*1 petition rehearing amended for and the post- amended motion for consideration of Tennessee, Appellee, STATE of judgment May 18, 1999, facts filed Ms. Lewis has attached a pleading indicating
that she filed petition custody for SMITH, Appellant. Leonard Edward Fayette Bianca in the County Juvenile Tennessee, Supreme court the same date. basis for the at Knoxville. custody petition is the aforementioned as- reports. sault May Ms. Lewis asserts that returning custo-
dy Ms. May Donoho as ordered in our
1999, opinion improper is these because
assaults demonstrate that Ms. Donoho’s However,
home unstable. in order to
adequately resolve this we issue would
need to hearing conduct a evi- hear
dence. Such is not the function of this jurisdiction
Court. Court’s appel- This only,
late it improper and would be for us
to function as a fact-finding court. Tenn. (a).
Code apparently 16-3-201 As Lewis,
recognized Ms. the proper place
for the determination of factual matters is Moreover,
the trial court. as- factual
sertions which Ms. Lewis seeks have us
consider are not for proper consideration
under the Rules of Appellate Procedure.
Facts related to issues central to the de-
termination of controversy the merits
are not appropriate for consideration as
post-judgment App. facts under Tenn. R. 14(a). Duncan, Duncan v.
P. (Tenn. 1984). Therefore, respectful-
ly deny execution, stay motion
the motion post-judg- for consideration of facts,
ment the petition for rehearing,
amended petition rehearing and the
amended motion post- for consideration of
judgment facts.
It is so ORDERED.
DROWOTA, Justice, dissenting.
I grant stay, pending expe- would petition recently
dited resolution of the Fayette County
filed in the Juvenile court.
Wells, Jr., Attorney General, District Blountville, Appellee.
OPINION *3 DROWOTA, Justice. appeal,1 defendant,
In this automatic
Smith,
Leonard Edward
raises numerous
challenges
decision
Court of
Criminal Appeals which affirmed his sen-
tence of death for the 1984 murder of
carefully
Novella Webb. After
examining
law,
the entire record and the
including
opinion
thorough
the Court of Crim-
Appeals
inal
and the briefs of the defen-
State,
dant and the
this Court entered an
Order limiting review at oral argument to
three
following
issues:2
Whether
trial court was correct
allowing
defendant to control the
presentation
mitigating
evidence and
argument
closing
against
waive
coun-
advice;
sel’s
(2) Whether
the admittance of victim
impact testimony
argument
at the'
hearing
sentencing
constituted revers-
error;
ible
(3) Whether
the sentence of death is
arbitrary
disproportionate
in violation
§
TenmCode
39-13-
206(c)(l)(A)-(D) (1997 Repl.).
fully considering
After
the record
claims,
and the
defendant’s
conclude
alleged
none of the
errors
merit.
have
Boatright,
J.
Kingsport, Larry
Robert
S.
assertions,
Contrary to Smith’s
the trial
Bristol,
Weddington,
Appellant.
authority
court had
no
override the will
Attorney
John Knox Walkup,
General
of a competent and informed defendant
Moore,
E.
Reporter, Michael
mitigation
Solicitor
and force Smith to present
evi
General, Amy L. Tarkington,
closing argument
Senior Assis-
dence and
capital
Genera, Nashville,
Attorney
tant
Greely
Moreover,
H.
sentencing hearing.
the trial
39-13-206(a)(l)
(1997
1. Tenn.Code Ann.
proceed
Court and the case
shall
accor-
"[wjhenever
Repl.) provides as follows:
Appellate
dance with the Tennessee Rules of
imposed
degree
death
for first
mur-
Procedure.”
judgment
der and when the
has become final
court,
in the trial
shall
have the
Supreme
provides
2. Tennessee
Court Rule 12
right
appeal
of direct
from
court to
pertinent part
as follows: "Prior
Appeals.
the Court of Criminal
affir-
setting
argument,
Court
oral
shall re-
mance of the
conviction
the sentence of
view the record and briefs and consider all
automatically
death shall be
reviewed
assigned.
may
errors
Court
an
enter
Supreme
Upon
Tennessee
Court.
the affir-
designating
it
order
those issues wishes ad-
Appeals,
mance
the Court of Criminal
argument.”
dressed at oral
Supreme
clerk shall docket the case in the
murder,
the trial
the Pierce
allowing
spect
the State to
court did
err
However,
a life sentence.
impact
argu-
imposed
court
present victim
sentence of death for
sentencing
imposed
hear-
ment
capital
his first direct
the Webb murder. On
ing. Finally,
supports
the evidence
Smith’s convic-
jury’s findings as
affirmed
appeal,
killing
circumstances,
for the
and life sentence
mitigating
and the sentence
tion
Pierce,
conviction of
reversed Smith's
arbitrary
disproportion-
is not
but
death
and sentence of
imposed
degree
ate to the sentence
in similar
first
Concluding that
cases,
considering the nature of the crime
Webb murder.
*4
joined
judg-
not have been
Accordingly,
the defendant.
the
the offenses should
mis-
finding prosecutorial
ment of the
for trial and also
Appeals
Criminal
final
this Court
upholding
during
argument,
the defendant’s sentence
conduct
and remanded the case for new
death
affirmed.
reversed
Smith,
v.
