State v. Smith

Tennessee, Appellee, STATE of SMITH, Appellant.

Leonard Edward Tennessee,

Supreme Court of

at Knoxville.

March 1993. Denying Rehearing

Order

June 1993. Kingsport, Larry Boatright,

J. Robert S. Bristol, Passino, Weddington, Michael J. Nashville, appellant. for Burson, Atty. Report- Charles W. Gen. & er, Daughtrey, Atty. Anthony C. Asst. Gen., Nashville, Kirkpatrick, Carl K. Dist. Jr., Gen., Wells, Atty. Greeley H. Asst. Gen., Blountville, Atty. appellee. for OPINION O’BRIEN, Justice. for the defendant

This is the second trial who has twice been indicted and convicted killing degree of murder in the first for the and each time has Mrs. Novella Webb been sentenced to death electrocution.1 May on 21 The evidence shows that defendant, O’Quinn, girlfriend, Angela sitting in Wayne and David Hartsock were drinking defendant’s Ford Pinto automobile smoking marijuana when Hartsock and began plotting robbery. the defendant leaving O’Quinn, men After the two drove Smith, (Tenn. 1988). 1. See State v. 755 S.W.2d 757 later found Coun- bethton. Sheriff officers country

to a store Sullivan eastern revolver, sprinkled with couple, gun, W.H. and a .32 caliber ty operated elderly composition bul- p.m. of two Approximately orange paint. Webb. 5:45 Novella store, unspent gun matched of an defendant Hartsock entered lets in the possession Mr. Hartsock knocked down Webb where bullet in defendant’s fatally body. shot Mrs. Webb slug from Novella taken Webb’s she her the head when tried to defend days occurred au- Two after offense by spraying defendant, O’Quinn husband the defendant thorities arrested paint. There orange is no evidence house unoccupied at an farm and Hartsock defen- struggle physical contact between County. confessed Johnson dant and the victim. shooting Mrs. Webb but claimed accidentally he and gun gone had off while Glover, customer, standing Robert struggling. Mrs. Webb were porch on the front the store and saw two men enter. heard the sound two presented has 24 issues started the store. gunshots and to enter address which we will endeavor to review Defendant, store, him from inside told chronological sequence in accordance in if he knew what he had better come proceedings. with the trial the good for him. Mr. Glover ran to of says Defendant first the denial motorist, stopped passing road and change of a motion for venue violated Webb. Mr. testified that Charles Glover Fifth, the Four rights under Sixth and young the men store to two ran from the Amendments to States teenth the United their vehicle. the defendant identified 8, I, 17 and Article 9 and Constitution Sec. at trial as one had Smith of the two who Defen of the Tennessee Constitution. entered the store. originally trial was set Sullivan dant’s Webb, deceased, no Charles relation to for County where the offense occurred that he unidentified testified observed two court, indicted. trial he was store, “hop men run from in a young the pretrial publicity, due to moved apparently witness, car and take off.” Tom- Another County from to Hamblen Sullivan Trivette, my traveling Charles behind The co- County, with defendant’s consent. Webb, young testified that he observed two Hartsock, defendant, had trials in that two slowly walking men and out of the store the of jurisdiction, one for homicide John they “appeared smiling.” He Pierce, involving other the murder and the identified defendant at trial as one of Smith robbery Novella and of Webb. Smith leaving men he the store. two observed His tried cases. previously also both up picking O’Quinn, After the defendant aside in the Webb case was set conviction nearby up Hartsock drove and into argued It is by this court for error. mountains, defen- they where abandoned change of a motion of that denial setting automobile it afire. dant’s after County three venue from Hamblen after They then walked further into the woods set trials on the same of facts violated defendant and cut off their where Hartsock rights under and Fed the State some of their clothes. The hair and burned proof sup does not eral Constitutions. day three of next went to the home pro port this contention. Ten of the 50 Sheets, Gladys who drove them to a dis- case, jurors had heard but spective and food count store market Johnson exceptions knowledge their with a few O’Quinn bought City, Sheets where absolutely proof There is no only cursory. money sup- camping supplies food with against excitement the defen undue plied by the defendant. prior Defen trials. dant because implicate jurors it could him in the that of the seated Because dant first (4) crime, four defendant had throw his box of them indicated Hartsock they they something the car drove or heard gun out of window as had read about bridge (4), four only over a railroad track on case. Of those he men across name, (2) City Eliza- sat the road between Johnson tions two neither whom on the depth yardstick which heard the case. Defen- with a and found it to be say dant does not that he exhausted his deep. objection about an inch An to this peremptory challenges, however it is ar- testimony on the was overruled basis that gued publicity requires this case the witness could describe the scene as he application “presumed prejudice” of the Subsequent found it. witnesses described standard followed the United States Su- immediately the scene as observed it preme Louisiana, Court Rideau v. shooting. after the testified Robert Glover 723, 1417, U.S. 83 S.Ct. 10 L.Ed.2d 663 laying that “Mrs. on Webb was the inside (1963); Texas, Estes v. 381 U.S. 85 right pool there next to the heater like in a (1965); S.Ct. 14 L.Ed.2d 543 everywhere of blood he her where had shot Maxwell, Shepherd Webb, and killed her.” Charles who was (1966). L.Ed.2d 600 S.Ct. Those said, immediately almost “I on scene extremely inflammatory cases involved floor, laying you looked and she was in the publicity creating and media conduct a cor- know, in behind the counter so I had to ruptive atmosphere deprived carnival up walk to the end of the counter to see proceedings “solemnity and so- her laying just and she was there face briety” required process. They for due do you might say, pool down as well in a proposition juror stand for the A immediately blood.” third witness exposure to information the crime scene, Trivette, Tommy said as he went convictions, prior and the defendant’s store, said, “Mr. been Webb T’ve primarily type publicity which was robbed,’ said, just you alright? and I are case, present presumably prejudicial. he couple And looked at me for a of sec- Bates, (Tenn. See State v. 804 S.W.2d 868 — said, ‘they onds and I my shot wife.’ So 1991); U.S.-, cert. denied looked over the counter and seen his wife 116 L.Ed.2d 98 Melson, (Tenn. laying I there. went around to see if I S.W.2d 360-361 1982), help this Court reiterated could any laying the rule which her out and she was applies nature, is, blood, down, cases of this puddle that in a kind of face so I change decision of whether or not to get rolled her over her where she venue is for the sound discretion of the only objection could breathe.” The made may trial court and not be reversed on any testimony of this was that which appeal absent a clear abuse of such discre by was made to the statement Sheriff Carr. tion. There was no such abuse this case. The statement of the other witnesses was voluntary by and unsolicited the State at- charges the trial court torney. Banks, S.W.2d allowing testimony with error in that de (Tenn.1978), adopted this Court Federal lying pool the victim scribed as Rule of applying Evidence 403 to the ad- deep, arguing blood an inch that this testi mission of pro- relevant evidence. The rule mony irrelevant, inflammatory and note, all, vides: highly prejudicial. first We is not a this correct summation of the relevant, “Although may evidence be ex- evidence. Sheriff Keith Carr testified on probative cluded if its value is substan- direct examination that when he arrived tially outweighed by danger of unfair

