Lead Opinion
OPINION
In this capital case, the defendant, Clarence C. Nesbit, was convicted of premeditated first degree murder. At the sentencing hearing, the jury found one aggravating circumstance: (1) “[t]he murder was especially heinous, atrocious or cruel in that it involved torture or serious physical abuse beyond that necessary to produce death.” Tenn.Code Ann. § 39 — 13—204(i)(5) (1991 Repl.). Finding that the aggravating circumstance outweighed mitigating circumstances beyond a reasonable doubt, the jury sentenced the defendant to death by electrocution.
On direct appeal to the Court of Criminal Appeals, the defendant challenged both his conviction and sentence, raising eleven claims of error, some with numerous subparts. After fully considering the defendant’s claims, the Court of Criminal Appeals affirmed the trial court’s judgment. Thereafter, pursuant
The defendant raised numerous issues in this Court, but after carefully examining the entire record and the law, including the thorough opinion of the Court of Criminal Appeals and the briefs of the defendant and the State, this Court, on September 30, 1997, entered an Order limiting oral argument to five issues, and setting the cause for oral argument at the April term of Court in Jackson.
After hearing oral argument and carefully reviewing the record, we have determined that none of the assignments of error require reversal. Moreover, the evidence supports the jury’s findings as to the aggravating and mitigating circumstances, and the sentence of death is not arbitrary or disproportionate to the sentence imposed in similar cases, considering the nature of the crime and the defendant. Accordingly, the judgment of the Court of Criminal Appeals upholding the defendant’s conviction for first degree murder and sentence of death by electrocution is affirmed.
FACTUAL BACKGROUND
It is undisputed that the nineteen-year-old defendant, Clarence Nesbit, killed the twenty-year-old victim, Miriam Cannon, by shooting her once in the head on the afternoon of May 20, 1993. While Nesbit admitted that he shot the victim, he claimed that the shooting had been an accident.
The proof introduced at the guilt phase of this trial established that the victim lived with her five young children
James Shaw, a boyfriend of the defendant’s aunt, lived in the victim’s apartment complex. Shaw testified that he had been sitting outside his apartment on the afternoon of the murder when he heard a gunshot in a nearby apartment unit. Shortly afterward, Shaw saw the defendant leave the area
Tracy Davis, the victim’s close friend and neighbor, testified that on the day of the murder she had heard children crying in the victim’s apartment and had seen three of the victim’s children walking toward her apartment. The children told Davis that their mother was asleep and could not be woken. As a result, Davis went to the victim’s apartment and found the victim lying in a pool of blood in front of the kitchen door. The victim’s youngest child was on the floor beside her mother trying to wake her. Davis returned to her apartment and called the police.
When the police arrived, they first spoke with the victim’s children who told them that “Red” had shot their mother. “Red” was one of the defendant’s nicknames. When the police entered the victim’s apartment, they found her body lying face up, fully clothed, with sandals on her feet. Next to her body police found a cigarette butt, a match, a book of matches, and a hair barrette. Four cartridges were found on top of the refrigerator and a lead bullet fragment on the kitchen floor at the door to the living room. A hot curling iron lay on the kitchen counter. A ricochet mark made by a bullet was found approximately 4’8” above the ground on the wall behind the stove.
Dr. O.C. Smith, assistant medical examiner for Shelby County, performed the autopsy on the victim. Dr. Smith testified that the victim had died from a single gunshot wound to her head. Dr. Smith opined that the gun inflicting the wound had been approximately twelve to thirty-six inches from the victim’s head when it was fired. The bullet entered the victim’s body through her left ear, about 5’0” above the floor, traveled in a downward trajectory through the victim’s skull and brain, and exited behind her right ear at a height of 4’11” above the floor. According to Dr. Smith, the gunshot wound would have instantly incapacitated the victim.
Dr. Smith also had observed burns on the victim’s chin, neck, abdomen, and forearm. The burns had been inflicted at various points in time from six hours to mere minutes before the victim had died. Dr. Smith described the burn on the left side of the victim’s neck as in the shape of the numeral one (“1”). Upon viewing photographs of the victim’s body, Constance Cannon testified that the horizontal bar at the base of that burn appeared to be the mark she had seen on her sister’s neck the afternoon of the murder. Dr. Smith testified that soot and blistering on another triangular burn under the victim’s chin indicated that it had been caused by an open flame. Although the other burns had also been thermal in origin, Dr. Smith could not identify the precise cause of those burns.
Dr. Smith also found bruising and scraping on the soles of the victim’s feet during the autopsy. He opined that these injuries had been caused by striking the victim’s feet with a long, hard, thin object such as a rod or a coat hanger. Dr. Smith found no defensive wounds on the victim’s body.
With respect to the defendant’s actions on the day of the murder, the proof showed that, after the shooting, Nesbit left the Pershing Apartments and drove to the Royal Oaks Motel, where his uncle Ashley Nesbit, had a room. Once there, he spoke privately with his uncle, and hid the murder weapon, a .357 Magnum revolver, in the bathroom of the motel room. After the victim’s body had been found the defendant returned to the Pershing Apartments in his cousin’s green pickup truck. The defendant encountered James Shaw and told him that the victim had shot herself while playing Russian Roulette. Upon Shaw’s advice to tell the truth, Nesbit admitted to Shaw that he shot the victim, but claimed it was an accident. The defendant also told Shaw that he had left the gun at the motel. Shaw and the defendant were preparing to drive out of the apartment complex to retrieve the gun when police stopped their vehicle and apprehended the defendant. A
In the meantime, the defendant was interrogated by police and stated that he spent the night before the killing at the victim’s apartment. At first, Nesbit told police that the victim had been “playing” with the gun when it discharged and killed her. Later, the defendant related that he accidentally shot the victim, claiming that he had pulled the trigger believing the gun to be unloaded.
At trial Nesbit testified that he had been visiting his uncle’s motel room on the night before the killing when police officers arrived at the motel and began a search of the premises. Observing a gun on the dresser, Nesbit removed it from the room before the search and placed it under the seat of his car. After receiving a message from the victim on his beeper, Nesbit went to her apartment, arriving at approximately 3:00 a.m. Nesbit carried the gun inside, removed the bullets, and placed them on top of the refrigerator. He and the victim talked for awhile before he fell asleep on the living room sofa. Nesbit awoke at 10:00 a.m. on the day of the murder and talked to the victim until her sister arrived at 1:00 p.m. Nesbit heard the victim tell her sister to come back at 3:00 p.m. and was preparing to leave in anticipation of Cannon’s arrival when the shooting occurred.
According to Nesbit, he had retrieved the gun from the refrigerator and was holding it as he looked outside through the blinds covering the window next to the kitchen door. As he turned away from the 'window, he held the gun in both hands and pointed it sideways to his left. As he “fumbled” with the gun, it discharged. According to Nesbit, the victim, who was standing to his left, was hit by the bullet when the pistol accidentally discharged. The defendant said that he panicked and left the apartment. Nesbit admitted that his route of departure through the front door had taken him past the victim’s dead body and allowed him to retrieve his cap from the sofa. Nesbit did not call for emergency assistance even though he knew that he was leaving four young children in an apartment with them mother’s dead body. The defendant denied inflicting the burn and bruise injuries upon the victim.
