State v. Austin

of Tennessee STATE Hale AUSTIN.

Richard

Supreme Court Tennessee. 16, 2002.

Sept. (1981).

L.Ed.2d 116 In 1997 the Sixth Circuit Appeals Court of granted habeas corpus sentence, relief as to Austin’s hold ing that pen counsel was at the ineffective alty phase original of the trial. See Austin Bell, (6th Cir.1997), 126 F.3d 843 cert. denied, 1079, 1526, 523 U.S. 118 S.Ct. L.Ed.2d 677 and 523 U.S. 118 S.Ct. (1998). Following L.Ed.2d 695 resentencing hearing, jury again im posed death, sentence and the Court Appeals Criminal affirmed. On auto appeal matic under Tennessee Code Anno 39-13-206(a)(l) (1997), tated section we designated the following issues for oral 1) argument:1 whether the trial court committed reversible error in excluding 2) evidence; certain mitigating whether Glankler, Frank J. the trial court Jr. committed and Robert L. reversible error Hutton, Tennessee, Memphis, admitting evidence; impact victim Ap- for the and 3) pellant, Richard Hale Austin. dispro whether the sentence of death is portionate, all and other issues mandated Summers, Paul G. Attorney General and by Tennessee Code Annotated section 39- Reporter; Moore, Michael E. Solicitor 13-206(e)(l). Having carefully reviewed General; Amy Tarkington, L. Deputy these issues and the remainder of the is Attorney General, Appellee, for the State by Austin, sues raised we conclude that of Tennessee. they do not warrant relief. Accordingly, we affirm the Court of Appeals Criminal in all OPINION respects. HOLDER, J., JANICE M. delivered the opinion court, in which PANEL: DROWOTA,

FRANK F. FACTUAL III, C.J, BACKGROUND and E. RILEY ANDERSON and WILLIAM M. In early 1977 Watkins anwas undercov- BARKER, JJ., joined. agent er investigating illegal gambling at Cue, appeal capital pool in this Golden case Austin’s hall Mem- arises phis. from work, the resentencing of Based on Richard Hale Watkins’ indict- Austin, originally Austin, who ments against was were convicted and returned wife, sentenced to death in 1977 as an accessory employees several of his before premeditated associates, the fact in the murder including Terry Lee Casteel. of Julian Watkins. This Court affirmed Watkins was to be the principal witness the conviction and sentence. See against State v. them. At the resentencing hear- Austin, 618 (Tenn.1981), S.W.2d 738 ing, cert. Casteel testified for the denied, U.S. 102 S.Ct. 71 Austin upset about the gambling 1. setting “Prior to the argument, of oral enter an designating order those issues it Court shall review the record and briefs and argument_” wishes addressed at oral . assigned. consider all may errors The Court Sup.Ct. Tenn. R. 12.2. Watkins, community. in told active his Steve charges and blamed Watkins.2 Austin sons, three Casteel, of the victim’s something youngest “I to about it. need do years at the eight old I Austin even- testified that he was need to take care of him.” his Blankenship, an the murder. He described tually Jack time of hired Charles as convict, him as everything good murder On as to escaped to Watkins. father 22, 1977, testified May anyone of Casteel and can be. Both witnesses evening house, emptiness an drove to Watkins’ but that death had left Blankenship Watkins’ Blankenship family. not in Watkins was at home. in Aus- spent night a trailer owned lingering to create The defense tried morning tin’s wife. next Casteel in the as to Austin’s involvement doubt Blankenship to drove Watkins’ automobile theory that The defense murder. repair shop. Blankenship body lured Wat- Hay- Blankenship. had Casteel hired Levi him fatally kins outside and then shot in jail wood, had with an inmate who been head, neck, and chest. Casteel and told testified that Casteel Casteel trailer, Blankenship returned where him in Wat- that Austin was involved Blankenship for mur- paid Austin $980 Bullock, a friend of Troy kins’ murder. der.3 Austin, days that several before testified Marilyn Pryor, Lee who worked picked up piece Watkins’ murder Casteel Cue, early May Golden testified that Blankenship’s telephone paper with 1977 Austin that commented Watkins was stated, care on it and “I will take number B, an he “S O and that should have his taking of [Austin’s] of this.... I’m care Pryor shot fitting brains out.” saw man business.” Blankenship’s description leave the Golden ac- Blankenship, the The defense called night Cue with Austin and Casteel killer, testify tual on Austin’s behalf.4 morn- before Watkins’ murder. The next for supporting After Austin’s innocence ing, as leaving Austin and Casteel were suddenly years, Blankenship twenty-two Cue, Pryor the Golden Austin told that surprisingly repudiated prior “they had take care some business.” he Blankenship that statements. stated Pryor When later told that she had Austin past had now tell the Med the and would given police statement in connection peace truth he made his with because had investigation, he

with the murder told her Blankenship then testified in detail God. a “stupid, that she was cold bitch and that killing the circumstances about killed, have should been too.” [she] paid him to how Austin had recruited and cir- proof regarding In addition to murder Watkins. murder, intro- cumstances of the the State testimony impact Carolyn defense next introduced duced victim evidence. widow, Department employees from of Cor- Cupp, Watkins Watkins’ testified Austin, kind, who at time loving, the victim had been a rection old, sixty years generous, hard-working resentencing had been was almost man who $1000, agreed pay he but against Austin in 3. Austin had 2.Casteel also had testified case beer Blanken- $20 subtracted original trial. At that time Casteel was night ship before the mur- had received the charged degree first connec- with murder in der. eventually with Watkins' death. He tion pleaded guilty degree murder and second guilty Blankenship, pleaded who to first 4. had twenty-year received a sentence. sentence, degree a life murder and received testify original at the trial. did not was a prisoner model and a man good commit the murder for or remuneration character. only Austin had promise one minor dis- of remuneration.” Tenn.Code ciplinary write-up twenty-two 39-2404(i)(4) in his years §Ann. (Supp.1977).5 In ad- dition, death row and had achieved the highest the jury found that the State had possible classification proven level based on good aggravating circumstance behavior. He awas teacher’s aide outweighed any and mitigating circumstances tutored other inmates for the beyond result, GED exami- a reasonable doubt.6 As a nation. guards Two retired told how the jury Aus- Austin sentenced to death. tin had saved during their lives a prison

riot in 1985. OF EXCLUSION MITIGATING EVIDENCE

Members family of Austin’s testified that Austin was the fourth Austin eight challenges chil- trial court’s exclu- dren good pool player. during and was a sion of mitigating At certain evidence time of resentencing, he the resentencing hearing. Specifically, suffered from dia- betes. Despite long years prison, Austin the trial contends that court erro- Austin neously following remained close contact with fam- excluded evidence: 1) ily members report who visited him a squad requesting often. His vice indict- stepdaughter kind, described Austin as ments based on gam- Watkins’ undercover generous, 2) bling investigation; testimony Terry honest. reported Casteel that had Austin his auto- The last for witness the defense was Dr. it; mobile using stolen while Casteel was Mark Cunningham, a clinical and forensic 3) testimony Ingle Joe of Reverend about psychologist, who had evaluated Austin. riot; during prison Austin’s a actions Dr. Cunningham opined that there was a 4) deposition a of Jack Charles very high likelihood that Austin would con- Blankenship. tinue adjustment to have good to incar- ceration very and a low low likelihood admissibility of at evidence that he would commit acts of serious vio- hearing resentencing this case is lence. Dr. Cunningham also stated that governed primarily by Tennessee Code Austin’s presence would tend to reduce 39-2404(c) Annotated (Supp.1977) section overall prison in the system. violence 39-13-204(c) ],7 [now section (Supp.2001) which provides:

Based on proof, jury this found that the State proven beyond had In sentencing reasonable proceeding, evidence doubt the following aggravating may circum- presented be as to any matter that stance: “The defendant committed the punish- relevant to the deems murder include, or promise remuneration ment may but not limit- remuneration, employed to, or another ed nature and circumstances of sought 5.The State also penalty "beyond death 6. Austin was not entitled to the weighing based aggravating on the reasonable standard because doubt” circumstance in the offense committed before the death was Tennessee Code Annotated section 39- penalty Any statute amended in 1989. 2404(i)(6) (Supp.1977): "The murder was however, regard, error in this inured Aus- purpose avoiding, committed for the inter- Bush, tin’s benefit. See State v. with, fering preventing a lawful arrest or (Tenn.1997). 506 n. 10 prosecution of the defendant or another.” did not this find circum- sentencing 7. The law the time the murder stance. applicable was committed is the law. Brimmer, (Tenn. 1994). character, report ground on crime; to the the the defendant’s refused admit the background history, physical hearsay. condi- that it was tion; to any tending evidence establish tr Contrary ruling to of the the the aggravating

or rebut circumstances i court, hearsay a capital al is admissible in (i) below; in enumerated subsection Odom, sentencing v. hearing. See State any tending to or re- evidence establish (Tenn.1996). The Rules S.W.2d any mitigating Any but factors. such applied pre not to of Evidence should be evidence which the court to have deems in of evidence clude the admission relevant of probative punish- value the issue hearing. v. capital sentencing a See State may of regardless ment be received its (Tenn.2001). Sims, evidence, Be admissibility S.W.3d under the rules of any evidence the cause Austin did not offer provided that defendant is accorded in hearsay any named opportunity any linking persons a fair to rebut of the other However, murder, report so admitted. the squad statements this vice Watkins’ probative to au- val report negligible subsection shall not be construed the was of any However, the thorize introduction evidence it Evi ue. was irrelevant. in violation of Constitution concerning secured the had a persons dence other who or of the United States state motive to kill was relevant Watkins nonstatutory Tennessee. a support residual doubt as circumstance. The trial court mitigating statute, any Under this evidence relevant allowed counsel to cross-examine defense murder, to the circumstances of the the in concerning Cupp the names contained murder, the aggravating circumstances of report. testimony concerning If circumstances, mitigating or the which has report squad of the vice was rele content probative value determination admissible, vant then enough punishment, Teag is admissible. report there (Tenn.1995). was admissible as well. We ue, Be that the court erred fore conclude trial mitigating cause the exclusion of evidence However, excluding report. because potentially reliability undermines squad report of the vice was determination, essence sentencing we review testimony, through Cupp’s admitted any failing error admit such evidence report itself was excluding error in under constitutional harmless error stan Cauthern, beyond a dard. See State v. harmless reasonable doubt. (Tenn.1998). Cauthern, 726, 739 967 S.W.2d at 739. Report Squad Vice Terry Testimony of Casteel testimony Floyd

During had Terry Casteel testified that he Cupp, sought the defense to introduce Marilyn Austin’s Cadillac to drive used 31, 1977, squad report, vice dated March Greenwood, Pryor to her home Missis people requesting indictments on several Watkins’ sippi, days two or three after gambling based on Watkins’ undercover cross-examination, defense murder. On investigation. Cupp Mem was retired if he that Aus counsel asked Casteel knew phis police officer who had worked with Police reported Memphis tin had during gambling the undercover Watkins that the automobile had been Department investigation prepared report. and had he After answered that report stolen. Casteel argued The defense that was had made persons a mo had been told Austin evidence of other who had the State’s report, trial court sustained killing tive for Watkins. The trial court hearsay objection. complains gle Austin began what had relate Owen told by excluding him, the trial court erred as hear- objected. trial the State say acknowledgment Casteel’s that Austin objection, sustained the that In- finding reported his automobile stolen. gle’s testimony hearsay8 duplicat testimony. ed Owen’s theory

The defense was that Austin would not have police alerted the to look matter, a preliminary As we note for automobile while Casteel was us- that proof Austin failed to make an offer if ing it the two men had accomplices been concerning Ingle’s testimony. simi Under murder. that Watkins’ Evidence Aus- circumstances, lar have that we held tin reported his automobile stolen there- Stout, issue is waived. See State v. 46 fore proof was relevant rebut that Aus- (Tenn.2001); S.W.3d 704 n. see also tin had orchestrated Watkins’ murder Sims, Ingle’s 15. 45 S.W.3d at Because with Blankenship. Casteel and As in-we testimony during Austin’s about actions above, hearsay dicated is admissible a presumably the riot would have mirrored Therefore, capital sentencing hearing. that testimony, Owen’s we conclude the trial court in sustaining erred adequate record is for review. We will objection. conclude, hearsay State’s We however, therefore address the issue on its that error in merits. any failing to admit Casteel’s statement was harmless beyond Carolina, Citing Skipper South

a reasonable jury doubt. The was unlike- U.S. S.Ct. 90 L.Ed.2d 1 ly find reporting that Austin’s the auto- (1986), Austin contends that testi Ingle’s days mobile stolen several after the shoot- mony not Ingle was cumulative because ing rebutted overwhelming evidence only presented was the live witness establishing that Austin and Casteel were testify regarding during Austin’s actions accomplices in Watkins’ murder. Skipper, riot. In the United States Testimony Ingle of Reverend Joe Supreme mitigating that Court determined good testimony about the defendant’s be mitigation proof, pre Austin

