John Michael Bane

Case overview

John Michael Bane was convicted of felony murder in the perpetration of a robbery for an offense committed in November of 1988. The jury originally imposed a sentence of death after it found evidence of two aggravating circumstances—(1) the murder was “especially heinous, atrocious, or cruel in that it involved torture or depravity of mind” and (2) the murder was committed during the perpetration of a felony—outweighed evidence of any mitigating factors, under Tenn. Code Ann. § 39-2-203(i)(5), (7) (1982).

On appeal, the Court affirmed the conviction but remanded for a new sentencing hearing because the jury’s application of the felony murder aggravating circumstance duplicated the offense of felony murder in violation of article I, section 16 of the Tennessee Constitution. After a new sentencing hearing, the jury again imposed a sentence of death after it found evidence of two aggravating circumstances: (1) the murder was “especially atrocious or cruel in that it involved torture and depravity of mind” and (2) the murder was “committed for the purpose of avoiding, interfering with, or preventing a lawful arrest or prosecution of the defendant or another”—outweighed evidence of any mitigating factors, under Tenn. Code Ann. § 39-2-203(i)(5), (6) (1982).

After the Court of Criminal Appeals affirmed the death sentence, the case was docketed in the Tennessee Supreme Court, which automatically reviewed the affirmance of the conviction and the sentence of death under Tenn. Code Ann. § 39-13-206(a) (1997).

Timeline

• November 17, 1988 — The defendant, accompanied by Donna Lovett and her sons Brian and Thomas Lovett, drove past Royce D. Frazier’s home multiple times and Donna Lovett entered the house alone.
• November 19, 1988 — Police found the body of Royce D. Frazier (age 60) in his home near Memphis, Tennessee.
• Two days after November 17, 1988 — The defendant was arrested after Donna Lovett reported the events of November 17, 1988 to the police.
• March 22, 1990 — The defendant was sentenced to death.
• July 3, 2001 — The Tennessee Supreme Court delivered the opinion in John Michael Bane v. State of Tennessee (No. W1997-02158-SC-DDT-DD).
• November 6, 2001 — The Supreme Court stated the death sentence would be carried out on the 6th day of November, 2001, unless otherwise ordered by the Court or other proper authority.

The offence

On November 19, 1988, police found the body of the victim, Royce D. Frazier (age 60), lying in a bathtub full of water in his home near Memphis, Tennessee.

The victim had been:

• gagged,
• had a plastic bag placed over his head,
• had an electrical cord tied around his neck, and
• had a plunger placed over his face apparently to keep his head submerged.

The victim’s house had been ransacked, and several lamps and ashtrays had been overturned and numerous items scattered in disarray.

The defendant was convicted of felony murder in the perpetration of a robbery based on an offense committed in November of 1988.

Investigation and evidence at trial

Brian Lovett testified that his mother, Donna Lovett, and the defendant, John Michael Bane, discussed a plan to rob the victim several days before the victim was killed. The plan was for Donna Lovett to visit Frazier and render him unconscious by putting Visine eye drops in his beer. Bane would then enter Frazier’s home and carry out the robbery with Donna Lovett.

Brian Lovett testified that Bane said the victim would have to be killed because “knew [Lovett] and would tell on her.” Brian Lovett testified that he and Bane discussed choking or stabbing the victim.

On the day after the robbery plan discussion, Donna Lovett and Bane experimented by giving Brian Lovett a beer containing eye drops to see whether it would render him unconscious. Brian Lovett testified that it caused him to fall asleep within five minutes of drinking the beer. Thomas Lovett also testified that he recalled Brian drinking a beer containing eye drops.

Brian Lovett testified that in the late afternoon of November 17, 1988, Bane, accompanied by Donna Lovett and her two sons, drove past Frazier’s home several times. Bane explained that he was going to borrow money from the occupant. When they saw Frazier’s car at the home, Donna Lovett got out of the car and went into the house alone. Bane then left and drove Brian and Thomas to Brian’s girlfriend’s home. Later, Bane picked up the boys and took them to the Lovetts’ trailer in Ripley, Tennessee.