not be as detailed as that offered description of statement which included a trial; however, phase innocence some circumstances the offense. proof is essential to ensure both individual sentencing by ized com effective pro- circumstance now parative proportionality appel review the previously "[t]he vides: defendant was con- Nichols, late courts. See felonies, victed one or more other than (Tenn.1994)(rejecting a defendant’s charge, statutory whose elements proof regarding claim that the circumstances person.” involve the use of to the violence of the offense is not admissible at resentenc-
H gun away from me out, trying get and I you.” to talk to He I want when ways from the car We ran from the store got out and walked a it went off. us Angie talking really hear I where couldn’t didn't I fired the second shot. said, “I a little bit get can us and David we heard I had shot her until know that said, He money here this store.” the news. When we it later on county at the line.” “It’s the store down hollering, old man was Webb’s Store Shorty it I asked him if was Malone’s me,” me, hollering for his help “help said, Angie and I drove and he ‘Tes.” say did woman never The old wife. there, off a little down and let him David remember. I know anything that I ways from I on a parked the store. store, man left some came before we paved little road beside the store. door, get I him to out and told up to the chrome-plated had a .32 caliber David money from get any I there. didn’t pistol pis- was his pistol with him. The store, say if he and David didn’t either just tol. I several shots fired and heard David I left Webb’s or not. did running later David came few seconds Road, up Mountain back towards went jumped around store. David into up. I told her we picked Angie said, hell out the car and “Get the there, and we drove down get out here, I had I it figured to shoot him.” Park, and set the towards Underwood Shorty he because ran the store. cut a hose next to car on fire. David goes We drove out road that beside set the car on fire. carburetor and Grocery of Malone’s and it dead ends David, took on the Angie and me off Wautauga turn you can left *6 trails, way really didn’t know which and area, County. back to Sullivan right at a house on go. to We came out Wautauga Highway onto We turned It resi- Indian was Johnson Creek. what and drove to is known Mountain had them the my because dad sold dence man, I Road. asked David he shot the go house until We didn’t to the house. said, and he he shot him one time and Gladys night, Angie got and late last pulled the man a gun and started shoot- to where we to take us the home Sheets ing at I don’t if he said him. remember morning. I had nev- were arrested this money I got. what he drunk more some had to the before but er been house and liquor, Angie get made out of the Gladys in the drove been area. When drinking just car. I started and was Cove, thought she said us to Dennis she to us going drive out of the mountain. I my it. had taken shirt and we did store, We came out at some and I I my so and wrapped feet I could walk and, left I I turned drove until realized Gladys’ or at the think I left it in car way, going wrong was to and I [sic] Gladys had that Mrs. house. told us to I pulled it at Webb’s Store turn. Webb, were and man at Malone’s the car at Webb’s and David stopped that we Gladys dead. We told both out, and I ran in the be- jumped store didn’t, said, you it and she “If didn’t do jumped hind him. David ran and on the keep gun better because you counter, knocked the old man over and .38,” it a and knew we news said was she to, yelled “get and to that bitch” me a I to throw had .32 caliber. told David referring an at the end to old woman I we gun anyway out because knew her, I and the counter. started towards it. He it out as went had done threw throwing things me and she started bridge, up on to the a and we drove over me. I spraying started fired paint store, grocery a stopped at house. We but, just to people, one shot scare got went in and Angie Gladys and just kept spraying orange old woman us to the house. some food for take to Ime. couldn’t paint and came towards eat, went to something to I the We fixed paint held see because but, they I knew where lady sleep, felt like gun up apparently the old we were I Smith, Hartsock, at. had cut mine and David’s and O’Guinnwere arrest- pair hair with a Angie had in 23,1984, scissors May ed on while in a hiding home pocketbook her I because knew they in an isolated area of Dennis Gladys Cove. would be looking somebody with Sheets, relatives, one of Hartsock’s had longer hair. This I morning heard a driven the trio this location and had noise', loud I knew we were caught stopped along way O’Quinn allow out, I Angie, then. told going “I’m purchase camping food and A supplies. too, you come out so we won’t get hurt.” live caliber .32 round was found in Smith’s yelled out, Somebody had for us to come pocket when he was arrested. Smith’s and and David went out first. All I know is Hartsock’s hair had cut very short. everything didn’t turn way out the At murder, the time of the Webb to, supposed it was it shouldn’t have twenty-three-years old. Hartsock and happened. sorry I am for what hap- O’Quinn eighteen years or nineteen pened, thief, I I but, because am a know of age. Though Smith said felt he re- I don’t think of myself as a murderer. ' morse, Sheriff Carr testified there was This is all I you know to tell about what nothing indicative remorse in Smith’s happened. demeanor when he gave the statement. cross-examination, On Sheriff Carr said that Webb has been killed approximately During the cross-examination of Sheriff forty-five Pierce, minutes after John and Carr, jury-out hearing was held deter- he driving estimated that time from permissibility mine the ques- certain Malone’s Store to Webb’s Store is about During hearing tions. Smith ordered thirty minutes. Sheriff Carr had exam- attorneys proof no further ined the murder scene at Webb’s store and mitigation and waive final argument. in pool searched for bullet of blood counsel, lengthy After a discussion with an deep by using vegetable about inch the trial court determined that the defen- search, strainer. In his Sheriff Carr dis- competent dant was make the decision covered a mark on the wall behind the *7 as to whether to offer proof additional and counter at Webb’s which had store been argument. After further by caused a consultation with striking bullet the wall. He Smith, also had body observed the victim’s defense counsel honored his re- said that the bullet which caused death quest presented no further mitigating right entered the victim’s nasal passage. evidence. gun The .32 caliber in the used Webb rebuttal, the State Mahoney recalled a, murder was found underneath railroad years who testified that the eleven bridge. Orange paint spots were visible murder, since the she had never evi- seen recovered, on gun when it was and it dence to indicate the defendant felt re- had six live rounds in the chamber. Ac- Following testimony, morse. cording Carr, this to Sheriff the route Smith claimed to argument, have driven after State made a leaving closing but along curvy, Webb’s store was a mountain- with the accordance defendant’s instruc- ous, very dirt road which was treacherous. tions, closing argu- defense counsel waived murder, A or day so after the Sheriff Carr ment. found the badly defendant’s burned car on proof Based submitted at the near an area where had camp- Smith sentencing hearing, jury found that the ing with prior Hartsock and O’Guinn to the proven State had aggravating circum- found par-
murder. Also
at that site were
beyond
doubt,
stance
a reasonable
and in
tially
clothing
burned articles of Smith’s
addition,
jury
found that the
had
and strands of Smith’s and Hartsock’s hair
proven
had
that the
circumstance
disguise
which
been cut to
their ap-
pearance.
outweighed any mitigating
Sheriff Carr
testified that
circumstances
result,
by Smith
arguments
a
The
advanced
beyond a reasonable doubt.7 As
recently
considered
appeal
a sentence of death
imposed
case,
capital
in post
a
this Court
a
conviction
trial court entered
electrocution. The
(Tenn.
State,
Zagorski v.
jury’s
with the
judgment
accordance
1998). There,
petitioner,
verdict,
Zagorski,
Appeals
Criminal
Court of
inef
counsel were
alleged
in had
that defense
then
affirmed.
case was
docketed
phase
capi
of his
sentencing
at the
fective
explained
For the reasons
be-
this Court.
his
they had followed
trial because
low,
tal
judgment
we affirm the
investigat
instructions and
explicit
Appeals.
of Criminal
mitigating evidence.
presented
ed or
hearing
evidentiary
introduced
proof
I.
to
prior
petition
established
attorneys
had asked his
Zagorski
WAIVER OF MITIGATION
proof
present mitigating
or
investigate
to
Court,
argues
In this
Smith
because he
in the event of
conviction
repre
once a defendant has chosen to be
a death sentence to
sentence
preferred
counsel,
present
to
sented
decision
Though Zagorski’s
life imprisonment.
proof and
mitigating
argument is
strate
importance
him of the
attorneys advised
counsel,
gic and tactical decision for
to
introduce
investigate and
and need
right
personal
not a
of the defendant.
family
his
mitigation regarding
proof
argues
a defen
allowing
Smith also
phase of his
background
sentencing
at the
right
present
dant waive his
her
trial,
lawyers
prohibited
he
his
capital
mitigating proof
height
conflicts with the
family
investigating
his
contacting
from
reliability required
ened
past.
his
impedes meaningful appellate
cases and
if
Finally,
argues
review.
