STATE of Tennessee, Appellee, v. Olen “Eddie” HUTCHISON, Appellant.
Supreme Court of Tennessee, at Knoxville.
June 6, 1994.
Rehearing Denied May 1, 1995.
898 S.W.2d 161
John Eldridge, Knoxville, Charlie Allen, Oneida, for appellant.
OPINION
O‘BRIEN, Justice.
On this direct appeal, we review the conviction and death sentence of the defendant, Olen “Eddie” Hutchison, for the first-degree murder of Hugh Huddleston. Hutchison was also convicted of conspiracy to take a life and solicitation to commit first-degree murder. The State‘s proof showed that he bought a large insurance policy on the victim‘s life, intending to hire others to kill the victim in order to collect the proceeds. The defendant was tried jointly with Chip Gaylor, the victim‘s trusted “friend,” who conspired with Hutchison to lure the victim on a fishing trip so that others could drown him. On direct appeal, Hutchison challenges his conviction and death sentence. We uphold the trial court‘s judgment of conviction.
I. Guilt Phase of Trial
The record establishes that the victim in this сase, Hugh Huddleston, died by drowning while on a fishing trip at Norris Lake in Campbell County. The State‘s evidence showed that defendant Hutchison and several other men had conspired to kill Huddleston in order to collect almost $800,000 in life insurance proceeds and other benefits.
Huddleston, a bachelor in his mid-forties, had what was described by witnesses as a
The chief prosecution witness was Richard Miller, one of the conspirators and an acquaintance of the defendant and of Gaylor and Huddleston. He told how, during the year before Huddleston‘s death, he, the defendant, and Gaylor, then 26, were sitting around talking when the defendant mentioned “how much money he could make if he took insurance out on somebody and then had them killed.” Gaylor remarked that he would pay the defendant $100,000 to kill someone but that his “insurance policy” was not good until he was 30. The defendant responded that that was too long to wait.
About a week later, the defendant asked Gaylor to have Huddleston sign some “insurance papers” under the pretense of a tax write-off. According to Miller, Huddleston would do almost anything Gaylor asked. Huddleston signed the papers, and that evening Miller and Gaylor returned them to the defendant, who indicated that he would get back in touch with them. Shortly afterward, the defendant had Gaylor get Huddleston‘s signature on a promissory note representing a fictitious debt of $25,000 to defendant. The insurance policy was to be security for the alleged debt. At Gaylor‘s prompting, Huddleston signed the note in Miller‘s presence, and Gaylor witnessed his signature. Two other men, M.C. Curnutt (an insurance agent and an alleged co-conspirator) and Charles Boruff, also signed as witnesses after the note‘s execution. The defendant also informed Gaylor that a nurse would be coming to perform a physical examination on Huddleston. The examination was performed, and an insurance policy was issued on Hud
Once the “paper work” had been done, the defendant offered Gaylor $10,000 to kill Huddleston. Gaylor declined because he had an obvious motive. When Miller also refused to kill Huddleston, the defendant said he would get someone else. The defendant then spoke with Phil Varnadore, one of his “men,”1 who agreed to “get his boys to do it” for $25,000 to $50,000. After initially discussing killing Huddleston on a hunting trip, the dеfendant and Varnadore decided to drown him during a fishing trip, since Huddleston could not swim. Wilbur Hatmaker was designated to be the killer. Hatmaker and Miller scouted out locations for the drowning on Norris Lake, and eventually a suitable spot was located. Hatmaker instructed Miller to have Huddleston there by 8:00 p.m. the next evening.