On cross-examination, the State attempted to emphasize the inconsistencies between Nesbit’s several pretrial statements and his trial testimony. The State also elicited an admission from Nesbit that he had been alone with the victim and her children on the day of the murder. Based upon the proof summarized above, the jury found the defendant guilty of premeditated first degree murder. The trial proceeded to the sentencing phase.
The State relied upon the evidence presented during the guilt phase of the trial and, in addition, recalled Dr. Smith to testify about the burns and the bruises found on the victim’s body. Dr. Smith again stated that these injuries were inflicted as long as six hours, or as little as mere minutes before the victim’s death. He said the burns on the victim’s body ranged from severe first degree to moderate second degree burns and were comparable to a severe sunburn or scald burns caused by touching something hot. Dr. Smith opined that the victim would have suffered “moderate” pain from the individual burns.
According to Dr. Smith, the scrapes and bruises found on the victim’s feet were consistent with a relatively rare type of torture called “falanga,” which involves forcefully striking the soles of a person’s feet with a rod or some similar instrument, and which typically is inflicted in a military context, and, to a lesser extent, in child abuse cases. While none of these injuries were severe enough to require hospitalization, Dr. Smith said the amount of force necessary to cause bruising on the soles of a person’s feet would cause “great pain,” and if applied to any other part of the body, such force would be sufficient to break the skin. With respect to both the burns and the bruises, Dr. Smith testified that the victim would have suffered a great deal of distress anticipating the injuries since they had been inflicted over an extended period of time. Although Dr. Smith found no marks on the victim’s body indicating that she had been restrained, he opined that soft ligatures would have left no marks. Additionally, he stated that the vie-
The only other witness for the State was the victim’s mother who described the impact of the victim’s death on her family, including her parents and siblings and particularly the victim’s children.
In mitigation, the defendant presented proof that he had participated in the Shelby County Jail choir. Nesbit’s brother and sister asked the jury to spare the defendant’s life and testified that he is a nice, kind brother who previously had given them good advice and helped them to correct mistakes they had made. The defendant’s mother and grandmother testified Nesbit had been a good, kind, and well-behaved person. They described him as an honest and sincere young man who had always told the truth and followed the right path. Nesbit had dropped out of school in the tenth grade and moved to Nashville to care for his grandmother who had been experiencing health problems. While there, he had obtained several jobs to assist his grandmother in meeting her financial obligations. Both the defendant’s mother and grandmother asked the jury to spare the defendant’s life.
Testifying in his own behalf, Nesbit, nineteen-years old when the offense had been committed, told the jury of his plans to improve himself and expressed remorse for what had happened. While the defendant admitted to having a juvenile record for trespass, driving on a revoked license, and assault, he explained the circumstances of those convictions and minimized his criminal culpability for each one. The defendant had no adult criminal record. Nesbit also related that he had dropped out of school in the tenth grade to care for his grandmother who lived in Nashville. Nesbit had not been steadily employed at the time of the killing, but he explained that the $602 cash found on his person when he had been arrested consisted of money he had saved or had been given.
Based upon the proof, the jury found that the State had proven the existence of the aggravating circumstance beyond a reasonable doubt: (1) “[t]he murder was especially heinous, atrocious, or cruel in that it involved torture or serious physical abuse beyond that necessary to produce death.” Tenn.Code Ann. § 39 — 13—204(i)(5) (1991 Repl.). Finding that the aggravating circumstance outweighed mitigating circumstances beyond a reasonable doubt, the jury sentenced the defendant to death by electrocution. The trial court entered a judgment in accordance with the jury’s verdict and the Court of Criminal Appeals affirmed. After reviewing the record and considering the errors assigned by the defendant, we affirm the judgment of the trial court and the judgment of the Court of Criminal Appeals.
WAIVER
As in the Court of Criminal Appeals, the State in this Court first argues that the defendant’s failure to timely file his motion for new trial precludes appellate review of all issues except those related to the sufficiency of the evidence or sentencing. We disagree.
The State is correct that in this case the motion for new trial was filed beyond the thirty-day period provided by Rule 33(b), Tenn.R.Crim.P. The motion was indeed late and, in a non-capital case, appellate review would be limited. See Tenn. RApp. P. 3(e); State v. Givhan,
IMPEACHMENT OF CHARACTER WITNESS — RULE 405
The defendant next contends that the trial court erroneously permitted the State to examine a character witness about his knowledge of the defendant’s alleged satanic beliefs and practices. Specifically, the defendant asserts that no reasonable factual basis for the specific instance of conduct existed because the alleged rumor surfaced after the killing, the questioning did not properly address the credibility of the witness’s testimony, and the probative value of the inquiry did not outweigh its prejudicial effect. The State responds that the inquiry was proper under applicable evidentiary standards.
Pursuant to Rule 405(a), Tenn. R. Evid., a witness offering testimony about the defendant’s character may be impeached by questions which test the character witness s knowledge of “relevant specific instances of conduct.”
Specific instances of conduct are permissible on cross-examination for several reasons. First, they test the credibility of the character witness by providing information on the underlying data upon which the opinion or reputation was formed. If an opinion witness, who testifies that the defendant was an honest person at the critical time, did not know that the defendant had a prior embezzlement conviction, the opinion may have been formed on the basis of inadequate information or a careless (and therefore suspect) approach to assessing a person’s reputation. Second, the specific acts help the trier of fact assess the standards used by the character witness. For example, if a witness who gave the opinion that the defendant is an honest person also knew that the defendant had ten shoplifting convictions, the trier of fact may choose to discount the opinion evidence because of the character witness’s low standards for measuring honesty.
Cohen, Sheppeard, Paine, Tennessee Law of Evidence, § 405.3, p. 195 (3rd ed. 1995 & Supp.1997) (hereinafter “Evidence, § —, p. —”)-
Though inquiries into specific instances of conduct serve valid impeachment purposes, to prevent the jury from hearing inadmissible and potentially prejudicial allegations about the defendant’s character, Rule 405 includes certain procedural prerequisites which must be satisfied before such inquiries are permissible. First, an attorney must make application to the court before utilizing a specific instance of conduct to impeach a character witness. Since the rule
Second, Rule 405 mandates that the trial court, upon request, conduct a hearing outside the jury’s presence to determine whether inquiries into specific instances of conduct are permissible. During this jury-out hearing, the trial court must determine whether the specific instance of conduct about which inquiry is proposed is relevant to the character trait about which the witness has testified. For example, this Court held in State v. Sims,
If the relevancy standard is satisfied, the trial court must next determine whether a “reasonable factual basis” exists for the specific instance of conduct. Rule 405 provides no specific guidance with respect to the nature of evidence or the showing required to establish the existence of a “reasonable factual basis.” Nonetheless, we agree with the Court of Criminal Appeals that whenever possible, extrinsic proof should be offered at the jury-out hearing to establish the “reasonable factual basis.” If the realities of trial make it impossible to do so, the attorney proposing to ask the question should, at a minimum, clearly state on the record the source and origin of the information underlying the specific instance of conduct about which inquiry is proposed. Evidence, § 405.3 at p. 197.