Smith
that even
guilty
Zagorski
found
When
represented by
a defendant
counsel retains
murder, he
to his
degree
first
adhered
authority
right
waive
or her
his
lawyers
his
decision and refused to allow
present mitigating proof
closing argu
evidence at the sen-
present mitigating
ment,
such waiver is valid
Though
his
counsel
phase of
trial.
tencing
competent
understand
right
repeatedly
Zagorski
advised
rights being
potential
waived
con
mitigation proof
poten-
of the
sequences
argues
waiver.
forego
consequences
tial
his decision to
that the waiver in
case
be
is invalid
proof, Zagorski remained
investigation and
*8
compe
cause
does not
the record
establish
steadfastly committed to his chosen course
tency.
very
that it
with full awareness
of action
in
Id.
penalty.
a death
might
well
result
right
that
to
responds
State
at 658-59.
present
belongs
a defense
the defen-
to
dant,
of ineffec-
may
rejecting Zagorski’s
not force a
In
claim
and a trial court
counsel,
Court rec-
tive
of
this
competent defendant to follow
advice
assistance
“[cjounsel’s
in a criminal
ognized
a
that
role
present
of counsel and
defense.
making
in
a
the trial
not
case
to assist
defendant
argues that
court did
State
represent
and
the defendant
err
case estab-
defense
to
because the record
this
Zagorski, 983
S.W.2d
competent
was
and before
court.”
lishes both
Franklin,
714
(citing
to
at
voluntarily
knowingly
that he
and
chose
658
(Tenn.1986)).
However,
argument.
mitigation and
S.W.2d
closing
waive
“[ujltimately
...
emphasized
agree.
we
We
benefit.
regard
"be-
this
inured to the defendant’s
Though Smith was
entitled to the
7.
Bush,
yond
weighing
a reasonable doubt"
standard
506 n. 10
(Tenn.1997).
since this offense
committed before
1989, error
statute
amended in
to
right
belongs
a defense
to a defendant.”
presence
jury.
side the
of the
The trial
Id. We cautioned that decisions such
court must then take
following steps
forego
to
legally
protect
“whether to
available ob-
the defendant’s
and
interests
jective
complete
of
non-legal
preserve
because
factors are
record:
lawyer.”
client and
Id. “[Al-
1.
Inform the
right
defendant
his
though
may
his
[a defendant]
conduct
own
present mitigating
evidence and
ultimately
detriment,
defense
to his own
make a
determination
the record
his choice must be honored out of ‘that
whether
the defendant understands
respect for the individual which is the life-
right and
importance
pre-
”
blood of the law.’
(quoting
senting
Id.
mitigating evidence in both
Allen,
337, 350-51,
guilt
Illinois
397 U.S.
phase
sentencing
phase
1057, 1064,
trial;
S.Ct.
dence because, both, sel, according responses their argue they they not and do don’t court, no existed. they the trial such evidence put proof, on other and do existed, benefit, have no in in the Had such evidence we argue your court’s doubt experienced attorneys that these into the life of glimpse the individual who killed,” presented would it to contempora- have the trial court has been such as “the jury-out hearing, neous and particularly prospective in circumstances sur- death, rounding light specific of the trial the individual’s questions court’s how financially, its those circumstances regarding existence. As we in emotional- stated ly» Zagorski, psychologically physically impacted supra, competent a upon members of the knowingly who victim’s immediate voluntarily a chooses family.” Id. at strategy explained defense 891. We that will not later be able may impact trial courts exclude complain about victim evi- the detrimental conse- which quences which dence threatens to from render trial result the decision. fundamentally The in unfair or which a poses record this dan- case reflects that Smith unfair ger prejudice, opined of and we competent fully that informed when he evidence the emotional of a rights. impact decided to waive mur- may complain family der on victim’s be now should most consequences about closely result, scrutinized. Id. As Accordingly, his decision. a we we conclude pretrial held that the provide State should Smith’s claim that court trial notice of its intent to by impact erred offer victim allowing him waive mitigation evidence to trial argument carefully is enable courts to without merit.
supervise of such proof. Upon admission notification, receiving trial courts must II. hearing a presence hold outside the of the VICTIM IMPACT EVIDENCE jury admissibility determine argues defendant next that the evidence. cautioned that impact We victim trial by allowing court erred the victim’s evidence should not until the admitted daughter to testify about the her effect of court has determined that evidence of family mother’s death her and by allow one or more circumstances is ing prosecutor mention this testimo in sug- record. Id. We also ny in closing argument. Smith asserts gested in instruction for use all impact testimony victim is barred subsequent involving impact cases victim federal state constitutions and Nesbit, In proof. Id. at we 892. also language stat capital sentencing upheld permissibility constitutional disagree. ute. We impact victim argument prosecutors, but prosecutors we cautioned to exercise Nesbit, in Recently, restraint and admonished that reversal (Tenn.1998), held that vic- result if in may prosecutors engage victim tim impact permissible evidence is under argument impact which is little more than both United States and Tennessee an appeal to emotions and vengeance.8 Id. addition, Constitutions. Id. at In 889. we held such permissible case, un- Mahoney’s testimony evidence In this der the Tennessee stat- capital sentencing brief and is contained approximately ute because it is to punishment.” sum, “relevant pages transcript. Mahoney five In However, Id. that “[generally, parents stated told the her Worley Webb; victim impact evidence should be limited to and Novella that she had been child; designed unique son, information show those their that her the victim’s provide years characteristics which brief only grandchild, had been old eleven case, adop- puzzling light advocates dissent elusion is that the the fact procedures Jersey tion of utilized New procedures adopted by this Court Nesbit opines that our permits decision Nesbit closely Jersey, mirror those utilized in New impact "wholly victim which un- the only apparent being with difference defined, amorphous, unduly prejudicial, Jersey requirement New victim of written I, prohibited by result Article section 8 impact statement. Tennessee Constitution.” dissent’s con- *11 murder; argu- impact of evidence and par- the that her sion victim the time of operated the completely ents had owned and small without merit.9 ment are County in grocery store Sullivan her had years; parents
number of
that
III.
in a
visible from
lived
house near
murder;
of
the store at the time
the
REVIEW
PROPORTIONALITY
fifty-nine
had
at the time
her mother
been
whether
must next consider
We
killed;
her father had been
she was
is dis
of death
the defendant’s sentence
murder;
seventy-eight at
time
the
penalty imposed in
proportionate
to the
ribs
that her father had sustained broken
cases,
the nature of the
considering
similar
murder;
he
pushed during
when
was
the defendant. TenmCode
crime and
steadily
her
had
de-
father’s health
13—206(c)(1)(A)—(D)(1997
In
Repl.).
§ 39—
murder;
after the
her father
clined
case,
argues
that his
this
had become unable to work and had sold
set aside
of death should be
sentence
murder;
that her
the store after
unduly
disproportionate
he did not
because
year
from
father
died
next
a brain
accidentally
torture the victim but instead
tumor. When asked
she remembered
robbery.
during
of the
shot her
the course
murdered,
day
mother
her
was
Maho-
will
considered dis
A death sentence
said,
go my
I’ll
ney
grave
“I’m afraid
if,
whole,
the case
proportionate
taken as
with it.”
about the effect of
When asked
herself,
“plainly
her
in circumstances consis
family,
lacking
the murder on
and her
son,
“Well,
Mahoney replied,
just
it
won’t
those in similar cases
which
tent with
time,
go away.
live
it all the
im
previously
We
with
the death
has
Bland,
in every
us
It
posed.” way.
it’s affected
affected
mean,
(Tenn.1997).
my
However,
dad.
