State of Tennessee v. Rickey Alvis Bell, Jr. - Concurring In Part and Dissenting In Part

IN THE SUPREME COURT OF TENNESSEE

AT JACKSON

March 4, 2015 Session

STATE OF TENNESSEE v. RICKEY ALVIS BELL, JR.

Automatic Appeal from the Court of Criminal Appeals

Circuit Court for Tipton County

No. 6664 Joe H. Walker III, Judge

No. W2012-02017-SC-DDT-DD – Filed September 10, 2015

SHARON G. LEE, C.J., concurring in part and dissenting in part.

I concur with the majority’s holdings as to the trial court’s denial of Mr. Bell’s

motion to strike the death notice based on intellectual disability; the constitutionality of

Tennessee Code Annotated section 39-13-203 that prohibits the execution of any

intellectually disabled person; and the trial court’s denial of Mr. Bell’s motions for

mistrial. I agree with the majority’s conclusion that the trial court erred by refusing to

allow Mr. Bell to introduce evidence that Rick Harris, the victim’s husband, was having

an affair with his ex-wife at the time the victim was murdered. However, I disagree that

the error was harmless. In my view, the State failed to demonstrate beyond a reasonable

doubt that this error did not affect the outcome of the trial. Because Mr. Bell was

deprived of his constitutional right to present a defense and the State failed to show that

the error did not affect the verdict, Mr. Bell is entitled to a new trial. For these reasons, I

respectfully dissent from the majority’s holding that Mr. Bell is not entitled to a new trial

and would pretermit the remaining issues.

A jury convicted Mr. Bell of two alternative counts of first degree felony murder,

one count of especially aggravated kidnapping, and one count of aggravated sexual

battery and sentenced him to death. There was no confession. There was no evidence

Mr. Bell had a motive to kill the victim. There were no eyewitnesses to the murder. The

victim’s death was brutal and physically violent. She had blood under her fingernails and

one of her fingernails was torn off in the struggle, but Mr. Bell had no scratches or

wounds.

The evidence against Mr. Bell was not overwhelming, which makes the fact that

Mr. Bell was denied the opportunity to develop his defense theory—that someone else

killed the victim—particularly troubling. There was evidence that placed Mr. Bell near

the victim’s home at approximately 1:30 p.m. on the day of the murder, and no one heard

from the victim after that point. However, no precise time of death could be established

for the victim. A handgun replica cigarette lighter bearing Mr. Bell’s DNA and a

condom containing Mr. Bell’s semen were found approximately one hundred feet from

the victim’s body and near a broken tree branch containing hairs consistent with that of

the victim. However, neither of these items bore the victim’s DNA, and there was no

proof as to how long those items had been at that location. Moreover, Mr. Bell’s DNA

was not found on the victim’s body. The victim appeared to have died as a result of

being kicked and stomped, yet the police failed to test the shoes of Mr. Bell or anyone

else for evidence. Many people, including neighbors, family members, and police

personnel, walked around the house and woods before and after the victim’s body was

found, thus diminishing the evidentiary value of any physical evidence found at the crime

scene.

In his defense, Mr. Bell attempted to present proof that Mr. Harris was having an

affair with his ex-wife at the time of the murder, thus giving him a possible motive to kill

his wife or have her killed. At the beginning of Mr. Harris’s cross-examination, defense

counsel asked, “What’s a Frayser?” The State objected on relevance grounds and, in a

sidebar conference, explained to the trial court that “a Frayser” was the code name for sex

invented by Mr. Harris and his ex-wife after meeting once for a tryst in the area of

Frayser, Tennessee. On the day of the murder, Mr. Harris sent his ex-wife four text

messages for the purpose of arranging to meet later that same night for “a drink, a dinner,

and a Frayser,” even though he testified that during the same day, he had been too busy

working to call his wife more than once. Defense counsel wished to introduce this

evidence through Mr. Harris, explaining that Mr. Harris had testified on direct

examination about how much he loved his wife, even though at the time of her murder he

was having an extramarital affair. Defense counsel argued that, in addition to affecting

Mr. Harris’s credibility, evidence of the affair would serve as a motive for Mr. Harris to

either kill his wife or have her killed. Defense counsel asserted that this made the

evidence extremely relevant.

