# FILED
May 22, 1998 Cecil W. Crowson Appellate Cou rt Clerk IN THE COURT OF CR IMINAL A PPEALS OF TENN ESSEE AT NASHVILLE APRIL 1997 SESSION

STATE OF TENN ESSEE, ) ) No. 01C01-9605-CC-00208 Appellee, ) ) Rutherford County vs. ) ) Honorable J. S. Daniel, Judge JAMES CLA

YTON YOUNG, JR., ) ) (Felony Murder) Appellant. )
DISSENTING AN D CONCURRING OPIN ION Although I concur in the treatment of most i ssue s and conc ur in the remand for a new trial, I res pectfully depart from the majori ty on the issue of sufficiency of the evidence to support felony murder and the s omewhat re lated issue o f the redaction of the defendant’s pretri al statement. For the reasons explained below, I would dis mi ss the felony murder charg e and remand for retrial as to second-degree murder.

To find the defendant guilty of felony murder in this case, the jury had to find beyond a reasonable doubt thatthe defendant, acting with the culpability to commit a forcible rape , recklessly kil led the victim. If the v ictim consented to the sexual activity, no

attempt to rape occurred, and the defendant cannot be convicted of felony murder.

The only evidence that an y sexual activi ty occurred is found in th e defendant’s statement to the police. Accor ding to the defendant, he and Ladd went into the bedroom to engage in sex, and the sexual activ ity, includ ing the digital penetration and the b ondage wit h handcu ffs and a gag, was com pletely con sensual. In his statement, the defendant adm its that he wrapped the shirt around the victim’s neckand used it a s “re ins” while he bounced up and down on the victim’s back. When the victim began to struggle and thrash about, the defendant w as caught

up in his fantasy and did not stop. Even when the victim’s distress became more2

apparent, he did not

remove the gag or the shirt. The defendant admitted that he ceased to pull on the shirt o nly when the vic tim became limp.

The jury, of course, was entitled to disregard the defendant’s account of what transpired. In

my view, however, the evidence is entirely circumstantial and specula tive without the defendant’s statement. The reco rd in this case contains no physical evi dence of any sexual activ ity. Dr. Harlan t

estified that a digital penetration of the victim’s anus would leave no tr auma or other physical

signs. The autopsy found no bruises nor an y oth er injuries to the vi ctim’s genital area. The bruises on his wrists and ank les were consistent w

ith the use of handcuffs, and the scratchesand bruises on his chest and back w ere consistent with a b ody being dragged across a floor. The doctor could not explain the curious abrasions on his finger tips although he opined that they could not result from j ust being dragged
across a floor. Except for the brui ses around the wrists and ankles, the doctor could not say whether the v

ictim’s injuries had oc

curred shortl y before o r shortly after death. The medical evidence led the doctor to believe that the victim was lying face down with his hands

behind his back and that he was strang led from behind. Without the expert opinio n evidence as to the victim’s lev el of intoxication at the time of death, which evidence this court has found to be erroneously admitted,the proof of the victim’s state of intox ication is merely spec

ulative, as is the suggestion that the victim was uncon scious at the time of the handcuffing or the strang ulation.

The record demonstrates beyond a reasonab le doubt that the defendant’s actions resulted in the v ictim’s death. The facts support a find ing of second-degree murder based upon a knowing killi ng, and in my view, fir st-degree murder base d up on premeditation is more readily gleaned from the facts th an is first-degree

murder based upon the attempt to commit a forcible rape

. However, there is insufficient evidence to support a conclusion that the defendant had the intentto commit a rape or that his actions were intended to achiev e that result. See Tenn. Code Ann. § 39-1 2-101(a)(1),(2) (1997). Although there is physical proof that3

the victim struggl ed against his bonds and res isted being strangled,that resistance does not nece ssarily pro ve that the defendant forced thevictim to be bound or take part in the sexual activity. The evidence just as easily su pp orts the defendant’s claim of the victim’s willing participation in the defendant’s bondage fantasy. Even the defend ant’s pos t-homici de furti ve activity i s s uggestiv e only of gu ilt of a cri me of homicide and does not buttress the state’s argum ent for felony murder per se .

Without the defendant’s version of eve nts , the jury could only speculate as to what actu ally occurred during the earl y morni ng hour

s of Janu ary 4, 1995. Jurors could only speculate that the victim had become comatose from his heavy drinking and that the defendant “ took advantage” of his helpless guest. Other reasonable hypotheses exist. The fact that the victim resi sted strangulation neither negates nor excludes the defendant’s version of events.

