In controversial 3-2 decision, Tennessee Supreme Court affirms death penalty conviction that is virtually certain to be subsequently overturned
Daniel Horwitz
Like all capital cases, the circumstances of Starr Harris’s death were horrific. On June 1, 2010, Ms. Harris was brutally murdered in the woods outside her home. The cause of her death was “strangulation associated with blunt force injuries,” and her body exhibited signs of “extensive trauma to [her] neck and [her] upper torso.” Ms. Harris also had a “gaping” laceration on the right side of her head with a skull fracture beneath it. There was blood under two of Ms. Harris’s fingernails, providing evidence of a struggle. Additionally, the front of Ms. Harris’s shirt had been ripped open while her bra had been pulled down to her waist—possibly suggesting evidence of rape. It goes without saying that the senseless brutality of Ms. Harris’s murder defies explanation.
Based on a combination of Ms. Harris’s phone records and the testimony of a FedEx employee who had unsuccessfully attempted to deliver a package to her on the afternoon of her death, the time of Ms. Harris’s murder was pegged sometime between 1:30 p.m. and 2:16 p.m. Unfortunately, there were no witnesses to Ms. Harris’s murder, and no direct evidence indicated who might have committed it. As is common in murder cases, however, Ms. Harris’s husband – Thomas Harris – was immediately investigated as a suspect.
The investigation that followed quickly gave rise to substantial suspicious evidence. First, the special agent investigating Ms. Harris’s murder noticed visible scratches on Mr. Harris’s hand and left forearm that could have been consistent with a struggle. Further, several gray hairs that were collected from Ms. Harris’s left hand were believed to be her husband’s. Mr. Harris’s DNA was also found in samples obtained from Ms. Harris’s rape kit. Even more strangely, phone records reflected that Mr. Harris’s cellphone had been “inactive” from 1:32 p.m. to 2:19 p.m. on June 1, 2010—which was precisely the time period when Ms. Harris was believed to have been killed. Moreover, it soon became clear that Mr. Harris had been having an extramarital affair with another woman at the time of Ms. Harris’s death. In fact, it turned out that Mr. Harris had lied to Ms. Harris on the day that she was killed while simultaneously planning a tryst with his ex-wife that evening. Significantly, Mr. Harris also failed to mention any of this in multiple written statements that he gave to police.
The death penalty trial that followed – and the Tennessee Supreme Court’s controversial 3-2 decision to affirm it – paints a vivid picture of America’s catastrophically broken system of capital punishment. The trial of Rickey Alvis Bell, Jr. – the black man who was eventually tried and convicted for Ms. Harris’s murder – was rife with significant and utterly unjustifiable errors committed by Mr. Bell’s trial judge throughout every phase of his prosecution. Of note, these subsequently-acknowledged errors also call the accuracy of Mr. Bell’s conviction into serious doubt: a conclusion that prompted two Justices of the Tennessee Supreme Court to pen a vigorous dissenting opinion stating that Mr. Bell should receive a new trial.
Crucially, Mr. Bell’s trial judge – Joe H. Walker, III – catastrophically botched Mr. Bell’s “penalty phase” in multiple ways as well—another reality that every reviewing appellate court judge has since condemned. Relatedly, Mr. Bell – who maintains his innocence – is also “borderline” retarded with an IQ of 74, but he was determined to be insufficiently retarded that the Government is prohibited from executing him. Inexplicably, and despite its crucial importance, Mr. Bell’s defense attorneys – who declined even to make a closing argument during his penalty phase – also neglected to introduce any mitigating evidence of his retardation to the jury, which caused even Tennessee’s three most conservative Justices to “express [] concern that the defense put on so little mitigating proof.” Finally, the fact that Mr. Bell is a black man who was accused of killing a white woman in the American South during an election year also gives rise to nearly every concern that has been expressed about the arbitrariness inherent in the application of the death penalty in the United States—a problem that once famously caused the U.S. Supreme Court to order an extended national moratorium on its use.
In sum, Mr. Bell’s case presents a fatal comedy of errors that is deadly serious. As a result, the Tennessee Supreme Court’s split-decision to affirm his death penalty conviction is virtually certain to be reversed on federal habeas corpus review, if not earlier.