Thereafter, Bane and Brian Lovett returned to Frazier’s home. When Donna Lovett signaled by “flickering” the porch light on two occasions, Bane entered Frazier’s home, leaving Brian Lovett in the car. Brian Lovett testified that approximately thirty minutes later Bane and Donna Lovett ran to the car carrying several items of Frazier’s property.

Brian Lovett testified that Bane had blood on his gloves and Donna Lovett was crying and upset. While driving from the scene, Bane told Brian that he had beaten the victim several times because the victim kept getting up and that he “had ‘cut [the victim’s] nuts off.’” Bane also said that he had taken $726 and that he “had done such a good job he deserved a beer.”

Forensic and medical testimony

Dr. Jerry Francisco, Shelby Counter Medical Examiner, testified that the cause of the victim’s death was ligature strangulation with asphyxia. The cloth gag, plastic bag, and electrical cord had cut off the supply of blood to the victim’s brain and the supply of oxygen to his lungs. The victim’s tongue had been pushed into the back of his mouth from the cloth gag.

Dr. Francisco testified that the victim could have been rendered unconscious in seconds or minutes depending on the severity and force of the ligature strangulation, but that the victim’s death required several minutes.

Dr. Francisco testified that the victim had extensive bruising around his eyes, head, neck, arms, and hip, and had a tear and scrape below his left eye and abrasions around his neck. Dr. Francisco testified there was no evidence of injury to the victim’s groin area or scrotum.

Dr. Francisco testified that fluid found in the victim’s lungs was consistent with a finding that the victim had been alive when placed in the water.

Arrest

The defendant was arrested two days later after Donna Lovett reported the events of November 17, 1988 to the police.

Trial

Accomplice-related testimony and other witness testimony

Brian Lovett testified about planning, execution, and what Bane told him during the escape.

Brian Lovett testified that his sister committed suicide several months before the killing of the victim, and he testified that he had attempted suicide on two occasions before November 17, 1988. He admitted he had been treated at Charter Lakeside and Memphis Mental Health Institute and had a history of using cocaine, speed, marijuana, and alcohol. Lovett admitted he had made conflicting statements about the murder. In one statement, he had told authorities that he looked in Frazier’s window and saw Bane holding a knife to the victim’s groin while Donna Lovett placed a bag over the victim’s head. Brian Lovett testified that he did not recall why he had made the statement and conceded that he had never left Bane’s car. Lovett testified that he had been arrested for theft after Bane was convicted and had been placed in the same prison cell as the defendant. He conceded that he signed a statement that he had lied at trial because he feared the defendant.

The defense presented witnesses on behalf of the defendant.

Defense witnesses and mitigation

Wilma McNeill testified that the defendant was “very close” to his mother, who died of cancer in April of 1988. McNeill testified that Bane had grown up working on a farm. She stated that she loved Bane and asked the jury to spare his life.

Maybelle Cunningham testified that both of Bane’s parents were deceased and that Bane had two sons, ages 14 and 10.

Marvin Ramey testified that Bane had worked on his farm when he was young and was a good worker. Ramey testified that his wife looked after Bane and that he had never caused any trouble.

Teresa Goforth, a co-worker of Bane and Donna Lovett at J.P.W. Enterprises, testified that Bane was a good, hard worker. She testified that Bane and Donna Lovett were dating and that Lovett was extremely jealous. Goforth testified that about one week before the murder Donna Lovett told her, “if she couldn't have [the defendant], no one would and that she would see him locked away so far he would never get out.”

Alicia Shadell Gray, Bane’s cousin, testified that Donna Lovett was very possessive and jealous. Gray testified that three weeks before the murder she heard Lovett say, “If I can't have Michael, no woman would have Michael, and I'll see us both behind bars.” Gray testified that Donna Lovett attempted suicide later that day at Gray’s home by overdosing on pills, and Bane took her to the emergency room.

Gray testified that after Bane was convicted, Brian Lovett told her his mother had agreed to plead guilty in exchange for a sentence of 35 years and that he did not want to see “an innocent man” go to prison. Gray testified that Brian Lovett planned to write an affidavit stating that Bane had no part in the offense.