As prison havior in was not cumulative be videotape sented the depositions of two cause it came from disinterested witnesses prison guards, retired Hardin Green and such jailers as the earlier evidence while Owen, John describing Austin’s actions had from the his fami come defendant and prison diming 1985 riot. Both Green and ly a type was the evidence Owen testified Austin protected them naturally self-serving. would as discount and five other guards from inmates in the 7-8, at Unlike U.S. 106 S.Ct. 1669. general population who had started riot Skipper, already the jury in Austin’s case trying were to break into the death- had testimony of two disinterest Later, unit. heard presented row Austin the tes ed witnesses—Green and timony Joe Owen—concern Ingle, prison Reverend Moreover, ing mitigating evidence. pastoral minister who had a had relation testimony ship the excluded was based on sec twenty-two years. with Austin Austin, not relating knowledge, After information ond-hand first-hand obser about Ingle Skipper. Ingle’s testimony was asked to vation as specifically recall the prison Ingle prior riot. was explained that his no less cumulative because knowledge of riot gained testimony presented by videotape from was de conversations with John positions. Owen. When In- noted, hearsay previously 8. As we capital sentencing hearing. ble admissi- in a beyond a reasonable mony was harmless evidence is finding mitigating A Cauthern, at 739. however, cumulative, make doubt. does not such As have indi evidence inadmissible. we Deposition of Jack Charles govern cated, of Evidence do the Rules Blankenship under Ten admissibility of evidence in 1995 39-2404(e) deposition In a taken section nessee Code Annotated pro corpus 39-18-204(c) federal habeas for Austin’s (Supp.1977) section [now Austin Blankenship denied that ceedings, Sims, 14. (Supp.2001)]. See murder. any involvement Watkins’ had trial have found error when a We however, hearing, resentencing During the mitigating excluded evidence prior state Blankenship repudiated his ground that it was cumulative. See Cauthe Blankenship’s testimo counter ments. To rn, case, at In that the 967 S.W.2d 738. Blanken the cross-examined ny, defense the trial a letter written to court excluded and concerning prior statements ship from his son ex eight-year-old defendant as sought then introduce substantive support. light love In of the pressing deposition of Blanken the 1995 evidence in section 39-13- principles expressed entirety. in The trial court denied ship its 204(c), concluded that trial court we the deposition the request permitted the but excluding erred in the letter. 967 S.W.2d as an exhibit for the limited marked held, however, at We further that the 738. impeaching The the witness. purpose of beyond error harmless a reasonable was jury accordingly. court instructed the doubt the because essence evidence stated, previously hearsay is we have jury the As presented was other forms. hearing. a capital sentencing admissible Id. at 739. deposition was relevant Blankenship’s 1995 aggravating to rebut the circumstance case, present In the the excluded was committed for remunera the murder evidence was more than cumulative—it as a residual doubt support tion and to duplicative. Ingle eyewit an was was not nonstatutory mitigating circumstance. prison the during ness to Austin’s actions Therefore, the court erred in al trial Ingle repeat riot. could only what Owen as sub lowing deposition to be used proof to had told him. With no offer of court Although trial stantive evidence. otherwise, demonstrate we must assume deposition, exclude the completely did not that Ingle’s testimony would have consist jury’s on the consideration of the limitation hearsay previous duplicating ed of Owen’s potentially undermined deposition testimony. Notwithstanding principles sentencing determination reliability of the 39-2404(c) (Supp.1977) § expressed in is, therefore, an error of constitutional 39-13-204(c) ], § a trial court still [now Cauthern, at magnitude. Cf. controlling retains some discretion 739. presentation proof capital of in a sentenc

ing hearing confines of constitu within the was not Austin contends the error Sims, First, requirements. tional he for several reasons. harmless duplicative jury’s at 14. Given the nature argues that limitation Ingle’s hearsay testimony, deposition we are unable cannot be consideration of beyond the trial erred a reasonable doubt be- to conclude that harmless Furthermore, deposition relevant rebut excluding cause the was the evidence. Aus- only aggravating have circumstance. Ingle’s testimony if should been the even authority no and we admitted, presented tin has any excluding error in testi- support have found no for a se kill per deposition pro- revers- Watkins. The only ible error rule in cases where one claiming likely Austin’s innocence would Second, aggravating circumstance exists. very persuasive jury not have been only Austin that the proof contends other fully Blankenship since admitted that the supporting aggravating circumstance— deposition testimony was false. Addition- testimony Terry Stout, Casteel —lacked just ally, presented as in Austin assertion, credibility. Contrary to Austin’s proof support other his residual doubt evidence, overwhelming including the testi- theory, proof obviously reject- and the was mony Marilyn Pryor corroborating Cas- jury. ed teel’s testimony, supported aggrava- Hartman, In State v. 42 S.W.3d 44 ting Finally, circumstance. Austin asserts (Tenn.2001), we reversed the sentence be- that the error cannot be harmless because cause of a combination errors: the ex- Blankenship’s testimony deposition in the clusion of evidence relevant to residual “compelling unequivocal.” a mitigating doubt as circumstance and jury position inwas the best to assess the to support insufficient evidence one of the credibility If, Blankenship. despite vig- Id. circumstances. 59. cross-examination, orous believed present distinguishable case is from Blankenship’s prior recantation of his de- Hartman, Hartman. Unlike jury the in position it testimony, unlikely is that read- this rely aggra- case did not on an invalid deposition ing the entire into evidence Moreover, vating circumstance. the resid- have produced would a different result. ual doubt evidence in this case was not case, In similar a we found the exclusion completely portions excluded. Substantial of such mitigating evidence to be harmless deposition of the jury were read to the Stout, reasonable doubt. beyond during Blankenship’s testimony. The en- Stout, at 705. In S.W.3d the defendant deposition tire was introduced anas exhib- sought to testimony introduce the of two jury only it. The precluded was from accomplices in effort an to show that his considering deposition the as substantive own involvement in the was murder minor. evidence. sought The defendant also to call a chap- practical deposi- of using effect the testify gang practice lain to about impeachment tion purposes was not blaming crimes on former members. Al- much different than as introducing it sub- though we concluded that trial the court jury stantive evidence. The presented was the excluding proposed mitigating erred with two theories: either Austin hired evidence, we held that the was harm- error Blankenship to commit the or murder Aus- beyond less a reasonable doubt. The testi- Rejection tin not. theory did of the first mony accomplices the was dubious necessarily acceptance would mean of the had they during value because testified the jury second. If the had that found guilt phase that the led defendant the of- deposition impeached Blankenship’s credi- fenses and shot the victim. Id. Likewise, bility, have jury then would not be- presented other regarding evidence was lieved Blankenship’s testimony at re- theory the defendant’s that was falsely he sentencing found, by members, hearing and would have gang accused and this evi- instead, rejected by that Austin did not hire Blanken- obviously jury. dence Stout, Id. Like the ship likely to murder It is not evidence the exclud- Watkins. any ed that result have evidence this case was of would been differ- dubious deposition ent if had Blankenship value. testified at the resen- been introduced hearing hired him as tencing that Austin substantive evidence. The limitation on contemplated by Nesbit and similar jury’s deposition consideration of the appropri- Aus- found jury’s impact affect the decision to evidence did not victim Smith, was, therefore, harm- prejudice tin’s and ate in v. 998 S.W.2d State (Tenn.1999). victim beyond less a reasonable doubt. conclude We cumu- impact in this case was not evidence IMPACT EVIDENCE VICTIM prejudicial and that its unduly lative impact trial court admitted victim out- substantially probative value was Carolyn Cupp, from evidence Watkins weighed by prejudicial impact. its widow, Watkins, victim’s Steve one Nesbit, the fol In we established ar the victim’s sons. Austin raises three guidelines for the ad lowing procedural regarding impact evi guments the victim 1) the impact of victim evidence: mission First, dence. Austin contends that notify must the trial court its State unduly cumu prejudicial evidence was evidence; produce impact intent to victim Second, he trial lative. asserts 2) notification, receiving the trial upon procedure follow the set out court failed to of the hearing must hold outside Nesbit, presence to determine the ad (Tenn.1998). Finally, he claims that 3) evidence; missibility of prosecutor’s closing argument regarding impact victim evidence should not be ad impact the function of victim evidence was until the trial court determines that mitted improper under Nesbit. or more cir evidence of one impact Victim evidence and already present in the rec cumstances is prosecutorial argument on the evidence ord. at 891. Austin asserts are not barred the Tennessee Constitu procedure in na that this is constitutional tion the the or Constitution of United unduly Although the admission of ture. Nesbit, States. See 978 S.W.2d at 889. may im prejudicial impact victim evidence However, not all victim impact evidence is concerns, proce plicate process due the may impact Victim evidence admissible. in is not constitu dure established Nesbit 1) unduly not if so be introduced it is procedure merely tionally mandated. This it prejudicial that renders the trial funda super adequately the trial court to enables 2) unfair, mentally probative or its value is evi impact vise the admission of victim substantially by prejudicial outweighed its dence. See id. impact. Generally, at See id. 891. victim impact evidence be limited infor should proce compliance In with the provides glimpse mation which “a brief Nesbit, requirement dural established into the life of the individual who has been this the trial the State in case notified killed, contemporaneous prospec the its intent to introduce victim im court of surrounding tive circumstances the individ evidence, and the trial court conduct pact death, ual’s circumstances how those jury-out hearing determine the ed a financially, emotionally, psychologically or However, admissibility of the evidence. upon of physically impacted members the was not ful requirement Nesbit’s third family.” Id. victim’s immediate the vic the trial court allowed filled when testimony tim of widow impact impact