It’s affected me.
I
it’s
a sentence of
problems
years.”
caused
now for eleven
merely
be
disproportionate
death is
circumstances of the offense are
cause the
Though
court did not have
similar
to those of another offense
Nesbit
benefit of
in this
our decision
a life
which the defendant has received
case,
it
is clear
that neither
victim
Id.
665. Our role in conduct
sentence.
impact
argument
evidence nor
violates
ing proportionality review is
to assure
Nesbit.
Mahoney
constraints outlined
never
that a sentence “less than death was
briefly
concisely
physical,
related the
imposed in a
with similar characteris
financial,
case
im-
psychological, and emotional
Instead,
tics.” Id.
“is
duty
our
to assure
pact
family.
this
her
is af
that no aberrant
sentence
appropriately
evidence
not admitted
was
firmed.” Id.
proof
until
State had first introduced
Clearly,
of the
circumstance.
choosing
comparing
In
sim
testimony
did not render
the trial
variables,
cases,
many
ilar
we consider
fundamentally
pose
danger
unfair nor
(1)
include:
the means of
some
which
Likewise,
prejudice.
prosecu-
unfair
(3)
death;
(2)
death;
the manner of
argument
tor’s
this case
restrained
(4)
killing;
place
motivation for the
fact,
prosecutor
appropriate.
(5)
death;
victim’s
similarity of the
once,
testimony only
referred
stat-
circumstances,
including age, physical and
“You’ve heard how it affected the fam-
ing,
conditions,
treat
mental
and the victims’
ily
child of Mr. and Mrs. Webb.
(6) the
killing;
ment
absence
years later it’s still
It won't
Eleven
here.
(7)
premeditation;
the absence
presence of
go away.” Accordingly,
conclude that
the ab-
complaints regarding
presence
provocation;
Smith’s
the admis-
argu-
holding
impact
impact
9. Since
victim
to a
that victim
evidence and
minimal,
case
so
the dis-
argument
ment
is inadmissible in all cases.
equivalent
finding
prejudicial
error is
sent’s
*12
(9)
justification;
or
of
presence
sence
and
evidence to show
his
or
judgment
that
injury
contrary,
the
to
effects on
were impaired.
and
nondecedent
abilities
To the
after the
reviewing
victims.
Id. at 667.
murder Smith returned
his
When
the
to
defendant,
campsite
way of a treacherous
characteristics of the
consid-
moun-
we
(1)
there,
tain road. Once
he and
the
Hartsoek
prior
er:
defendant’s
or
record
car,
hair,
(2)
burned Smith’s
cut their
and
prior
activity;
criminal
the defendant’s
to
(3)
attempted
by traveling
evade detection
race,
age,
gender;
and
the defendant’s
through the woods to Hartsock’s relative’s
mental,
condition;
physical
or
emotional
home. These
attempts
conceal the
(4) the defendant’s
in
involvement or role
and destroy
crime
the evidence indicate
(5)
murder;
the
the
coopera-
defendant’s
that Smith was in
of
command
his senses
authorities;
(6)
tion with
the defendant’s
impaired
drugs
and
not
or
alcohol.
(7)
remorse;
the
knowledge
defendant’s
twenty-three-years-old
defendant was
helplessness
victim;
murder,
the time of the
four or
years
five
defendant’s capacity for rehabilitation.
Id.
older than both
O’Quinn.
Hartsoek and
Comparative proportionality review is not
had
history
activity
Smith
of criminal
rigid, objective
test.
Id. at 668. We do
including robbery
in
convictions
1980 and
employ
not
mathematical
scientific tech-
well
1985 as
as a conviction for the first
niques.
evaluating
In
comparative
degree murder of John Pierce.
he
After
proportionality
light
of the
in
sentence
apprehended,
cooperated
was
Smith
with
above,
rely
the factors delineated
we
also
police by giving a statement about the
upon the experienced judgment
intu-
Although
murders.
expressed
re-
ition of the members of this
Id.
Court.
statement,
morse
daugh-
victim’s
factors,
Applying these
note
we
ter
testified that she had not received
proof
that the
in this case
that the
reflects
statement of remorse from the defendant
died
gunshot
victim
from a
wound
her
killing.
since the
There is no
head.
pro
She was killed while
trying
the record
regarding
defendant’s ca-
her
tect
husband and her property,
fact,
for
pacity
In
rehabilitation.
other
family store which she and her husband
describing
than the defendant’s statement
operated
had owned
together
accidental,
killing
there is no miti-
many years.
proof
The defendant’s claim that
gating
the record since the defen-
shooting
obviously
right
proof.
was accidental
dant waived his
Considering
jury.
jury’s rejec
believed
the nature
the crime
defendant,
imposition
tion of that
we conclude that
light
claim is
understandable
death penalty
for the
mur-
of the fact
senseless
that Smith shot and killed Nov
der
this fifty-nine-year-old
woman
within
forty-five
ella Webb
minutes of the
disproportionate
penalty
to the
imposed
robbery
Pierce
and murder for which he
cases,
similar
places
had driven
get-away
car. There was
Smith into the
class
defendants
certainly
provocation
justifi
no
proof
whom the death
is an
penalty
appropriate
cation for
killing.
While
victim
review,
punishment.
our
Based
herself,
trying
defend
her
following
conclude that the
cases in which
weapon was a can of orange spray paint.
imposed
has been
have
obviously
The defendant
realized that the
many similarities with this case.
elderly
victim and her
help
husband were
According
less.
defendant’s own
Harries,
statement,
pushed
Mr. Webb had been
(Tenn.1983),
defendant,
thirty-one-
into a trash
had
man,
can and
called out to his
year-old
eighteen-year-old
shot the
during
wife for help
the course of the
female store clerk in the head
Though
crime.
the defendant stated that
course of
convenience
robbing a
store.
drinking
he had been
alcohol
smoking
argued
gun
The defendant
marijuana
crime,
prior
claimed’
gone
there is no
he
accidentally
off
*13
person;
to the
As in
the
or threat of violence
the
use
had intended
rob
store.
(2)
while
murder was committed
case,
he had
the
this
Harries asserted that
in committing
engaged
the
was
drugs
the
defendant
been under
influence
burglary.
attempting
or
commit
shooting.
at the time of the
alcohol
(7)11
39-13-204(i)(2)
§
&
Ann.
rejected
argument,
Tenn.Code
jury
the defendant’s
(1991
case,
in this
had
and,
here,
Repl.).
As
Cribbs
guilty
found him
first
convicted of three serious
imposed
previously
been
degree
jury
murder. The
felony
two convictions of
felony
including
offenses
penalty upon finding
the death
the
murder,
degree
one con-
attempted second
of one
previously
defendant was
convicted
robbery, and one
aggravated
viction for
or more felonies which involve violence
degree burglary.
for
conviction
second
robbery and
person including
the
armed
§
Tenn.Code Ann.
39-2-
kidnapping.
Howell,
v.