the scene both Mr. and Mrs. Webb had issues, prejudice, confusion of the or mis- hospital. taken to the He been described leading jury, by or considerations of country the scene as “a small store in time, delay, undue waste of or needless blood, disarray, things a lot of moved presentation of cumulative evidence.” around. At the end of the counter ... explanatory In the note to Rule “un- pooling coagulated there was a blood prejudice” fair advisory is defined just general disarray.” Upon further committee “An tendency sug- as: undue inquiry explained he his intent to sift gest basis, through improper decision on an com- the blood to search for a bullet may body. monly, though necessarily, exited the have Prior to an emotion- sifting through the blood he measured its al one.” See at 951. Banks the Sullivan Upon arriving at rights. testimony complained of None of the re-ad- Jail, defendant was proba- Its prejudice. County this level of reached case the defendant rights. was essential to the State’s After tive value vised of his or gruesome statement, manner and was not Gard- a written Sheriff gave inflammatory. The issue overruled. printed if he had read a ner asked him rights his under advising him of form says the trial court erred and, so, he if whether decision Miranda allowing of certain in- admission had he the statement which had made robbery prove intent to troduced to commit or not it was signed and whether of his constitutional violation various statement; inqui- all of these accurate rights. complaint is into a This divided answered affirmative- ries the defendant the first of which number sub-issues that he given by ly. him to the Gardner denied involves a statement Sheriff verbally physically the trial court should have police. deputies of his alleges. statement because it was suppressed defendant, this he mistreated transcript of the He cites the coerced. that before Detective Keith Carr testified previous trial to this record of his sustain at the interrogation of the defendant rejected considered and issue. This Court his advised of jail, the defendant was argument his statement he un- rights and stated that Miranda S.W.2d, at coerced at that trial at 755 willing- his them. He stated derstood pp. 762-763: rights signed a his ness to waive his confes- The defendant contends that Af- at 9:20 a.m. form of waiver written given sion from him and was was coerced defendant’s state- ter wrote down Carr involuntarily and thus in violation of aloud, ment, read it veri- the defendant process. right of due constitutional page each accuracy and initialed fied its Detective Sheriff Mike Gardner and During the course of the signed it. Keith Carr testified in considerable detail day was interviewed about the defendant concerning the circumstances surround- of his matters and was re-advised other and the the defendant’s confession At 10:55 a.m. the de- rights each time. considering the evi- judge, after any questions to answer fendant refused dence offered the State ceased. questioning time all and at that issue, upon this resolved the defen- testified that the Detective Carr of the State and admitted issue favor verbally physically nor dant was neither the confession into This Court evidence. ciga- given coffee and abused but is that determination if there bound rettes, not ask for food. Detec- did but support material evidence to it. be that the defendant tive Carr testified Tenn., Pritchett, 621 S.W.2d 127 him that his back was complained to Tenn., (1981); Chandler, had hurting arresting officer because 922-23 We find am- S.W.2d back, whereupon Carr put gun to his support ple evidence this record to and saw examined defendant’s back finding defen- of the trial court that the laceration. Defendant spot red but no given voluntarily. dant’s confession was paralysis complained also ..., Mike Gardner testified at a Sheriff Carr, Detective who was right hand but hearing suppress the motion to that on emergency medical tech- qualified also a 23, 1984, May the defendant was ar- on sign nician, the state- saw the in a remote area rested outside a house difficul- right hand without ment with his County, pursuant to an out- of Johnson swelling bruising. no ty and saw standing arrest warrant. physician, not ask to see a defendant did companions he and two seized when nurse, for medical treatment. Carr house, handcuffed, or a in- emerged from the alert and that the defendant was rights, testified dependently of his and advised ques- gave responses immediate to all patrol in a car. The defendant placed defendant did not ask tions and that the to the sheriff or made no statement attorney. being of his for an other officer before advised Meredith, employed by ing, State, Gerald a nurse contrary to the insistence of the department, sheriff’s testified that he even after redaction the record con- approximately examined the defendant tained evidence that the defendant entered fifteen minutes after the defendant ar- grocery the Webb with intent to commit jail rived at the only observed two robbery. small areas on the defendant’s back and judge thisAt trial the trial deleted appeared