The Trial
During Mr. Bell’s trial, no motive for murdering Ms. Harris was ever ascribed to him. Instead, the prosecutor described Ms. Harris’s murder as simply “senseless.” Ultimately, however, Mr. Bell – who worked for Ms. Harris as a landscaper – was convicted of Ms. Harris’s murder based on an assortment of suspicious yet entirely circumstantial evidence presented against him.[1] For example, a condom containing Mr. Bell’s DNA (on the outside of it, oddly, rather than the inside) was found approximately 100 yards from the victim’s body—although the condom did not contain any evidence of Ms. Harris’s DNA. A fake handgun was also found in the same area, which similarly contained Mr. Bell’s DNA. Further, hairs consistent with the victim’s head were found on a branch around the same location, and a “drag trail” also indicated that Ms. Harris’s body had been moved from that location to her final resting place.
Witnesses also placed Mr. Bell at the scene around the time of Ms. Harris’s murder, although nobody disputed that he had gone to the victim’s house around 1:00PM to inquire about his pay and then had subsequently left while she was alive and well. Wet clothes had also been placed in Mr. Bell’s washing machine on the afternoon of Ms. Harris’s murder, and he admitted that he had changed clothes from dark pants to shorts that afternoon—although he claimed that he did so because it was hot out. Additionally, an open condom wrapper was found on Mr. Bell’s bed shortly after Ms. Harris’s murder occurred. Further, although Mr. Bell’s DNA was found on the fake handgun retrieved near Ms. Harris’s murder scene, Mr. Bell denied ever having seen it or touched it, suggesting that he had been caught in a lie. Unlike Mr. Harris, however, Mr. Bell did not have any scratches on his body indicating that he may have been in a struggle. Additionally, and also unlike Mr. Harris, none of Mr. Bell’s DNA was ever found on Ms. Harris’s body or clothes.
Both Mr. Bell and Mr. Harris had alibis to support their claims of innocence, although Mr. Harris’s alibi was arguably stronger. Mr. Bell’s mother testified that she had been with him during the time of Ms. Harris’s murder, but approximately fifteen minutes were unaccounted for. In contrast, multiple witnesses testified that they had been with or seen Mr. Harris during the time period in question, although some of this testimony was disputed by other witnesses, and there was also some evidence that Mr. Harris had tried to influence one witness’s testimony. In sum, two suspects were considered, but only one was thought to have been the perpetrator, and it was Mr. Bell who was arrested and faced a trial.
During his trial, Mr. Bell’s entire defense was that someone else had committed Ms. Harris’s murder. As Chief Justice Lee and Justice Wade explained, Mr. Bell also had a substantial amount of evidence to support his claim of innocence. “[T]he State’s case is weak in addition to being circumstantial,” they wrote in their dissent. In their words, evidence tending to support Mr. Bell’s claim of innocence included “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.”
In light of these facts, Mr. Bell’s defense turned largely on his ability to establish doubt about the potential involvement of Ms. Harris’s husband. Inexplicably, however, and in clear, unquestioned violation of his fundamental constitutional right to present a defense, Mr. Bell was categorically prohibited from introducing evidence of Mr. Harris’s affair with his ex-wife at the time of Ms. Harris’s slaying. Additionally, even after Mr. Harris took the stand to testify about how much he loved his wife, Mr. Bell’s attorney was still denied the opportunity to question Mr. Harris about his affair. In addition to violating Mr. Bell’s constitutional right to Due Process, Judge Walker’s ruling in this regard similarly violated Mr. Bell’s clear, unquestioned constitutional right to confront witnesses against him—a reality which both the Court of Criminal Appeals and the Tennessee Supreme Court also subsequently acknowledged. Specifically, in response to Mr. Bell’s repeated attempts to introduce such evidence, Judge Walker held as follows:
“the Court doesn’t believe this line of questioning, while the Court acknowledges it’s conduct that might involve moral turpitude or certainly inappropriate conduct, does not go to truthfulness or untruthfulness or would aid the jury really in any way in determining the credibility of the witness.”