In evaluating whether a “reasonable factual basis” has been established, the trial court should be mindful that the purpose of this requirement, as noted by the Court of Criminal Appeals in this case, is to ensure that such questions are proposed in good faith, rather than in an effort to place before the jury unfairly prejudicial information supported only by unreliable rumors. Though we have not previously addressed the “reasonable factual basis” requirement of Rule 405, this Court, long ago, decided that reports of a defendant’s bad character which do not arise until after the crime for which he or she is being tried are inherently suspect.
For example, in Powers v. State,
The reputation which a defendant has made upon the subject of quietness and good citizenship available for or against him in a criminal cause when he puts his character in issue is that which he bore at and before the taking place of the act for which he is upon trial, not a reputation subsequently acquired or created for or against him. A different view would put a premium on the manufacturing of evidence.
Powers,
While our decisions in Powers and Tucker predate the adoption of the Tennessee Rules of Evidence, the logic and rationale of those decisions are consistent with, and reflected by, the “reasonable factual basis” requirement of Rule 405. Because of the potential for evidence manufacturing, and because a person accused of a crime is more likely to be the subject of rumor and innuendo, reports of specific instances of conduct which do not arise until after a crime has been committed are inherently suspect and may not form the basis for inquiry under Rule 405. In addition, a trial court should exercise caution in permitting inquiry under Rule 405 if the character witness subject to impeachment first heard reports of the specific instance of conduct after the crime occurred. Under those circumstances, to establish a reasonable factual basis, the prosecution must offer some proof at the jury-out hearing that the specific instance of conduct had been reported before the crime occurred.
If a specific instance of conduct is relevant and supported by a reasonable factual basis, the trial court must next determine whether the probative value of a “specific instance of conduct on the character witness’s credibility outweighs its prejudicial effect on the substantive issues.” In recognition of the uniquely prejudicial impact of allegations of instances of bad conduct, the evidentiary rules place a tighter restraint on the permissibility of inquiries about relevant specific instances of conduct than is placed on the admissibility of other relevant evidence. Indeed, Rule 403, Tenn. R. Evid., provides that relevant evidence is excluded only if its probative value is “substantially outweighed” by its prejudicial effect. In contrast, inquiries into specific instances of conduct under Rule 405 are precluded if probative value and prejudicial effect are of equal weight, or if the prejudicial effect of the specific instance of conduct on substantive issues merely “outweighs” its probative impeachment value. See also Tenn. R. Evid. 404(b) (same weighing standard governs admission of proof of prior bad acts).
Even when a trial court determines that an inquiry is permissible under the previously delineated procedural safeguards of Rule 405, Tennessee law requires the trial court to instruct the jury that the specific acts of conduct were admitted for the limited purpose of evaluating the credibility of the character witness. Sims, supra.
Having set out the governing legal principles, we must now apply these rules to the facts of this case. Here, the alleged error arose during the guilt phase of the trial when defense counsel, at the end of his cross-examination of James Shaw, a witness for the State, asked Shaw if he was familiar with the defendant’s reputation in the community for peacefulness and violence. Shaw, who had dated the defendant’s aunt and known the defendant for twelve years, responded, “Yeah. He didn’t bother nobody. You know, he’d help you if he could, but he never did— he never did bother nobody. He seemed like to me he always tried to stay away from, you know, trouble.”
At the beginning of redirect, the prosecutor, during a bench conference, advised the trial court that to test Shaw’s basis of knowledge the State proposed to ask Shaw whether he had heard that the defendant claimed he worshiped Satan and had to kill two people to get power. The defense requested a jury-out hearing, at which Shaw admitted that he had heard these allegations after the murder was committed from the defendant’s “auntie and them,” and again before trial from the prosecuting attorney. The prosecutor then remarked that he had heard this information “from two or three people as well” and argued that, with Shaw’s having also heard it, a “factual basis” existed for asking the question. The prosecutor explained to the trial court that “Ms. Cannon [the victim] is the one who told several of
Prosecutor: In forming your opinion of his reputation in the community in which he works and lives for peacefulness and quietude, had you heard that the defendant had told others that he worshiped Satan and needed to kill two people in order to get some power?
Shaw: No, I had not heard that.
Prosecutor: You had not heard that?
Shaw: I had not heard that.
Prosecutor: Didn’t you testify just a few moments ago out of the hearing of the jury that you had heard that from Cynthia Nesbit?
Shaw: Oh, yeah,' but I thought you was talking about had I heard it from him.
Prosecutor: No, no. I’m not talking about that. Let me be careful. You’ve heard it from— at least from Cynthia Nesbit; is that correct?
Shaw: Right.
Prosecutor: That’s what he said; is that correct?
Shaw: No, I heard that that’s what she had heard.
Prosecutor: And did you take that into account in forming your opinion of his reputation for peacefulness and quietude?
Shaw: What do you mean by that?
Prosecutor: Does that sound peaceful and quiet to you?
Shaw: Well, I still don’t’ understand what you are saying.
Prosecutor: If somebody said that they needed to kill two people to get power, would that sound peaceful and quiet to you?
Shaw: No, it wouldn’t, but I ain’t heard nothing from him like that.
Prosecutor: I understand. Thank you. No further questions, Your Honor.
JUDGE: Ladies and gentlemen, the Court charges the jury that if you find that specific instances of bad character of the defendant have been brought out in the trial, then you can consider it only for the purpose of testing the accuracy and credibility of the character witness, and that evidence thus developed is not substantive evidence of the defendant’s good or bad character. All right. You may, if you have recross-examination.
Defense: What is your opinion of his peacefulness and quietude now? What is your opinion of him?
Shaw: Well, in my opinion, he’s a nice young man. Like I said, you know, in my opinion, you know, he didn’t bother nobody. Like I said, he always helped me. I go to him, tell him I need him to do some work for me; he do it, you know. He just the type he didn’t, you know, he respected his aunties and things and everybody else, you know, his elders.
Defense: So you never heard this opinion directly from anybody? I mean, you don’t know of your personal knowledge about anything of that; is that correct?
Shaw: No, I don’t. No, I don’t.
The final charge to the jury in this case repeated the admonition that “specific instances of bad character of the defendant” are only to be used to test the accuracy and credibility of the character witness and not as substantive evidence of the defendant’s good or bad character.
In our view, the record in this case indicates that the requirements of Rule 405 were satisfied. The prosecutor sought the trial court’s permission before questioning the character witness about the defendant’s alleged satanic worship. At defense counsel’s request, the trial court held a hearing outside the jury’s presence to consider the issue. The specific instance of conduct about which inquiry was proposed was relevant to the issue about which the witness had testified— the defendant’s reputation in the community for peacefulness and quietude. A reasonable factual basis was established. The prosecu
AGGRAVATING CIRCUMSTANCE (i)(5)
A. Sufficiency of the Evidence
In this case, the jury imposed the death penalty upon its finding
In this court, the defendant agrees with the decision of the Court of Criminal Appeals as to physical torture and serious physical abuse, but asserts that the intermediate court erred in upholding the aggravating circumstance on the basis of mental torture because Dr. Smith’s testimony that the victim suffered a “great degree of distress” is speculative.
In contrast, the State agrees with the intermediate court’s decision with respect to mental torture, but avers that the Court of Criminal Appeals erred in finding the evidence insufficient to establish physical torture and serious physical abuse since the evidence of numerous “moderately” painful injuries considered cumulatively is sufficient to support findings of physical torture and serious physical abuse.