Before an accused may be convic ted of a criminal offense based upon circumstantial evidence alone, the facts and circumstances "must be so str ong and cogentas to exclude every ot her r easonable hypothesis sav e the guilt of the defendant." State v. Crawford , 225 Tenn. 478, 484, 470 S.W .2d 610, 613 (1971); State v. Jones , 901 S.W.2d 393, 39 6 (Tenn. Cr im. App. 1981). A rational jury could draw other reasonable i nferences fro m the facts and circumstances in this record other than the conclusion that the defendant recklessly caused the victim’s death during the perpetrati o n of an attempted rape. See Crawford , 225 Tenn. at 484, 470 S.W.2d at 613; State v. McAfee , 737 S.W.2d 304, 305 (Tenn. Crim. App. 1987)

. Although it is a clos e question, in my vi ew, the state’s evid ence doe s no t
weave a web of guilt sufficiently strong to convict J ames Clayton Youn g of firstdegree felony murder in the death of Joseph Ladd.

The import of the majority’s position is that the jury may

“accept that portion of the defendant’s pretrial statement that it deemed credible and reject that which it deemed to be f alse.” I would not have allowed the jury such an eclectic4

prerogat ive i n a case where the prosecuti on sponsored the proof in the ques tion and the confessing defendant did not testify. Courts hav

e traditionally afforded

the trier of fact the power

to assess a testifying

witness’ demeanor, sinc erity, and overall credibili ty; however, that rule has not been exten ded t o condone capriciously eclectic treatment of a non-testifying defendant’s e xtra-j udicial confession. The majority reli es u pon State v. Gilbert , 612 S.W.2d 188 (Te nn. Crim. App. 1980). Gilbert says that the “jury was entitled to accept that part o f the defendant’s proof they felt was consistent w

ith truth and reject that por tion they believed [w

as false].” Gilbert , 612 S.W.2d at 190 (emphasis added). How ever, the Gilbert court was not reviewing

the contentsof an extra-judicial c onfession; it was rev

iewing Gilbert’ s trial testimo ny. Moreover, the court was discussing the jury’s assessment of the defendant’s proof in making a sufficiency-o f -evidence determination i n which the evidence is viewed in the lig ht most favorable to the state. In the present case, the pretrial confession is part of the state’s proof. It is a critical ev identiary component presented by the state in its attempt to carry its burden

i n proving the defendant gui ltyof f elony murder beyond a re asonable doubt. Furthermore, the jury in the presentcase had no opportunity to observe the defendant’s demeanor w hile he told his story in person. In my view, Gilbert provides no precedent for concluding that the jury in the present case was entitled t o reject the defendant’s claim of
consens ual sexua l activity.

Also, the majority relies upon Espitia v. State , 199 Tenn. 696, 28 8 S.W.2d 731 (Tenn. 1956), but Espitia , in its full breadth, suppor ts the position taken in this separate opinion. In Espitia , the defendantcomplained of a jury instr uction tha t “‘the law presumes to be true’” the damaging par ts of Espitia’s confession

. Espitia , 199 Tenn. at 698, 288 S.W.2d at 732. Thus, when the Espitia court says the jury, in weighing the confession, may “reject[] some part if they desire to do so,” it refers to rejecting

the inculpatory part, and when it says the j ury may give “credit to other parts of the statement if they have a sufficient reason to do s o,” it refers to exculpatoryportions. In the context of the issues that were before the Espitia court,5

the court’s language is not meant to be applied vice vers

a. Espitia acknowledges that, after a defendant’s confession is adm itted, if “‘the prosecutor can contradict any part of it, he is at libert yto do so . . . . ‘” Espitia , 199 Tenn. at 700, 288 S.W.2d at 733 (quoting Crawford v. State , 44 Tenn. 190, 194 (1867)). The ju ry’s ri ght to reject the portion of the confession which is f avorable to the defendant is conditioned upon “‘sufficient grounds for doing so.’” Espitia , 199 Tenn. at 700, 288 S.W.2d at 733. The court added If what [the defendant] said in his own fa vor is not contradict

ed by evidence offered by the prosec utor, nor improbable in itself, it will naturallybe beli eved by the jury, and they are not authorized arbitrarily to reject it ; but still, they are not bound to give it weight on that account, but are at liberty to j udge it like other evidence, by all the circumstances of the case . . .

. Id

. (emphasis added). It should be noted in passing th at Espiti a testif ied in his own defense and repeated m uch of the information that was admitted throu gh his confession. Espitia , 199 Tenn. at 703 , 288 S.W.2d at 735. The supreme court held it was erro r to charge the jury that the damaging portions of the confession were presumptively true while the prose cutor tried “to dis count anything el se that was said in the statement.” Id

.

In view of the foregoing , I would have found the e videnc e of the predicate felony insufficient to support a conviction of felony murder. Such a result acquitsthe defendant of first-degree murder and mandates a new trial on seconddegree murder and lesser offenses.