State
In
three
in this
there was
IV.
struggle
gun
for the
the defen-
between
case,
dant
a victim.
In at least one
CONCLUSION
shooting
the defendant claimed that
the
In accordance with the mandate
case,
was
Like the
the
present
accidental.
39-13-206(c)(l)(A)-(D),
Tenn.Code
shootings
completely unprovoked
ex-
in
deci-
principles adopted
prior
and the
cept
gain
victims’ efforts to
control
Court,
sions
this
we have considered
case,
the weapons.
Also similar to this
in
entire record
this cause and find that
cases,
in six
of the nine
found that
imposed
in
the sentence of death
previously
defendant was
convicted
fashion,
an
the evidence
arbitrary
involving
one more felonies
use or
finding
statutory
supports
jury’s
of the
threat
it
person.
of violence to
While
circumstance,
aggravating
jury’s
and the
true,
this
argues,
as Smith
finding
that the
circumstance
in
torturous as other cases
outweighed mitigating circumstances be-
have
which we
affirmed the death penalty,
yond a reasonable doubt.
have consid-
this
We
dispropor-
fact does not invalidate as
assignments of
ered the defendant’s
error
penalty imposed
tionate the
in this case.
Bland,
cases).
have merit.
(citing
958
at 670
and determined that none
S.W.2d
Moreover,
specifically
to issues not
ad-
acknowledge
respect
we
that there are With
herein,
cases in
a life
dressed
affirm the decision of
which
sentence has
examining
e.g.
example,
actually
12
who
shot
For
in
Rule
the victim. See
State
24,
Watson,
reports, we
discovered
similar case from
WL
Mona Lisa
C.C.A. No.
1991
County,
Lynch,
Jackson,
Jefferson
State v. Gene
in
(Tenn.Crim.App.,
August
153017
at
jury imposed
which
the
a life sentence
14, 1991);
Watley, C.C.A. No.
State v. Kevin
judge
12
commented on
Rule
Nashville,
(Tenn.Crim.App.,
July
at
report
the sentence
have been
should
case,
1985).
defendant was
In another
Lynch
right
appeal.
waived
death.
seventeen-years-old
time the mur-
mercy
jury’s
Lynch
decision
afford
der was committed. State v. Lemuel Emerson
does not invalidate Smith’s death sentence.
Holmes,
(Tenn.Crim.App., C.C.A. No. 50
12, 1981).
Jackson,
According
March
other
in
16. We have reviewed several
cases
report,
Rule 12
the defendant in still another
received a sentence of
which
defendants
mitigating
case chose
substantial
imprisonment.
in
life
The similar cases
proof,
case.
unlike the defendant
this
sought
are
which the State
State,
(Tenn.Crim.
Lyons v.
Judge Jerry
Special Judge
L. Smith and
below, I
For the reasons stated
would
portions
Chris Craft. Relevant
of that
I,
hold that Article
Section 8 of the Ten
opinion
published
are
as an ap-
hereafter
greater
nessee
affords
Constitution1
pendix. The defendant’s sentence of death
of protection
Eighth
measure
than the
by electrocution is affirmed. The sentence
regard,
I am
Amendment
now
provided by
shall
carried out as
law on
opinion
that the admission of victim
October, 1999,
day
the 11th
unless oth-
impact evidence is unconstitutional unless
thoughtfully
erwise ordered
its admission is
other
controlled
carefully
Accordingly,
restricted.
I
proper authorities.
Payne,
would overrule State v.
(Tenn.1990),
extent
it
C.J.,
per
ANDERSON,
HOLDER
(or
limited)
vaguely
mits the unlimited
ad
BARKER, JJ., concur.
victim
impact
mission of
evidence.
its
BIRCH,
Separate Dissenting
J. —See
narrow,
place,
impose
I would
definitive
Opinion.
criteria
similar to those established
Muhammad,
Jersey
New
BIRCH, Jr., Justice,
ADOLPHO A.
(1996).
Thus,
N.J.
204(f)(2)(Supp.l998)(emphasis
admission of victim
espouse
those who
Thus,
jury’s
capital sentencing
role in
impact
capital sentencing
evidence
hear-
expressly
considering
limited to
whether
sensitivity
pain
ings and feel much
to the
aggravating
outweigh
or not the
factors
are
to those whose loved ones
lost
caused
any mitigating
why
factors. That is
“evi-
view,
killings.
my
But
be-
senseless
to
punishment,
dence
relevant
and
impact
is not rele-
cause victim
evidence
admissible, only
to
thus
if it is relevant
an
factors,
or
aggravating
vant to
circumstance,
mitigat-
or
aggravating
to
to
and circumstances of the
the nature
ing
by
factor raised
the defendant.” Coz crime,
sentencing
its
hear-
use
(Tenn.
State,
zolino
jury’s
ing
can
serve to divert
1979).
primary
its
deter-
attention from
role—to
for the
particular
punishment
“value” of the victim and mine
defendant’s
considering
ag-
factors of
damage
the amount of emotional
and loss
crime committed
mitigation.
by
family
gravation
friends
Such diversion
surviving
suffered
sentencing scheme
statutory
capital
factors un-
our
are not
demeans
particular
tory
well
circumstances of
39-13-
as the
As a review
Tenn.Code Ann.
demonstrates,
204(i)
statutory aggravating
crime at
issue.
focus on the
criminal his-
factors
defendant’s
unreliable, inaccurate,
blameless,
to be
causes it
pure
become
stereotype,
and arbitrary,
thereby
identify.
unconstitution-
whom all can
with
Parks,
484, 493,
al.
See
494 U.S.
Saffle
Wrongs
Rights,”
