# State v. Brimmer

> Tennessee Supreme Court · February 7, 1994 · 876 S.W.2d 75

URL: https://www.frixlaw.com/law-library/cases/9776642

## Case

- **Full name:** STATE of Tennessee, Appellee, v. David Allen BRIMMER, Appellant
- **Court:** Tennessee Supreme Court
- **Decided:** February 7, 1994
- **Citations:** 876 S.W.2d 75; 1994 Tenn. LEXIS 15
- **Precedential status:** Published
- **Opinion:** Concurring in part by Daughtrey
- **Judges:** O'Brien, Drowota, Anderson, Reid, Daughtrey
- **Cited by:** 196 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9776642

## How later opinions describe it (automated extraction)

- holding that trial court did not erroneously exclude expert’s opinion regarding defendant’s susceptibility to coercion because expert reviewed only a portion of interrogation, rendering expert’s opinion “not sufficiently trustworthy”
- holding evidence of premeditated first degree murder sufficient where the defendant handcuffed the victim to a tree and choked him to death with a wire and slipknot; the defendant then took the victim’s possessions, was seen shortly after the murder with these possessions, and…
- rejecting the argument that there is no meaningful appellate review of death sentences because there is no requirement for written findings concerning mitigating circumstances
- declining to find that arguing that “there were no mitigating statements in the case” was reversible error