Diane Bane testified that she met Bane while he was in prison and fell in love with him after talking regularly to him on the telephone. She married Bane in March of 1995 and traveled 200 miles round trip every Saturday to visit him. She testified that her former husband died in August of 1994, and that she had three sons from that marriage.

Jury findings

After deliberating on the evidence, the jury found evidence supporting two aggravating circumstances:

1. that the murder was “especially atrocious or cruel in that it involved torture and depravity of mind,” and
2. that the murder was “committed for the purpose of avoiding, interfering with or preventing a lawful arrest or prosecution of the defendant or another.”

After further finding that the aggravating circumstances outweighed the evidence of mitigating circumstances, the jury imposed a sentence of death.

Sentencing

At the original sentencing, the jury imposed a death sentence after finding evidence of two aggravating circumstances under Tenn. Code Ann. § 39-2-203(i)(5), (7) (1982).

On appeal, the Supreme Court remanded for a new sentencing hearing because the jury’s application of the felony murder aggravating circumstance duplicated the offense of felony murder in violation of article I, section 16 of the Tennessee Constitution.

At the resentencing, the jury again imposed a sentence of death after finding:

• “especially atrocious or cruel in that it involved torture and depravity of mind,” and
• “committed for the purpose of avoiding, interfering with, or preventing a lawful arrest or prosecution of the defendant or another,” after determining those aggravating circumstances outweighed mitigating factors under Tenn. Code Ann. § 39-2-203(i)(5), (6) (1982).

Appeals and legal issues

Issues addressed by the Tennessee Supreme Court

After reviewing the record, briefs, and applicable authority, the Tennessee Supreme Court designated seven issues for oral argument. The Court held:

1. the trial court did not err in refusing to instruct the jury that Brian Lovett was an accomplice whose testimony had to be corroborated in order to find an aggravating circumstance;
2. the trial court did not err in refusing to admit Bryan Lovett’s medical and psychological records;
3. the trial court did not err in refusing to allow the defendant’s expert witness to remain in the courtroom;
4. the trial court did not err in allowing the prosecution to argue a “non-statutory” aggravating circumstance;
5. the evidence was sufficient to support the jury’s application of the aggravating circumstance set forth in Tenn. Code Ann. § 39-2-203(i)(5) (1982);
6. Code Ann. § 39-2-203(i)(6) (1982); and
7. the sentence of death was not arbitrary or disproportionate as applied in this case to the defendant.

The Tennessee Supreme Court affirmed the judgment of the Court of Criminal Appeals.

Accomplice corroboration discussion

The defendant argued the trial court erred by failing to instruct the jury that Brian Lovett was an accomplice and that an aggravating circumstance could not be predicated upon uncorroborated accomplice testimony.

The Tennessee Supreme Court concluded there was no basis to apply the corroboration requirement to accomplice testimony in the sentencing phase of a capital trial, citing the statutory framework for sentencing proceedings and discussing the purpose of the corroboration requirement during the guilt phase.

The Court also agreed with the Court of Criminal Appeals’ conclusion that the trial court did not err in failing to charge accomplice corroboration as part of any “non-statutory mitigating factors” requested by the defendant.

Medical and psychological records

The defendant argued the trial court erred by refusing to admit medical and psychological records regarding Brian Lovett for impeachment purposes and to raise “residual doubt” about the defendant’s role. The Supreme Court held the trial court did not abuse its discretion in ruling that the records were cumulative to the testimony and therefore inadmissible.

The Supreme Court recounted that the trial court conducted jury-out hearings, allowed questioning about suicide attempts, mental health treatment, and drug abuse, and even signed an order allowing the defense to obtain certain medical and psychological records.

Sequestration and expert witness

The defendant argued the trial court erred by refusing to exempt his expert witness from sequestration. The Supreme Court concluded that the trial court erred by refusing to allow the defendant’s expert witness to remain in the courtroom without considering the purpose and application of the witness-sequestration rule.