“The
of Victim’s
37 Stan.
1257, 1263,
110 S.Ct.
By accomplishments, of the victim’s displaying grieving support family Mends (or absence) endeavors, civic family, noting ju- members their unfulfilled rors, These impact victim dreams. allusions jurors evidence victim’s invites (and greater it financial condition or social attainment deem a are thereby crime deserving greater simply inappropriate for the punishment) to kill to con- both, determining someone sider the sentence. family, whose Mends or willing are and able testify during finally, it suggested And has been sentencing phase about grief. their impact the admission of victim evidence theory runs counter to the Furthermore, underlying the impact the use of victim punishment. Victim principles impact jurors evidence tempts to become mesmer- provides jurors opportu- with the concept ized “victimology.” vary nity punishment according to the Through concept, the issue of de- *18 of degree vengeance sought by family or ceased silently victim’s “innocence” is wo- statute, yet And Mends. under our the ven into sentencing equation. the Profes- purpose punishment is “to prevent Lynne sor description N. Henderson’s promote respect crime the law.” appropriate. “victimhood” is 40-35-102(3)(1997). TenmCode Ann. “victim” [T]he word has come to mean Accordingly, vengeance place no has the preyed upon those who are by strang- appropriate determination the sentence. suggests ers: nonprovoking “Victim” a Indeed, vengeance sentencing pro- the with individual hit the violence of “street disparity, disparity cess breeds is an by stranger. image crime” a creat- The that unwelcome intruder into meticulous elderly ed is that an person robbed of process. savings, her by-stan- life an “innocent injured der” holdup, killed a Supreme The New Jersey Court of has ravaged or a brutally rape protocol victim. ‘Vic- devised intended to reduce the prostitutes tims” are possibility jurors not beaten sense- that will misuse victim “johns,” by pimps Muhammad, less drug impact addicts evidence. State v. fixes, mugged and robbed gang of their 678 A.2d at protocol, 179. Under this feud, members killed during a or misde- victim impact before is evidence deemed admissible, raped In meanants cellmates.... the be following must accom- short, image plished: the of the “victim” has factual, be prior testimony should be notified The
The defendant should emotional, be free of inflam- the and should to the commencement of introduce phase plans that the to or references. matory State comments impact the defendant victim evidence hearing, During preliminary ... the catch-all factor.5 asserts inform the victim’s court should provide the defendant with the shall also will court not allow family impact of the witnesses names victim person is unable testify to if the witness to coun- that it call so defense plans That to or her emotions. control his opportunity sel have an to interview will our re- alleviated concern should be testimony. to their prior witnesses permitted quirement that the witness be number survivors greater ap- or her previously to read his to victim im- permitted who are testimony. Finally, court proved evidence, pact greater potential opportunity to re- also take the should unduly to impact the victim evidence family that the court the victim’s mind prejudice jury against the defendant. any testimony permit will concern- circumstances, Thus, special absent ing family members’ charac- the victim’s expect testimony impact the victim the de- opinions terizations and about pro- adequate one survivor will be crime, fendant, appropriate or the glimpse vide the with a of each Finally, the trial court should sentence. uniqueness being as a human victim’s prosecutor com- inform help jurors and to make an informed impact evidence in ments about victim defendant’s moral cul- assessment strictly his or her summation should Further, pability blameworthiness. previously approved to the testi- limited pres- permitted minors should not be mony of witness. impact ent except victim evidence under circumstances there are no suit- where Id. able and thus the adult survivors child sharp clear rules stand in con- These relative. living closest trast the thin limitations on admissibili- member allowed family Before Nesbit, ty imposed Nesbit statement, the impact make a victim tri- Court as follows: stated ordinarily al should conduct a Rule court Generally, impact victim 8) (formerly hearing, Rule outside be limited information de- should jury, to make a presence signed those characteris- unique to show preliminary determination as to the ad- into provide glimpse brief tics which missibility proffered of the State’s victim has life of the individual who impact evidence. The witness’s testimo- killed, contemporaneous pro- ny writing should be reduced en- *19 surrounding the spective circumstances to the pro- able the court review death, those cir- and how individual’s any posed prejudicial statement to avoid financially, emotionally, psy- cumstances testimony provide The can a content. chologically physically impacted upon victim, in- general profile factual of the immediate fami- members of the victim’s cluding information about the victim’s ly.... types proof, of evidence Of these education, and in- family, employment, impact regarding the emotional testimony can describe terests. family on should be murder the victim’s impact of the victim’s generally it poses closely because family. on his her immediate most scrutinized statute, Jersey "[a]ny other factor which is relevant to New the defendant 5. Under the to the cir may concerning statutory character or record or defendant’s introduce evidence factors, Stat. including N.J. the offense.” mitigating what court cumstances 11-3(b)(5)(h) (Supp.1998). § 2C: as a "catch-all factor” which is refers to threat greatest process to due I further that victim would hold impact prejudice, risk of particularly testimony, undue when admitted outside of the no proof is on types procedure offered the other herein a espoused, requires (“It impact.... victim be very would strict harmless error review. It is a sim- matter, allowing difficult to a ple especially reconcile rule in cases with heinous fate of a to turn vaga- submission, defendant on the as facts such the one under to jurors’ particular ries of give emotional sensi- short shrift harmless error find, facts, tivities our longstanding recogni- with analysis based those that, all, tion capital sentencing above that the error was harmless. This is easi- reliable, accurate, must be ly language and nonarbi- illustrated in Payne. However, trary.”) bright- there is no perpetrator’s] identity [the Once was es- test, line the admissibility specific verdict, jury’s tablished the death types impact of victim must evidence penalty only punish- was the rational case-by-case determined aon basis. Thus, ment available. argu- State’s beyond Nesbit, ment harmless a reasonable State v. doubt, added.) (Tenn.1998)(footnotes (emphasis omitted). & citations Jersey, Unlike New this Court has not Payne, 19. On the limited the number of victim wit impact contrary, imposition punishment testify; nesses it fur allowed nor has should, well as analysis harmless error nished guidance using witnesses who view, in my include painstaking, a intense- are Jersey, minors. Unlike New this ly thorough scrutinization of the facts and impact has not limited the victim law. testimony to factual rather than emotional bar, In the case at the victim’s daughter information; the contrary, it specifically only was allowed to testify about her allows impact evidence the “emotional parents’ background, but also about the suggestion murder.” mere father, suffering of her the fact that the “closely the trial court scrutinize” emotion family had caused “problems her al testimony way no guides trial courts years,” for eleven and that she would “go this implementing suggestion. And fi grave to [her] with it.” Considering nally, Jersey, unlike New this Court does evidence, I conclude that error more require impact victim evidence probably than not the judgment affected be reduced writing and read prejudiced process. judicial See trial, procedure witness at which would 36(b). sure, R.App. Tenn. P. To be I draw go far to prevent unconstitutional re no regarding conclusions im- sult noted in “allowing the fate of Nesbit— case; posed I hold would turn on the vagaries of should be allowed reconsider the particular jurors’ emotional sensitivities.” penalty after the herein procedures sug- I would hold that the of victim admission gested have been implemented. Only by impact sentencing testimony such strict limitation of this can phase punishment capital trial is un- transgressing we avoid on a defendant’s constitutional under law Tennessee unless right constitutional a fair determination *20 admitted with precise definition and clear of punishment based ag- on relevant stated, adop- limitation. As heretofore gravating factors. tion of procedures such as those used by Jersey provide State of New I Accordingly, would would remand this case such definition and limitation en- new sentencing hearing as would for a conducted in sure the constitutionality impact of victim a manner consistent with the discussion evidence in Tennessee. herein contained.
27
APPENDIX in mur- penalty the death whether seek (Excerpts from the of Criminal attorney district cases. The assistant der Decision) Appeals’ general explained AP- THE OF
IN
COURT
CRIMINAL
circumstances
examined
mitigating
OF TENNESSEE
PEALS
determine wheth-
weighed
order to
AT KNOXVILLE
under
particu-
er to seek the death
APRIL
SESSION
request
put
counsel’s
lar facts. Defense
un-
attorney general
assistant district
Tennessee, Appellee,
State of
by the trial
testify
denied
der oath
v.
court.
used in select-
Prosecutorial discretion
Smith, Appellant.
Edward
Leonard
penalty does
candidates for the death
ing
C.C.A. No. 03C01-9512-CC-00383
any
deprivation.
constitutional
not result
HAMBLEN COUNTY
153, 198-99, 96
Georgia,
v.