The trial court conducted a hearing outside the jury’s presence to consider Mr.

Harris’s testimony. In the hearing, Mr. Harris testified that he had been having an affair

with his ex-wife, but denied that he wanted to reconcile with her. When defense counsel

asked whether the affair with his ex-wife had been his first affair, Mr. Harris, who had

been married three times, responded that he had been cheating on his wife all his life. At

the conclusion of the jury-out hearing, the trial court sustained the State’s objection and

precluded the defense from questioning Mr. Harris as to his extramarital affair.1

1

Although it was not challenged on appeal, Mr. Bell attempted to introduce similar

evidence through the ex-wife’s testimony. That testimony was excluded by the trial court.

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The Defendant argues that the trial court’s exclusion of the testimony regarding

the affair deprived him of his constitutional right to a meaningful opportunity to present a

complete defense, a fundamental element of due process. See Washington v. Texas, 388

U.S. 14, 17-19 (1967). The right to explore witness bias and the right to present a

complete defense are fundamental constitutional rights. Delaware v. Van Arsdall, 475

U.S. 673, 680 (1986) (recognizing the right to explore witness bias as fundamental);

Washington, 388 U.S. at 19 (recognizing the right to present a complete defense as

fundamental). As the majority opinion correctly concluded, the trial court’s omission of

evidence of the affair was constitutional error because the exclusion deprived Mr. Bell of

his right to present a complete defense, as guaranteed by the Sixth Amendment and the

Due Process Clause of the Fourteenth Amendment. See State v. Brown, 29 S.W.3d 427,

432 (Tenn. 2000).

In reviewing an error by the trial court, we must first determine the nature of the

error so that we can apply the proper legal standard. See State v. Rodriguez, 254 S.W.3d

361, 371 (Tenn. 2008). There are three types of errors: structural constitutional errors,

non-structural constitutional errors, and non-structural, non-constitutional errors.

Structural constitutional errors—those that compromise the integrity of the judicial

process itself—warrant automatic reversal. These errors are not amenable to harmless

error review. 3B Charles Alan Wright, Nancy J. King & Susan R. Klein, Federal

Practice and Procedure § 855 (3d ed. 2004); see, e.g., United States v. Gonzalez–Lopez,

548 U.S. 140, 150 (2006) (violation of the right to counsel warranting reversal); Price v.

Georgia, 398 U.S. 323, 331 (1970) (violation of defendant’s double jeopardy right

warranting reversal); Sheppard v. Maxwell, 384 U.S. 333, 363 (1966) (violation of the

right to have the case heard in a community in which defendant can receive a fair trial

warranting reversal). Non-structural constitutional errors, such as those involving the

erroneous exclusion of evidence, are presumed to warrant reversal of a judgment and a

new trial, but reversal is not automatic. See State v. Powers, 101 S.W.3d 383, 397 (Tenn.

2003). Upon a finding of non-structural constitutional error, the burden shifts to the State

to demonstrate harmlessness, and the error will result in reversal unless this Court is

convinced beyond a reasonable doubt that the error did not affect the outcome of the trial.

Id. (quoting State v. Harris, 989 S.W.2d 307, 314-15 (Tenn. 1999)); see also State v.

Rice, 184 S.W.3d 646, 673-74 (Tenn. 2006) (applying non-structural constitutional

harmless error analysis to an erroneous omission of evidence). Non-structural,

non-constitutional errors are governed by Tennessee Rule of Appellate Procedure 36(b),

which requires the defendant to show that the error more likely than not affected the

outcome or caused prejudice to the judicial process. Rodriguez, 254 S.W.3d at 371-72.