The about Watkins’ victim evidence any proof aggra of presented an complains limited to the before which Austin record. vating circumstance existed the victim’s role as husband and father and to in the record of Requiring the existence the loss suffered the victim’s immediate be- proof aggravating of an circumstance is of nature family. This evidence the (B) presentation fore of the victim impact jury’s evi- the supports evidence dence lessens the that finding statutory risk the admission circum- aggravating unduly prejudicial circumstances; impact victim evi- stance or dence will trial fundamentally render the (C) supports jury’s the evidence unduly unfair. If prejudicial impact victim finding aggravating circum- that first, danger evidence admitted then the outweigh any stance or circumstances may exists that fairly not consider circumstances; mitigating the other evidence presented at the sen- (D) The of death is excessive sentence tencing hearing. Because the victim im- disproportionate penalty or im- pact testimony of Watkins’ widow was not cases, posed in considering similar both unduly prejudicial, we conclude that the nature and the defen- crime from procedure variance established dant. Nesbit did not affect the result of the 13—206(c)(1)(1997). § TenmCode Ann. resentencing and, 39— hearing the merits Having record, reviewed the thoroughly therefore, was harmless error. Tenn. find we that sentence of death was not 52(a). R.Crim. P. imposed arbitrary in an con- fashion. We presented clude that sufficient the State In challenge his final to the victim proof uphold jury’s finding impact evidence, Austin contends that the circumstance in Tennessee prosecutor improperly told the jury how to 2404(i)(4) Code Annotated section weigh Nesbit, In 39— evidence. cau we (Supp.1977): “The defendant committed impact tioned that victim evidence “does or prom- murder for remuneration carry the force and effect aggra of an remuneration, or employed ise another vating in the sentencing circumstance cal to commit murder for remuneration culation.” 978 894. heldWe promise ag- remuneration.” This that prosecutor case erroneous gravating amply sup- circumstance was ly impact characterized the victim evidence ported by testimony of Casteel and as an aggravating weigh circumstance to Austin Blankenship Blankenship hired against mitigation proof. In pres Id. to murder hold that Watkins. We further case, ent prosecutor the specifically told the jury’s finding evidence the supports jury they only the that weigh aggra could aggravating that the circumstance out- vating mitigating and circumstances. The weighed any mitigating circumstances be- prosecutor’s that they comment also were yond Contrary a to reasonable doubt. required to impact consider “the of this assertion, a could Austin’s reasonable crime” did not improperly characterize the proffered mitigating have found the that impact victim evidence as an doubt, circumstances of residual relative Accordingly, circumstance. no we find er culpability offense, positive and the prosecutor’s ror in closing the argument. prison behavior by were the outweighed aggravating circumstance. PROPORTIONALITY REVIEW next We determine whether areWe bound statute to review the sentence of in dispro death this ease is the application of death penalty the to portionate penalty to in imposed simi determine whether: cases, considering lar the nature of the (A)The imposed sentence of death was crime and the defendant. See Tenn.Code fashion; 39-13-206(c)(l)(D) (1997). in any arbitrary §Ann. We are and times in the neck applica- several more following principles then mindful of the towas killing for the review: chest. The motive proportionality ble victim for his under- against retaliate a conducting comparative propor- In gam- illegal Austin’s exposing work cover review, pre- tionality begin we with clearly premedi- was bling. The murder death is that the sentence of sumption person another in Austin hired tated that crime of first de- with the proportional n commit the murder. may A sentence of death gree murder. disproportionate if case be found male, Austin, thirty-seven was a white lacking in cir- “plainly reviewed is being and years the time of the murder old at in consistent with those sim- cumstances old at the time of the sixty years almost ilar death has penalty cases which the tes- psychologist A resentencing hearing. imposed.” A death is been sentence of of that an inmate tified for the defense merely disproportionate because unlikely to age exceedingly was Austin’s similar circumstances of the offense are prison. violence in acts of serious commit of which a to those another offense for at- mitigating evidence presented Austin a life sentence. defendant has received testing positive to his contributions therefore, inquiry, require Our does not and prison community while incarcerated finding “less than that sentence safety prison of his efforts ensure imposed death was never in a case with No guards during prison riot. evidence duty Our “is to similar characteristics.” history presented at was prior of criminal that assure no aberrant death sentence resentencing hearing.9 Austin’s role is affirmed.” insti- he significant the murder was (Tenn. Hall, State v. gated to murder the victim and plan 1998) omitted). (citations have found We the actual killer. No evidence hired choosing following helpful factors presented cooperated that Austin show 1) and the means and comparing cases: any re- or showed with authorities 2) death; of the motivation for manner Considering the murder. morse for 3) 4) death; killing; place the simi defendant, we and the nature the crime larity and treatment of the victims Austin places this murder conclude 5) victims; presence the absence or for whom the into the class defendants provocation, justifica premeditation, punish- penalty appropriate is an death 6) tion; injury effects on ment. comparing non-decedent victims. Id. In defendants, following we consider that his sentence Austin contends 2) 1) age, prior history; criminal traits: disproportionate because comparatively 3) emotional, race, mental, gender; and co-defendants, and Blanken Casteel 4) condition; in the mur physical and role Statutory sentences. ship, lesser received 6) der; 5) authorities; cooperation with compari a involves proportionality review 7) remorse; helplessness of of knowledge capital only a with cases which son 8) victim; capacity and for rehabilitation. actually conducted. sentencing hearing was Id. Bland, 666 958 S.W.2d See State v. (Tenn.1997). Blankenship Because neither case, present

In the victim the subjected capital pro- was head and nor Casteel execution-style the was shot robbery conviction. judge’s report Sup.Ct. 1961 trial under Tenn. 9. The larceny a conviction and R. 12 reflects a 1966 466

ceedings, their cases not judges are similar cases for degree murder, trials first we purposes of proportionality for present review. conclude that the propor case is compared tionate when to other murders State, (11 Citing Nuthill v. 30 Tenn. for hire in which death penalty was Hum.) (1850), argues 247 Austin he Stevens, (de imposed. See 78 817 S.W.3d not greater could receive a than sentence fendant acquaintance hired to murder wife Blankenship as a matter law because a Hutchison, mother-in-law); defendant accessory convicted as an before (defendant peo S.W.2d 161 hired several fact cannot be sentenced to death if ple pro to drown victim for insurance principal a received life sentence. (de ceeds); Stephenson, 878 S.W.2d misplaced. Austin’s reliance on Nuthill is wife); fendant kill acquaintance hired case, At the time the offense in this (Tenn. Wilcoxson, State v. 772 S.W.2d 33 Tennessee Code Annotated section 39- 1989) (defendant, by was hired wife of who (Supp.1977) expressly provided that husband, procured her victim to kill broth punishment imposed upon an accesso- offense);11 to commit State v. Porter er ry before the fact of murder in the first (defen (Tenn.1988) field, 746 S.W.2d degree depend not on did the sentence husband); dant hired co-defendant to kill imposed principal. on the Coker, (Tenn.1987) v. 746 S.W.2d Austin also asserts that he has not found (defendant para arranged for murder of case in history a Tennessee in which an husband).12 cases, mour’s In two of these accessory before the fact received sen murder hire the sole aggravating for was tence of death and principal sen was Hutchison, circumstance. longer tenced to life. Tennessee law no 161, Stephenson, 878 530. After S.W.2d distinguishes accessory between before the cases, many others reviewing these cases, principal. fact In three we cited, penalty not we conclude upheld penalty per have the death imposed in this case not instigated equiv son who the murder —the disproportionate penalty imposed accessory alent before the fact—when for similar crimes. actual killer received lesser sentence. argument We have considered Austin’s (Tenn. Stevens,

See State v. 78 S.W.3d 817 only that the Tennessee cases similar to 2002); Hutchison, State v. his are those Groseclose and William (Tenn.1994); State Stephenson, v. 878 Ronald Rickman. Rick- Groseclose hired (Tenn.1994).10 S.W.2d 530 man and kill another man to his wife. On upon Based an exhaustive review of the direct appeal, we found the death sen reports record and Rule 12 trial proportionate. from tences to State Gro Stephenson, Upon 10. In post-conviction case was remanded for 11. review Wilcoxson granted resentencing was relief due to as to his sentence based an instructional error ineffective of counsel. See Wilcox- assistance during sentencing phase of the trial. 878 State, (Tenn.Crim.App. son v. 22 S.W.3d 289 remand, parties S.W.2d at 556. On 1999). sentencing hearing has A new agreement reached an to reduce the sentence been held. possibility parole. to life without On appeal, parole we held that life without Upon post-conviction review Coker 12. illegal legal it sentence was because was not granted relief as on to his sentence based sentencing option at the time of the offense. a ineffective assistance of counsel. At bench 910, Carlton, Stephenson v. 28 S.W.3d 912 resentencing, trial on Coker was sentenced (Tenn.2000). A sentencing hearing new has State, imprisonment. life See Coker v. No. not been held. 01C01-9804-CC-00152, 1999 WL 228789 1999).

(Tenn.Crim.App.

467 (Tenn. require or sedose, 142, merit do 150-51 issues are without 615 S.W.2d 1981). of the other proceed Having reviewed all corpus In federal habeas reversal. Austin, that by were we conclude ings, convictions and sentences issues raised the respect they on ineffective assistance of warrant relief. With reversed based do not Bell, opinion, v. 130 F.3d in this we counsel. See Grosedose not addressed issues (6th Bell, Cir.1997); Rickman v. 131 of Crimi- affirm decision of Court Cir.1997). (6th retrial, On of portions F.3d 1150 that nal Relevant Appeals. Rick- jury again convicted Groseclose and and are incorporated herein opinion are degree man of murder but sentenced first defendant’s an appendix. attached as imprisonment. The Rule 12 them life shall death is affirmed and sentence of judge trial was of report reflects that the January, day 23rd of carried out impose opinion jury that did not by this ordered unless otherwise of the defen penalty the death because authority. appearing It proper Court or years in twenty good dants’ of behavior in- Richard Hale Austin is that defendant times, many prison. As we have stated appeal of are taxed to the digent, costs this jury “the of a to afford isolated decision State Tennessee. mercy a does not render death sentence Keen, disproportionate.” BIRCH, JR., J., v. State filed A. a ADOLPHO (Tenn.2000) (citations 196, 222 S.W.3d opinion. dissenting omitted). recently the sen We affirmed BIRCH, JR., J., A. ADOLPHO case in resentencing tence death dissenting. good volving mitigating evidence of similar dissents, I maintained In line of have State, prison. Terry behavior v. comparative re proportionality that (Tenn.2001). the nu Given by currently this process view embraced merous similar cases which the death It it does not Court fails. fails because penalty imposed, has been are unable we protect from the operate to defendants that of death to conclude the sentence imposition arbitrary disproportionate and imposed by represents in this case See, v. penalty. e.g., State of the death an aberrant sentence. (Tenn.2001) 60 S.W.3d Godsey, (Birch, J., dissenting); concurring

CONCLUSION (Tenn. Bane, 411, 431 State v. 57 S.W.3d In accordance with Tennessee Code An- 2001) (Birch, J., concurring and dissent 13—206(c)(1) notated and the section 39— Chalmers, ing); v. 28 S.W.3d decisions, adopted prior principles we (Tenn.2000) (Birch, J., concurring and have considered the entire record and con- Keen, 31 S.W.3d dissenting); State clude has not that sentence death (Tenn.2000) (Birch, J., dissenting). arbitrarily, that evidence imposed been no This case is different. jury’s statutory supports finding circumstance, the evi- underlying predominant principle jury’s finding that supports dence review that comparative proportionality outweighs miti- aggravating circumstance unjust impose it is death sentence beyond gating circumstances a reasonable when other defen upon one defendant doubt, is not exces- the sentence crimes dants, of the same with convicted disproportionate. sive facts, im sentences of life similar receive (with prisonment parole). or without God the issues Having carefully considered on this at 793. Based sey, regarding raised Austin the exclusion pursuant to Tennessee Code principle, mitigating evidence and admission of 39-13-206(c)(l), this § Court evidence, Annotated that these impact victim we hold 468

must conduct a comparative proportionali ty review of every death sentence for the Summers, Paul Attorney G. General and purpose “determining of whether the Reporter, Moore, Michael Solicitor Gener- penalty unacceptable particu death is in a al, Amy Tarkington, L. Assistant Attorney disproportionate lar case it because is General, Gibbons, L. William District At- punishment imposed on others convict General, torney and Campbell John and of ed same crime.” State v. Henderson, Thomas Assistant At- District Henderson, (Tenn. 307, 24 S.W.3d General, torneys Appellee, for the of 2000) Hall, 593, (citing State v. Tennessee. (Tenn.1999)). J., HAYES, DAVID G. delivered theory,

In comparative proportional- court, protocol opinion of which JOE ity review ideal G. seems and worka- ble; however, stated, Ias have often albeit RILEY EVERETT and JOHN terms, gentler just it does not work. joined. WILLIAMS, JJ. Three unreliability flaws ensure the of the In Hale Richard Austin was found (1) process: proportionality review test guilty by Shelby County jury of accesso a nearly so every is broad that sentence is mur ry degree to the first before the fact (2) pronounced proportionate; “pool” der of Julian Austin’s conviction Watkins. cases comparison entirely used for is too small; (3) commissioning stemmed from his role and process the review itself is Chalmers, subjective. Watkins, much too deputy a S.W.3d murder of reserve (Birch, J., at 923 concurring and dissent- jury subsequently sheriff. found If this ing). adequately Court is to protect (i)(4), presence mur factor against the disproportionate imposition of remuneration, der for a sen imposed sentence, the death these flaws must be grant In tence of Austin death. Bane, (Birch, corrected. ed of a corpus habeas relief the form J., concurring dissenting). hearing by new Cir sentencing the Sixth Until the continually issues I have raised cuit At Appeals. Court of the re-sentenc addressed, I are hold this Court can- ing twenty-two years hearing, after his thoroughly adequately fulfill its original trial, pres jury again found the statutory duty to penalty review death (i)(4) aggravating ence of factor and cases to ensure that a defendant’s death It again imposed sentence of death. proportionate. sentence is sentencing from this that Austin decision appeals. appeal, presents In this Austin APPENDIX review, including numerous for our issues