It is difficult to understate just how spectacularly wrong this holding was, or how inexcusable it is for a judge to err so significantly in a death penalty case. As Justice Bivins’s majority opinion acknowledged, “the Constitution guarantees criminal defendants ‘a meaningful opportunity to present a complete defense,’”[2] and unanimous federal and state constitutional authority provides that this guarantee includes a right to present evidence that someone else committed the crime.[3]
Notably, Mr. Harris had also made conflicting statements about whether or not he told investigators about his affair with his ex-wife, which went directly to his credibility and was thus grounds for impeachment. This error was then compounded further when Mr. Harris testified that he loved his wife, but Mr. Bell was still prohibited from confronting him and cross-examining him about his affair. Moreover, Judge Walker’s persistent refusal to allow Mr. Bell’s counsel to introduce evidence of Mr. Harris’s potential motive to kill his wife betrayed his complete and utter failure to understand basic concepts like “legal relevance,” which is defined expansively as evidence that has “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.”[4] In sum, Judge Walker’s rulings during Mr. Bell’s trial were not only erroneous, but grievously and repeatedly so.
On appeal, all five Justices of the Tennessee Supreme Court held that Judge Walker’s refusal to allow Mr. Bell to provide evidence of Mr. Harris’s affair violated both Mr. Bell’s constitutional right to present a defense (a 14th Amendment Due Process violation) and his constitutional right to confront witnesses against him (a Sixth Amendment Confrontation Clause violation). Errors of this sort are considered “non-structural constitutional errors,” which means that a defendant is entitled to a new trial unless it is clear beyond a reasonable doubt that the errors did not affect the outcome of the case.
Based primarily on what they perceived to be the strength of Mr. Harris’s alibi, the three-justice majority composed of Justices Bivins, Kirby and Clark held that they had “no trouble” finding that Judge Walker’s trial errors were harmless. Accordingly, they held that “we are convinced beyond a reasonable doubt that the exclusion of this evidence for impeachment purposes had no impact on the jury’s verdict,” and they declined to grant Mr. Bell a new trial as a result. As noted, however, Justices Lee and Wade passionately disagreed, holding that they would have remanded Mr. Bell’s case for a new trial in light of the profound significance of Judge Walker’s trial errors.
The Penalty Phase
As critical as Judge Walker’s trial errors were, however, the errors that he committed during Mr. Bell’s “penalty phase” were arguably even worse. After a jury is selected, death penalty trials are split into two separate components. First, there is the “guilt” phase, where the defendant is either convicted or acquitted.[5] Second, there is the “penalty” phase, where the jury determines whether or not to administer the death penalty.
Because the death penalty is only constitutionally permitted in rare instances, a jury must first decide unanimously and beyond a reasonable doubt whether there were any “aggravating circumstances” involved in the crime. Aggravating circumstances are specifically defined by statute, and they include, for example, the murder of a child, multiple murders, terrorism, or a murder for hire.[6] If no aggravating factors are found by the jury beyond a reasonable doubt, then the death penalty is not permitted.[7]
If the jury does determine that at least one aggravating circumstance was present, however, then it must then decide whether any “mitigating circumstances” were present.[8] Specifically-defined mitigating circumstances include, for example, a defendant’s lack of prior criminal history, his mental or emotional disturbance, or his youth.[9] However, a “catchall” provision provides that “[a]ny other mitigating factor” deemed relevant to the jury “that is raised by the evidence produced by either the prosecution or defense, at either the guilt or sentencing hearing” may be considered by the jury as well.[10] Often, testimony from a defendant’s parent, child or loved one that they care for the defendant and don’t want to see him put to death is introduced for this purpose.
Once aggravating and mitigating circumstances have been considered, the jury is then instructed to determine whether the aggravating circumstances “outweigh” the mitigating circumstances beyond a reasonable doubt. If so, then the defendant is sentenced to death. If not, then the defendant is sentenced “either to imprisonment for life without possibility of parole or to imprisonment for life.”[11] Unfortunately, in Mr. Bell’s case, this process was profoundly corrupted by Judge Walker’s inability to comply with clearly established precedent governing death penalty cases.
In Mr. Bell’s case, the prosecution insisted that four aggravating circumstances applied, and it was permitted to submit the following four factors to the jury:
(1) the Defendant was previously convicted of one or more felonies whose statutory elements involved the use of violence to the person;
(2) the murder was knowingly committed by the Defendant while he had a substantial role in committing a felony (specifically, kidnapping the victim);
(3) the murder was knowingly committed by the Defendant while he had a substantial role in committing a felony (specifically, raping or attempting to rape the victim); and
(4) the murder was especially heinous, atrocious, or cruel in that it involved torture or serious physical abuse beyond that necessary to cause death.[12]
Crucially, however, there were several glaring problems with these four factors as presented. To start, Mr. Bell actually hadn’t been previously convicted of a felony whose statutory elements involved the use of violence—so factor (1) was not even permissible. Similarly, factors (2) and (3) – both of which relied on the “felony murder” aggravating circumstance that is delineated in Tenn. Code Ann. § 39-13-204(i)(7) – were improperly double-counted, since the Tennessee Supreme Court has held repeatedly and without any equivocation that the felony-murder aggravating circumstance may only be applied once.[13] Thus, the “four” aggravating circumstances charged actually should have been two.