Gaylor arranged a fishing trip with Huddleston for that day, but only Miller showed up. The two men went to Norris Lake and rented a pontoon boat. Sometime after dark, Hatmaker and John Rollyson appeared in a separate boat. Acting on the pretense they were friends of Miller, the two joined Huddleston and Miller in fishing from the pontoon boat. According to plan, Miller left to get bait in another boat he had brought on the trip. Rollyson testified that after Miller left, Hatmaker pushed the victim into the water and wiped the boat with a rag. Hatmaker had promised Rollyson $12,500 for the killing, to be paid in 90 days. (The insurance policy provided fоr payment in 90 days.) When Miller returned to the boat, Huddleston was gone, as were Hatmaker and Rollyson. Miller reported Huddleston‘s disappearance and his body was discovered later that day in 15 feet of water. There were no obvious signs of violence on the body, but the pathologist later noted a deep bruise in the victim‘s scalp behind his right ear, which was apparently caused by a blunt object-possibly from striking his head on the boat, or being struck by a boat paddle or a fist.
The defendant and Gaylor filed claims to collect the insurance. When the company refused to pay because of the district attorney‘s investigation into the circumstances of the victim‘s death, Gaylor sued the insurance company in federal court, claiming that Hutchison was responsible for Huddleston‘s death and should not be awarded the insurance proceeds. Hutchison then filed a cross-claim in the federal suit.
While the defendant was incarсerated on these charges, he wrote several letters to Miller and Varnadore communicating with them about the case and tacitly urging them to keep quiet. These letters were produced at trial. The defendant‘s cell mate, Keith Wilson, who had forwarded some of defendant‘s letters to Miller, testified that the defendant had told him that the others involved “knew better than to say anything” and that “[i]f they did, they would end up the same way as the other guy.” The defendant had remarked that he had the money to get something done from jail and “all he had to do [was] make a phone call.” He also said that “as long as everybody kept their mouth shut, then they would be found not-guilty, they couldn‘t prove nothing.”
The defendant maintained that the $25,000 loan and subsequent use of the insurance policy as collateral had been a legitimate business deal between Huddleston and the defendant, who had loaned money to the victim in the past. The defendant, who testified, maintained his innocence of any involvement in Huddleston‘s death.
A. Sufficiency of the Proof
The jury rejected the defendant‘s claim, finding him guilty of first-degree murder, conspiracy to take a life, and solicitation to commit first-degree murder. Despite the defendant‘s contention on appeal that the evidence is insufficient to support the jury‘s verdict, we find, to the contrary, that the proof is legally sufficient to support the convictions.
To corroborate the testimony of co-conspirators Miller and Rollyson, State investigators testified that in searching the defendant‘s home, they had found a recently purchased life insurance policy on Hugh Huddleston‘s life, naming the defendant as the sole beneficiary. The defendant had claimed, implausibly, to have been unaware of the policy. The accomplices’ testimony was further corroborated by Hutchison‘s comments to his cell mate and his letters to Varnadore and Miller. Viewing the evidencе in the light most favorable to the State, we conclude that a rational trier of fact could readily have found the elements of the crimes charged beyond a reasonable doubt.
B. Severance
Hutchison alleges that the trial court erred by refusing to sever his trial from that of his co-defendant, Chip Gaylor. The court admitted evidence that Gaylor had sued in federal court to collect the proceeds from the victim‘s life insurance policy, and had labeled the defendant as the murderer in his complaint. The State introduced the complaint for identification during its cross-examination of Gaylor, in order to impeach his testimony that he knew nothing about the victim‘s death. Hutchison argues that the court‘s failure either to exclude the evidence or to sever his case prejudiced his defense.
Under
In this case, Gaylor‘s complaint was admissible impeachment evidence against him, but inadmissible hearsay as to this defendant. Thus, the trial court should have excluded the complaint or severed the trials. Viewing the facts in light of the standard set
C. Voir dire
The defendant also alleges that several errors on voir dire denied him his right to an impartial jury under the Sixth and Fourteenth Amendments of the United States Constitution, and also denied him his constitutional right to due process. First, he argues that the court‘s refusal to sequester jurors for questions about the death penalty, pretrial publicity, homosexuality, and illegal drug use allowed jurors to hear the answers that would enable them to escape jury service. In reviewing his claim, we observe that the trial court has much discretion in choosing the method of voir dire. Its authority to question jurors individually is permissive, not mandatory. See
The defendant‘s second allegation of error faults the trial court for not allowing defense counsel to rehabilitate jurors who stated that they could not impose the death penalty.