Had the majority agree d with me rega rdi ng the insufficiency of the eviden ce to con vict the defendant of felony murder,the issue of whether the defendant’s pretrial statement should hav e been redacted and/or whether the jury should have been instructed to di sregard the statements made by the interrogating officers would have been effectivel y moot. For p urposes of felony murder, the central and controverted issue was the victim’s consent to the defendant’s sexual advances. The object of redacting the confess ion or in giving curative instructi ons essentially would have been to purge the confession of the off icer’s innuendo about6

consent. In a retrial for second -degree murd er, when there would have been no issue of conse nt to a pre dicate cr ime of ra pe, any ne ed for re daction or curative instructions would be substantially abated.

Of co u rse, the majority’s d ecision remands the case for r etrial on felony murder, and in that context,t he trial cour t may well be presente d with the redactio n-curati ve instruction is sues on r etrial. In my view, the transcript of the defendant’s statement doesnot warrant redaction

. While the officers’ interviewing techniquesleft much to be desire d, th e jury’s duty is to sort out the context of the recorded conversation and judge the weight of what it hears. See State v. Beasley , 699 S.W.2d 565, 569 (Tenn. Crim. App. 1985) ; Sta te v. Harris , 637 S.W.2d 896, 898 (Tenn. Crim

. App. 1982); State v. Lee , 618 S.W.2d 320, 322-323 (Tenn. Crim. App. 1981); State v. Smith , 612 S.W.2d 493, 498 (Tenn. Crim. App. 1980). The language of oursupreme court in State v. Jones , 598 S.W.2d 209, 223 (Tenn. 1980), cited by the majority, does not alter the application of this rule in the cont ext of the present case. First, in speaking to the redaction, Jones said, “any statement made by a nontestifyin g p a rty to the conversation which tends to be prej udicial to the defendant must be redact ed.” Jones , 598 S.W.2d at 223. In some of the statements presented against Jones, the covert agent, w hose conversation was heard on the ta pe, did n ot testif y. Howeve r, in the present case, both o f the interrogating

officers testified at t rial. Second, the entreaty in Jones that “the jury should be instructed that only the statements, admissions and decl arations of the declarant may be considered in th e question of gu ilt or innocence,” id

. (emphasis added), w as presented, in context, a s dicta. Moreover, i n Jones , the extra-judicialconversations were held, via a covert agency oper ation, as a part of the government’s inves tigation of Jones’s alleged on-g oing criminal activ ity. Jones had no reason to believe he would be accountable for any unreq uited innuendo. On the other hand, in the present case, the defendant’s conf ession about his past
con duct was the object of the record ing. The defendant knew he w as being recorded and that evidence was being gathered to use in convicting

him. He had1 The majority’s finding of ev idence sufficiency depends upon a mal ignant interpretation of the statement w hich redaction is desig ned to remedy. On the other hand, a finding of insufficiency w ould be predicated upon a finding that even an unredacted confession contained no bas is for rejecting the defendant’ s claim of the victim’s co nsent to sexual act ivity. 7 an incentive to clarif y, amend, or reject any interpretations of the facts w hich he perceived were made unfairly by the officers. In context, the use of the def endant’s confession, as obtained thro ugh in terrogation, was admi ssible evidence that required no redaction nor any curative instr

uction. 1

Moreover, in my

view, a requirement that the trial court should redact the confession in this situation improv idently involv

es the trial court in a di fficult, perhaps fact-altering exercise. Unlike the Bruton redaction process, see Bruton v. United States , 391 U.S. 123, 88 S. Ct. 1620 (19 68), where the cou rt is ge n erally concerned with redacting re ferences to the accused from a co-de fe ndant’s statement, a redaction in the presentcase apparently requi res the court to restate questionsposed by the interrogat ors. In s ome situations, such as when a single
answer is given to a compound or compl ex question, redaction of the question may change the meaning or emphasis of the int ended answer. In an interr ogation, the contextual meaning of an answer is often found in not onl y the preceding question, but also in a series of questi ons and answers. Redacti on of such a statement
seemsa daunting task. I find no erro r in the trial court dec lining to redact the statement.

If this case were remanded due to in sufficiency of evidence of felony murder, it would be pointless, and perhaps disingenuous, for u s to render opinions about the harm lessnes s of p erceiv ed errors even though harmless error analysis would ordinarily be appropriate. Upon retrial for second-degree murder, we would have had no way

of knowing whether the proof would be the same as that used in the first trial. The harmlessness of er ror is a derivative concept emanating from the effect of the error in the context of all of the proof admitted in a trial. Tenn. R. App. P. 36(b) (harmless error analysis to be predicated upon the “whol e record”); State8

v. Neal , 810 S.W.2d 131, 13 8 (Tenn. 1991).

However , assuming sufficiency of the felony murder evidence, as is
now the law of the case, I concur in the court’s treatment of the r em aining issue s on appeal, including the finding of cumulativ

e reversi ble error,despite my departure from the majority on the redaction issue.

For the foregoing reasons, I concur in the remand for new trial but respectfully dissentfrom the decision to have the defendant retried for

first-degree murder.

__________________________ CURWOOD WITT, JUDGE