(Excerpts from the Court of Criminal (1) the disqualification the Tennessee Decision) Appeals’ (2) Supreme Court; challenges to the se IN THE OF COURT CRIMINAL (3) jurors; lection of the admission various APPEALS OF TENNESSEE (4) evidence; intro and exclusion of (5) evidence; impact duction of victim AT JACKSON prosecutorial closing ar during misconduct January Session (6) in gument; propriety March structions; (7) application whether (i)(4) aggravator violates State v. Middle Glankler, Frank J. Jr. and Robert L. (8) brooks; Hutton, delay in Tennessee, prejudice due to the Memphis, for the Ap- (9) pellant, death; Richard Austin. imposing Hale the con- sentence Austin, No. v. Richard Hale penalty See State stitutionality of Tennessee’s death at (Tenn.Crim.App. (10) 02C01-9811-CR-00341 statutes; jury im- whether the and 1998). The Jackson, Tennessee Nov. a a sentence. After posed proportionate ap Appellant’s Supreme denied the Court record, the we affirm the careful review of extraordinary appeal from plication for of the sentence of death. imposition v. State Richard this court’s order. See Austin, No. 02S01-9811-CR-00112 Hale OPINION Jackson, (Tenn. 1, 1999). at Feb. Background and [Deleted: Factual reimposition the of the death Following Re-Sentencing Proof at the Appellant filed motion penalty, the Hearing] seeking subpoenas to issue this court leave I. alternative, or, testimony, in the and take trial the case to the court to remand Supreme Disqualification of Tennessee motion, Appel- In testimony. the take Attorney State Court and/or the of through lant that issuance asserted General develop” able to subpoenas he “would be pendency of the re- During “political “of interconnectedness” filed, sentencing hearing, the Appellant Supreme present and the Tennessee Court Court, Shelby County Criminal a “Mo General, Paul Sum- Attorney Honorable Disqualify Supreme tion to Court and/or present Attor- alleged mers.” He that the Attorney from Future Proceed General son” ney “favorite General ings in this The Cause.” substance employee” and facto supreme court a “de upon Appellant’s motion was based Essentially, to the court.” “beholden Supreme allegation that the Tennessee circumstances Appellant argued that appoint Court’s constitutional directive appointment of Paul Sum- surrounding the Attorney in a General results biased Attorney are crucial “to mers as General constitutionally and violates the tribunal process violation as to proving a due See powers. separation mandated Tenn impartial Supreme lack an unbiased VI, 5; Art. sec. Ann. the Appellant’s Const. Tenn.Code This court Court.” denied (1993). § Contemporaneously, 8-6-101 motion, that this court was without finding subpoenas jus issued jurisdiction to entertain the motion. court; Austin, supreme tices of the of Crim Court v. Richard Hale No. State W1999- Summers;1 Appeals Judge inal Paul G. (Tenn.Crim.App. 00281-CCA-R3-PD Ferrell, Director, 1999). Mr. Charles Administra Jackson, Additionally, this Dec. Courts; Attorney tive Office of the “a involving disqual- claim court noted Walkup. trial Knox General Su- ification or recusal of the Tennessee quashed denied the motion sub may appropriately preme Court” poenas, finding pre that the motion was this the trial court or considered either Id. Appellant’s (citing Sup.Ct. R. mature. This court denied court. Tenn. Benson, 3(E)(1)(a); pursu extraordinary review application for Canon (Tenn.1998) 10, holding (allegations P. R.App. to Tenn. ant concerning any judge’s impartiality had or bias persons subpoenaed none of the brought lawyer must be party party’s trial or a in the case at the level. involvement Summers, General, G. not sworn Appellant’s subpoenas were Paul issued on 1. January Attorney into office until 1999. September present 1998. The 18, attention of judge(s) 8, so chal- 824, 8, U.S. n. 23 87 S.Ct. 828 n. 17 lenged)). (internal (1967) L.Ed.2d 705 citations omit- ted)). VI, § Article 11 of the Tennessee Appellant complains now pri- of the provides Constitution that Judge “[n]o of or rulings of the trial court and this court. Supreme of pre- Inferior Courts shall Specifically, alleges he that had he been side on the trial any of cause the event permitted to develop proof at the hearing Benson, may which he be interested.” court, before the trial he 973 at purpose S.W.2d 205. The of this would have been able to demonstrate provision guard constitutional is to against that the Supreme Court instructed Mr. prejudgment rights litigants Knox Walkup, who at the time was At- and to avoid situations in which the liti- General, torney resign, telling him gants might have cause to conclude that reappointed. he would not be Fur- prejudged conclu- the court had reached thermore, proof would have demon- interest, partiality, sion or fa- because of strated that the Court had previously People’s (citing Chumbley vor. v. Id. private agreement made a appoint Co., 655, Bank 165 57 & Trust Tenn. Mr. Paul Summers as Attorney the next (1933)). 787, judge’s A deter- S.W.2d 788 General, notwithstanding fact disqual- mination of whether he or she will Supreme publicly Court asserted it ify sitting him or from a case is a herself had a purportedly neutral pro- selection judge’s matter within that discretion. See cess to select a new Attorney General. Kinard, generally Kinard v. 986 S.W.2d All of these facts politi- demonstrate the 220 (Tenn.App.1998); Young Young, v. 971 cal Supreme interconnectedness of the (Tenn.App.1997); S.W.2d 386 State v. Con Court and the Attorney General. nors, (Tenn.Crim.App. 995 146 S.W.2d 1998); Spaulding, Wiseman v. 573 S.W.2d As by prior determined panels of this 490, (Tenn.App.1978)(citing 493 matter, court and the trial court in this Henderson, Tenn. Phillips ex rel. v. War this court is unable to undertake review (1968)). den, 701, 220 Tenn. 423 S.W.2d 489 Appellant’s challenge. Although the Thus, Appellant’s must be motion raises constitutional claims brought justices to the attention of the against selecting Tennessee’s method of challenged. generally whom he See has General, essence, Attorney Ap- 3(E)(1)(a). 10, Sup.Ct. Tenn. R. Canon Cf. pellant seeks recusal of the current Jus- Holder v. Tennessee Judicial Selection tices of Supreme the Tennessee Court Commission, (Tenn. 877, 937 S.W.2d based on their “favoritism” toward current 1996) (justices pri disqualified themselves Attorney Indeed, General Summers. or to hearing); Tharp, Pierce v. Tenn. court, argument before prior this as in his 950, (1970), 953-54 cert. motions, appears approval to assert of for- denied, 402 U.S. 91 S.Ct. Attorney Thus, Walkup. mer General this (1971) (motion jus L.Ed.2d 863 to recuse court will treat this issue as one address- tices should brought have been after cer ing supreme court’s recusal and not as tiorari granted argument but before challenge constitutional to the method of heard); Chumbley People’s v. Bank & appointment. Co., (supreme Trust at 787 right to a fair trial before justices propriety determined recu own impartial an tribunal is a fundamental sal); con Hooker v. Sundquist, No. 01A01- Benson, right. stitutional (Tenn. 973 S.W.2d 9709-CH-00533, 1999 WL (citing Chapman Nashville, 1999) (motion at 205 California, Feb. to recuse lenient sentences. Based application permis for more justices filed after filed). events, requested individual these counsel appeal sion jurors pur- prospective voir dire of nor this Neither trial court determining impact any of of the pose authority prerogative court has the or to stemming from the consequences collateral any regarding arrive at conclusion al trial The verdicts. Groseclose/Rickman leged impartiality or of each chal bias request. Appellant The court denied justice. yet lenged The has an rights impar- that his now contends present supreme motion to court. as jury process were violated tial and due yet precluded presenting He is not from by the Sixth and Fourteenth guaranteed may challenge proper his to the court and the United Constitu- Amendment of States ly file his after court has ac motion tion. Although no cepted review of case. procedure by prevailing practice is is to precise contemplated The law, through collectively. nor established case State v. jurors Canons examine Jef (Tenn.1975); accepted seeking 674, practice when 681 ferson, 529 S.W.2d (Tenn. through 554, a disqualification judge of is 563 Oody, v. 823 State S.W.2d support of a for filing motion recusal with Hopper, v. 695 Crim.App.1991); State ing prejudice. generally affidavits of 530, (Tenn.Crim.App.1985). 539 S.W.2d (1994 §§ Judges 46 AmJuR. 2D case, 194-214 & Indeed, capital no in a there is even Supp.2000). authority is no for There a requirement qualification that death subpoenas, any issuance of or other discov by capital jury must be conducted individ ery procedures, support one’s motion ual, voir State v. Ste sequestered dire. disqualify judge. a Id. (Tenn.1994) 530, phenson, 878 S.W.2d 540 Smith, 1, (citing 19 v. 857 S.W.2d State set Accordingly, for reasons forth denied, (Tenn.), 996, 510 U.S. 114 cert. herein, Appellant’s we decline the invita- (1993); 561, 461 State v. S.Ct. 126 L.Ed.2d justices tion to disqualify Ten- (Tenn.), 441, Porterfield, 447 746 S.W.2d Supreme participation nessee Court from 1756, denied, 1017, 108 S.Ct. cert. 486 U.S. appeal. in the of his The review Tennes- (1988)). Moreover, aas 100 218 L.Ed.2d Supreme proper see Court is the rule, trial general it is within the court’s Appellant’s complaint before whom the voir to allow individual dire discretion lodged. should to be jurors. Stephenson, 878 prospective II. Howell, (citing v. 868 S.W.2d at 540 State denied, (Tenn.1993), 238, 247 cert. S.W.2d Jury Selection Process 1339, 1215, 127 510 114 L.Ed.2d U.S. S.Ct. A Dire Individual Voir Harris, 54, (1994); v. 839 S.W.2d 687 State denied, 954, (Tenn.1992), cert. 507 U.S. Immediately prior Appel (1993)). 1368, 122 trial, Shelby County L.Ed.2d lant’s case of 113 S.Ct. is to insure goal v. The ultimate voir dire State William Groseclose Ronald jurors competent, are unbiased and The Grosec- Rickman was retried. Cazes, was, 875 S.W.2d similarly, impartial, a twen case lose/Rickman denied, (Tenn.1994), cert. 513 U.S. ty-two-year old retrial of a murder retrial, 130 L.Ed.2d 644 115 S.Ct. hire. On both Groseclose and Howell, (1995); at Rickman life S.W.2d received sentences. only mandated by the voir dire is reported “[[Individual were me

“new” sentences ‘significant possibility’ response when is public’s as well adverse there dia as juror has exposed potentially might been have heard somewhere or what Howell, prejudicial you material.” might newspapers. have read in the 247; Harris, at (citing attorneys And the will touch on this 447). Porterfield, later, 746 S.W.2d at you The mere but I’m sure each of under- prospective jurors stand, fact that judicial know some- that we cannot have our thing about a case at impan- system the time of operate upon based what we’ve unusual, eling is not nor is it any preconceived sufficient to seen or heard ideas. dire, invoke individual voir where the trial presumed the instruc- follow court takes necessary steps to ensure Accordingly, tions the court. we cannot that the accused receives a fair trial conclude that the trial court abused its panel impartial jurors. of and indifferent voir denying discretion in individual dire. Porterfield, generally 746 S.W.2d The record does not reflect that (if is elic- prejudicial 446-47 no information re-sentencing Appellant go jurors ited if the during voir dire and ing high profile Indeed, to be a case. they pretrial pub- disregard assert can juror record only reveals that one had to licity, denying there is no error individu- be removed for al cause because he had dire). al voir This issue is without merit. ready case, opinion formed an about the juror this being also the victim’s cousin. B. Rehabilitation Jurors Additionally, although defense counsel in Appellant next contends troduced as newspaper exhibits articles re impartial jury he was denied an be garding the re-sen Groseclose/Rickman Appellant cause the trial court denied the tencing, defense question counsel failed to opportunity potential to rehabilitate jurors about the impact of this case on jurors who were excused for cause on mo Appellant’s re-sentencing. Irregard opposi tion of their the State because of failure, less of defense counsel’s the media Specifically, tion to penalty. the death paid attention to the Groseclose/Rickman Appellant challenges the removal for cause import case is of little regarding the neces Eslahi, Hilliard, Buffaloe, of Jurors Mas sity of individual voir present dire Brown, Corken, sey, and of Alternate case. pretrial We cannot conclude that Jurors Brooks and Hudson. knowledge of arising matters from unrelat ed crimes mandates individual voir dire. 24(b) gives Tenn. R.Crim. P. Mann, 503, v. State 959 531 S.W.2d juror judge right the trial excuse a Cf. (Tenn.1997) (Appendix) (jurors do not live for cause without examination of counsel. vacuum). in a Any may concerns which Hutchison, 161, State v. 167 regarding impact publicity remain (Tenn.1994), denied, 846, 116 cert. 516 U.S. arising from the re- (1995) Groseclose/Rickman (citing S.Ct. 133 L.Ed.2d 84 sentencing dispelled by were the trial (Tenn.1989); Alley, State v. 776 S.W.2d 506 judge’s instruction to the venire: Strouth, 620 471 S.W.2d your (Tenn.1981), denied,