In each instance in which the trial judge disqualified a juror on this basis, the juror had insisted that he or she was unable to impose the death penalty regardless of the law. When jurors were equivocal, the trial judge refused to excuse them without further questioning by counsel. We defer to the trial court‘s perception of the demeanor of various jurors’ when responding to questions asked, and conclude that the jurors who denied that they could consider the death penalty were properly dismissed without rehabilitation.
D. Admission of Evidence
In addition to these asserted errors on voir dire, Hutchison cites several evidentiary errors as grounds for reversal. He first argues that the letters that he wrote to co-conspirator Philip Varnadore were introduced against him in violation of
Rule 16, however, requires only that the State provide the defendant with copies of documents within the State‘s “possession, custody or control.” The record shows that Varnadore‘s attorney did not give the State the letters until the middle of the trial because his client feared possible retaliation by the defendant. Because the State did not have the letters in its control, actually or constructively, until the middle of the trial, Rule 16 was not violated.4 We find no prejudicial surprise, moreover, because defense counsel was given the weekend to review the letters and to prepare for cross-examination of Varnadore. Thus, the defendant‘s first basis for excluding the letters is meritless.
In addition to the Rule 16 violation, the defendant objects to the admission of the letters, claiming that only because of the court‘s prejudicial error was the State prepared to introduce them. Before a previous, aborted trial, the defendant sought reimbursement for a document examiner in an ex parte hearing pursuant to
Finally, the defendant argues that his letters to Varnadore and Varnadore‘s testimony were erroneously admitted because defense counsel was not allowed unrestricted cross-examination of Varnadore. Varnadore testified on direct examination about his receipt of the letters; he identified activities, claiming the Fifth Amendment privilege against self-incrimination. The defendant, nevertheless, sought to elicit answers about Varnadore‘s involvement with the other conspirators, insisting that the witness had waived his Fifth Amendment privilege and that the court would deny Hutchison his right to confront the witness if it refused to grant unlimited cross-examination.
As to the scope of the privilege against self-incrimination, Tennessee law provides that:
A witness cannot discontinue testimony as to transactions already disclosed by the witness. Once he discloses a fact, though incriminatory, he must testify with respect to the details of that fact.... A witness who testifies on direct examination is bound to answer questions on cross-examination with respect to the testimony that he gave on direct.
State v. Stapleton, 638 S.W.2d 850, 855 (Tenn.Cr.App.1982). Likewise, the United States Supreme Court has stated that:
Since the privilege against self-incrimination presupposes a real danger of legal detriment arising from the disclosure, [a] petitioner cannot invoke the privilege where response to the specific question in issue here would not further incriminate her. Disclosure of a fact waives the privilege as to details.
Rogers v. United States, 340 U.S. 367, 372-3, 71 S.Ct. 438, 442, 95 L.Ed. 344 (1951); reh‘g denied, 341 U.S. 912, 71 S.Ct. 619, 95 L.Ed. 1348 (1951). To determine the scope of cross-examination, many courts thus ask whether testimony would be “direct” or “col
The trial court required Varnadore to answer questions about his illegal drug activity and about the defendant‘s letters, matters brought upon direct, but did not allow the introduction of testimony linking the witness to the murder. The trial court thus properly limited the scope of cross-examination. The additional questions asked by defense counsel sought to impeach Varnadore with collateral information about his role in the murder, and did not relate to his testimony on direct examination. Moreover, because Miller and Rollyson described Varnadore‘s participation in the murder, the jury was made aware of the evidence sought on cross-examination, and so the defendant was not prejudiced. We therefore conclude that the Varnadore letters and Varnadore‘s testimony were introduced without violating the defendant‘s right to confrontation.