testified that these abe cou- all reference to the Pierce case from the ple days old. exception defendant’s statement with the Our conclusion just is that the evidence of one sentence to the co-defen attributed amply supported outlined the conclusion said, got dant in which “he I out Smith of the trial court that the defendant’s aways and walked back from the car where confession voluntarily given and was Angie talking couldn’t hear us and David admissible evidence. get said I can money us a little bit of down presented Defendant has no new evi- overruling here at this store.” In the mo dence on this issue at this trial. The issue tion to strike the trial made the fol is without merit. lowing comments: saying “... You’re that that referred to asserts that the trial court Well, improperly actually another store. redacted his statement fail- it did but only to delete a its the statement in reference to the Pierce the statement robbery. argued store, It is say that order to that —and it doesn’t prove murder, degree felony course, first only the State its the but statement prove had to preexisting as an element of the crime statement that indicates a killing place during perpe- plan Now, took a store. as redacted rob robbery tration of a and that the trial court the statement doesn’t refer to which store, redacted the express bungled statement with the store. The first it was purpose showing there, course, intent to rob killed Webb a man was remark, Store retaining Hartsock’s “I and so there was a—I believe that based get events, can us money subsequent a little bit of down here it indicates a—its store,” at this origi- continuing which “this store” get money intent to from a nally Market, referred only Supreme to Malone’s store. And the Court has said where Pierce was killed. that the statement can be redacted so as rob, to show an intent to and that’s the appeal, On the first this that Court held only statement it that shows an intent denying the trial court had erred in defen- I I to rob. assume and must assume dant’s motion for a severance of Pierce Supreme opinion from the Court and the and Webb murder cases. The Court held reading of the statement robbery evidence of the Pierce to, what have reference I and would murder was inadmissible at the Webb trial your overrule motion on based that.” because it was not relevant to issue on trial the Webb murder and even if it If had the denial of the motion to strike was error, question was, some remote relevance to the of and we are not convinced that it whether or not the defendant entered the probative we do not find that its value is grocery Webb with intent to commit outweighed by danger preju- rob- the of unfair probative bery, its value as such evidence to dice the defendant. Defendant’s state- outweighed by prejudicial was far its replete effect ment is with other an references to upon Defendant, the defendant in the Webb case under intent to rob the Webb store. Parton, statement, the rule established in says pulled 694 first he in at (Tenn.1985), car, S.W.2d 302-303 stopped and Webb’s store to turn. He State, jumped Bunch v. 605 S.W.2d 229-230 Hartsock and out Smith ran in the (Tenn.1980). The Court concluded that the store behind him. The next sentence infers easily defendant’s confession could robbery jumped be re- when Hartsock on the counter, by deleting any yelled dacted reference therein to knocked Mr. Webb over Pierce, robbery killing say- (Smith) “get bitch,” of referring Mr. to him to utterance, Evidence, (1974), F. Excited Part an old woman the end of counter. to at Hel says Management Defendant he started toward her and 69. Services just people. Hardly shot man, Tenn.App. fired one to scare S.W.2d implication could be drawn than (1955), Appeals other extensive of cited Court felony duo on the of that the were bent utter authority the rule that excited get any robbery. The statement “I didn’t excluded because it was ance should not be money say if he and David didn’t did or another, by inquiry of elicited who made not,” clearly expresses the intent to rob. applied earlier cases him. While these The fact that defendant entered store gestae, since the concept rule to the of res building armed and Mrs. shot Webb was 803(2) ap it adoption we consider of Rule thereafter, is within a few seconds indica- here, it, propriate to an apply to stated attempt perpetrate robbery. tive of an a excited declaration. utterance See (Tenn.Cr.App. Carpenter, complains of is Defendant what 1989). testimony Tommy referred to as of witness hearsay Trivette statements made objection to the testi Defendant’s Worley plain Webb. It is from the evi Mahoney, daughter of mony of Katie Webb Glover, witnesses, dence that Robert Char Webb, Worley appropriate and Novella was Webb, Tommy lie Trivette were in the of in the the direct sense that examination simultaneously, almost within store sec if very any probative little the witness had shooting. onds after the Trivette testified to the circumstances value reference he Mr. that when entered the store Webb course, the State endeav the case. Of was said, robbed,” “I’ve been and looked at him oring robbery a occurred show that had said, couple “they for a of seconds and shot stating that this defendant is correct my obviously This wife.” an excited knowledge witness had no of that event. exception hearsay utterance rule. However, objection every relevant that was says exception should not by the judge. made was sustained apply because Mr. Trivette was not the gave cautionary numerous instructions person first to talk to Mr. Webb