The Supreme Court determined the error did not affect the outcome to the defendant’s prejudice, noting the defendant and his expert had the benefit of the medical examiner’s testimony from the initial trial, the autopsy report, and findings regarding injury and death, and noting the absence of an offer of proof about how the evidence or cross-examination would have differed.

Non-statutory aggravating circumstances and closing argument

The defendant argued the prosecution introduced and argued a non-statutory aggravating circumstance by referring to the defendant’s relationships with women and “promiscuity.” The Supreme Court discussed that the defense introduced mitigating evidence of family background, marriage, and two sons, and that the prosecution responded by detailing the defendant’s relationships with several women, without indication of using that evidence as a non-statutory aggravating circumstance.

The Supreme Court also addressed the defendant’s contention that the prosecution called him “sweetheart” several times during closing argument and argued the defendant was seeing another woman despite having “moved in” with Donna Lovett. The Court concluded the prosecutor’s closing arguments were based on the evidence and were not designed to assert a non-statutory aggravating circumstance, and did not affect the verdict to the defendant’s prejudice.

The Supreme Court quoted the prosecutor’s argument:

“Brian Lovett, whose sister committed suicide, who was not even in school, could not even live with his father, ended up living with his mother, Donna Lovett, and her ‘sweetheart,’ the defendant․ Brian Lovett, because of the problems in his life, like a lot of young kids got involved with drugs.
After his sister's suicide, [he] checked himself into a hospital for help. He ․ attempted to commit suicide by taking Tylenol, which may be a suicide attempt, it may just be a cry for help. But he did it twice. And he ended up trying to get help or maybe getting help because he did go to two mental institutions․ He returned safe to the bosom of his mother and her ‘sweetheart’ over here.
And they sit around and talk about robbing somebody. His mother is talking with her ‘sweetheart’ who has moved in with her about robbing some old man. So he joins in on the conversation. They practice their knockout drops on him. His mother and his mother's ‘sweetheart’ practice knockout drops on him? Yeah, he's got a real good start, hasn't he?”

Sufficiency of “especially heinous, atrocious, or cruel” aggravator

The defendant argued that the evidence was insufficient to support the “heinous, atrocious, or cruel” aggravating circumstance under Tenn. Code Ann. § 39-2-203(i)(5) (1982), specifically arguing there was no evidence the victim was alive when placed in the bathtub full of water.

The Supreme Court held the evidence supported the jury’s finding, discussing that the defendant planned the robbery, repeatedly beat the 60-year-old victim causing bruises and injuries while the victim struggled, gagging with cloth and placing a plastic bag tied with an electrical cord, strangulation cutting off blood and air supply, and that the medical examiner testified the victim was still alive when placed in the bathtub. The Supreme Court concluded the evidence supported the aggravating circumstance of torture and depravity of mind.

“Avoiding, interfering with, or preventing a lawful arrest or prosecution” aggravator

The defendant asserted the aggravating circumstance under Tenn. Code Ann. § 39-2-203(i)(6) (1982) was improperly applied and argued the aggravating circumstance applied in every case where the victim knew the defendant, that the prosecution should not have been allowed to use it since it was not relied upon in the original sentencing, and that the evidence was insufficient.

The Supreme Court held the aggravating circumstance was constitutional and properly applied. It concluded that obtaining a felony murder conviction did not require evidence that the killing was for the purpose of avoiding, interfering with, or preventing a lawful arrest or prosecution, and that the additional evidence was necessary for sentencing under the aggravating circumstance.

The Supreme Court concluded the prosecution was not barred from relying on the aggravating circumstance on resentencing under its “clean slate” rule, and further addressed the defendant’s reliance on State v. Phipps as misplaced due to differences between a presumption-of-vindictiveness scenario and the present case where notice of seeking the death penalty occurred at the initial trial.

The Supreme Court found the evidence sufficient for the jury’s application, stating that the defendant planned the robbery with Donna Lovett, the defendant said the victim would have to be killed because he knew Donna Lovett and could report the offense, and that the defendant and Donna Lovett robbed the victim of over $700 and various personal property. The Supreme Court concluded a rational trier of fact could find the defendant killed the victim to avoid, interfere with, or prevent a lawful arrest or prosecution of himself and Donna Lovett.