On the mitigating side, the defendant’s trial counsel also exhibited what the Tennessee Supreme Court nearly stated – unprompted – was ineffective assistance of counsel.[14] As noted above, even the majority opinion stated that “we are constrained to express our concern that the defense put on so little mitigating proof,” and it also cast serious doubt on trial counsel’s stated explanation for his failure to introduce evidence of Mr. Bell’s mild retardation. Inexplicably, Mr. Bell’s attorney also declined to make a closing argument during his penalty phase.
The jury ultimately found that each of the “four” aggravating circumstances presented during Mr. Bell’s penalty phase had occurred, and it further found that these aggravating circumstances outweighed the nearly non-existent mitigation evidence mustered by Mr. Bell’s defense counsel.
On appeal, the Tennessee Supreme Court held in no uncertain terms that Judge Walker’s inexplicable errors during Mr. Bell’s penalty phase – namely, his decision to permit a non-existent aggravating factor to be considered and his erroneous decision to permit another aggravating factor to be considered twice – also constituted constitutional error. In cursory fashion, however, the majority opinion dismissed these mistakes as harmless, too, concluding that “the errors involving the aggravating circumstances were harmless beyond a reasonable doubt.”
It is conceivable that Mr. Bell will not subsequently be afforded a new trial as a result of Judge Walker’s refusal to allow Mr. Bell to introduce evidence of Mr. Harris’s extramarital affair, although that outcome is certainly possible. However, the majority’s subsequent holding that Judge Walker’s errors during Mr. Bell’s penalty phase were similarly “harmless beyond a reasonable doubt” cannot – and will not – withstand subsequent scrutiny. The penalty phase of a capital trial is largely subjective. As noted, jurors are permitted to consider only a handful of narrowly defined aggravating circumstances, but they may take into account anything that they consider to be mitigating. Broadly considered, determining whether aggravating circumstances “outweigh” mitigating circumstances is also inherently a subjective balancing act, and it only takes a single juror to decide that death is not a proper punishment in order for a defendant to be spared. Consequently, the majority’s cursory conclusion that it was “convinced” that Mr. Bell’s jury would still have sentenced him to death even if Judge Walker had not made such significant mistakes during Mr. Bell’s penalty phase is simply unjustifiable.
When conducting the harmless error analysis – especially when an error is of constitutional dimension – courts are supposed to resist the temptation to hold that “‘[t]he judge sure goofed up the trial, but we think that the defendant is guilty anyway, so what the hell.’” See State v. Rodriguez, 254 S.W.3d 361, 367, n. 5 (Tenn. 2008) (quoting Albert W. Alschuler, Courtroom Misconduct by Prosecutors and Trial Judges, 50 Tex. L.Rev. 629, 658–59 (1972)). Sadly, however, in Mr. Bell’s case, the majority’s decision repeatedly did just that. It is virtually guaranteed to be overturned in a subsequent appeal as a result.
Read Justice Bivins’s majority opinion in State v. Bellhere, and read Chief Justice Lee’s dissenting opinion here.
Questions about this article? Email Daniel Horwitz at daniel.a.horwitz@gmail.com.
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[1] Although acknowledging that juries are skeptical of it, the Tennessee Supreme Court has held that as a legal matter, “direct and circumstantial evidence should be treated the same when weighing the sufficiency of such evidence.” State v. Dorantes, 331 S.W.3d 370, 381 (Tenn. 2011). An exception to this holding has not been applied in capital cases. See, e.g., State v. Hall, 461 S.W.3d 469, 501-02 (Tenn. 2015) (capital case); State v. Freeland, 451 S.W.3d 791 app. at 824 (Tenn. 2014; State v. Sexton, 368 S.W.3d 371, 399 (Tenn. 2012).