As previously stated, torture has been defined as “the infliction of severe physical or mental pain upon the victim while he or she remains alive and conscious.” Williams,
We must next consider whether the proof is sufficient to support a finding that the infliction of these injuries caused the alive and conscious victim “severe physical or mental pain.” In evaluating the sufficiency of the proof on this issue, we are mindful of two longstanding rules in this State. First,
[t]he jury may use their common knowledge and experience in deciding whether a fact is logically deducible from the circumstances in evidence, or in making reasonable inferences from the evidence, and may test the truth and weight of the evidence by their own general knowledge and judgment derived from experience, observation, and reflection....
Trousdale v. State,
There is no exception to this rale for capital eases. The prosecution is not required to offer expert testimony as to the precise level of pain inflicted upon a victim. Even if such testimony is offered, as previously stated, jurors are not bound to accept the testimony of expert witnesses. Indeed, jurors are free to use their common knowledge and judgment derived from experience, observation, and reflection to decide whether a fact is logically deducible or reasonably inferred from the evidence.
In finding the proof in this record insufficient to support a finding that “severe physical pain” had been inflicted upon the alive and conscious victim, the Court of Criminal Appeals cited only that portion of Dr. Smith’s testimony indicating that the victim had suffered “moderate” pain from the individual burns. The intermediate court apparently considered the jury bound by that testimony. In evaluating the sufficiency of the proof, an appellate court must consider the entire body of evidence in the light most favorable to the State. Applying that standard to the facts in this case, we conclude that the proof is sufficient to support the jury’s finding of physical torture beyond a reasonable doubt.
Beginning six hours before the victim’s death and lasting up until minutes before she actually died, the defendant inflicted first and second degree burns on her body in six places. Dr. Smith compared these burns to a severe sunburn or a scald burn. One burn had resulted when the defendant held an open flame under the victim’s chin. On the left side of the victim’s neck, the defendant carefully burned the numeral one (“1”). The defendant also beat the soles of the victim’s feet with sufficient force to cause bruising, and according to Dr. Smith, “great pain.” Given the detailed description, both of these injuries and the methods by which they were inflicted, certainly the jurors, using their common knowledge and experience, could have assessed the degree of pain resulting from these injuries.
Moreover, while we agree with the intermediate court’s conclusion with regard to the sufficiency of the proof to support a jury finding that severe mental pain was inflicted upon the victim, we again do not base our conclusion solely upon Dr. Smith’s testimony that the victim would have suffered “a great degree of distress” anticipating the infliction of the various injuries. Utilizing their common knowledge and experience as members of the human race, the jurors were capable of evaluating the proof and determining whether the victim suffered
Moreover, in our view, the evidence is also sufficient to support a finding of “serious physical abuse beyond that necessary to produce death” even though the cause of the victim’s death was a single gunshot wound to the head. There is no requirement that the cause or mode of death also be the cause or mode of the “serious physical abuse beyond that necessary to produce death.” In this case, burns and bruises were inflicted upon the victim over a period of six hours. “[S]erious physical abuse beyond that necessary to produce death” means just what it says; there must be serious physical, not mental, abuse, i.e., “an act that is ‘excessive’ or which makes ‘improper use of a thing,’ or which uses a thing ‘in a manner contrary to the natural or legal rules for its use.” State v. Odom,
B. Jury Instruction
The defendant also attacks as confusing the language of the aggravating circumstance — “[t]he murder was especially heinous, atrocious, or cruel in that it involved torture or serious physical abuse beyond that necessary to produce death.” Without a clarifying instruction, the defendant contends that the aggravating circumstance fails to sufficiently channel the jury’s discretion and meaningfully narrow the class of death eligible defendants. Specifically, the defendant contends that the phrase “in that” misleads the jury to believe that any act of torture or serious physical abuse beyond that necessary to produce death is “especially heinous, atrocious, or cruel,” and he contends that without an instruction setting out the two-step analysis, a jury may inappropriately find the circumstance based only on proof of torture or serious physical abuse.
We disagree. The jury in this ease was properly instructed in accordance with the language of the statute and the definitions provided in Williams, supra. We have repeatedly and recently upheld the constitutionality of this aggravating circumstance. See e.g. Odom,
VICTIM IMPACT EVIDENCE
The State at the sentencing hearing, in its case in chief, through the victim’s mother, presented evidence of the victim’s character and the “very devastating” impact the victim’s death had imposed upon her family. The defendant objected to this testimony as irrelevant and highly inflammatory. On appeal, the defendant argues that admission of the victim impact evidence violates the Eighth and Fourteenth Amendments of the United States Constitution and Article I, Section 16 of the Tennessee Constitution. In addition, the defendant argues that victim impact evidence is immaterial and irrelevant under Tennessee’s capital sentencing statute, and even if relevant, the prejudicial effect of this evidence substantially outweighs its probative value.
On the other hand, the State argues that both this Court and the United States Supreme Court have recognized that victim impact evidence is relevant to punishment and admissible under both the federal and state constitutions. Because it is relevant to punishment, the State argues that victim impact evidence is admissible under the Tennessee
The constitutional standards governing victim impact evidence and argument at a capital sentencing proceeding have varied greatly over the past eleven years. In Booth v. Maryland,
Against this jurisprudential background, this Court rendered our decision in State v. Payne,
It is an affront to the civilized members of the human race to say that at sentencing in a capital case, a parade of witnesses may praise the background, character and good deeds of Defendant (as was done in this case), without limitation as to relevancy, but nothing may be said that bears upon the character of, or the harm imposed, upon the victims.
Id.
The United States Supreme Court granted the defendant’s appeal from our decision in Payne, and overruled Booth and Gathers to the extent that those decisions had held the Eight Amendment precludes admission of victim impact evidence and prosecutorial argument on the evidence.
Therefore, in overruling the decisions of Booth and Gathers, the Court in Payne stated:
We are now of the view that a State may properly conclude that for the jury to assess meaningfully the defendant’s moral culpability and blameworthiness, it should have before it at the sentencing phase evidence of the specific harm caused by the defendant. The State has a legitimate interest in counteracting the mitigating evidence which the defendant is entitled to put in, by reminding the sentencer that just as the murderer should be considered as an individual, so too the victim is an individual whose death represents a unique loss to society and in particular to his family. By turning the victim into a faceless stranger at the penalty phase of a capital trial, Booth deprives the State of the full moral force of its evidence and may prevent the jury from having before it all the information necessary to determine the proper punishment for a first-degree murder.
Payne,
However, Payne did not authorize admission of any and all victim impact evidence and argument. Indeed, the Court noted that in the event victim impact evidence is introduced “that is so unduly prejudicial that it renders the trial fundamentally unfair, the Due Process Clause of the Fourteenth Amendment provides a mechanism for relief.” Payne,
Therefore, Payne stands for the proposition that the Eighth Amendment does not preclude the admission of victim impact evidence or prosecutorial argument about the evidence. Moreover, decisions of this Court rendered subsequent to Payne, have also held that victim impact evidence and prose-cutorial argument is not precluded by the Tennessee Constitution. State v. Shepherd,
The defendant next contends that victim impact evidence is inadmissible under Tennessee’s capital sentencing statute. The State responds that the statute permits all evidence relevant to punishment and victim impact evidence is admissible because it is relevant to punishment.