after the objections conjunction with the may may event. That not be true. An witness, made. of the State’s examination Webb, Much other Charlie he when background related to evidence about Worley in the store he if went asked Webb most, error as “no, at the such reply, he was hurt and Webb’s and received Nonetheless, totally I think she occurred harmless. but is.” the defi nition stated defendant is not cor argues evi recently rect criterion. This Court has in robbery dence of commit intent to adopted Tennessee Rules of Evidence felony a sufficient sustain convictionfor product years several which were inquiry review of murder. The critical 803(2) study and research. Rule defines an sufficiency support the evidence to relating “excited utterance” as a statement must criminal be to determine conviction startling to a event or condition made while of record could rea whether the evidence the declarant was under the stress ex guilt sonably finding beyond support citement caused the event or condition. question reasonable relevant doubt. generally existing It is a restatement of whether, viewing the after spon law. The ultimate test is Tennessee light to the prosecution, most favorable logical taneity and relation to the main of fact found any rational trier could have act or event where an declaration beyond the elements of the crime essential of springs out the transaction while the Virginia, a reasonable doubt. Jackson laboring still the parties are under excite 2781, 2789, 61 strain ment and of the circumstances and L.Ed.2d preclude present so near The evidence at a time it as to the idea case, light ed at trial in of deliberation and fabrication. See this viewed Garri State, State, 163 Tenn. most to son v. S.W.2d favorable to the is sufficient (1931); 1009, 1011 Paine, Tennessee beyond Law of establish trier of to a rational fact it made reasonable doubt that the defendant en- held that no difference grocery intending tered the Webb to com- defendant did not fire the shot that killed a felony robbery. mit the The issue is prior felony. of in a We are of the victim degree overruled. opinion that the of a defendant’s aggravated felony goes in an involvement complains it error to that was weight jury give aggrava- to the the is to photograph admit a indentation in the ting determining circumstances when grocery. theo- wall Webb’s State’s they outweigh mitigating circum- whether ry appeared was that the indentation which stances. fresh, second, by had been made the “lost” illustrates that the in- bullet. exhibit issue, poses Defendant next apparently recently dentation had been hearing precluding from evi nothing appeal made but more. On the regarding receiving dence or instructions the first trial this Court found that no sentence, life consecutive meaning of a prejudice could have resulted from admis- sentencing, parole eligi and concurrent photograph any sion of this and that error bility rights. his constitutional At violates beyond was harmless a reasonable doubt. sentencing hearing, time after a short Smith, p. at supra, State v. 755 S.W.2d verdict, retired to consider their holding 765. second This is valid as to the jury dispatched following note to trial and we find no merit to this issue. judge: (1) sentence; Define life says prejudicial it deny error for motion to (2) the trial court to Define consecutive and concurrent aggravating limit apply circumstances and allow if a life terms and which would to con given; introduce evidence of his second life sentence was degree viction and sentence first mur (3) parole apply. When would sentencing phase der the first case at the jury, “The The trial court instructed argues of his trial. He that he respond your permitted Court is not directly involved in threat or act of your and resume questions. Please retire against violence the victim and as a result Defendant raises several deliberations.” introducing his conviction and sentence to instruct on points on the Court’s refusal case, prosecution made it known raised as violation the matters that he had received a life and state constitutional of his federal sentence. As a result he the State rights as follows: effectively option eliminated the of life im (1) allowing By not defendant to rebut prisonment as a sentence in this case. It is parole raised issues and evidence 2—203(i)(2) his insistence that T.C.A. § 39— the State. should be limited convictions where (2) mitigat- By precluding admission of a directly defendant has used threats or vio ing factor. against person.2 lence another He states (3) non-statutory aggrava- By raising a correctly that the record shows that he was ting dangerousness.” factor of “future Pierce, grocery not in Malone’s when John (4) By violating Article 19 of the § storekeeper, shot and he never Tennessee Constitution. contact with that victim. He came into case, State, argu- validity Florida Lewis v. There is no to defendant’s cites a (Fla.1981), argu failure of the trial So.2d 432 sustain ment that the question pre- jury’s ment. This has not construed the answer the somehow Court question pa- evidence of statute in this manner. The cluded his rebuttal might language of the statute does not re role be introduced clear equally argu- This true of the quire Teague, such limitation. State. (Tenn.1984), regarding parole this Court ment that information eli- 39-2-203(9(2) charge, present T.C.A. 39-13- other than the which involved [now § 2. 204(9(2)], provides: person. That the defendant was the use of threat of violence to the felonies, previously of one or more convicted

