The conviction and death sentence a Memphis jury handed down for the 1997 murder of an off-duty Memphis police officer was affirmed Tuesday by a majority of the Tennessee Supreme Court in an opinion written by Justice E. Riley Anderson of Knoxville.
Timothy McKinney was convicted of premeditated first degree murder for the shooting death of Donald Williams, who was working at the time as a nightclub security guard. The court also upheld McKinney’s attempted second degree murder conviction for firing his gun at another off-duty police officer, Frank Lee.
The court considered six issues raised by McKinney in his direct appeal and also conducted a proportionality review, as required by state law. The review is designed to determine whether the death sentence was disproportionate to the punishment imposed on others convicted of the same crime. In conducting the review to identify aberrant, arbitrary or capricious sentencing, the court compared McKinney’s case with others involving similar defendants and similar crimes.
“We have repeatedly held that the pool of cases considered by this court in its proportionality review includes those first degree murder cases in which the state seeks the death penalty, a capital sentencing hearing is held and the sentencing jury determines whether the sentence should be life imprisonment, life imprisonment without the possibility of parole, or death,” Anderson wrote.
In a separate opinion, Justice Adolpho A. Birch, Jr., said he concurred with the majority decision to affirm the convictions, but would reverse the death sentence and send the case back to the trial court for a new sentencing hearing. Birch said he disagrees with the protocol used for proportionality review in death penalty cases and had “identified three shortcomings” in the process.
“The ?test’ we employ... is so broad that nearly any sentence could be found proportionate; our review procedures are too subjective; and the ?pool’ of cases which are reviewed for proportionality is too small,” he wrote in a 2000 Supreme Court Opinion, State v. Chalmers, and in the McKinney opinion.
“Although the dissent argues that the pool should include all first degree murder cases, we recently explained that the pool does not include first degree murder cases in which a plea bargain is reached with respect to the punishment or in which the state does not seek the death penalty,” Justice Anderson wrote for the majority.
He said proportionality review by the court considers numerous factors, including the means and manner of death; motivation; place of death; the victim’s age, physical and psychological condition; whether there was premeditation, provocation or justification; the defendant’s prior criminal record, age, race and gender; the defendant’s mental, emotional and physical condition; cooperation with authorities; and whether there is remorse and potential for rehabilitation.
McKinney, 23 at the time, was attending a party at the club where the victim worked part- time as a guard when he “became extremely upset because he could not find his car in the parking lot,” Anderson wrote. Williams attempted to calm him down and reassure him that his car was in the lot. McKinney left the scene, but repeatedly returned, including after he was told to leave by an on-duty police officer who had been called to the scene by Williams.
“Despite these warnings and ample time for cooling off," the defendant returned a third time and shot the unarmed victim in the back of the neck from close range,” Anderson wrote. “The defendant’s threats, his repeated departures and reappearances at the scene and the passage of time overwhelmingly supported the jury’s finding that the killing was intentional and premeditated. Moreover, neither the defendant’s anger regarding the whereabouts of his car nor his anger toward the victim provided any provocation or justification for returning to the scene and shooting the unarmed victim.”
In affirming a Court of Criminal Appeals decision upholding McKinney’s convictions and sentence, the majority found that the evidence was sufficient to support the jury’s findings that the aggravating circumstance - McKinney’s prior conviction for a violent felony - had been established beyond a reasonable doubt and that it outweighed evidence of mitigating factors.
“Accordingly, we affirm the judgment of the Court of Criminal Appeals and set the date of execution for the 26th day of July, 2002,” Anderson wrote.
McKinney has state and federal post-conviction appeals remaining.