The deprivation in this case—exclusion of evidence that supported a third-party

defense—was a non-structural constitutional error. See Powers, 101 S.W.3d at 397. The

State, not the defendant, had the burden to show that the constitutional error was

harmless. Harris, 989 S.W.2d at 314; see also 3B Charles Alan Wright, Nancy J. King &

Susan R. Klein, Federal Practice and Procedure § 855 (3d ed. 2004) (“The test . . . for

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determining when a constitutional error is harmless is more exacting than the test for

harmlessness of errors that are not of constitutional dimension.”)

In any harmless error analysis, an appellate court should refrain from merely

calculating whether sufficient evidence exists to support the conviction. State v. Sexton,

368 S.W.3d 371, 429 (Tenn. 2012). It is a well-settled tenet of Tennessee jurisprudence

that “the line between harmless and prejudicial error is in direct proportion to the degree

of the margin by which the proof exceeds the standard required to convict, beyond a

reasonable doubt.” Delk v. State, 590 S.W.2d 435, 442 (Tenn. 1979); see also State v.

Copeland, 226 S.W.3d 287, 302-03 (Tenn. 2007); State v. Denton, 149 S.W.3d 1, 15

(Tenn. 2004); Spicer v. State, 12 S.W.3d 438, 447-48 (Tenn. 2000); State v. Moore, 6

S.W.3d 235, 242 (Tenn. 1999). Considering the whole record, “[t]he more the proof

exceeds that which is necessary to support a finding of guilt beyond a reasonable doubt,

the less likely it becomes that an error affirmatively affected the outcome on its merits.”

State v. Dotson, 254 S.W.3d 378, 388 (Tenn. 2008) (alteration in original) (quoting State

v. Toliver, 117 S.W.3d 216, 231 (Tenn. 2003)); see also State v. Shirley, 6 S.W.3d 243,

250 (Tenn. 1999) (remanding for new trial because, although the evidence was sufficient

to sustain the defendant’s conviction, the evidence was clearly not overwhelming in light

of the error at trial).

The State asserts that excluding the evidence of the affair was not error, and even

if it were error, the evidence was not critical to the defense. The State argued in its brief

that the evidence of Mr. Harris’s affair “would have had little, if any, probative value in

implicating Mr. Harris in the victim’s murder.” This assertion is contrary to case law and

basic common sense. Evidence of an extramarital affair, as a powerful disruptor of

family life, is highly probative. At trial, extramarital affairs can not only provide a

motive for murder, but can also provide perspective and “explain the context surrounding

the victim’s homicide.” State v. Caronna, No. W2013-00845-CCA-R3-CD, 2014 WL

6482800, at *42 (Tenn. Crim. App. Nov. 18, 2014) (finding the probative value of

evidence indicating a husband’s extramarital affair was not outweighed by the danger of

unfair prejudice and that the evidence was relevant to the issues of motive and intent as

well as to help explain the marital relationship). This context is important, not only in

cases of spousal homicide, but also in cases where spousal homicide is an alternative

theory of the crime presented by defense counsel. Proof of a defendant’s extramarital

conduct has been held to be admissible for non-propensity purposes in the prosecution of

spousal homicide. See State v. Johnson, 743 S.W.2d 154, 158 (Tenn. 1987) (holding

evidence of defendant’s extramarital affair was admissible to establish motive to kill wife

and to explain the state of the couple’s relationship); State v. Cartmell, No.

M2012-01925-CCA-R3-CD, 2014 WL 3056164, at *18-19 (Tenn. Crim. App. July 7,

2014) (concluding that evidence of defendant’s communications with other women

before and after his wife’s death was relevant to the couple’s relationship and admissible

to show motive); State v. March, 395 S.W.3d 738, 783-84 (Tenn. Crim. App. 2011)

(concluding that the trial court did not abuse its discretion in admitting evidence of

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defendant’s prior infatuation with his co-worker because this was relevant to show

motive for wife’s murder); State v. Brock, 327 S.W.3d 645, 703-04 (Tenn. Crim. App.