We begin our consideration of this issue with the language of the statute. Tenn.Code Ann. § 39-13-204(c) (1997 Repl.) provides as follows:
In the sentencing proceeding, evidence may be presented as to any matter that the court deems relevant to the punishment and may include, but not be limited to, the nature and circumstances of the crime; the defendant’s character, background history, and physical condition; any evidence tending to establish or rebut the aggravating circumstances enumerated in subsection (i); and any evidence tending to establish or rebut any mitigating factors. Any such evidence which the court deems to have probative value on the issue of punishment may be received regardless of its admissibility under the rules of evidence; provided that the defendant is accorded a fair opportunity to rebut any hearsay statements so admitted. However, this subsection shall not be construed to authorize the introduction of any evidence secured in violation of the constitution of the United States or the constitution of Tennessee.
The language of the statute is broad. On its face the statute appears to authorize the admission of any reliable evidence that is relevant to punishment, with the only requirement being that the defendant be accorded a fair opportunity to rebut hearsay statements. The statute, consistent with constitutional mandate, permits admission of all relevant mitigating evidence, whether or not the category of mitigation is listed in the statutory scheme. State v. Cazes,
Nonetheless, that general statement, upon which the defendant in this case relies to support his contention that victim impact evidence is not admissible, has not been literally applied to limit admission of evidence at a capital sentencing hearing. Even in Cozzoli-no, the case in which the rule was announced, the jurors heard proof at the sentencing hearing about how the crime had been committed which was not necessarily relevant to an aggravating circumstance. Moreover, in several subsequent decisions we have expressly recognized that a sentencing jury must be permitted to hear evidence about the nature and circumstances of the crime even though the proof is not necessarily related to a statutory aggravating circumstance. State v. Harris,
The Tennessee statute delineates a procedure which enables the sentencing jury to be informed about the presence of statutory aggravating circumstances, the presence of mitigating circumstances, and the nature and circumstances of the crime. The statute allows the sentencing jury to be reminded “that just as the murderer should be considered as an individual, so too the victim is an individual whose death represents a unique loss to society and in particular to his family.” Payne,
Generally, victim impact evidence should be limited to information designed to show those unique characteristics which provide a brief glimpse into the life of the individual who has been killed,
Similarly, while victim impact argument by the prosecution about the evidence is permissible, restraint should be exercised. This Court has consistently cautioned the State against engaging in victim impact argument which is little more than an appeal to the emotions of the jurors as such argument may be unduly prejudicial. State v. Shepherd,
Finally, to assist the jury in properly utilizing victim impact evidence, we hereby suggest the following instruction, to be used in all future capital murder eases in which victim impact evidence is admitted:
The prosecution has introduced what is known as victim impact evidence. This evidence has been introduced to show the financial, emotional, psychological, or physical effects of the victim’s death on the members of the victim’s immediate family. You may consider this evidence in determining an appropriate punishment. However, your consideration must be limited to a rational inquiry into the culpability of the defendant, not an emotional response to the evidence.
Victim impact evidence is not the same as an aggravating circumstance. Proof of an adverse impact on the victim’s family is not proof of an aggravating circumstance. Introduction of this victim impact evidence in no way relieves the State of its burden to prove beyond a reasonable doubt at least one aggravating circumstance which has been alleged. You may consider this victim impact evidence in determining the appropriateness of the death penalty only if you first find that the existence of one or more aggravating circumstances has been proven beyond a reasonable doubt by evidence independent from the victim impact evidence, and find that the aggravating circumstance(s) found outweigh the finding of one or more mitigating circumstances beyond a reasonable doubt.
This instruction should be used in substance in all future capital murder trials where victim impact evidence has been introduced and is effective from the date this decision is released. See Cargle,
At sentencing, the prosecution called the victim’s mother, Laura May Cannon, to testify about the impact of her daughter’s death on her family, particularly the victim’s children. Cannon related that her daughter had been a kind, warmhearted person. Cannon said that the family had been very depressed as a result of the victim’s death and missed her very much. Cannon had obtained legal custody of four of the victim’s children.
In approximately five pages of transcript, Cannon clearly and concisely related the financial, psychological, emotional, and physical impact of this murder on the victim’s family. Although she mentioned the emotional impact of the murder, Cannon focused upon the financial, psychological, and physical impact of the crime. Because the defendant in this case had been acquainted with the victim for about a month, he knew that she was a single mother of five young children. The defendant also knew that four of the victim’s children were in the apartment at the time of the murder.
The State is not required to prove that a defendant has specific knowledge about a victim’s family to secure admissibility of victim impact evidence. As stated by Justice Souter in a concurring opinion in Payne:
Murder has foreseeable consequences. When it happens, it is always to distinct individuals, and after it happens other victims are left behind. Every defendant knows, if endowed with the mental competence for criminal responsibility, that the life he will take by his homicidal behavior is that of a unique person, like himself, and that the person to be killed probably has close associates, “survivors,” who will suffer harms and deprivations from the victim’s death. Just as defendants know that they are not faceless human ciphers, they know that their victims are not valueless fungibles and just as defendants appreciate the web of relationships and dependencies in which they live, they know that their victims are not human islands, but individuals with parents or children, spouses or friends or dependents. Thus, when a defendant chooses to kill, or to raise the risk of a victim’s death, this choice necessarily relates to a whole human being and threatens an association of others, who may be distinctly hurt. The fact that the defendant may not know the details of a victim’s life and characteristics, or the exact identities and needs of those who may survive should not in any way obscure the further facts that death is always to a ‘unique’ individual, and harm to some group of survivors is a consequence of a successful homicidal act so foreseeable as to be virtually inevitable.
Payne,
While we are in complete agreement with that analysis, we are also of the opinion that a trial court may consider the defendant’s specific knowledge about the victim’s family when evaluating the probative value of victim impact proof on the appropriateness of the death penalty and when determining if probative value is substantially outweighed by prejudicial effect. In our view, probative value is particularly great, where the proof shows, as it did in this ease, that a defendant had specific knowledge about the victim’s family when the crime was committed. Accordingly, we have no hesitation in holding that the probative value of the victim impact proof in this case was not substantially outweighed by the danger of unfair prejudice. To the contrary, the probative value of the proof in this case far outweighed the danger of its unfair prejudice. The victim impact evidence admitted in this case violated neither the constraints of due process, nor the evidentiary strictures of Rule 403, Tenn. R. Evid.
However, the prosecutor’s argument about the purpose and function of the victim impact evidence was erroneous. In pertinent part the argument was as follows:
There’s no proof he did it in front of them. He just left her there bleeding, knowing those four young babies were in the house with a dead mother. He didn’t know, I guess, that they were going to try to wake mommy and try to shake her out of the blood and the brains. No, maybe he didn’t know. But you saw his testimony. He didn’t care either. He didn’t care.
How do you weigh this? Well, you have to look at the impact of the crime. That’s why the people are here to testify about her life, Miriam Cannon, because [w]e sometimes forget in these trials that, while we’re here to take care of the defendant and provide justice for him, there is someone else in this case, and it is not just Miriam Cannon. There are those babies, those orphan children. There are the rest of her family. There is the rest of society that has been deprived of Miriam Cannon. There are lots of victims in this particular case.