As his next evidentiary complaint, the defendant alleges that the trial court erred by admitting co-conspirator hearsay without a prior determination that a conspiracy existed. Although the defendant moved the court to determine whether a conspiracy existed before allowing Ricky Miller to testify, the court admitted Miller‘s testimony subject to later evidence proving a prima facie case of conspiracy. In State v. Hodgkinson, 778 S.W.2d 54, 61 (Tenn.Cr.App.1989), the Court of Criminal Appeals held that co-conspirator hearsay, admissible under
The defendant complains, next, that the court did not follow the Sixth Circuit Court of Appeal‘s standard for admitting co-conspirator hearsay. See United States v. Vinson, 606 F.2d 149, 153 (6th Cir.1979), cert. denied, 444 U.S. 1074, 100 S.Ct. 1020, 62 L.Ed.2d 756 (1980), reh‘g denied, 445 U.S. 972, 100 S.Ct. 1668, 64 L.Ed.2d 251 (1980). In Vinson, the Sixth Circuit held that a defendant can make a “continuing” hearsay objection while the statements of conspirators are admitted pending a finding that a conspiracy exists. Vinson, however, emphasizes the importance of the court‘s eventual explicit finding of a conspiracy. We agree with the Vinson court that the trial court should make an explicit finding that a conspiracy was more likely than not to have existed, and we recognize that the trial court‘s conclusion in this case should have been clearly stated. Neverthеless, we find ample evidence to support the conclusion that a conspiracy existed to kill Huddleston, and we therefore find that the defendant was not prejudiced by the court‘s failure to enunciate its finding.5 Criminal investigator Bobby Joe Higgs searched defendant‘s home and found the insurance papers and promissory note signed by the other conspirators. Tim Huddleston testified of his uncle‘s intention to fish with Gaylor on the day of his death. Keith Wilson, the defendant‘s cell mate, testified that Hutchison stated that his co-conspirators knew better than to talk to police, and that “he could get something done from the jail” if they did talk. The medical examiner testified that a bruise behind the victim‘s ear was
The defendant also submits that the court erred in admitting two co-conspirator statements not made “during the course of and in furtherance of the conspiracy,” as required by
In a case like this, however, a conspiracy continues until the conspirators’ ultimate goal of collecting the proceeds of the crime has been achieved or abandoned. See, e.g., State v. Coker, 746 S.W.2d 167, 173 (Tenn.1987), cert. denied, 488 U.S. 871, 109 S.Ct. 180, 102 L.Ed.2d 149 (1988); United States v. Xheka, 704 F.2d 974, 985-6 (7th Cir.), cert. denied, 464 U.S. 993, 104 S.Ct. 486, 78 L.Ed.2d 682 (1983); United States v. Howard, 770 F.2d 57, 59 (6th Cir.1985) (en banc), cert. denied, 475 U.S. 1022, 106 S.Ct. 1213, 89 L.Ed.2d 325 (1986). Federal case law holds, and we agree, that casual conversation between or among co-conspirators should not necessarily have been deemed to have occurred “in furtherance of” the cоnspiracy.6 However, Hatmaker‘s conversation with Rollyson concerned their difficulty in collecting payment after Hutchison‘s arrest and clearly was a statement in furtherance of the conspiracy. Hatmaker‘s statement to Miller on the trip to Chicago, on the other hand, was not related to the collection of the insurance proceeds and was purposeless conversation. Therefore, his comments should
E. Due Process
In addition to these evidentiary claims, the defendant argues that the trial court denied him due process at various points during the trial. His first claim is that the trial court erred in admitting Keith Wilson‘s testimony without the State having notified the defendant before trial. On the first day of the State‘s proof, the prosecutor notified the defendant for the first time that it would offer Wilson‘s testimony to establish a chain of custody for the defendant‘s jail letters and to describe the defendant‘s conversations about the conspiracy. Wilson had recently surrendered himself to police after having escaped from jail, and had therefore been previously unavailable. Before allowing his testimony, the court allowed defense counsel to interview Wilson and the State provided counsel with Wilson‘s criminal record. The defense thoroughly cross-examined Wilson.