You must only upon base verdict cert. 455 U.S. (1982)). presented the law that is here court. S.Ct. In de L.Ed.2d 692 I presented mean the evidence as termining juror may here when a prospective in court through witnesses that are her be excused for cause because of his or oath, exhibits, placed under penalty, and the law views on the the standard is death you. that I charge juror’s And the reason I’m prevent “whether the views would touching [you] on that now is that substantially impair performance can- or [your] upon not base you juror decision what his duties as a in accordance with Well, I No.... Wainwright v. JUROR BROWN: instructions and his oath.” judge just Witt, 412, 424, 844, 852, couldn’t 105 S.Ct. determine 469 U.S. know, (1985). could, give say you that I some- Supreme L.Ed.2d No, I body penalty.... that “this death Court further observed standard penalty.] the death juror’s [consider wouldn’t require likewise does not biases with ‘unmistakable clari- proved I’ll make a ... JUROR CORKEN: ” However, ty.’ judge the trial must Id. my thought life I I All statement here. impression” pro- have the “definite that a could, it, really get I down I but when spective juror not follow the law. could I not be able vote for couldn’t. would Hutchison, (citing at 167 the truth.... penalty. the death That’s Witt, 425-26, Wainwright v. 469 U.S. at BROOKS: I JUROR ALTERNATE 853). Finally, the trial court’s S.Ct. at anybody to death. just put couldn’t —I finding juror of his or of bias of because HUDSON: I ALTERNATE JUROR penalty death are concerning her views that.... I think I don’t think I can do correctness, presumption accorded my per- own have beside would to stand and the must establish con- sonal feelings. vincing trial evidence court’s de- answers of the ex- reviewing After ap- erroneous an termination was before jurors, that their an- cluded we conclude pellate overturn that court will decision. leeway for rehabilitation.” swers left “no Alley, at 518. 776 S.W.2d Strouth, 471; Alley, see also challenged removals cause were instance, In each 776 S.W.2d at 517-18. following responses by based prosecutor either the court or the exten- respective jurors questioned when whether jurors prospective sively questioned the as they to “sign could name a verdict [their] apply the law the they to whether could sentencing the defendant to death”: punish- and all forms evidence consider HILLIARD: No.... I JUROR don’t juror was ment in this Each consis- case. penalty].... believe in death I [the that he or she would responding tent by my [personal would stand own con- ju- impose penalty. These the death victions.] rors met the for dismissal. See standard No, sir.... That’s JUROR ESLAHI: Hutchison, at 167. There is correct, don’t believe the death [I no error.

penalty] by ... I would have to stand Hypothetical C. Jasper Case

my personal feelings. BUFFALOE: No.... I would JUROR the voir As additional error within dire have to refuse. that the tri- process, Appellant asserts Well, questioning say by prohibiting let it al court erred MASSEY: me JUROR respect -with this, potential it Juror Clothier [sic] like when come the death Jasper, By Texas.2 something, a recent homicide in penalty, if someone else does that, hypothetical, a using Jasper I’m in case as somebody say if favor that he could have But I asserts death Sure. can’t sit sentence. Clothier would something determined whether Juror sign my there name and impartial competent, I can’t do that. unbiased like that.... No. gang. African American man dragging premacist “Jasper 2. The case” involved the pulled forty-nine-year-old pickup death African Ameri- of a chained truck behind by of a can three members white su- man following capable rendering the law and prevented defense counsel from capital verdict a heinous case. The questioning regarding Juror Clothier Texas, Indeed, Jasper, record does not indicate that the trial case.3 the record bumpy though for three miles over a East Texas road. JUROR CLOTHIER: Even I felt like publicity. The incident received maybe nationwide spe- death was deserved in that case, beliefs, my religious cific because of selection, During jury following colloquy 3. actually sign sign I’m not sure that I could — occurred between defense counsel Hutton something put someone else to death. potential Juror McMillon: why GENERAL HENDERSON: And that’s Well, give you example. HUTTON: let’s an bring up. say people I it A lot of sometimes couple There’s a real famous one in Texas a they they're think that in favor of the death days ago. A real horrible case. In a penalty they good thing, or that think it’s that, you impose case like could the death require ju- but in Tennessee we all twelve penally somebody— where sign piece paper rors to their name to a Nope. JUROR McMILLON: sentencing by the defendant to death elec- drags somebody to death? HUTTON:— looking trocution. And we're for twelve Nope. JUROR McMILLON: people you who can do that.... [D]o think poten- After further voir dire examination of you can do that? McMillon, tial Juror the court excused Juror JUROR CLOTHIER: I don’t know that I replaced po- McMillon for cause and was case_[N]o. can in I this can not. following tential Juror Clothier. The voir dire any- GENERAL HENDERSON: Is there juror of this ensued: case, thing any a bout this would it make says GENERAL HENDERSON: The law difference what it case was? judge in Tennessee and I believe the will JUROR CLOTHIER: I don't know. I mean you proves tell at the end that if the State Texas, they brought up Jasper, thing. I at least one circumstance be- per- think that’s terrible. And I think that doubt, yond prove a reasonable and we the probably son does deserve But I death. aggravating outweighs any circumstance jury don’t know that if I was on that that I mitigating beyond evidence in the case a sign could it. doubt, says punish- reasonable and law the you yourself ment shall be death. If find Hutton, you THE COURT: let Mr. me let proven in that situation where we've that juror. address this beyond circumstance a reason- Clothier, MR. HUTTON: Ms. I don’t want doubt, proven able and we've that it out- tape to sound like a recorder ... but I think weighs any mitigating beyond evidence a important jurors ultimately it's more that doubt, you reasonable would be able to they Okay? judges. realize that are the The sign your imposing name to a verdict the you, you impose State never tells must penalty? death penalty.... you personally death Unless be- JUROR CLOTHIER: I don't think I could. aggravator you lieve that an found all of Okay. GENERAL HENDERSON: And outweighs any mitigation you that find. again, something people it’s not most think mitigation proved by The doesn’t have to be ordinary about in their course of life. You everybody. Anything put forth in the evi- understand that under certain circum- you you mitigating, dence that believe is says punishment stances the shall law right juror weigh against have the as a to be death? proved aggrava- what the State had as an JUROR CLOTHIER: Yes. tor. you GENERAL HENDERSON: If were a part and found this was one of is, case, my question you So can says think of a those cases where the law ... case, death, punishment you Jasper where like the murder shall be would be where find, you you sign your able to follow that law and name could do that? Where could well, you by your to the verdict or would stand this is a horrible crime. It's a horri- feelings say, nothing personal own no. I can't ble murder. There's I find that's therefore, mitigating. give do that.... And I could impact in going what’s is reveals Clothier considered the the Bible that Juror in you give to Mr. Austin decision that formulating her respons- Texas case when case? this Additionally, es to General Henderson. Jasper,

defense did include the the court objected counsel sus- tained, general can ask their Texas, holding in “You questioning reference I think the Constitution philosophy. Thus, potential juror. it is how unclear inquiring into prohibit you would from reli- the court denied defense counsel from authority gious preferences.” Under Texas, Jasper, making to the reference Illinois, Morgan v. 504 U.S. hypothetical. This claim is without merit. (1992), L.Ed.2d 492 S.Ct. that, Appellant contends since Juror Scott D. Examination as to Juror’s guided that does is everything stated she the Bible in Belief Bible, right by the had an absolute he Finally, many within his claims religious determine or not her whether regarding impaneling impartial of an in her beliefs the Bible would affect deci- jury, that claims trial “[t]he present in sion case. refusing court committed error to allow right question venire prospective whether questioning of Juror unlimited, must, but members is not impact Scott’s belief the Bible would her necessity, inquiries are limited ability to fair During render a decision.” specific material and relevant to the case examination, dire potential voir Juror Layman tried. being generally stated, ‘Well, Scott all the I decisions State, Tenn.Crim.App. Bible, upon make are I based because (1968). Generally, a trial it believe to be the truth.” Juror Scott may properly into a venire inquiry limit continued “I explain, believe that in those religious beliefs instanc member’s certain penalty] [the circumstances death expressly es where issues are religious is warranted.” She added her reli case, religious presented where gious beliefs would not affect her decision litigation organization party is regarding Appellant. Defense counsel necessary inquiry predicate where inquired: then peremptory challenges. to the exercise of ... you put your Can aside in the beliefs generally Yarborough v. United Bible, you it, and the Bible as believe States, (4th Cir.1956), 56, 230 63 cert. F.2d I’m not I challenging respect that. ev- 1034, denied, 969, 351 76 100 U.S. S.Ct. erybody’s opinion you put on that. Can Lucas, (1956); Brandborg 1487 v. L.Ed. hearing that in this case or after (E.D.Tex.1995); aside F.Supp. State v. 891 352 proof, 238, you Via, 108, do have a belief that when 146 P.2d 248 Ariz. 704 1048, (1985), denied, you go jury room cert. 475 U.S. back somehow mean, jury.” death be The court sentence. And I it doesn’t wouldn't on the then every regained and asked have case. Doesn’t have to be control of voir dire Ms. to be is, Clothier, considering many you open question you The can think "Would to cases. possibility? Say Jasper punishment?” Juror case. Or all forms Clothier Henderson, know, you replied affirmatively. General if a close relative were mur- again, posed question to Clothier to dered. as ... time, Added). sign (Emphasis she able to her name At this whether would be objected imposing replied verdict Clothier defense counsel’s voir dire assert- to a death. to "[tjhat’s juror ing impossible hypothetical. that she The was then ex- an could not. murdered, If close relative were she cused. 1268, (1986); Appel- juror Accordingly, the appeal). S.Ct. 89 L.Ed.2d 577 Cole States, to this claim. 951, to relief as man v. 379 A.2d 954 lant is not entitled United (D.C.Ct.App.1977); Sheedy, Rose III. 610, 18, (1939); Corey Mo. (Ala. State, Smith v. 797 So.2d 503

Schriod Hearsay to Admit [Deleted: Refusal Indeed, Crim.App.2000). Evidence] Into IV. religion, system As our selection to designed subject prospective was not to Testimony of the Admission jurors to a catechism of their tenets of Appellant’s Prior Threats Catholic, faith, Jewish, whether it be of Violence Protestant, Mohammedan, or to force Pryor, employee an Marilyn Lee publicly declare them themselves May testified at The Golden Cue Indeed, many juror might be atheists. Appel made regarding statements particular have a real doubt as to the Specifi April raid. shortly lant after the they religious category into which could Appellant re cally, she stated that properly place themselves. should have “[Watkins] marked to her that Barnes, United States v. 604 F.2d Additionally, she de shot out.” brains (2d denied, Cir.1979), cert. 446 U.S. after immediately occurring scribed events (1980). 64 L.Ed.2d 260 S.Ct. Pryor Ms. the murder of Julian Watkins. questioned by Mem related that she was court, trial the exercise of its Appel phis regarding Police Officers discretion, questions controls the that can informed lant’s and was “whereabouts” keep be asked to the voir dire within rele- to come to subpoenaed that she would be case, present vant bounds. In the we con- Later give a statement. properly clude that the trial court restrict- not to day, Appellant told her same juror’s delving into the ed counsel from following worry subpoena. about the juror religious prospective beliefs. The for Ms. morning Appellant arranged previously religious stated that her beliefs home in Missis Pryor to be driven to her pres- would not affect her decision sippi. day, unbeknownst The next Accordingly, any foray into her ent case. Pryor returned Mem Appellant, Ms. as hav- religious convictions was irrelevant statement, returned to phis, gave her ing relationship parties no direct Mississippi. pre- involved in the matter or the issues Additionally, any inquired then as to whether re-sentencing. sented at The State pro- spoken Appellant after by restricting error the court voir dire she had by Appellant’s viding use of a authorities her statement negated the with objection, Pryor potential juror Ms. peremptory against strike 1977. Over defense that, Ap- later told the coupled with his failure to exercise testified when she Scott pellant for the peremptory challenges. generally “[she] all that had testified Oklahoma, 83-87, State,” statement], 81, Appel- the [provided Ross v. 487 U.S. stupid, lant “told that was a [her] [she] S.Ct. 101 L.Ed.2d denied, 11, cold, and that should have been reh’g [she] 487 U.S. 109 S.Ct. bitch ” (1988) (defendant’s killed, com- Appellant too.... now 101 L.Ed.2d 962 use testimony was plains that admission of this peremptory challenge against challenged Specifically, he contends prospective juror complaint against waived error. State, 565 S.W.2d Tillery v. App.1997); At the basis (Tenn.Crim.App.1978)). un- inadmissible threats would be [s]uch theory was mitigation Appellant’s 608(b) Rules of the Tennessee Rule der culpability tending negate his evidence is not since such conduct of Evidence Thus, relating testimony the offense. untruthful- truthfulness or probative of preferred have would Appellant that the Furthermore, testimony was the ness. killed, pro rather than Pryor be that Ms. allowing the highly prejudicial because sur relating to activities testimony vide previ- that Mr. Austin had jury to hear Watkins, murder of Julian rounding the only inflame ously threatened her would the de probative to rebut evidence was substantially and the concern establish mitigation and to theory fense the tes- any probative value outweighed guilt. Appellant’s doubt of residual timony had. testimony properly Accordingly, the Appellant’s reliance on we find no error. admitted and First, misplaced. we Rules of Evidence is Y. that, capital re- acknowledge at a again sentencing hearing, of Witness Cross-examination Haywood any Levi may presented as to