Now the defendant’s family would like to see him. All right. Balance that against, doesn’t everybody understand that little Térrica and the rest of the children would like to see their mother, too? Sure that balances. Eveiybody knows that. They would like to be able to see them as well.
And the relatives of the person who is facing death by electrocution will tell you to please spare his life. Wouldn’t it have been nice if Ms. Cannon and the rest [of the] family could have been there to beg for Miriam’s life? They could have looked at him and said, “Please, don’t kill my daughter. Go ahead and torture her, but don’t kill her.”
But they didn’t get the chance to. We give him that chance, but she doesn’t getthat chance. So when you go to balance the aggravating circumstances against that mitigation, remember if it had been possible they would have been there begging for their daughter’s life. Those children would have begged for their mother’s life had they been given that opportunity. So you balance that against the mitigation.
Defense counsel says he shows remorse- He has no remorse. There is no mitigating circumstance of remorse. There is only the aggravating factor of ours, of torture and pain and agony and the effect that this had on the family.
(Emphasis added).
Dissenting in the Court of Criminal Appeals, Judge Wade recognized that this argument crossed the line beyond the permissible latitude afforded counsel in closing when the prosecutor characterized the victim impact evidence as an aggravating circumstance and urged the jury to weigh and balance the victim impact evidence against the mitigating proof. Although victim impact evidence is, as we have previously said, one of those myriad factors which the jury may consider in determining whether death is the appropriate punishment, it does not carry the force and effect of an aggravating circumstance in the sentencing calculation. The prosecutor’s argument in this case erroneously characterized the victim impact evidence as an aggravating circumstance to weigh against mitigation proof.
To determine whether this erroneous argument constitutes grounds for reversal, we must consider whether the impropriety “affected the verdict to the prejudice of the defendant.” Bigbee,
(1) the conduct complained of viewed in light of the facts and circumstances of the ease;
(2) the curative measures undertaken by the court and the prosecution;
(3)the intent of the prosecutor in making the improper arguments;
(4) the cumulative effect of the improper conduct and any other errors in the record; and
(5) the relative strength and weakness of the case.
Though the prosecutor’s argument miseharaeterized the function of victim impact evidence, the argument was based upon proof properly admitted into evidence, and there is no indication that the prosecutor acted in bad faith. Moreover, the jurors were instructed by the trial court in the final charge at the sentencing hearing to apply the law as provided by the court. The trial court also instructed the jurors that they could not impose a death penalty without a unanimous finding that the statutory aggravating circumstance had been proven beyond a reasonable doubt and outweighed the mitigating proof beyond a reasonable doubt. Again, the jury is presumed to follow the instructions of the trial court. Walker,
PROPORTIONALITY REVIEW
We must next consider whether the defendant’s sentence of death is disproportionate to the penalty imposed in similar cases, considering the nature of the crime and the defendant. Tenn.Code Ann. § 39-13-206(c)(4) (1997 Repl.). If this case is “plainly lacking in circumstances consistent with those in similar cases in which the death penalty has previously been imposed,” the sentence of death is disproportionate. State v. Bland,
In choosing and comparing similar cases, we consider many variables, some of which include, (1) the means of death; (2) the manner of death; (3) the motivation for the killing; (4) the place of death; (5) the similarity of the victim’s circumstances, including age, physical and mental conditions, and the victims’ treatment during the killing; (6) the absence or presence of premeditation; (7) the absence or presence of provocation; (8) the absence or presence of justification; and (9) the injury to and effects on nondece-dent victims. Id. at 667. When reviewing the characteristics of the defendant, we consider: (1) the defendant’s prior record or prior criminal activity; (2) the defendant’s age, race, and gender; (3) the defendant’s mental, emotional or physical condition; (4) the defendant’s involvement or role in the murder; (5) the defendant’s cooperation with authorities; (6) the defendant’s remorse; (7) the defendant’s knowledge of the helplessness of the victim; and (8) the defendant’s capacity for rehabilitation. Id. Comparative proportionality review is not a rigid, objective test. Id. at 668. We do not employ mathematical or scientific techniques. In evaluating the comparative proportionality of the sentence in light of the factors delineated above, we rely also upon the experienced judgment and intuition of the members of this Court. Id.
Applying these factors, we note that the proof in this case reflects that the victim died from a single gunshot wound to her head. She was killed in her own home after undergoing a six hour torturous ordeal during which she was burned and beaten by the defendant. Pour of the victim’s five young children were present in the apartment during the time she was tortured and also when she was shot. There was no apparent motive for this premeditated murder. The defendant’s claim that the shooting was accidental obviously was not believed by the jury. Thei’e is also certainly no proof of provocation or justification for the offense. Having known the victim for a month and having spent a portion of the night and day with her, the defendant obviously had knowledge that the victim was helpless. Though not extensive, the nineteen-year-old defendant had a prior juvenile criminal record. The record reflects that the defendant cooperated with police after his apprehension, and expressed remorse for the murder at trial. With respect to his capacity for rehabilitation, the defendant told the jury that he planned to complete his high school education if sentenced to life imprisonment. Considering the nature of the crime and the defendant, we conclude that imposition of the death penalty for the senseless, torturous, and cruel murder of this twenty-year-old woman is not disproportionate to the penalty imposed in similar cases, and that this murder places Nesbit into the class of defendants for whom the death penalty is an appropriate punishment. Based upon our review, we conclude that the following eases in which the death penalty has been imposed have many similarities with this case.
In State v. Bland,
In State v. Van Tran,
In State v. Hurley,
In State v. Barber,
In State v. McNish,
In State v. Cooper,
No two cases are identical, but the above eases have many similarities with Nesbit. In all six cases, the murders were without explanation or provocation. Four of the five cases, involved the infliction of severe physical or mental pain upon the victim while he or she remained alive and conscious. In four of the eases, death was caused by a gunshot wound. In four of the cases, the victims were murdered either in their home or at their place of employment. Like Nesbit, two of the defendants were nineteen years old when the murders were committed. Also, three of the defendants, like Nesbit, had no substantial prior criminal record. At least one of the defendants relied upon his capacity for rehabilitation, as did Nesbit. In five of the six cases, the jury returned a sentence of death upon the basis of a single aggravating circumstance. After reviewing the cases discussed herein, and other cases not herein detailed,
CONCLUSION
In accordance with the mandate of Tenn. Code Ann. § 39-13-206(e)(l) (1997 Repl.), and the principles adopted in prior decisions of this Court, we have considered the entire
APPENDIX
(Excerpts from the Court of Criminal Appeals’ Decision)
IN THE TENNESSEE COURT OF CRIMINAL APPEALS AT JACKSON NOVEMBER 1996 SESSION
State of Tennessee, Appellee, v. Clarence C. Nesbit,
C.C.A. NO. 02c01-9510-CR-00293
Shelby County
Honorable Arthur T. Bennett, Judge
(Capital First Degree Murder)
For the Appellant:
AC. Wharton District Public Defender
201 Poplar Ave., Suite 201 Memphis, TN 38103-1947
W. Mark Ward
Ronald S. Johnson
Betty J. Thomas Assistant Public Defenders 147 Jefferson, Suite 900 Memphis, TN 38103
For the Appellee
John Knox Walkup Attorney General and Reporter
John P. Cauley Asst. Attorney General 450 James Robertson Pkwy. Nashville, TN 37243-0493
William Gibbons District Attorney General
Thomas D. Henderson
Jennifer Nichols Asst. District Attorneys General 201 Poplar Ave. Memphis, TN 38103
OPINION FILED: April 22,1997
FIRST DEGREE MURDER CONVICTION AND DEATH SENTENCE AFFIRMED
David G. Haynes Judge
OPINION
ANALYSIS
SUFFICIENCY OF THE EVIDENCE
In his first issue, the appellant contends that the evidence adduced at trial is insufficient as a matter of law to sustain the jury verdicts returned in both the guilt and penalty phases of his trial. Specifically, the appellant argues that the evidence presented failed to establish, beyond a reasonable doubt, the requisite elements of premeditation and deliberation. Additionally, the appellant argues that the single gunshot wound to the victim’s head does not support the application of the “heinous, atrocious, and cruel” aggravating factor. Tenn.Code Ann. § 39 — 13—204(i)(5).