In reviewing the matter, we note that although
The defendant also seeks reversal on the basis of several repetitive questions asked during Wilson‘s testimony. The record, however, indicates that the prosecutor asked Wilson whom Hutchison would use to silence any conspirators who spoke to the police. In doing so, he reiterated part of Wilson‘s testimony about the defendant‘s threats from jail. This necessary repetition was not error.
The defendant alleges that the court also denied him due process by allowing certain questions during the State‘s cross-examination of April Hutchison. After the defendant directly examined his wife, April, about the investigatory search of their home, about his cooperation during arrest, and, finally, about her own use of a stolen credit card fraud in order to impeach her. The defendant claims that the State violated
The defendant also argues that the court improperly refused to allow him to
The defendant further contends that the admission of a boat dock receipt and a bond hearing order as rebuttal evidence was unfairly prejudicial. During Hutchison‘s testimony, he stated that he had seen Ricky Miller at a bond hearing, and thus knew where to send the letter that he wrote to Miller on April 10. The State introduced the bond hearing order as rebuttal evidence to show that the hearing occurred on April 24, thus impeaching Hutchison‘s testimony. Moreover, the boat dock receipt, showing that the victim rented a boat at 4:00 p.m. on the day of his death, was properly admitted to contradict Chip Gaylor‘s testimony that he could not have called Huddleston to go fishing. No error occurred in the admission of these pieces of rebuttal evidence.
Hutchison alleges that hearsay evidence concerning the victim was improperly admitted as well. The court allowed Ricky Miller to state that on a previous fishing trip, the victim had commented that he thought Gaylor had pushed him in the water. The Advisory Commission‘s Comment to
The defendant cites a portion of Tim
The defendant finally objects to the exclusion of Ricky Miller‘s attorney, Mike Hatmaker, as a witness. For the first time on appeal, the defendant argues that Miller‘s attorney could have testified about any offer made by the State to Miller in exchange for his testimony. Hutchison claims that such testimony would have been a mitigating circumstance at the sentencing hearing. The defendant, howevеr, failed to proffer this evidence at trial. Although he sought to call Hatmaker in his role as Varnadore‘s attorney, he did not proffer testimony regarding an agreement between the State and Ricky Miller. This issue is therefor not reviewable.
F. Jury Instructions
In challenging the validity of his conviction, the defendant next disputes several instructions given at the guilt phase. He first argues that the court should have instructed the jury to receive accomplice testimony “with caution.” This Court has previously held, however, that by requiring the jury to find some evidence corroborating an accomplice‘s testimony, the jury is sufficiently informed of the inherently suspect nature of accomplice testimony. Thus, an additional instruction is unnecessary. Stanley v. State, 189 Tenn. 110, 222 S.W.2d 384 (1949).
Secondly, the defendant argues that the court should not have instructed the jury that one is responsible for the consequences
Finally, the defendant asked the court to charge the jury to consider the facts not as partisans, and to consider that the State wins whenever justice is done, regardless of the verdict. The court, however, explained the jury‘s duty to deliberate, to consider the evidence impartially, and to find the defendant not guilty unless the State proved its case beyond a reasonable doubt. We believe that these instructions adequately explained the jury‘s duty of impartiality. Thus, we find no error in the court‘s instructions.
G. Impartiality of Trial Judge
Finally, the defendant urges that the trial judge injected his personal opinions and feelings into the trial to such an extent as to prejudice the defendant and thereby deny him due process. Canon 3(A)(3) of our Code of Judicial Conduct states that “[a] judge should be patient, dignified, and courteous to litigants, jurors, witnesses, lawyers and others....”
II. Sentencing Phase of Trial
At the sentencing hearing, the State presented no further evidence.
The defendant presented the testimony of
The defendant‘s principal assignment of error with regard to the sentencing procedure concerns his request for jury instructions on several non-statutory mitigating circumstances. The trial judge rejected this motion, choosing instead to use the pattern instructions with which he was already familiar. He specifically told the jurors that they should consider “any other mitigating factor which is raised by either the prosecution or defense at either the guilt or sentencing hearing.”