evidence matter that the court deems relevant hearing, re-sentencing During include, punishment may and but testimony presented counsel defense to, nature and circum- be limited he had testified that Haywood, Levi who crime; stances of the the defendant’s County Shelby Terry at the met Casteel character, background, history, that he Haywood informed Jail. Casteel condition; physical any tending evidence testify into and coerced had been beaten to establish or rebut Haywood con against Appellant. ing in subsection circumstances enumerated regretted tinued to state Casteel (i) below; any tending evidence asserted prosecuting role as a witness factors. any mitigating establish or rebut involved had not been that the Any cross-examination, evidence the court such which murder. On probative deems to have value on previously that he had Haywood admitted may punishment issue be received had been beaten “omitted” that Casteel regardless admissibility dealings under of his police its in his recitation evidence, continued provided that the The examination rules of with Casteel. to be considered that Casteel was to reveal opportunity defendant is accorded a fair implicated had he “snitch” because any hearsay to rebut statements so ad- ensued: following colloquy Appellant. The mitted .... hap CAMPBELL: What GENERAL 39-2404(c). Generally, § Tenn.Code Ann. snitches, Haywood? Mr. pens to at against of threats witnesses evidence depends. That all HAYWOOD: as probative to the accused is tributed Object. GLANKLER: (1) with being conduct inconsistent either (2) COURT: Overruled. accused’s claim of innocence hap- theory that the with the CAMPBELL: What conduct consistent GENERAL jail? in the pens a con to snitches making of such threats evinces P. generally Neil guilt. sciousness of See I wasn’t depends. It all HAYWOOD: by a got al, I almost stabbed snitch Law of Evidence et Tennessee Cohen ed.2000) I (4th said that an officer (citing plumber § because 4.01[13] (Tenn.Crim. somebody. Maddox, killed 957 S.W.2d hap- regardless admissibility GENERAL CAMPBELL: of its What under the snitch, evidence, in pens Haywood, pris- to a Mr. rules of provided that the de- opportunity on? fendant is a fair to accorded any hearsay rebut statements so admit- prison? In HAYWOOD: ted .... GENERAL CAMPBELL: Yeah. 39-2404(e). § Under They may get up. beat

HAYWOOD: Tenn.Code Ann. criteria, in- may properly these the State They may get put segregated up. lock to re- testimony probative depends. It all troduce rehable any mitigating circumstance advanced but They may GENERAL CAMPBELL: case, present In by the defense. killed, get too? “residual Appellant sought to introduce Yeah, they might. HAYWOOD: the murder for doubt” evidence to rebut Appellant now contends that the trial aggravating circumstance.4 remuneration in permitting court erred into evidence testimony of Specifically, presented the he Haywood’s testimony hap- about “[w]hat Terry Haywood to Casteel Levi relate pens jail.” Specifically, to snitches in the only implicated had testimony “specula- he contends that the is in- physically murder because Casteel tive and irrelevant” and should not have The State then police. timidated been admitted into evidence. in ex- sought explain to Casteel’s motive at a Again, capital sentencing as Haywood and other inmates plaining hearing, why Appellant. he testified against may presented any evidence be as to the treatment regarding Evidence matter that the court deems relevant to therefore, was, probative “snitches” ex- include, punishment may but not plaining differing justification of Casteel’s to, be limited the nature and circum- Haywood.5 Accordingly, testimony crime; stances of the the defendant’s permitting the intro- we find no error character, history, and background, This claim is duction evidence. of such condition; any tending physical evidence without merit. aggravating to establish or rebut circumstances enumerated subsection YI. (i) any below; tending evidence Rights Fifth of Jack Amendment any mitigating establish or rebut fac- Blankenship Charles Any tor. such evidence which the court re-sentencing Prior to hear probative deems to have value on the punishment may ing, issue of received defense counsel obtained a writ participate the crime "Residual evidence not “a fact in the commission of doubt” 4. large about the defendant or circumstances of measure the defendant's would defeat in crime, but is a state of mind somewhere denying, explaining right present evidence between and absolute cer- reasonable doubt aggravating circum- rebutting or evidence tainty guilt.” Teague, 897 stances”). (citing Bigbee, State v. (Tenn.1994)). "Residual evidence is doubt” admissibility whether the 5. The test for is not capital re-sentencing hearing admissible at a or prove the defendant did evidence tends to directly where the evidence relates to a miti- crime, but, it did not whether commit gating proof or as to factor rebuts State's crime or relates to the circumstances of the Teague, S.W.2d at an factor. aggravating mitigating circumstances. ("[prohibiting regarding ex- evidence Teague, S.W.2d at 252. did not tent to which the defendant did or

479 privilege Fifth Amendment of the bring to violation corpus ad testificandum habeas need not Memphis Blankenship. Accordingly, to we Blankenship to Jack Charles Blank com Upon arriving Memphis, Appellant’s of the testify. the merits address attorney and was enship consulted with his plaint. to assert his Fifth Amendment

advised At against privilege self-incrimination. VII. in re-sentencing hearing, Blankenship upon privilege his Fifth Amendment voked [Deleted: Introduction of Victim to the stand. The trial court being called Evidence] Impact Fifth Amend Blankenship’s found VIII. expired present had privilege ment his conviction for his criminal case because during Misconduct Prosecutorial final murder was involvement Watkins’ Closing Argument subject prosecu not to further and he was such, Appel Blanken argument, tion. As the court ordered In his next ship testify. Blankenship proceeded to violated his lant contends that the State testify, corroborating testimony of Ter by arguing trial matters right to a fair ry recanting previous Casteel and his testi Spe during closing argument. in evidence mony exculpated Appellant. which cifically, that the State: he asserts Appellant The contends that the court now blatantly motive for Aus- crafted a false unconstitutionally compelled Blankenship’s Watkins, by arguing kill tin to testimony. have lost Appellant] would [the A criminal defendant lacks thus could no amusement license and complain of violation of a standing to Howev- longer operate The Golden Cue. party’s privilege third Fifth Amendment er, never held an amuse- Appellant] [the See, e.g., against self-incrimination. Unit license, put forward ment and there was Tribunella, 104, F.2d 106 ed States v. 749 by that he ever did proof no the State (2d Cir.1984); Minor, n. 1 States v. United have such a license. (2d Cir.1968); 511, People 398 F.2d 513 v. State, Appellant As asserted Jenkins, 900, Cal.Rptr.2d 22 Cal.4th 95 objec contemporaneous make a failed to 377, 1044, (2000), petition 997 P.2d diming prosecutor’s statements tion (Oct. 24, 2000); filed, Peo writ cert. Green, v. closing argument. See State Homes, 612, 211 Ill. ple Ill.App.3d v. State v. (Tenn.Crim.App.1997); S.W.2d 186 (1995). 200, 662, Dec. 654 N.E.2d (Tenn.Crim. Little, 643, 651 privilege personal Fifth Amendment (failure object prosecutor’s App.1992) v. vicariously Rogers asserted. cannot be during closing argu misconduct alleged States, 367, 371, 71 340 U.S. S.Ct. United The failure complaint). later ment waives denied, U.S. reh’g L.Ed. prosecutor’s statements (1951). object to the 95 L.Ed. 1348 71 S.Ct. generally appeal. results waiver to testi compelled was not Thornton, 229, 234 Blankenship, Blankenship Only fy; was. R.App. (Tenn.Crim.App.1999) (citing Tenn. may assert a viola Appellant, and not the 36(a)). proce the issue was P. Because privilege. the merit tion of the Whatever defaulted, its review of be, durally we decline Appel Appellant’s may claim merits. standing alleged to assert the lant has no (Tenn. Odom, in