Gregg
U.S.
BROWN,
HON. LYNN W.
JUDGE
(1976);
2937,
2909,
trials. Id. at (citing represented Defense counsel defen- 580, (Tenn.1983)). We, prior 649 S.W.2d 581 dant in both of his trials and conduct- nevertheless, voir ed extensive dire in the concluded that the issue case. The did its fully could in trial court not abuse litigated be more the direct discretion in jury funds for appeal denying if a selection ex- establishes that the pert. is merit. This issue without judge’s participation nature of the prosecution deprived earlier the defen- JURY IV. SELECTION dant of and impartial a fair arbiter. Our review of the record indicates no further Questionnaire A. on Life trial judge’s nature of the Imprisonment underlying charge. participation Defense counsel was allowed to submit this Accordingly, issue is without merit. questionnaire potential ju- an extensive prior jury rors process. selection III. JURY EXPERT SELECTION disallowed, however, judge The trial two requested expert Defendant services (2) questions asking potential whether the (2) private of a investigator, licensed two juror person believed a sentenced to psychologists, jury medical doctor and a spend life would the rest his life in expert. selection All services were autho- not, prison, many years how he/she rized except jury expert. selection De- thought person such a serve. would One challenges fendant this denial. of these questions also asked whether this The decision of whether authorize potential would juror likely make less expert services lies within the sound dis to vote for a life sentence. cretion of the trial See court. State v. and extent voir scope dire is Cazes, 253, (Tenn.1994), 875 S.W.2d 261 entrusted to discretion the trial denied, 1086, 743, cert. 513 U.S. 115 S.Ct. judge whose actions will not be disturbed (1995); O’Guinn, 130 644 L.Ed.2d State v. absent a clear abuse of discretion. State v. (Tenn.1986) 561, 709 S.W.2d 568 cert. de Irick, 121, (Tenn.1988); 762 125 S.W.2d nied, 871, 244, U.S. 479 107 S.Ct. 93 Poe, 41, (Tenn. State v. 755 45 S.W.2d (1986). right L.Ed.2d 169 these 1988). Defendant contends more leeway only upon showing services exists of a should allowed in dire so voir as to particularized v. Shepherd, need. State to intelligently per- enable him exercise 895, (Tenn.1995); S.W.2d challenges. Although emptory agree Black, (Tenn.1991). 166, 179-80 815 S.W.2d statement, with this we find no general “The defendant must show a substan abuse instance. of discretion With- tial requiring need exists the assistance of out opportunity explanation of an from state paid supporting services and that his questions counsel or the court as to these defense fully developed cannot be without on the could lead questionnaire, such professional assistance.” State v. Ev speculation meaning unwarranted as to the ans, 185, (Tenn.1992), cert. of a life sentence. This issue without denied U.S. 114 S.Ct. 126 merit. (1994). L.Ed.2d 702 Group Dire B. Voir Supreme
Our held that has there no constitutional violation denial judge The trial denied defendant’s re- of a capital request murder defendant’s for quest on all for individual voir dire issues funds for expert, selection absent a except pre-trial publicity and views on the any special showing of need. See State v. death penalty. Defendant cites three Black, ju- 179-80. There was dire group instances voir when of a showing particularized they no need for rors would stated be unable follow expert prejudiced case at the law. contends selection bar. He he was
29 1989). jurors gave responses these jurors All of The voir dire. these by group they impression” the “definite judge ultimately excused for cause. v. Wainwright the law. could not follow question authority The trial court’s 425-26, Witt, at 853. 105 S.Ct. 469 U.S. individually not man jurors permissive, is for dis- Hutchison, jurors met standard v. S.W.2d These datory. State 898 v.Hutchison, 898 S.W.2d 161, (Tenn.1994), missal. See State 616 167 cert. denied U.S. Furthermore, (1994). (Tenn.1994). the argu- 846, 137, 161 84 116 S.Ct. 133 L.Ed.2d be al- defense counsel should significant possi ment that only It is where there is jurors such is without lowed to rehabilitate bility jurors exposed have been Harris, 54, 65 v. 839 S.W.2d merit. State material indi potentially prejudicial (Tenn.1992). dire mandated. State v. vidual voir Cazes, at 262. review of 875 S.W.2d Our to Excuse for Cause E.Failure any prejudice does not indicate
the record group as a result of voir judge the trial Defendant contends (3) by The three instances related dire. (2) potential failing excuse two erred in result in prejudicial the defendant did not they not consider jurors who stated could ju to other being imparted information Although poten- evidence. both mitigating rors. This issue without merit. they have jurors initially tial stated would certain kinds of miti- considering trouble Alternating Questioning Dire C. Voir evidence, totality ques- gating they could tions and answers reveals complains judge Defendant that the trial weighing aggravating the law in follow alternating erred order voir The trial court circumstances. mitigating dire the state and the defense. between II, qualifi- on the ruling has discretion rejected This 867 wide issue Howell, jurors. cations of at 20. We find no of discre- abuse (Tenn.1993). 238, The failure allowing proceed in S.W.2d tion the state first (2) jurors was not an to exclude these two questioning. voir dire of discretion. abuse Sponte D. Sua Dismissals for Cause Furthermore, jurors ex- one peremptory Defendant the trial court erred chal- by contends defendant’s cused by excusing juror sua sponte prospective lenge. several Neither did other sit jurors In the for cause. instances cited defendant exercised panel. defendant, juror that he out challenges each indicated six peremptory Therefore, she It is clear defen- challenges. could follow law. allowed 15 juror’s “prevent that each would no See State views dant is entitled to relief. Howell, substantially impair performance of his 868 S.W.2d 248-49. juror duties as a accordance with
[her]
Further
[V. Failure to Present
instructions and his
oath.”
[her]
[her]
Mitigating
Deleted]
424,
Witt,
Wainwright v.
Proof —
U.S.
(1985).
844, 852,
No contemporaneous
objection
vating
was
circumstance.
Tenn.Code
39-2-203(0(2) (1982),
§
made to the introduction of this evidence.
the
in ef-
statute
therefore,
is,
crime,
The issue
fect
waived. Tenn.
at the
of this
time
defined this
36(a);
Walker,
R.App. P.
aggravating
910
circumstance as follows:
381,
(Tenn.1995).
will,
S.W.2d
We
previously
defendant was
convicted
nevertheless,
this
address
issue.
(1)
felonies,
of one
more
other than
present charge,
which involved the
This
re-sentencing hearing
was a
only as
use or threat of violence to
person.
guilt
already
been determined and
affirmed
previous appeal.
on the
The Defendant
contends
state was errone-
state was
jury
entitled to show to the
ously allowed to introduce
sup-
evidence in
the defendant had in fact been convicted of port of this aggravating circumstance.
the first degree murder for which the jury
Judgment
A. Pierce
was to determine
sentence.
argues
Defendant
the introduction
argument
Defendant’s primary
is that
of his
conviction
redacted Order of
the state
improperly
was
allowed to use
Judgment
degree
for the first
murder
this
degree
first
murder conviction as an
erroneously
Pierce was
allowed as evi-
in
circumstance
the same
dence. Smith I condemned
the use
(1)
case.
upon
The state
one
aggra-
relied
defendant’s life
sentence
Pierce case
vating circumstance; namely, the defen-
as evidence in the Webb case. 755 S.W.2d
(1)
dant
previously
was
convicted of one
Upon
767-69.
re-trial
again
state
felonies,
more
than
present
other
failed to
I
warning
observe the
Smith
charge,
statutory
whose
elements involved
and related to
the defendant
the use or
person.
threat of violence to the
had received a
sentence
life
for the Pierce
2—203(i)(2)(1982)
Tenn.Code Ann.
