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State v. Scarbrough7/11/2001
The defendant, David Scarbrough, was convicted of two counts of felony murder, two counts of theft, and aggravated burglary. The trial court imposed sentences of life imprisonment with the possibility of parole for each of the murders, a sentence of six years for the aggravated burglary and sentences of 11 months, 29 days for each of the thefts. All sentences are to be served consecutively. In this appeal of right, the defendant presents the following issues for review: (1) Whether the evidence was sufficient to support the convictions; (2) whether the defendant's statement to police was made knowingly and voluntarily; (3) whether the trial court erred by denying the defendant's challenge for cause of a juror; (4) whether the trial court erred by denying defendant's motion for continuance; (5) whether the trial court erred by refusing a jury instruction on facilitation of felony murder; (6) whether the trial court erred by admitting photographs of the crime scene; (7) whether the trial court erred by refusing to permit a private investigator to testify; (8) whether the trial court properly refused to allow the testimony of a psychologist during the guilt phase of trial; (9) whether the sentences were excessive; and (10) whether the trial court erred by denying the defendant's motion for a writ of error coram nobis based on newly discovered evidence. Because the trial court erred by failing to instruct on the lesser included offense of facilitation of felony murder and because such error was not harmless beyond a reasonable doubt, the felony murder convictions are reversed and the causes are remanded for a new trial. The remaining convictions are affirmed.
Tenn. R. App. P. 3; Judgments of the Trial Court Affirmed in Part and Reversed in Part.
Gary R. Wade, P.J., delivered the opinion of the court, in which Joseph M. Tipton and Norma McGee Ogle, JJ., joined.
OPINION
Shortly before 5:00 p.m. on February 4, 1995, Lieutenant Darrell Johnson of the Knox County Sheriff's Department was directed to investigate a double homicide at the residence of the victims, Lester and Carol Dotts, on Russfield Drive in Knox County. When he arrived at the scene, Lt. Johnson observed multiple gunshot wounds to each of the bodies. The screen door to the porch had been cut, a window pane had been broken, and the interior of the house had been ransacked. There were six .9 mm rounds recovered in the bedroom where Mr. Dotts's body was discovered. Lt. Johnson testified that one .9 mm round was recovered from Mr. Dotts's body, two from the bed rail and mattress, and two from underneath the carpet. There was a .9 mm round at the foot of the bed and a .38 caliber bullet on the floor. In the den area where Mrs. Dotts's body was found, police recovered a .9 mm round from the hallway, one from the bathroom scales, and one from the hall closet. The last .9 mm round, which traveled the length of the house, was found in the exercise/sewing room. Police also recovered nine shell casings from a .9 mm semiautomatic weapon. Lt. Johnson testified that six shell casings were found near Mrs. Dotts's body and three were found near Mr. Dotts's body. During the course of the investigation, Johnson came into contact with 13-year-old Harley Watts. Watts, who had been arrested for stealing cars, gave a statement to police which implicated the defendant and Thomas Gagne in the murders.
At trial, Watts, who by then had pled guilty in juvenile court to burglary and two counts of murder, testified that he was "riding around" Knoxville late at night with Gagne and the defendant, looking to break into parked automobiles. He recalled that Gagne drove to a "rich" neighborhood, stated his intention to burglarize
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