David Keen

Case record

Parties and case identifiers

• David M. Keen was the appellant in State v. Keen in the Tennessee Supreme Court.
• The case involved automatic appeal pursuant to Tennessee Code Annotated section 39-13-206(a)(1).
• A later sentencing appeal in the Tennessee Court of Criminal Appeals was docketed as No. 02C01-9709-CR-00365 (Shelby County), and it concerned the appellant’s sentence of death after a guilty plea to first degree murder in the perpetration of rape.

Victim

• Ashley Nicole Reed, also referred to as Ashley Nicole “Nikki” Reed, was an 8-year-old victim.
• She was murdered in 1990.
• She was described as a Caucasian female who weighed 68 pounds.

Timeline

• 1990 — David M. Keen raped and strangled Ashley Nicole “Nikki” Reed.
• February 12, 1991 — Keen entered a guilty plea to first degree murder in the perpetration of rape.
• 1994 — The Tennessee Supreme Court reversed the death sentence on automatic appeal due to improper jury instructions and remanded for resentencing (citing State v. Keen, 926 S.W.2d 727 (Tenn. 1994)).
• August 15, 1997 — A jury again sentenced Keen to death for the murder of Nikki Reed.
• October 05, 2000 — The Tennessee Supreme Court’s opinion addressed the issues on automatic appeal from the second sentencing hearing.
• January session, 1999 — The Tennessee Court of Criminal Appeals opinion (appendix) was filed.
• August 16, 1991 — Keen was sentenced to death.

Background

At the time of the tragic events giving rise to the case, David M. Keen was living with his then-fiancée, Deborah Wilson, in a three-bedroom mobile home in Millington, Tennessee. Also living with Keen and Wilson were Deborah’s four children, including Ashley Nicole Reed, her mother, and her father.

Keen and Deborah met Deborah’s mother and father at the VFW Club in West Memphis, Arkansas to eat dinner and play bingo.

The offence

Keen pleaded guilty to first degree murder in perpetration of the rape of Ashley Nicole “Nikki” Reed.

The Tennessee Supreme Court described the appellant’s conduct and the circumstances that the sentencing jury later relied upon:

• Keen offered to borrow Jessie Wilson’s car to check on Nikki.
• Keen returned after about two hours and told everyone that Nikki was spending the night with a friend, Shantell.
• Keen later confessed that he “threw her in the river.”
• Keen admitted to undressing Ashley, holding his hand over her throat, trying to penetrate her, and after she turned blue and was not breathing, tying a shoe lace around her neck, wrapping her in a blanket, tying the blanket together, and dumping her off into the river off the old Auction Street boat Dock.
• Keen described that Nikki struggled “for a little while” and did not scream or holler because Keen was “practically on top of her with [his] hand on her throat.”

Investigation and police discovery

After Nikki disappeared, Deborah and Keen searched the mobile home park. Jessie Wilson told Deborah to report Nikki’s disappearance to the police.

Deborah and Keen left on foot for the police station to file a missing persons report, while Jessie Wilson and his wife again searched the trailer park. When Jessie Wilson’s wife opened the door to get into her car, she saw a pair of panties lying on the passenger-side floorboard. Jessie Wilson told his wife not to move the panties. They drove to the police station and notified an officer about the discovery.

When Jessie Wilson later approached Keen about the panties in the car, Keen was evasive and did not answer questions.

The next day, a detective with the Millington Police Department asked Keen and Deborah to come to the police station for questioning. Although Keen initially denied any involvement, after further questioning he admitted he “threw her in the river.” He then took the detective and other officers to Memphis along the north end of Mud Island in the Wolf River, where police found Nikki’s naked body wrapped in a green blanket. Officers found a blue denim skirt and a pink shirt wrapped with the body, and the officers found no panties.

Keen was taken to the Memphis Police Department where he again confessed to the murder of Nikki Reed.

Arrest and confessions

Keen confessed in a statement to the Millington police:

• He stated that on the return trip to West Memphis, he and Nikki argued about something concerning her seat belt.
• He stated that during this argument, he became very angry, grabbed Nikki’s throat, and covered her mouth until she turned blue.

In the initial statement Keen admitted that he:

• wrapped Nikki’s body in the green blanket and threw her into the river,
• but he could not remember whether he struck her, took her clothes off, or raped her.

In further questioning in Memphis, Keen admitted in detail:

I pulled off to the side of the road and undressed Ashley and undid my pants, and I held my hand over her throat and tried to penetrate [her]. I felt crap and I stopped, and Ashley had turned blue in the face. She wasn't breathing. I tied a shoe lace around her neck and she still was not breathing. I untied the shoe lace, wrapped her up in a blanket, tied the blanket together and dumped her off into the river off of the old Auction Street boat Dock. Then I went back over to West Memphis and told Ashley's mother that Ashley was spending the night at her friend, Shantell's, house.