2009) (affirming defendant’s conviction for the first degree murder of his wife and

finding that evidence of extramarital affair reflected a possible motive for murder); see

also United States v. Russell, 971 F.2d 1098, 1106-07 (4th Cir. 1992) (upholding the

admission of extramarital sexual affairs evidence); People v. Smith, 203 P. 816, 821 (Cal.

Dist. Ct. App. 1921) (“No rule is more firmly established than that, upon the trial for

murder of husband or wife, evidence tending to show illicit relations of the accused with

another is admissible to show lack of love and affection for the defendant’s lawful

spouse.”); Givens v. State, 546 S.E.2d 509, 512 (Ga. 2001) (holding that evidence of a

“close relationship” between defendant and a man other than her husband was relevant to

the homicide and therefore admissible); Porter v. State, 91 N.E. 340, 342-43 (Ind. 1910)

(finding that evidence of an extramarital affair “would at least tend to show lack of

affection and regard upon [the defendant’s] part for his wife and disregard of his conjugal

relations”), overruled on other grounds by Robinson v. State, 317 N.E.2d 850 (Ind.

1974); Andrew v. State, 164 P.3d 176, 191 (Okla. Crim. App. 2007) (upholding evidence

of defendant’s extramarital sexual affair as relevant to prove motive); Commonwealth v.

Heller, 87 A.2d 287, 289 (Pa. 1952) (approving the use of evidence of adultery to show

motive for murder).

The State points to the fact that Mr. Bell was permitted to ask Mr. Harris about

whether he sent text messages to his ex-wife and his discussion with her regarding her

testimony at trial. However, this does not demonstrate that the exclusion of the evidence

was harmless beyond a reasonable doubt. Without evidence of the affair, Mr. Bell was

deprived of the opportunity to argue an alternative theory of the crime. Defense counsel

was precluded from positing a series of hypothetical scenarios for the jury: that the

victim’s husband wanted to continue his affair with his ex-wife and needed to remove the

victim from the equation, or that the victim had discovered the affair and she and her

husband fought, explaining the scratches on his arm. This evidence alone would not have

been sufficient to convince a jury that Mr. Harris killed his wife or had her killed. But

Mr. Bell did not have to prove Mr. Harris committed the crimes. Mr. Bell only had to

create reasonable doubt of his own guilt in the minds of the jury.

The majority correctly notes the relevant factors that should be considered in

deciding whether the erroneous exclusion of defense proof was harmless beyond a

reasonable doubt, including (1) the importance of the proof to the defense’s case, (2) the

extent to which the excluded proof was cumulative, (3) the extent of other evidence

corroborating or contradicting the excluded proof, and (4) the overall strength of the

State’s case. See Momon v. State, 18 S.W.3d 152, 168 (Tenn. 1999); see also Van

Ardsall, 475 U.S. at 684.

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In State v. Rice, 184 S.W.3d 646, 670-71 (Tenn. 2006), we applied similar factors

in determining whether an erroneous curtailment of cross-examination and exclusion of

testimony was harmless beyond a reasonable doubt. In finding the error harmless, we

relied upon the fact that (1) the witness was not the only person who had incriminated the

defendant; (2) most of the witness’s testimony that the defendant sought to introduce

through cross-examination was corroborated by other witnesses, including the

defendant’s testimony; and (3) the overall case against the defendant was strong and

included a confession by the defendant to police describing the details of the murder. Id.

at 671. Based on these factors, it was clear in Rice that the constitutional error was not of

great consequence in light of the strong evidence supporting the prosecution’s case. Id.

Mr. Bell’s case is different. An application of these factors illustrates the

significance of the constitutionally erroneous decision to exclude evidence of Mr.

Harris’s extramarital affair. First, proof of the extramarital affair was crucial to Mr.

Bell’s case. The evidence would have served to implicate an alternative perpetrator of

the murder by demonstrating a potential motive, and this could have raised reasonable

doubt in the jurors’ minds as to Mr. Bell’s guilt. However, the exclusion of this evidence

compromised Mr. Bell’s opportunity to present this defense and offer an alternative

theory of the case that was not far-fetched. Second, the evidence of the extramarital

affair, which the defense sought to bring out on cross-examination of Mr. Harris, was not

cumulative, but unique. The best person the defense could cross-examine about Mr.