ion State v. S.W.2d 1996), capital fact that the federal and the IX. provide sentencing provisions expressly Jury Instruct as Refusal by that the non-death sentences received Received Sentences may culpable defendants be con equally by Defendants Co mitigating factor. See 18 sidered as 3592(a)(4) (Law. Co-op.2000 § U.S.C.S. that numer Appellant argues Supp.). by violated rights ous constitutional were Odom, supreme In our of the trial court’s failure to instruct virtue § that, 39- although Tenn.Code held Ann. jury to consider the sentences received 2-204(e)(l)(1991), trial courts “to requires by Terry co-defendants Casteel Jack mitigating circum- jury any instruct the Blankenship non-statutory as miti Charles at either by the evidence stances raised trial court re gating circumstances.6 The both,” hearing, or sentencing guilt jury, finding: fused to so instruct the Constitution States “neither United statutory ... definition [U]nder requires nor the Tennessee Constitution fact, accessory says, it before non- or submit judge the trial to read be, may paraphrasing, and I’m sentence circumstances statutory mitigating me, may in I don’t even it front of have court, addi- trial jury.” Id. at 28-30. The then that extra be life or death. And prior law tionally, noted that the says, regardless that. It line follows 39-2-203(e) (1982), did § Tenn.Code Ann. or other punishment principal for the non-statutory mitigating not require that that people involved. And as a result of Odom, instructed. expressly factors be scheme, inappropri- I it’s statutory felt (citations omitted); see at 29 result, up. And as a I bring ate to Smith, (Appendix) at also put did not it there.7 of Tenn.Code interpretation Ann. 0Odom’s provides that Conceding that the statute 39-2-204(e)(l) to sentence applicable § not law). accessory may an receive a more severe sentencing prior imposed under principal, than the sentence Ap- for which the offense Because the preclude that this fact does not maintains was committed pellant was convicted punishments received consideration interpretation supreme court’s mitigating as a factor by co-defendants 39-2-204(e)(l), involving § Ann. Tenn.Code sentence for determining appropriate convictions, appli- has no post capital support In accessory an before the fact. sentencing law cation to this case. by that sentences received position ie., of his offense, time of the effect Tenn. be instructed equally culpable 39-2404(e), require defendants § did not Ann. Code circumstance, Appel- as to non- mitigating as a instructed be circumstances.8 opin- statutory mitigating court’s upon supreme lant relies our 39-2406, 2402, 39-2404, Casteel 39-2405 6. The record shows that co-defendant twenty-year depend on sentence and co-defen- received and sentence shall said trial Blankenship received a sentence of life dant nor on principal is convicted when or if the imprisonment. actually imposed on said punishment principal. provides: §Ann. 39-2407 7. Tenn.Code Any person as an acces- tried and convicted 39-2404(e) provides: § 8. Tenn.Code Ann. sory murder in the first before the fact of sentencing arguments closing in the After punished by imprison- degree life shall judge in his hearing, shall include the trial provisions ment or death under Annotated, weigh and con- jury to 39- instructions for the Code Sections Tennessee W1999-00826-CCA-R3-CD, 39-2-203(e) (§ Smith, Reliford, No. at 32 993 S.W.2d at (Tenn.Crim.App. 1473846 2000 WL require instruction on non-statu- does not 2000). 2, Ap- Jackson, Although the circumstances).9 Oct. Accord- tory mitigating prior to was committed pellant’s offense did conclude that the trial court ingly, we act, he asserts date of the the effective refusing jury in to instruct the as not err on life to an instruction that he is entitled by Appel- received the to the sentences parole because possibility the of without lant’s co-defendants as such an instruction occurred sentencing hearing on remand constitutionally statutorily nor was neither in passed. Specifically, after the act was required.10 Appellant the ad- support position, of his following arguments: vances the X. (1) does not sentencing A scheme that Jury Instruct as to Sentence Refusal to possi- of life without offer a sentence Life Without Parole of upon cannot be relied bility parole of guided that he was and reasoned properly asserts reflect appropri- is the most jury entitled to have the instructed as decision that death punishment; sentencing option of without the ate life 1993, possibility parole. (2) In the General of sentencing A scheme that does sentencing Assembly capital amended the permit consideration of life without provide parole infringes upon for the sentence of life possibility statutes to of pa decency protected imprisonment possibility evolving without the standards constitutions; Keen, 196, and state by 213 the federal role. State v. 31 S.W.3d (Dec. (Tenn.2000), filed, petition (3) cert. under A death sentence returned 473). 2000) juries Acts ch. (citing 1993 Tenn. Pub. sentencing requires scheme which prior pen- It is well established that defendants to the death to sentence incapacitate in the defen- only punishments person alty available for a order to committing further crimes from degree of first murder were life dants convicted Keen, punishment; constitutes excessive and death. imprisonment See Cauthern, 213; (4) at State v. permit S.W.3d consideration Refusal (Tenn.1998), denied, parole vio- possibility cert. S.W.2d life without the of the equal protections 142 L.Ed.2d rights 525 U.S. 119 S.Ct. lates (1998); see also State v. Bruce C. laws. any by are a valid non-statu- any mitigating co-defendants ceived sider circumstances circumstance, statutory aggravating circumstances a determination tory mitigating (i) this section mitigating set forth in subsection circumstance is of whether the may by which be raised the evidence cognizable had the 1-989 be a issue would guilt sentencing hearing, or either applicable. Sentencing been Act Criminal and the manner of both. These instructions Odom, at 30-32. generally given arriving in the at a sentence shall be position as to Additionally, we take no while writing jury charge for its oral determination, Appellant is correct this deliberations. Penalty Act the Federal Death that under the "[ajnother de- defendant or circumstance 39-2404(e) § is verbatim 9. Tenn.Code Ann. crime, fendants, Thus, culpable will equally 39-2-203(e). § Tenn.Code Ann. statutorily by death” is a punished not be analysis applied. same mitigating factor. 18 U.S.C.S. enumerated unnecessary Although to address we find it 10. 3592(a)(4). § sentences re- Appellant’s contention that respect Appellant’s argu- While we claim, note support ments of this we Bush, In sent a note to arguments recently were that the identical court after fifteen minutes delibera- State v. rejected by supreme our many years began asking, tions “How does Keen, Accordingly, at 213-219. impris- if gets serve he life [defendant] by precedent estab- as we are bound long parole?” onment and how before court, find it supreme lished we jury, “parole eli- trial court instructed the to re- unnecessary arguments revisit the capital in a gibility is not an issue cently by dismissed the court. This claim ” trial court’s In the approving case.... merit.

is without that, in noted response, supreme our court Simmons, that Supreme Court held XL an instruction process only required due Jury Regarding Refusal to Instruct ineligible parole is that the defendant Eligibility Parole dangerous- future “where the defendant’s deliberation, jury During jury issue, prohibits the at and state law ness is question asking court submitted Bush, 942 parole.” defendant’s release on long “how is a and if there is life sentence Simmons, 512 U.S. (citing at 503 S.W.2d any possibility parole.” of After consult 2190). 155-156, Su- 114 at The at S.Ct. ing with both the State and defense coun would preme that the Court Court added sel, explained jury trial to the judge of a State “second-guess the refusal deliberations, that, jury “once a it s starts instruction, argument proof, allow judge extremely the trial is limited on pa- jury availability parole” “[i]f of judge The continued involvement....” role is an a defendant sentenced option for liberty” respond that he “not at was Bush, 942 S.W.2d imprisonment.” to life question ap and that the law to be their Simmons, at 168- U.S. (citing at 503 512 plied already charged. jury The had been Simmons, also 169, 2196; see 114 S.Ct. at at a.m. re resumed deliberations 9:35 175-177, 2200 114 at 512 U.S. at S.Ct. p.m. turned a of at 1:50 verdict death (O’Connor, J., concurring) (parenthetical omitted)). provided reasoning Under that, Appellant complains un now Simmons, that court held supreme our v. South of Simmons authority der the in which de- is a state “[s]ince Tennessee Carolina, 2187, 154, 512 114 129 U.S. S.Ct. imprisonment to life fendants sentenced (1994), L.Ed.2d 133 the trial court’s failure parole, Simmons does not eligible are for jury’s question violated vir to answer the jury given information require that the be belonging tually every right constitutional Bush, 942 availability.” parole about by capital to a defendant. As advanced supported position at 503. This State, supreme our court reviewed “holding other decisions rejected under very argument this same verdict, jury’s of a v. the after-effect State almost identical circumstances proper not a Bush, availability, is cert. 489, (Tenn.), parole such as 942 S.W.2d denied, 376, for 953, instruction or consideration U.S. S.Ct. Bush, (1997). 942 S.W.2d during deliberations.”11 L.Ed.2d 293 re- a defendant who expressly recognize, be "that court did now instructed 11. The Bush however, imprisonment for life sentencing option of life ceives a sentence the new July eligible parole consideration parole possibility effective shall not without twenty- Bush, at least until the defendant has served 942 S.W.2d at 503 n. 8. 1993. See Id. years sentence.” acknowledged part full calendar of such another five The court also addition, "a jurors legislative requiring jurors must be informed enactment In mur guilty of to others found compared (citing Caughron, [State v.] at 503 der”). (Tenn.1993)]; State at 543 [ S.W.2d [526] (Tenn.1990), 10, 21 Payne, 791 S.W.2d Middlebrooks, In State v. by, 501 U.S. S.Ct. that, aff'd when supreme court held our (1991) (internal omit footnote L.Ed.2d 720 murder, felony defendant is convicted ted)). This issue is without merit. out circumstance set 39-13-204(i)(7)(murder § Ann. Tenn.Code

XII. enu committing certain committed while (i)(4) felonies) Aggravator not narrow does Violates merated Whether murderers sufficient eligible v. Middlebrooks of death class ly Eighth Amendment under guilty found I, Article United States Constitution accessory degree before the fact to first “be § Tennessee Constitution 16 of the “accessory An the fact” is murder. before the elements duplicates cause it move, feloniously “[a]ny person who shall Hall, 958 State v. S.W.2d offense.” See incite, counsel, hire, command, procure or denied, (Tenn.1997), 679, 524 U.S. 692 cert. felony....” any person other to commit a 2348, 141 L.Ed.2d 718 118 S.Ct. § imposing 39-107. In Ann. Tenn.Code (1998). partic that all The court reasoned case, jury in sentence of death this murder, regardless of ipants felony in a found that defendant committed the “[t]he degree culpability, enter sen promise murder for remuneration or the trial at least one tencing stage of the with remuneration, employed or another to because aggravating against factor them for or commit the murder remuneration duplicates factor the ele aggravating promise of remuneration.” Tenn.Code Middlebrooks, offense. ments 39-2404(i)(4). Appellant The now Ann. omitted). (quotation at 343 S.W.2d that the evidence to convict contends used analysis applies this same accessory Appellant him as an before the fact to first The (i)(4) factor when the degree duplicated aggravating that to to the murder used upon “accessory before support aggravating factor in Tenn. conviction is based 2404(i)(4) acknowledges § (employing an the fact.” The State Ann. 39— Code court, Appellant’s peti- fourth prom this other commit the murder remuneration). relief, rejected this post-conviction Relying upon ise of tion for (Tenn. that, Middlebrooks, although argues identical issue S.W.2d case,” 1992), this court should not the “law of the Appellant dupli asserts that the analysis ap- direct this support apply cation of facts to both the convic same State, No. Richard H. Austin v. peal. does not achieve the tion and sentence 1995 WL constitutionally required “narrowing” of 02C01-9310-CR-00238 Jackson, 3, 1995), May (Tenn.Crim.App. at Zant v. eligible death defendants. See (Tenn. denied, 862, 877, Nov. perm, appeal Stephens, 462 U.S. S.Ct. (1983) 1995). this responds that Appellant The (aggravating 77 L.Ed.2d 235 supreme court’s deci- misapplied the “genuinely narrow the class of court factor must determining Stephenson in State v. persons eligible penalty for the death sion had no Middlebrooks of a reasonably justify imposition must he that the Ste- Specifically, issue. asserts sentence on the defendant more severe parole.” eligible impris- for release receives a sentence of shall never defendant who 39-13-204(e)(2)). § (citing Ann. possibility parole Tenn.Code onment for life without Id. person to aid another attempts phenson analysis germane is not Stephenson commit the offense.... present issue because criminal court its decision on the based supreme concluded that “the statute, underly- responsibility a different statutory aggravating circumstance found ing than this court is faced with statute proper narrowing by the is device issue, today. After re-examination of way in provides ‘principled it because ra- previous we remain convinced that our in which the distinguish’ the cases which analysis and the same tionale is correct many from the penalty imposed death is applies. Stephenson, it not....” cases which In Stephenson, State v. court reasoned: at 557. The convicted of first the defendant was de circumstance-the degree by employing another to murder commit the employed fendant another Stephenson’s kill conviction was his wife. promise or the murder for remuneration killing on his role in the under the based duplicate the of remuneration-does statute, responsibility criminal Tenn.Code offense, incorporat even elements of the 39-11-402(2) (1991), § and the death Ann. responsibility statutes. ing the criminal solely aggrava- on the sentence was based accom narrowing is Constitutional ting involving murder for remunera- factor sentencing at the plished because hear promise tion or of remuneration. Tenn. prove required was ing, the State 39-13-204(i)(4) (1991). § The Code Ann. kill his this hired someone defendant constitutionally that the defendant claimed to kill wife, pay someone promised to or narrowing eligible of death of- required every Obviously, not his wife. defen of the fenders was not achieved because mur first-degree guilty dant who is support the convic- duplication of facts to responsi criminal pursuant der supreme tion and the death sentence. Our another or bility has also hired statutes defendant disagreed, noting pay another to commit promised to degree premeditat- stood convicted of first Thus, circum murder. murder, as an “inten- ed which is defined jury in this case by the stance found tional, killing premeditated and deliberate death-eligible de narrows the class § 39-13- of another.” Tenn.Code Ann. v. Middle by State required fendants as 202(a)(1) (1991). conviction was based brooks, supra. statute, responsibility on the criminal added). (emphasis Id. at 557 39-11-402(2), § which Ann. Tenn.Code in Rich- provides: in this court’s decision As noted State, No. 02C01-9310- H. v. an ard Austin criminally responsible A for person is 263930, CR-00238, Appel- an- 1995 WL by the conduct of offense committed theory premised on lant’s conviction was other if: the conduct responsibility for of criminal promote intent to or assist Acting with another, designated although expressly not offense, or the commission Specifically, such at the time.12 as or results of the proceeds benefit aids, accessory be- solicits, directs, convicted of offense, Appellant was person abettors), was (defining § aiders and existing at the time of this 39-109 Under the law 12. offense, replaced subsequently repealed and accessory the fact an before Code responsibility See Tenn statute. principal punished as criminal deemed a offender (2) Indeed, § § "[s]ubdivision 39-11-402. 39-108. This Ann. Tenn.Code Ann. such. section, § forth the 39-11-402] sets Tenn.CodeAnn. [of addition to Tenn.Code Ann. code justifica- any penalty An death has eviscerated murder. degree the fact to first fore death; out the sentence “[a]ny per carrying fact” is tion for “accessory before the incite, move, therefore, at this feloniously of this sentence shall execution son who command, counsel, hire, any procure cruel and unusual point would constitute felony....” person to commit a Eighth other Amendment punishment under § Applying 39-107. and Arti- Constitution to the United States Ann. Tenn.Code rationale, person Stephenson every I, of the Tennessee Consti- cle Section 16 accessory is convicted as an before who Supreme States Court tution. United also degree fact to first murder has in Lack- to review a similar issue declined pay another promised hired another or Texas, 1045, 115 S.Ct. ey v. 514 U.S. Accordingly, as to commit the murder.13 (1995), reh’g petition 131 L.Ed.2d 304 Stephenson, aggra we conclude that the denied, 117 S.Ct. 520 U.S. vating factor enumerated Tenn.Code (whether (1997) executing a L.Ed.2d 568 2404(i)(4) § the constitu achieves Ann. 39— already spent has seventeen prisoner who eligi tionally required narrowing of death Eight violates the years on death row the conviction ble defendants even where against cruel and prohibition Amendment’s an is based on the defendant’s role as Notwithstanding, punishment). unusual v. accessory before the fact. See Owens Stevens, joined by Breyer, Justice Justice (Tenn.Crim.App.1999), State, 742, 764-765 memorandum, emphasizing that filed a denied, (Tenn.), per appeal m. ruling its of certiorari was not a denial 846, 121 cert. 531 U.S. S.Ct. denied that this con- noting merits and his belief (2000). reasons, 148 L.Ed.2d 73 For these Lackey explored. further cern should be is denied relief on this claim. Texas, 1045, 115 514 U.S. at S.Ct. recog- Specifically, 1421. Justice Stevens XIII. delay in the execution of nized that Propriety of Court’s Refusal to penalty judgments imposing death Impose Life Due Sentence principal purposes two social frustrates the Twenty-year Delay i.e., and deter- penalty, of the retribution 1045, 115 Lackey, 514 U.S. at S.Ct. rence. asserts (Stevens, J., respecting denial of twenty plus years delay imposing at 1421 principle of- formerly ac- the fact was deemed a conduct of defendants known as before cessories before the fact and aiders and abet- punished as such. See fender and Tenn. Comments, Sentencing 1989). tors.” Commission (repealed § Be- 39-108 Code Ann. § Ann. 39-11M-02. guilty every who is Tenn.Code cause not defendant first-degree pursuant crimi- murder to the Additionally, acknowledge Ap 13. we that the responsibility has also hired an- nal statute pellant raised the identical claim in his feder murder, how- person to commit the other corpus petition. The District Court al habeas ever, aggravating circumstance rejected for the Middle District of Tennessee jury found did narrow the Petitioner’s claim, holding Appellant's "alle that the death-eligible defendants in accor- class of gation a fails to of Middlebrooks violation Stephenson, 878 with Middlebrooks. dance present cognizable federal claim.” Austin Therefore, S.W.2d at 557. Bell, 1308, (M.D.Tenn. F.Supp. 1326 v. 938 jury found that Petitioner’s circumstance Nonetheless, 1996). pro district death-eligible de- the class of did narrow merits, ceeded to address the issue on its with Middlebrooks. fendants in accordance concluding Bell, F.Supp. at 1327. v. 938 Austin [according in effect at the time law murder, accessory Watkins' an of Julian 486 (1999); 1262, People 143 L.Ed.2d 358