39—
murder.
II
appeal
On
Smith
the Court
added).
(emphasis
Obviously, the state
again
condemned
re-
could not rely upon
conviction
hearing.
manded for
sentencing
a new
as one of
previous
felony
violent
con-
I,
857 S.W.2d
Both
at 25.
Smith
victions.
II,
S.W.2d at
Smith
However,
reading
our
of the record does
25, recognized
sentencing
relevance
upon
indicate that the state relied
the Pierce
but not the Pierce
conviction
conviction
prior
as one of the
violent felo-
sentence.
life
nies. From
through
argu-
voir dire
final
The trial
conducted an
judge
extensive
ment the state contended that the defen-
jury-out
redacted the
hearing and
Pierce
(3)
dant had been convicted of
prior
three
judgment omitting any reference to the
felony
involving
offenses
violence or the
being
sentence.
Upon
asked
there were
(2)
violence;
namely,
threat
two
robber-
redactions,
any objections
defense
ies and the first degree murder of Pierce.
is,
objection.
counsel made no
The issue
The trial judge further instructed the jury
therefore,
36(a);
R.App.
Tenn.
waived.
P.
alleged
that the state
the defendant had
Walker,
State v.
857 S.W.2d 20. This issue without im- prosecutor contends the Defendant merit. that the convic- properly argued which prior felony tion violent was Testimony— Impact [VIII. Victim jury an cir- aggravating could consider as Deleted] clearly argued prosecutor cumstance. The jury representing that the exhibit IX. PROSECUTORIAL was the offense present conviction MISCONDUCT jury now re- going, which the be prosecutorial Defendant contends that quired sentence the defendant either rights undermined his to a misconduct fair He life or death. reviewed imprisonment trial sentencing reliable determina- (3) judgments as those to other three objection tion. contemporaneous No prior felony be convictions. relied alleged improper argu- made argue did not that prosecutor is waived. Tenn. ments. issue as present conviction could be considered Keen, 86(a); R.App. P. This an circumstance. issue (Tenn.1994). Nevertheless, is without merit. will address these issues. X. JURY INSTRUCTIONS A.Intentional Murder court contends trial erred Defendant im- prosecutor Defendant contends jury failing specific to instruct jury properly argued to the that homi- non-statutory circumstances. mitigating being cide opposed Further, was intentional trial the defendant contends the argument jury Our refusing accidental. review to instruct the court erred life presume impris- does substantiate this claim. The that a sentence to spend facts meant the defendant would prosecutor merely related the and onment prison, rest of his life in B. whereas After-Effect of Verdict sentence to would death presume requested Defendant be electrocution. they to presume instructed
if were sentenced to life imprisonment, spend he would the rest of Non-Statutory Mitigating A. in prison; life and that he were Circumstances death, sentenced to he would executed requested Alternatively, Defendant electrocution. court defen- requested dant that the be instructed give special jury listing four instructions that a sentence of life imprisonment meant *25 non-statutory mitigating circumstances. in prison the defendant would remain The trial court declined to do so. Defen- life, the rest and that sentence of dant this is error un- contends reversible meant death that the defendant would be Odom, 18, der State v. 928 30 S.W.2d by requests executed electrocution. These (Tenn.1996). rejected by court. the trial Our Su- preme recently has ruled that pri- offense was the committed jury need not be given information about 1, 1989; therefore, or to November sen Bush, parole availability. State 942 tencing capital governed for this offense is (1997). Likewise, 489 S.W.2d trial court statutory the law in effect the date on err refusing jurors does not to instruct of the commission the offense. State v. they that should that presume the sen- (Tenn. Hutchison, 161, 898 S.W.2d 174 they actually tence assess will be carried 1994), 846, cert. denied 516 U.S. 116 S.Ct. v. Caughron, out. State 855 S.W.2d (1995). 133 84 L.Ed.2d At the time of (Tenn.1993); II, 543 see also offense, the of this commission the statute at 11. This is without S.W.2d issue merit. did require jury that the instructed non-statutory as to circum mitigating XI. EXHIBITS TAKING § stances. Tenn. Code Ann. 39-2- TO JURY ROOM Hartman, 203(e)(1982); State v. Defendant contends trial court the erred (Tenn.1985). 106, 118 in allowing jury the the take exhibits jury with them to the room for use required jury State v. Odom to be specifically, deliberations. More defen- non-statutory instructed on cir- mitigating prejudiced by dant contends he was cumstances when raised evidence on the redactions Pierce and Webb convic- and specifically requested by either tions. state or the defendant. at 30. 928 S.W.2d Tenn. R.Crim. P. 30.1 was effect at However, Odom was based re- provides the time trial. This rule quirements statute, new TenmCode jury jury shall take to room all 39-13-204(e)(1991). specifi- Odom exhibits were received cally recognized neither the United cause, Court, unless the deter- good States Constitution nor the Tennessee mines otherwise. Defendant’s contention required Constitution submission jury would undue engage spec- circumstances non-statutory mitigating due ulation to the redactions on the Pierce jury. S.W.2d at (citing without and Webb convictions is merit. Hutchison, 173-74). We, noted, previously jury As had been therefore, judge conclude that the trial did speculate specifically instructed not to con- refusing charge non-statutory err in these There was no cerning matters. mitigating circumstances allowable as was allowing abuse of discretion in under the date of statute effect pursu- room take these exhibits to the commission offense. ant Tenn. R.Crim. P. 30.1.
XII. CONSTITUTIONALITY
OF DEATH PENALTY
Defendant contends the Tennessee unconstitutional penalty
death statutes are following respects:
in the
(1) meaningfully fail nar- statutes eligible defen-
row class
dants;
(2) penalty allow the death statutes capriciously and arbitrari- imposed
to be
ly;
(3) cruel and electrocution constitutes punishment;
unusual process in death appellate review inade- constitutionally cases
quate. reject-
Each of these contentions has been Keen, Supreme
ed our Court. 741-44, This with- issue is
out merit. Proportionality
[XIII. Deleted]
Review— error; therefore,
We find no reversible judgment AF- trial court
FIRMED.
CONCUR: SMITH, Judge
JERRY L. CRAFT, Special Judge.
CHRIS Tennessee, Appellee,
STATE
Ray TAYLOR, Appellant. L. Tennessee,
Supreme Court of
at Jackson. June Mesler, Memphis, Appel- A. Mark
lant. Summers, Attorney General
Paul G. Moore, E. Solicitor Gen- Reporter, Michael