[2]Crane v. Kentucky, 476 U.S. 683, 690 (1986) (quoting California v. Trombetta, 467 U.S. 479, 485 (1984)).
[3]See, e.g., State v. Rice, 184 S.W.3d 646, 671 (Tenn. 2006) (“A proper defense includes the right to introduce evidence that someone other than the accused committed the crime.”); State v. Brown, 29 S.W.3d 427, 432 (Tenn. 2000) (holding that the right to present a defense is “a fundamental element of due process of law.”) (quoting Washington v. Texas, 388 U.S. 14, 19 (1976)); Holmes v. South Carolina, 547 U.S. 319, 329-31 (2006) (holding that barring a defendant from introducing evidence of a third party’s guilt in a capital murder case denied the defendant a fair trial); State v. Powers, 101 S.W.3d 383, 394 (Tenn. 2003) (recognizing that “an accused is entitled to present evidence implicating others in the crime”) (citing Sawyers v. State, 83 Tenn. (15 Lea) 694, 695 (1885)).
[4] Tenn. R. Evid. 401.
[5] Notably, the fact that jurors have to be “death-qualified” in order to participate in a capital case – meaning that they have to state that they do not have moral objections to using the death penalty as a punishment –skews “guilt” phase outcomes because death-qualified jurors are more likely to convict under the same set of facts. See generally, Samuel Gross, The Risks of Death: Why Erroneous Convictions Are Common in Capital Cases, 44 Buffalo L. Rev. 469, 494 (1996).
[6]See Tenn. Code Ann. § 39-13-204(i).
[7]See Tenn. Code Ann. § 39-13-204(f)(1) (“If the jury unanimously determines that no statutory aggravating circumstance has been proven by the state beyond a reasonable doubt, the sentence shall be imprisonment for life.”).
[8] The applicable burden of proof for establishing mitigating circumstances is not defined by statute, but it is generally a preponderance of the evidence. See, e.g., State v. Ballard, No. W200000033CCAR3CD, 2000 WL 1671447, at *3 (Tenn. Crim. App. Oct. 25, 2000) (“the Court does not find that’s been established by the preponderance of the evidence.”); State v. Brimmer, 876 S.W.2d 75, 82 (Tenn. 1994) (reviewing rewquested instruction in death penalty case that “[m]itigating circumstances need not be proved beyond a reasonable doubt, but proof by a mere preponderance of the evidence is sufficient.”). Cf. Tenn. Code Ann. § 39-13-203 (providing that intellectual disability must be proved by a preponderance of the evidence); State v. Thompson, 768 S.W.2d 239, 252 (Tenn. 1989) (noting that Tennessee’s prior death penalty statute “places no evidentiary hurdle in the way of establishing mitigating facts; nor does it assign any standard for weighing mitigation against the aggravating circumstances. Each juror has discretion to determine the degree to which the proof mitigates against the death penalty[.]”).
[9] Tenn. Code Ann. § 39-13-204(j).
[10] Tenn. Code Ann. § 39-13-204(j)(9).
[11] Tenn. Code Ann. § 39-13-204(f)(2).
[12] These factors have been re-ordered and re-labeled for clarity.
[13]See, e.g., State v. Henretta, 325 S.W.3d 112, 145-46 (Tenn. 2010) (considering the felony murder aggravating circumstance as a single aggravating circumstance although the murder occurred while the defendant was committing kidnapping, robbery, and rape); State v. Morris, 24 S.W.3d 788, 798-99 (Tenn. 2000) (considering the felony murder aggravating circumstance as a single aggravating circumstance when the murder occurred while the defendant was committing another first degree murder, rape, burglary, and kidnapping); State v. Buck, 670 S.W.2d 600, 608-09 (Tenn. 1984) (considering the felony murder aggravating circumstance as a single aggravating circumstance when the murder occurred while the defendant was committing rape, robbery, and kidnapping).
[14] Ineffective assistance of counsel claims are raised on post-conviction appeal, rather than direct appeal. See, e.g., Kendricks v. State, 13 S.W.3d 401, 405 (Tenn. Crim. App. 1999) (“we have previously warned defendants and their counsel of the dangers of raising the issue of ineffective assistance of trial counsel on direct appeal because of the significant of amount of development and factfinding such an issue entails.”). Thus, this issue is highly likely to come into play later on in the defendant’s appeal process.