Prior to the overhaul of the penal code in 1989, this Court consistently held that a trial court did not have to instruct specific non-statutory mitigating circumstances, as long as the jury was told to consider any mitigating circumstance raised by the evidence.11 In 1989, the statute on which the previous case law was based,
No distinction shall be made between mitigating circumstances as set forth in subsection (j) and those otherwise raised by the evidence which are specifically requested by either the state or the defense ...
See
At least one state has found that the failure to charge non-statutory mitigating circumstances has constitutional implications. In State v. Johnson, 298 N.C. 47, 74, 257 S.E.2d 597, 616-7 (1979), the North Carolina Supreme Court opined that:
... A death penalty sentencing statute which by its terms or the manner in which it is applied, puts some mitigating circumstances in writing and leaves others to the jury‘s recollection might be constitutionally impermissible.
In State v. Cummings, 326 N.C. 298, 324, 389 S.E.2d 66, 80 (1990), the North Carolina Supreme Court held that:
Where a defendant makes a timely written request for a listing in writing on the form of possible nonstatutory mitigating circumstances that are supported by the evidence and which the jury could reasonably deem to have mitigating value, the trial court must put such circumstances in writing on the form.
Although the North Carolina Supreme Court emphasized the importance of including nonstatutory instructions in the jury‘s written instructions, the principle behind these cases is equal emphasis on both non-statutory and statutory instructions. These decisions base their constitutional interpretation on Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978), which held that a court may not preclude the sentencing authority from considering any factor in mitigation of a crime.
In contrast to the North Carolina court‘s analysis, the Alabama Supreme Court has held that a trial court does not commit constitutional error by not instructing a sentencing jury on non-statutory mitigating circumstances requested by the defendant.12 Simi
We do not believe that Lockett v. Ohio, 438 U.S. 586, [98 S.Ct. 2954, 57 L.Ed.2d 973] (1978), quoted by the North Carolina court, requires the decision sought by Bowers. * * * [I]n response to Lockett, provision has been made for the sentencing authority to list any other facts proven by a preponderance of the evidence which ... constitute a mitigating factor. To instruct the jury as Bowers requested would be a determination by the court that the facts listed by Bowers if found by the jury by a preponderance of the evidence were entitled to be considered mitigating circumstances. We do not believe that the statute, we do not believe that the statute, or Lockett contemplate such.13
The Maryland court recently reaffirmed its view that “there is no constitutional requirement that every potential mitigating circumstance be listed on the sentencing form.” Booth v. State, 327 Md. 142, 162, 608 A.2d 162, 172 (1992), cert. denied, 506 U.S. 988, 113 S.Ct. 500, 121 L.Ed.2d 437 (1992). Finally, the Illinois Supreme Court has also held that “a defendant‘s request for a jury instruction on nonstatutory mitigators may bе refused by the trial court so long as the jury is informed that it should consider all potential mitigating circumstances.”14
Thus, most courts have concluded that Lockett‘s insistence that the jury not be precluded from considering any mitigating factor does not constitutionally require a trial court to submit every requested instruction to a jury. We agree that neither the United States Constitution nor the Tennessee Constitution requires the trial judge to read or submit non-statutory mitigating circumstances to the jury.
Notwithstanding the foregoing, the trial judge properly instructed the jury in accordance with the statutory law in effect on the date of the commission of the offense in this case which was committed on 14 August 1988.
Repealed or amended laws-Application in Prosecution for Offense-Whenever any penal statute is repealed or amended by a subsequent legislative act, any offense, as defined by the statute or act being repealed or amended, committed while such statute or act was in full force and effect shall be prosecuted under the act or statute in effect at the time of the commission of the offense. Except as provided under the provisions of
§ 40-24-117 , in the event the subsequent act provides for a lesser penalty, any punishment imposed shall be in accordance with the subsequent act. [Acts 1989, Ch. 591, § 1.] (Emphasis supplied).
