in 1974 and for manslaughter in 198 9. Def enda nt was on pa role

for the latter o ffense at th e time he comm itted the pre sent offen se.

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At the sente ncing hearin g, one of Def enda nt’s sisters testified on his beha lf

that he was one of eight siblings and that their parents were deceased. She

stated that Defendant was fifty-three years old, tha t he was a co rdial and very

nice person, and that she loved him. She then asked the jury to spare his life.

Another sister testified that Defendant and Ms. Keough had experienced a

“stormy” relationsh ip from the beginn ing. She mentio ned tha t Defendant had

undergone stomach surgery and that he had had his jaw wired shut as result of

a car accident. She, too, asked the jury for leniency and said that Defendant

could be rehabilitate d.

A former co-wo rker tes tified tha t Defe ndan t had p erform ed his work w ell.

He also recalled a time about a month prior to the murder when Ms. Keough

came to the body shop where he and Defendant worked. The witness stated that

she and Defendant began to argue about a car he had bought for her and that

Ms. Keough had grabbed an air ratchet and “rared back” to hit him before another

employee intervened and took the tool from her.

The State’s senten cing evidence was sufficient to establish the prior violent

felony aggrava ting circum stance . See Tenn. Code Ann. § 39-13-204(i)(2).

Evidence that Defendant had previously killed another person and feloniously

assaulted yet another victim clearly outweighed the brief character testimony

introduced by the defense. Therefore, we conclude that the evidence was

sufficient to s upport im position o f the death penalty.

Defendant also does not challenge the proportionality of his death penalty

in comp arison to similar ca ses. In ac cordan ce with Tennessee Code Annotated

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§ 39-13-206, we nevertheless examine the issue. When this Court conducts a

proportio nality review, we must consider the characteristics of Defendant and the

nature and circumstances of the crime in comparison to other first degree murder

cases in which a capital sentencing hearing was conducted, regardless of the

sentence actually impose d. See State v. Bland, 958 S.W.2d 651, 666 (Tenn.

1997). A senten ce of dea th is not disproportionate unless “the case taken as a

whole is plainly lacking in circumstances consiste nt with those in cases where the

death penalty has be en impos ed.” Id. at 668 (taking language from State v.

Ramsey, 864 S.W.2d 320, 328 (Mo. 1993) (en banc)). That is not the case here.

Defen dant, armed with a bayonet, sought out his estranged wife. The o nly

testimony regard ing his state of mind when he learned that his wife was at the bar

with Berry indicated that he was calm and collected. He stabb ed his wife in c old

blood, locked her in her car, and left her to bleed to death. He has shown no

remorse for his a ctions . He ha s two p rior con victions involving the killing or

attempted killing of other persons. Prior e fforts to r ehab ilitate him were o bvious ly

unsu cces sful. Finally, no o ther cha racteristic of D efenda nt in any w ay sugg ests

that his sentence is disproportionate. The mitigating proof, as delineated above,

was hardly co mpelling , and the ju ry’s decisio n not to de fer to such proof does not

indicate a dispropo rtionate se ntence .

The sole a ggrav ating circum stanc e was that D efend ant ha d prev iously

been convicted of one or more felon ies for which statutory eleme nts involve the

use of violence to the pers on. See Tenn . Code Ann. § 39-13-204(i)(2). The

death penalty has been sustained in a number of prior decisions in consideration

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of this factor. See, e.g., State v. King, 718 S.W.2d 241 (T enn. 19 86); State v.

Goad, 707 S.W .2d 846 (Tenn . 1986); State v. McKay, 680 S.W.2d 447 (Tenn.

1984). Moreover, the death penalty has been sustained when, as here, this was

the only aggravating factor. See, e.g., State v. Martin , 702 S.W.2d 560 (Tenn.

1985); State v. Cald well, 671 S.W.2d 459 (Tenn. 1984). We conclude that the

sentence of death in the present case is not disproportionate.

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

____________________________________

DAVID H. WELLES, JUDGE

CONCUR:

Not Participating

PAUL G. SUMMERS, JUDGE

___________________________________

JOE G. RILEY, JUDGE

1

The appellant does not challenge the appropriateness of the forty-year consecutive

sentence for attempted murder.

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