These rules are applicable to findings of guilt predicated upon direct evidence, circumstantial evidence, or a combination of both direct and circumstantial evidence. State v. Carey,
GUILT PHASE
Once a homicide has been proven, it is presumed to be second degree murder, and the State has the burden of establishing first degree murder. Brown,
Again, although the jury may not engage in speculation, State v. Bordis,
The appellant cites California case law to support his argument that the evidence, which could arguably establish a motive, i.e., the torture, is insufficient by itself to sustain a first degree murder conviction. See People v. Pensinger,
In response to the appellant’s argument, the State asserts that the evidence does in fact prove beyond a reasonable doubt that the appellant planned the murder and killed the victim in accordance with his plan. The State argues, contrary to the appellant’s claim, that the killing was part of a “torture sequence that occurred over a long period of time.” The evidence before the jury, when viewed in the light most favorable to the State, supports the guilty verdict beyond a reasonable doubt. The proof establishes that the appellant obtained a gun immediately prior to his visit to the victim’s apartment. The appellant inflicted separate and distinct injuries upon an unarmed victim over a six hour period preceding her death. The appellant’s demeanor was one of calmness following the murder. Calmness immediately after a killing may be evidence of a cool, dispassionate, premeditated murder. West,
Having reviewed the entire record, we conclude that a rational trier of fact could have found the essential elements of premeditated first degree murder beyond a reasonable doubt. Tenn. R.App. P. 13(e). This issue, therefore, is without merit.
PENALTY PHASE
INTRODUCTION OF APPELLANT’S BEEPER AND MONEY
Next, the appellant contends that the trial court erroneously permitted the introduction into evidence of his beeper and $602.00 in cash, which were found on his person at the time of his arrest. Specifically, he argues that the admission of these items was irrelevant and unduly prejudicial, because it suggested to the jury that the appellant was involved in illegal drug activity. Tenn. R.Evid. 403; see also State v. Banks,
The State initially sought to introduce the contested evidence “simply to show what was found on [the appellant] and discount any robbery motive.” The appellant made a contemporaneous objection, which was overruled, claiming that the evidence was irrelevant to the issue of premeditation. Under Rule 402, “all relevant evidence is admissible except as provided ... Evidence which is not relevant is not admissible.” Rule 401 defines relevant evidence as “evidence having any
The State also argues on appeal that the appellant’s testimony adequately justified his possession of the beeper and currency. Both items in question were introduced by the State during its case-in-chief. The appellant subsequently testified that he went to the victim’s apartment the night before the murder in response to a “beep” he received from the victim. Regarding the $602.00 in cash, the appellant testified that he had been saving money he had earned from several odd jobs.
We agree that the introduction of the beeper and $602.00 in cash was not relevant to the existence of any issue that the jury was required to decide and, thus, was improperly admitted. We conclude, however, that the appellant was not unfairly prejudiced by their admission. Nothing in the record before us suggests that the appellant was involved in illegal drug activity. The appellant’s testimony sufficiently explained his possession of the contested evidence. Accordingly, we find that any error in admitting the beeper and currency was harmless. Tenn. R.App. P. 36(b); Tenn. R.Crim. P. 52(a).
INSTRUCTION ON FLIGHT
The appellant contends that the trial court incorrectly provided the jury with an instruction on flight. Specifically, he argues that his ultimate return to the crime scene negated any inference that he intended to flee. The State asserts that the instruction was properly given, noting that the instruction provides that flight, in and of itself, is not evidence of one’s guilt. The trial court’s instruction on flight mirrors the instruction found in T.P.I. — Crim. § 37.16. The court instructed the jury that whether the appellant fled was a question solely for their decision that they need not infer flight, and that flight alone was insufficient to prove guilt. In this case, the evidence demonstrated that the appellant did indeed leave the scene of the murder and hide the weapon. He returned in a different vehicle and was about to leave the scene again when he was apprehended. We find no error in the submission of this instruction to the jury.
CLOSING ARGUMENT DURING GUILT PHASE
The appellant also contends that the prosecutor committed reversible error by interjecting personal opinions during his closing argument. The State contends that the argument was proper, or, in the alternative, merely harmless error.
Closing arguments are an important tool for both parties during the trial process. Consequently, attorneys are usually given wide latitude in the scope of their arguments, see Bigbee,
During the State’s closing argument, the following colloquy occurred:
MR. HENDERSON: I hope at the end of all of this trial and my other trials, I guess, I can say that, as the Apostle Paul wrote—
MR. JOHNSON: Your Honor, he is putting his personal observation into closing argument.
MR. HENDERSON: It’s not my personal feelings, Your Honor.
THE COURT: Overruled. This it [sic] argument. You may proceed, Mr. Henderson.
MR. HENDERSON: I’ve done what I can to present the truth to you, as much of it as is possible this long after the offense and given the nature of the crime and the evidence. I submit to you that I can say that I have fought the good fight, I have run my course, I have kept the faith. I want you 12 to be able to say the same when it is over. Thank you.
Closing arguments must be temperate, must be based upon evidence introduced during trial, and must be pertinent to the issues being tried. Coker v. State,
The appellant further contends that the prosecutor improperly compared himself to the Apostle Paul. It is settled law in this state that references to biblical passages or religious law during a criminal trial are inappropriate. See State v. Stephenson,
INTRODUCTION OF PHOTOGRAPH
The appellant contends that the introduction of a family photograph of the victim with two of her children during the guilt phase of trial was irrelevant and was introduced solely for the purpose of inflaming the jury. Additionally, he contends that the photograph had a prejudicial effect on the jury’s determination during the sentencing phase of the trial.
Tennessee courts have followed a policy of liberality in the admission of photographs in both civil and criminal cases. State v. Banks,
At trial, the challenged photograph was introduced through the testimony of the victim’s sister.
INSTRUCTIONS ON MITIGATING EVIDENCE
Next, the appellant contends that the trial judge committed reversible error by charging all of the statutory mitigating factors, even though the appellant was not relying upon all of them in his defense. Only those mitigating circumstances raised by the evidence should be charged. Buck,
In view of our supreme court’s previous rulings, and absent any showing of prejudice, we conclude that this issue is without merit.