S.Ct. Massie, 550, Cal.Rptr.2d 79 v. 19 Cal.4th certiorari). stating, In so Justice Stevens denied, (1998), 29, 816, 44-45 cert. 967 P.2d invited the state and federal courts 1759, 1113, 143 L.Ed.2d 119 526 U.S. S.Ct. in which the issue “serve as laboratories Bush, 138, (1999); 695 So.2d parte 790 Ex it is [may] study receive further before Schackart, (Ala.1997); 190 v. 140 State 1045, by this Id. at 115 addressed Court.” (1997), 315, cert. 238, 336 Ariz. 947 P.2d York, McCray 1421 v. New (citing S.Ct. 149, denied, 862, 142 119 S.Ct. 525 U.S. 961, 2439, 963, 2438, 461 103 S.Ct. 77 U.S. State, (1998); v. 938 122 Bell L.Ed.2d (1983)). L.Ed.2d 1322 35, (Tex.Crim.App.1996), cert. 53 again presented The issue was 90, denied, 827, 139 522 118 S.Ct. U.S. Florida, 990, in Knight Court v. 528 U.S. Smith, (1997); 280 v. L.Ed.2d 46 (1999). 459, 370 120 S.Ct. 145 L.Ed.2d (1996), 1272, 158, 1287-88 P.2d Mont. Thomas, writing separately in the Justice 410, 965, denied, 118 S.Ct. cert. 522 U.S. certiorari, opined: court’s denial of Johnson, (1997); v. 139 L.Ed.2d 314 White any support ... I am unaware of denied, (C.A.5), 432, cert. 79 F.3d 439-40 American constitutional tradition or 136 L.Ed.2d U.S. S.Ct. precedent proposi- for the this Court’s Ward, (1996); 59 F.3d Stafford can avail himself of tion that a defendant (C.A.10 1995)). this court panel A panoply appellate and collateral re claim without similarly dismissed complain when his procedures then Eddie Hart v. Charles view. See State Consistency would delayed. execution is M1998-00803-CCA-R3-DD, man, No. accept seem to demand that those who (Tenn.Crim.App. at Nash WL jurisprudence as a penalty our death 2000). ville, May lengthy delay given accept also be- Appellant’s After consideration as a sentencing and execution tween claim, viola- perceive no constitutional we It is incon- necessary consequence.... the Ten- federal or tion under either the with gruous capital to arm defendants uncon- remain nessee constitution. We claims with an arsenal of “constitutional” capital that neither this state’s vinced executions, their they may delay which sub- accompanying sentencing law nor simultaneously complain when ex- capital con- appellate review of sequent inevitably delayed. ecutions are purpose with viction was enacted torture in order to prolong incarceration Florida, 990-92, Knight v. 528 U.S. at 120 inAs their execution. prior inmates (Thomas, J., concurring in S.Ct. at 459-60 cases, instant case delay in the most certiorari) omitted). (citations denial part by numerous large was caused in Thomas, notably, revisited Justice Justice lodged by attacks appeals and collateral the lower previous invitation for Stevens mer- Appellant. This issue is without in which courts to serve as “laboratories” it. receive viability of this claim could that, emphasized since study. further He XIV. invitation, the lower Stevens’ Justice Challenges Constitutional rejected “resoundingly courts have Penalty to Death 461, Id. at 120 S.Ct. claim as meritless.” raises numerous Appellant Frye, 18 The (citing People 461 v. Cal.4th at 183, constitutionality of Ten 25, challenges to the 894, 959 P.2d 262 Cal.Rptr.2d 77 1023, denied, penalty provisions. (1998), 119 nessee’s death 526 U.S. cert.

487 (d) process qualification The death have by raised challenges jury make-up does not skew rejected by examined and previously been relatively in a not result and does body up- of law law decision. The case rejecting the holding the death meaningfully narrow meaningful ulation of those convicted of first forth ly 2. The death sentence is not Keen, murder eligible statutory aggravating 1. Tennessee’s death S.W.2d of death.14 See State v. ce S.Ct. (i)(5), (i)(6), Appellant, State unlimited discretion as to whether not to seek the death upon in a 847, 582; (Tenn.1995), cert. (1996). (b) gender. (a) Cazes, penalty provisions, specifically, rt. The death 926 S.W.2d arbitrarily imposed in that 1467, 117 S.Ct. 93, Tenn.Code economics, Brimmer, v. discriminatory defendants; 875 S.W.2d constitutionality of Tennessee’s those prosecutor Hines, 117-118 denied, basis is recited See claims and 143 L.Ed.2d eligible Hines, penalty at (i)(7) 133, Ann race, currently 526 U.S. 876 S.W.2d (Tenn.1998) 742. narrowing the class of death as follows: denied, is not vested circumstances set specifically, S.W.2d penalty statutes 136 L.Ed.2d 82 § 268; for the sentence provide geography, manner based is not 39— penalty. Vann, Smith, capricious- 2—203(i)(2), raised 1071, 519 U.S. 573, imposed (Appendix), such degree (1999); at with pop See 976 119 87; at State See State prosecution See Black, 318 when the matters relevant impose a life 86-87; must rors’ the effect of a non-unanimous mously to a life verdict does late Mills v. (1986). (e) ally prohibited (Tenn.), execution, cution. See 876 S.W.2d 111 1153, (1988) Cazes, (f) (g) S.W.2d L.Ed.2d 369 son, [494 108 S.Ct. There Defendants Requiring the cost of incarceration versus S.Ct. (Tenn.), 768 S.W.2d Brimmer, U.S. 106 S.Ct. agree v. popular misconceptions about ] 815 S.W.2d 875 S.W.2d at 22-23. Cazes, cert. Harbison, 571, 112 v. is no constitutional violation deterrence, jury is instructed that McKoy v. North Carolina 1860, 100 L.Ed.2d 384 Teel, at prone guilty-prone unanimously Brimmer, Maryland sentence, and is not told cert. denied, (1990)]. 87; are not unconstitution- 2261, 875 S.W.2d from 110 S.Ct. 876 S.W.2d ^[239] 793 S.W.2d at 179. L.Ed.2d at denied, [State v.] 704 S.W.2d 268; sentencing, 90 L.Ed.2d 498 method of addressing at 250 876 S.W.2d [486 agree unani Smith, 577 U.S. Brimmer, 476 U.S. U.S. order 236, not vio Thomp at [ verdict. at (1990); cost of (Tenn. 1007, jury. 314, 268; exe- 246 i.e., 705 ju- 87; at it S.W.2d at 23. 1989) ]; King, (c) (Tenn.1986), by jury superseded statute procedures 249 Standards Hutchison, 898 recognized by, inquiry as open exist to insure selection 161. at S.W.2d potentially prejudicial sub- concerning (h) Caughron, required 855 to make ject matter. See is that death ultimate determination at 542. S.W.2d (i)(2), (i)(6), factors is (i)(5), respect with to these vidual claim factors 14. We note tl^at See, Hall, at (i)(7) e.g., 958 S.W.2d they without merit. pertain this case as were do not Brimmer, 715; Thus, at 87. any 876 S.W.2d indi- upon not the State. relied review, considering both See Brim penalty. proportionality appropriate Smith, mer, 857 “the nature of the 87; crime and defen- 876 S.W.2d at dant,” the sentence at 22. convinces us that S.W.2d dispropor- nor is neither excessive death (i) closing defendant is not denied in similar penalty imposed tionate to the penalty phase argument affirm the sen- Accordingly, we cases. Brimmer, 87; See trial. at S.W.2d trial court. by the imposed Smith, tence death Cazes, 269; at S.W.2d 24; Caughron, S.W.2d at 855 S.W.2d

at 542. EVERETT RILEY and JOHN JOE G. process appellate 3. The review WILLIAMS, J.J., concur. constitutionally penalty death cases is Cazes, 875 S.W.2d

adequate. Harris,

270-71; at 77.

Moreover, re supreme court has that, an

cently important held “while as against arbitrary or safeguard

additional sentencing, comparative pro

capricious

portionality constitutionally is not review Bland, AKINS, See State

required.” Sr. In re Ronald Lebron (Tenn.1997), cert. de Tennessee, Supreme Court of nied, 1536, 140 118 S.Ct. U.S. at Knoxville. (1998). L.Ed.2d 686 decisions, the upon Based the above case 1, 2002. Nov. challenges appellant’s constitutional re- penalty Tennessee’s death statutes are

jected.

XV. Proportionality Sentence]

[Deleted:

Conclusion

In accordance the mandate with 13—206(c)(1) § Ann.

TenmCode 39— adopted prior decisions of the

principles Court, Supreme have con-

Tennessee we in this cause and the entire record

sidered sentence of death was

find that fashion, any arbitrary that the

imposed discussed, previously supports,

evidence as statutory aggrava- jury’s finding of the circumstance, jury’s finding and the

ting out- circumstance beyond circumstances

weighed mitigating Ann. TenmCode

a reasonable doubt. 39-13-206(c)(l)(A)(C). comparative A

§

Case Details

Case Name: State v. Austin

Court Name: Tennessee Supreme Court

Date Published: Sep 16, 2002

Citation: 87 S.W.3d 447

Docket Number: W1999-00281-SC-DDT-DD

Court Abbreviation: Tenn.