Keen also stated that Nikki struggled “for a little while,” and that she did not scream or holler because he “was practically on top of her with [his] hand on her throat.”

Forensic evidence at sentencing

At the sentencing hearing, the State called Dr. Jerry Francisco, the Shelby County Medical Examiner.

Dr. Francisco testified:

• Nikki suffered multiple scrapes and bruises to her face and neck.
• A deep ligature mark surrounded the front of her neck caused by a tightly-pulled fabric cord, such as a shoelace.
• The medical examiner found bruises and scrapes around Nikki’s genital area and a tear on the posterior wall of the vagina.
• Sperm heads were found inside the vagina.
• Nikki was alive while she was raped and suffered the various injuries; Dr. Francisco stated he could not say with certainty whether she was conscious during the entire episode.
• Fluid was found in Nikki’s lungs.
• Dr. Francisco stated that fluid in the lungs can be associated with either drowning or asphyxia.
• Dr. Francisco testified that the left side of the heart was diluted, which “is the type of change you see in a person who is alive and submerged.”
• The medical examiner stated that ligature strangulation was the actual cause of death and also stated: “[i]n my opinion, she was alive at the time she was placed in the water.”

Trial and sentencing

Guilty plea

• Keen pleaded guilty to first degree murder in perpetration of the rape of Nikki Reed.

Sentencing hearings and automatic appeals

• Keen was sentenced to death by a Shelby County jury.
• The Tennessee Supreme Court reversed the sentence on automatic appeal and remanded for resentencing due to improper jury instructions regarding that aggravating circumstances must be proven to outweigh mitigating circumstances “beyond a reasonable doubt” (citing State v. Keen, 926 S.W.2d 727 (Tenn. 1994)).
• After remand, a jury again sentenced Keen to death on August 15, 1997.
• The Court of Criminal Appeals affirmed the death sentence after this second hearing.

Aggravating circumstances found by the jury

The State argued the facts supported two statutory aggravating circumstances:

1. The murder was committed against a person less than twelve years of age and the defendant was eighteen years of age or older. (Tenn. Code Ann. § 39-13-204(i)(1))
2. The murder was especially heinous, atrocious, or cruel in that it involved torture or serious physical abuse beyond that necessary to produce death. (Tenn. Code Ann. § 39-13-204(i)(5))

• The jury found that both aggravating circumstances were proven beyond a reasonable doubt.
• The jury then found the aggravating circumstances outweighed any mitigating circumstances beyond a reasonable doubt.
• The jury made no specific findings as to which mitigating circumstances were supported by the proof.

Evidence presented at the second sentencing hearing (substantially similar to the first)

Surrounding conduct and victim treatment

• Keen and Deborah’s family circumstances were described, including that Deborah’s children were spending the night with various friends.
• Jessie Wilson noticed an absence of a green blanket usually kept in his car.
• After Nikki’s disappearance, pants and panties and vehicle evidence were described in the investigation.

Keen’s age and the victim’s age

• The victim Nikki Reed was eight years old at the time of her death.
• The appellant was described as twenty-seven years old at the time of the murder.

Mitigation evidence

In mitigation, the defense called Keen’s adoptive parents, Robert and Evelyn Brieschke, who adopted Keen and his older brother when Keen was four years old.

Robert and Evelyn Brieschke testified:

• Keen was malnourished when first adopted.
• He was very nervous and upset, had difficulty playing and interacting with others, and had difficulty sleeping.
• Keen was diagnosed with Attention Deficit Disorder in fourth grade and placed on Ritalin, which offered some improvement.
• Brieschkes later learned from a psychological report completed before Keen’s adoption that he needed immediate help and counseling, though this was kept from them at the time of adoption.
• In high school, Keen skipped classes, smoked marijuana, and drank alcohol.
• Keen had been arrested for breaking into an automobile agency and stealing a car.
• In his junior year Keen dropped out of high school and joined the United States Navy.

Keen’s brother and two stepsisters testified about Keen’s natural father:

• The natural father was physically and emotionally abusive.
• The father was wanted for theft and child neglect and constantly moved the family to evade arrest.
• During one two-year period the family moved no less than twenty-six times.
• The children were beaten daily, sometimes with electrical cords and pieces of lumber.
• The father slaughtered livestock in front of the children while threatening to do the same to them if they misbehaved.

One sister described her childhood as “an environment of terror.” The sister admitted being the victim of sexual abuse.