CONSTITUTIONALITY OF THE DEATH PENALTY STATUTE
The appellant acknowledges that the constitutionality of the death penalty has been upheld by the Tennessee Supreme Court, but raises the following issues in order to preserve them for subsequent proceedings.
The appellant contends that (1) the death penalty statute fails to meaningfully narrow the class of eligible defendants; (2) the prosecution has unlimited discretion in seeking the death penalty; (3) the death penalty is imposed in a discriminatory manner based upon economics, race, geography, and sex; (4) there are no uniform standards for jury selection; (5) juries tend to be prone to returning guilty verdicts; (6) the defendant is denied the opportunity to address the jury’s popular misconceptions about parole eligibility, cost of incarceration, deterrence, and method of execution; (7) the jury is instructed it must unanimously agree to a life sentence, and is prevented from being told
These issues have repeatedly been rejected by the Tennessee courts. See Smith,
CONCLUSION
After a thorough review of the issues and the record before us, as mandated by Tenn. Code Ann. §§ 39-13-206(b), and (c), and for the reasons stated herein, we affirm the appellant’s conviction and sentence of death. We conclude that the sentence of death was not imposed in an arbitrary fashion, the evidence supports the jury’s finding of the aggravating circumstance, and the evidence supports the jury’s finding that the aggravating circumstance outweighs any mitigating circumstances. Moreover, a comparative proportionality review, considering both the circumstances of the crime and the nature of the appellant, convinces us that the sentence of death is neither excessive nor disproportionate to the penalty imposed in similar cases.
/s/ David G. Hayes
David G. Hayes, Judge
CONCUR:
(See opinion concurring in part; dissenting in part)
Gary R. Wade, Judge
/s/ William M. Barker
William M. Barker, Judge
BIRCH, Justice, dissenting.
I must respectfully dissent from the part of the majority opinion concerning victim impact evidence. Because I acknowledge that Payne v. Tennessee,
Although legally admissible, the reasons for excluding victim impact evidence are still compelling in my view. Particularly troublesome is the issue of relevance. This is true because the character of the victim and the effect on the victim’s family may be wholly unrelated to the blameworthiness of the defendant. Booth v. Maryland,
Addressing the particular evidence introduced in this case, the majority describes the five pages of victim impact evidence as “clear and concise.” However, as Judge Gary R. Wade explained in his partial dissent from the Court of Criminal Appeals’s ruling below, the victim impact evidence allowed in Payne and other Tennessee cases comprises only a few lines of testimony. I therefore view the victim impact evidence in this case as protracted and, consequently, prone to be unfairly prejudicial. In addition, the State’s rebuttal argument was based on the impact of the victim’s death upon her family. In this argument, the State pervasively charac
I,like Judge Wade, cannot conclude that the State’s argument, considered with the lengthy victim impact testimony, did not affect the verdict. In so stating, I draw no conclusions regarding the penalty imposed. I find only that a jury should be allowed to reconsider the penalty under the correct sentencing guidelines. I would remand this case for a new sentencing hearing.
Notes
. "Whenever the death penalty is imposed for first degree murder and when the judgment has become final in the trial court, the defendant shall have the right of direct appeal from the trial court to the Court of Criminal Appeals. The affirmance of the conviction and the sentence of death shall be automatically reviewed by the Tennessee Supreme Court. Upon the affirmance by the Court of Criminal Appeals, the clerk shall docket the case in the Supreme Court and the case shall proceed in accordance with the Tennessee Rules of Appellate Procedure.”
. Oral arguments were heard in this case on March 4, 1998, in Dyersburg, Dyer County, Tennessee, as part of this Court’s S.C.A.L.E.S. (Supreme Court Advancing Legal Education for Students) project.
. Tennessee Supreme Court Rule 12 provides in pertinent part as follows: "Prior to the setting of oral argument, the Court shall review the record and briefs and consider all errors assigned. The Court may enter an order designating those issues it wishes addressed at oral argument.”
. At the time of the trial in 1995, the ages of the victim’s children ranged from three to seven years.
. "If the defendant has been convicted of first degree murder and sentenced to death but does not appeal the conviction of first degree murder, then the trial court shall certify, within ninety (90) days after the judgment has become final, the record relating to punishment and the same shall be transmitted by the clerk of the trial court to the Court of Criminal Appeals....” Tenn. Code Ann. § 39-13-206 (1997 Repl.)
. Rule 405(a) provides as follows:
In all cases in which evidence of character or a trait of character of a person is admissible, proof may be by testimony as to reputation or by testimony in the form of an opinion. After application to the court, inquiry on cross-examination is allowable into relevant specific instances of conduct. The conditions which must be satisfied before allowing inquiry on cross-examination about specific instances of conduct are:
(1) The court upon request must hold a hearing outside the jury’s presence,
(2) The court must determine that a reasonable factual basis exists for the inquiry, and,
(3) The court must determine that the probative value of a specific instance of conduct on the character witness’s credibility outweighs its prejudicial effect on substantive issues.
. According to the verdict form, the jury specifically found that ‘‘[t]he murder was heinous, atrocious and cruel in that it involved torture and serious physical abuse beyond that necessary to produce death.” (Emphasis supplied.)
. However, left undisturbed by Payne was the rule of Booth holding that admission of a victim’s family members' characterizations and opinions about the crime, the defendant, and the appropriate sentence violates the Eighth Amendment. Payne,
. See Footnote 6, supra.
. Rule 403 provides that "[although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence."
.We reiterate that victim impact evidence of another homicide, even one committed by the defendant on trial, is not admissible. Bigbee,
. The victim’s youngest child had been living with his paternal grandmother at the time of trial.
. State v. Caughron,
. At the bench conference on this issue, the State advised the court that a photograph depicting the victim alone was preferred, however, none was available.
. Under the pre-1989 criminal code, murder was defined as the unlawful killing of "any reasonable creature in being.” See Tenn.Code Ann. § 39-2-201 (repealed 1989). Thus, in the prosecution of any homicide, proof that the deceased was a "reasonable creature in being,” that is, to
. We recognize that proof of identity is also governed by evidentiary rules, and, where the victim’s identity has already been proven, further proof may be cumulative and, therefore, inadmissible. See Tenn. R. Evid. 403.
. No execution date is set in this opinion. Tenn. Code Ann.. § 39-13-206(a)(l) provides for automatic review by the Tennessee Supreme Court upon affirmance of the death penalty. If the death sentence is upheld by the higher court on review, the supreme court will set the execution date.
Lead Opinion
OPINION ON PETITION FOR REHEARING
Petitions for rehearing have been filed on behalf of both the State and Clarence Nesbit. The State asks the Court to grant rehearing and hold that our review in capital cases is limited to only those issues identified in Tenn. Code Ann. § 39-13-206(c)(l)(1997 Repl.). We decline. The initial opinion adequately addressed this issue.
The defendant argues that the opinion of the Court is invalid because only four justices participated in the decision. Three justices constitute a quorum and may sit as a Court and render valid judgments. Radford Trust Co. v. Lumber Co.,
Accordingly, the petitions for rehearing filed by the State and the defendant are denied, with costs taxed equally between the State and the defendant.
Justice Birch adheres to the views expressed in his original dissenting opinion.
/s/ Frank F. Drowota, III
ANDERSON, C.J., and HOLDER, J., concur.