It is apparent from the language in the statutes that first degree murder offenses are specifically excluded from the provisions of the Criminal Sentencing Reform Act and, in accordance with
The defendant alleges that several other instructional errors occurred during the sentencing phase of his trial. For example, he requested and was denied an instruction defining “mitigating circumstances.” We have previously held, however, that “mitigating” is a “word in common usage and
Defendant makes a broad based attack on the constitutionality of the Tennessee Death Penalty Statute. The principal аrguments made on this issue are identical to or similar to issues previously addressed by the Court. The majority of these complaints are not personal to the defendant and have no affect on the outcome of this case. Therefore, we hold they are without merit.
DROWOTA and ANDERSON, JJ., concur.
REID, C.J., concurs and dissents with separate concurring and dissenting opinion.
DAUGHTREY, J., not participating.
REID, Chief Justice, concurring and dissenting
I concur with the majority‘s decision that the conviction of first degree murder be affirmed.
In dissent, I would hold that the defendant is not death-eligible because, in my view, the only aggravating circumstance found by the jury--the defendant “employed another to commit the murder for remuneration or the promise of remuneration,”
By statute,
No death penalty ... shall be imposed but upon a unanimous finding that the state has proven beyond a reasonable doubt the existence of one (1) or more of the statutory aggravating circumstances....
As set forth in my dissent in State v. Stephenson, 878 S.W.2d 530, 535 (Tenn.1994), use of this aggravator does not in fact narrow the class of death eligible defendants because “the same facts establish the crime and the aggravating circumstance; and, the aggravating circumstance adds no culpability beyond that necessary to establish first degree murder.” Consequently, use of this aggravator violates Article 1, Section 16 of
For these reasons, I would find that the defendant is not death-eligible and impose a sentence of life imprisonment.
Discussion of the other issues raised by the defendant with regard to sentencing are pretermitted.
ORDER ON PETITION TO REHEAR
CHARLES H. O‘BRIEN, Special Justice.
Defendant has filed a Petition to Rehear in this case contending that the Court erred in its opinion by ruling he was not entitled to a jury instruction on nonstatutory mitigating circumstances in accordance with the provisions of
The Court ruled that the trial judge properly instructed the jury in accordance with the statutory law in effect on the date of the offense which was committed on 14 August, 1988. We held that
The defendant insists that the Court‘s reasoning is faulty due to the distinction between substantive and procedural law and that
We agree with the defendant that the distinction between substantive procedural law has long been recognized by the courts of this state. He has cited an early civil case to sustain his position.1 However, we do not believe that rule applies in this case.
This and the following sections are a part of the comprehensive penal and sentencing reform legislation enacted in 1989 as proposed by the Tennessee sentencing commission. Prior revisions either modified substantive criminal law or dealt exclusively with sentencing provisions. The commission believes that a unified approach is necessary so that there is a clear relationship between the definition of an offense and the sentence for that offense.
Defendant argues that
In State v. Brimmer, 876 S.W.2d 75, 82 (Tenn.1994), this Court said:
T.C.A. § 40-35-117 , enacted as Ch. 591, § 6, Pub. Acts 1989, and a part of the Criminal Sentencing Reform Act of 1989, provides in subsection (b) for the sentencing of persons for offenses committed between 1 July, 1982 and 1 November 1989 under the 1989 Act except where constitutionally prohibited. Sentencing Commission Comments toT.C.A. § 40-35-117 and 118, however, indicate that first degree murder is excluded from the provisions of these sections. We, therefore, find controlling the general provisions of§ 39-11-112 and the principles against retroactive application of statutes. The trial court correctly instructed the sentencing law in effect at the time the murder was committed.
The Petition to Rehear is denied. The sentence of death will be carried out as provided by law on the 1st day of July, 1995, unless otherwise ordered by this Court or other proрer authority.
ANDERSON, C.J., and DROWOTA, REID and BIRCH, JJ., concur.