The defense also called Dr. John Ciocca, a clinical psychologist, who conducted a psychological evaluation of Keen:

• Dr. Ciocca diagnosed Keen with post-traumatic stress disorder, serious depression, and attention deficit disorder.
• Dr. Ciocca stated that Keen also showed some signs of pedophilia but admitted he found no indications of persistent and constant sexual interest in children, necessary for proper diagnosis.
• Dr. Ciocca testified about test results indicating occasions “where he is not in good contact with reality,” and “the presence of psychotic-like symptoms.”
• Dr. Ciocca testified he reviewed numerous medical and psychological records, including an evaluation conducted at Winnebago State Hospital in Wisconsin.
• Dr. Ciocca testified that the appellant was “born into a family of crisis,” which “had fallen on hard times,” and that “physical abuse and sexual abuse were rather rampant.”
• Dr. Ciocca testified that although Keen was relocated to a foster home, Keen remembered being abused and anally raped by his foster father.
• Dr. Ciocca stated that the absence of nurturing, along with the presence of general hostility or apathy, significantly affected Keen’s normal childhood development.
• Dr. Ciocca stated Keen was “extraordinarily distressed at what he's done,” and that he “takes full responsibility for it.”

Jury instructions and issues on appeal

Requested life without parole instruction

• The Tennessee Supreme Court addressed whether the trial court’s failure to permit the jury to consider life without parole violated the Eighth and Fourteenth Amendments and Tennessee constitutional provisions.
• The Supreme Court held Keen was not entitled to such an instruction because the offence was committed on March 17, 1990, before the effective date of the 1993 act (July 1, 1993).

Instruction on circumstantial evidence

• The Tennessee Supreme Court concluded the trial court committed error in not granting the appellant’s special request for a jury instruction on circumstantial evidence because the torture prong was composed entirely of circumstantial evidence.
• The Supreme Court held the error was harmless and did not warrant reversal.

The instruction actually given by the trial court was:

Any fact required to be proved may be established by direct evidence, by circumstantial evidence, or by both combined. Direct evidence is defined as evidence which proves the existence of the fact in issue without inference or presumption. Direct evidence may consist of testimony of a person who has perceived by the means of his or her senses the existence of a fact sought to be proved or disproved. Circumstantial evidence consists of proof of collateral facts and circumstances which do not directly prove the fact in issue but from which that fact may be logically inferred.

The special instruction Keen requested was:

When evidence of a fact required to be proved is made up entirely of circumstantial evidence, then before you would be justified in finding the fact required to be proved, you must find that all of the essential facts are consistent with the finding of the fact required to be proved, and the facts must exclude every other reasonable theory except that of the fact required to be proved.

Unanimity regarding torture vs. serious physical abuse (i)(5)

The Tennessee Supreme Court addressed whether permitting jurors to find either torture or serious physical abuse beyond that necessary to produce death denied Keen his constitutional right to a unanimous jury finding.

• The Court held Keen was not denied that right and that a special unanimity instruction was not required.

Sufficiency of evidence for (i)(5)

The Tennessee Supreme Court held:

• the evidence supported the “especially heinous, atrocious, or cruel” aggravating circumstance beyond a reasonable doubt under either prong (torture or serious physical abuse beyond that necessary to produce death).

Comparative proportionality review

• The Tennessee Supreme Court conducted comparative proportionality review pursuant to Tennessee Code Annotated section 39-13-206(c)(1).
• The Court compared the case with other death sentence cases involving similar crimes, including:
  • State v. Coe (eight-year-old female victim; lured away, raped, manually strangled, stabbed in the throat).
  • State v. Vann (murder in perpetration of rape of his eight-year-old daughter; ligature strangulation).
  • State v. Irick (felony murder and two counts of aggravated rape of a seven-year-old; cause of death asphyxiation and suffocation).
  • State v. Teel (rape and murder of a fourteen-year-old; neck trauma).
  • Additional cases mentioned included State v. Cauthern, State v. Hodges, State v. Hines, State v. Shepherd, and State v. Smith.
• The Supreme Court held it was unable to say that the appellant’s case, taken as a whole, was plainly lacking in circumstances consistent with those in similar cases where death had previously been justified.
• The Supreme Court held the death sentence was neither disproportionate nor arbitrarily applied.

Outcome

• The Tennessee Supreme Court held that none of the requested issues warranted reversal.
• The Court affirmed the judgment of the Court of Criminal Appeals.
• Costs of the appeal were assessed to the State of Tennessee, and it appeared from the record that Keen was indigent.

Aftermath / Additional opinions and notes

• The opinion stated that a dissent was filed (Birch, J.).
• The appendix included a separate statement from Judge Joe G. Riley and Judge John Everett Williams and indicated a dissenting view by Birch, J. filed in State v. Chalmers, referenced within the opinion.
• The appendix noted that no execution date was set and explained that Tennessee Code Annotated section 39-13-206(a)(1) provides for automatic review by the Tennessee Supreme Court and that if upheld, the supreme court would set the execution date.