Harris’s alleged motive to kill his wife was Mr. Harris. Third, in a jury-out hearing, Mr.

Harris’s ex-wife corroborated Mr. Harris’s testimony as to the affair, and this evidence

was not contradicted. Fourth, the evidence against Mr. Bell is far from overwhelming.

The State’s case against Mr. Bell is not weak simply because it is based on circumstantial

evidence. Rather, the State’s case is weak in addition to being circumstantial. Moreover,

the record contains evidence that is inconsistent with the State’s theory, including the

facts that: (1) the husband’s DNA was the only foreign DNA found on the victim; (2) the

condom recovered from the woods contained Mr. Bell’s DNA on the outside, but not the

victim’s; (3) the victim had blood under her fingernails; (4) the husband had scratches on

his hands and arms; (5) no scratches were seen on Mr. Bell; (6) the time of the victim’s

death could not be precisely determined; (7) there was testimony that Mr. Harris had tried

to influence his ex-wife’s testimony; and (8) Mr. Bell had no apparent reason to kill the

victim.

Unlike in Rice, where the defense was simply trying to establish the bias of a

witness through redundant evidence, Mr. Bell was prevented from presenting unique

evidence that was crucial to his theory of the case. This theory involved an unfaithful

husband who had been cheating on his wife with his ex-wife, had arranged multiple

sexual encounters with the ex-wife, and, on the day of the murder, set up another such

encounter for that night. Evidence of this affair was key to offering a plausible motive

for someone other than Mr. Bell to kill the victim or arrange to have her killed. While a

number of witnesses established an alibi for Mr. Harris, evidence of Mr. Harris’s

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extramarital affair might have affected the credibility of Mr. Harris and these alibi

witnesses in the eyes of the jury, and this could have given the alibi evidence less weight.

Further, the fact that Mr. Harris might have had an alibi does not forestall the possibility

that Mr. Harris hired someone to carry out the murder, which would seem more plausible

if the jury had heard evidence of Mr. Harris’s extramarital affair. Thus, not only did the

evidentiary exclusion preclude Mr. Bell from offering an alternative theory of the case,

but it undermined his opportunity to rebut, through his alternative theory, other points in

the prosecution’s case.

I cannot agree that other evidence introduced at trial sufficiently alerted the jury to

Mr. Bell’s defense theory that all was not right between Mr. Harris and the victim. Mr.

Harris’s statement on cross-examination that it would seem natural for him to be the

prime suspect in his wife’s murder was not sufficient to convey to the jury that Mr. Harris

and the victim were having marital problems. This statement was made after Mr. Harris

had already been asked on direct examination: “Mr. Harris, I don’t mean to be indelicate,

and I don’t mean to seem insensitive. But you understand that often the first suspect in

the death of a spouse or a girlfriend or a boyfriend is the significant other?” Thus, any

reference to Mr. Harris being the prime suspect was a statement about a common

assumption in murder trials—that a husband is often a suspect in his wife’s murder—and

did not tell the jury anything about the facts of this case. Without evidence of the affair,

Mr. Bell could only insinuate at trial that Mr. Harris perhaps attempted to influence his

ex-wife’s testimony and that he sent her text messages about something not work-related,

but nothing else. This evidence was not sufficient to alert the jury to Mr. Bell’s defense

theory.

The trial court, by excluding evidence of the extramarital affair, denied Mr. Bell

the opportunity to present a defense that someone else killed the victim or arranged her

murder. When considering this constitutional error amidst the weak circumstantial

evidence against Mr. Bell, I am convinced that the State has not carried its burden of

demonstrating that the error in this case was harmless and did not affect the outcome of

the trial.

For the reasons stated above, I would grant Mr. Bell a new trial. Justice Wade has

authorized me to state that he joins in this opinion.

__________________________________

SHARON G. LEE, CHIEF JUSTICE

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