Comparative proportionality review

The Supreme Court performed a comparative proportionality review under Tenn. Code Ann. § 39-13-206(c)(1) (1997). It described the analysis as identifying aberrant, arbitrary, or capricious sentencing by determining whether the death penalty in a given case was disproportionate to punishment imposed on others convicted of the same crime.

The Supreme Court discussed factors regarding the offense and the defendant and described the evidence in this case, including planning, waiting for the victim to arrive home, signaling with the porch light, beating the victim, gagging, placing a plastic bag over the victim’s head, tying the bag with an electrical cord, strangling, placing the victim in a bathtub of water with a plunger used to hold his head under the water, evidence of fluid in the lungs consistent with being alive when placed in the water, and cause of death as ligature strangulation with asphyxia.

The Supreme Court discussed mitigation witnesses and stated there was no evidence the defendant had any medical, emotional, or mental problems, that he played a major role, and that he did not cooperate with authorities or express remorse. The Supreme Court stated it upheld the death penalty as not arbitrary or disproportionate as applied in this case.

Outcome

The Tennessee Supreme Court affirmed the judgment of the Court of Criminal Appeals, concluding:

• the evidence supported the jury’s findings of statutory aggravating circumstances,
• the evidence supported the jury’s finding that the aggravating circumstances outweighed mitigating circumstances, and
• the sentence was not arbitrary, excessive, or disproportionate.

The Court stated the death sentence was affirmed and that it would be carried out on the 6th day of November, 2001, unless otherwise ordered by this Court or other proper authority, and that costs of the appeal were taxed to the State because the defendant was indigent.

Other details

Named parties and counsel

The Supreme Court opinion listed counsel for the appellant and appellee:

• For the appellant, John Michael Bane: Joseph S. Ozment (Memphis, TN) and Charles S. Kelly (Dyersburg, TN).
• For the appellee, State of Tennessee: Michael E. Moore (Solicitor General), Amy L. Tarkington (Deputy Attorney General), William L. Gibbons (District Attorney General), and Thomas D. Henderson and Kevin R. Rardin (Assistant District Attorneys General).

Judges in the Tennessee Supreme Court opinion

The opinion was delivered by E. Riley Anderson, C.J., and joined by Frank F. Drowota, III, Janice M. Holder, and William M. Barker, JJ.

Concurring and dissenting opinions

The record included a concurrence and dissent discussion by Adolpho A. Birch, Jr., and it stated:

• “I concur in the majority decision to affirm the conviction in this case.”
• “I continue to believe, however, that the comparative proportionality review protocol embraced by the majority is inadequate and fails to satisfy this Court's duty, mandated by statute…”
• “Accordingly, I respectfully dissent.”

The dissent quoted a concern that reform was needed in the comparative proportionality review protocol and described perceived failings of the protocol, including the scope of the test, subjectivity, and the small pool of cases.

Appendix references (Court of Criminal Appeals excerpts)

The included appendix described that the murder occurred before the 1989 amendments to the death penalty statute and that the trial court instructed the jury under the law in existence at the time of the crime. It addressed an argument about jury instructions on aggravating circumstances and nonstatutory mitigating circumstances, stating:

• the supreme court held that trial courts did not err by instructing juries under the statute as it existed at the time of the offense,
• and that the trial court in this case instructed under the law as it existed.

The appendix also included a section on removal of a prospective juror for cause. It reproduced an exchange during voir dire involving prospective juror Yual Carpenter, including:

• prospective juror Carpenter’s statements that “no matter what the case he could not personally agree to sentence someone to death,” and that his signature “shouldn't have that pull,” and
• the trial court’s findings that the juror irrevocably was committed prior to trial that he would not follow the law of the state of Tennessee.

The appendix also included references to standards from Wainwright v. Witt and State v. Alley.

Execution date statement in the opinion

The Supreme Court stated it would not set an execution date because the case automatically was reviewed by the Tennessee Supreme Court, while also stating the sentence of death “shall be carried out on the 6th day of November, 2001, unless otherwise ordered.”