## Opinion text

DAUGHTREY, Justice,
concurring in part and dissenting in part.
The defendant was convicted of the premeditated murder of Rodney Compton and was sentenced to death based on a single aggravating circumstance, the fact that he killed the victim while committing robbery. Most of the alleged trial errors that serve as the basis for this appeal are, as the majority concludes, meritless challenges to the guilt and sentencing phases of his trial. One, however, deserves the Court’s careful attention. During the sentencing hearing the trial court refused to instruct the jury that it was permitted to consider as mitigating evidence any mental disease or defect that substantially impaired Brimmer’s ability to appreciate the wrongfulness of his conduct or to conform his conduct to the law. See T.C.A. § 39-2-203(j)(8) (1982), amended by T.C.A. § 39-13-204 (1992). This failure to instruct the jury on this mitigating evidence denied the defendant his right to have the jury charged on every defense to the death penalty raised by the evidence and, therefore, denied the defendant substantial justice. Because of this error, I would remand this case to the trial court for resentencing.
It is fair to conclude, as the majority does, that the proof at trial was sufficient to convict Brimmer of premeditated murder. The majority opinion, however, fails to summarize that evidence. The record shows that the defendant, an unemployed drifter, was stopped in February of 1990 for speeding in *90 Texas after leading the Texas authorities on a twenty-mile high-speed chase. The police determined that the defendant was driving Rodney Compton’s truck and, after contacting the Tennessee authorities, discovered that Compton had been murdered in October of 1989. The Texas police tried to interview Brimmer several times, but Brimmer gave false names and provided no information. After about 20 days in solitary confinement, however, the defendant confessed to the Compton murder. Moreover, as the police transported him to Tennessee, he identified the site of the murder.
The defendant admitted the killing, but denied planning the murder. Instead, he said that Compton offered him a ride and insisted that he accepted with the intent only to rob Compton. Brimmer stated that Compton made sexual advances toward him, and that the defendant then handcuffed Compton, intending to leave him unharmed in a park. According to the defendant, however, when Compton began to tell the defendant about his sexual abuse of children, the defendant grew angry and choked Compton to death. Then, frightened that someone might have seen him at the site of the murder, he drove Compton’s body to the field where it was later discovered.
Other evidence, however, supported the state’s theory that the defendant had planned both the robbery and the murder. Ann Marie Hill testified that the defendant had lived with her in Alabama before the murder, but that he was known to her by a different name. Ms. Hill testified that Brimmer told her before the murder that he intended to pick up his Porsche in Tennessee. She testified that she drove Brimmer part of the way to Tennessee on the afternoon of October 21, 1989, and that he carried a gun and a large knife on the trip. David Parten, the defendant’s former cellmate, testified that he previously had told the defendant about a Porsche that Parten owned, and that the defendant had arranged to meet Parten in Oak Ridge around October 22. Parten testified that he met Brimmer once in Oak Ridge, but decided not to meet him again because he felt uneasy about the situation. From the testimony of these two witnesses, the jury could have inferred that Brimmer drove to Tennessee with the intent to steal Parten’s car and that he resorted to the robbery and murder of Compton only after Parten failed to show up.
In addition to this testimony, the victim’s mother and brother stated that on October 22, Compton had been returning home from a vacation to celebrate his mother’s birthday and thus, impliedly, would not have been searching for a sexual encounter. Additional evidence indicating that Brimmer gave false names to everyone he met and repeatedly lied about his background weakened his credibility and diminished the likelihood that his story was true. The evidence was sufficient for the jury to have found him guilty of premeditated murder.
Despite the sufficiency of the evidence, the Court should not overlook the trial court’s failure to instruct the jury, in accordance with T.C.A. § 39 — 2—203(j)(8) (1982), 1 that it must consider any evidence that
[t]he capacity of the defendant to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of the law was substantially impaired as a result of mental disease or defect or intoxication which was insufficient to establish a defense to the crime but which substantially affected his judgment.
During the sentencing hearing, Brimmer presented the testimony of Dr. Eric Engum, a clinical psychologist, who concluded that the defendant was suffering from a borderline personality disorder marked by sudden changes in behavior, intense anger, suicidal attempts, and the inability to maintain relationships. Dr. Engum testified that between 500,000 and two million people in the United *91 States probably suffer from this disorder, and that many of these people violate the law. The trial court, however, concluded that the defendant’s disorder was common, that it was “not quite” a mental disease or disorder, and that Dr. Engum did not state the “magical words” that the disease “caused” the defendant to commit the crime. The trial judge therefore refused to instruct the jury on this mitigating evidence.
Although the defendant requested this instruction at trial, he failed to present the issue of the denial of the instruction in his motion for a new trial. On appeals as of right, Tenn R.App.P. 3(e) provides that:
[I]n all cases tried by a jury, no issue presented for review shall be predicated upon error in ... jury instructions granted or refused, ... unless the same was specifically stated in a motion for a new trial.
Nevertheless,
[a]n error which has affected the substantial rights of an accused may be noticed at any time, even though not raised in the motion for a new trial ... where necessary to do substantial justice.
Tenn.R.Crim.P. 52(b). Such error, called “plain error,” can therefore be noticed by an appellate court despite the failure to include the issue in the motion for a new trial.
The trial court plainly erred by refusing to instruct the jury on a matter that is indisputably fundamental in a capital case — the jury’s consideration of the mitigating evidence. The capital sentencing statute in effect at the time of Brimmer’s offense provided that “the trial judge shall include in his instructions for the jury to weigh and consider any mitigating circumstance ... which may be raised by the evidence....” T.C.A. § 39-2-203(e) (1982) (amended 1989). Dr. Engum testified extensively on the defendant’s psychological background and concluded that he suffered from a borderline personality disorder that did affect his judgment. Certainly the jury was entitled and, pursuant to the statute, required to consider whether this disorder substantially impaired “the capacity of the defendant to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of the law.” Under the circumstances of this case, the failure to instruct the jury on this mitigating evidence clearly violated the sentencing statute. By failing to instruct the jury on “fundamental” evidence required by statute, the court denied the defendant substantial justice, as it is defined in Tennessee case law.
In my judgment, the only appropriate remedy for this error is a remand of this case to the trial court for resentencing.
. The defendant was sentenced in March of 1991. At that time, the capital sentencing statute had been amended since the date of his offense, and is now codified as T.C.A. § 39-13-204 (1991). However, in implementing the new statute, the General Assembly specifically provided in T.C.A. § 39-11-112 (1991) that "any offense, as defined by the statute ... being ... amended, committed while such statute or act was in full force and effect shall be prosecuted under the act or statute in effect at the time of the commission of the offense." This statute apparently requires the application of the capital sentencing statute in effect at the time of Brimmer's offense.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9776642. Public record. Not legal advice.