H attempt compen- jurors tend to to fact that gibility and and concurrent consecutive by imposing sentencing may operate mitigating clemency evi- as sate for future dence, sentences, certainly of the trial a mat- and that the failure harsher possibili- judge respond to could create to a defendant. prejudice ter of ty jury engage speculation could the Tennessee Constitution Neither interests.

which would harm defendant’s or prohibits the Federal Constitution nor judge’s response to It is insisted sentencing informing capital a requires inquiry jury inappropriate from the sentencing and accurate jury from the of relevant keeping because this information Bates, supra; non-statutory ag- v. creates a information. See State somehow dangerousness. Ramos, are of gravating supra. factor of future We v. California provide jury a with the opinion that to mistakenly cites from our re- requested by defendant sort of information Bates, supra, opinion cent v. of based on result in sentences death could mitigating support reliance on evidence other than speculation and on factors sheer potential mental for re- disturbance 39-2-203 and those enumerated T.C.A. § arm of his defense. It is habilitation as an Constitution. sanctioned under either See interest, public much in the as a counter as 423, State, 202 Tenn. 304 Graham defense, for to consider to such a 622, (Tenn.1957). S.W.2d dangerousness possible future Bates, particular a defendant. complains 881-82, p. S.W.2d at we said: hearings grant parte ex court refused The Constitution does ... United states 40-14-207(b). Defen pursuant to T.C.A. § preclude capital sentencing jury chambers, record, in off the dant that considering dangerous from the future court, acknowledged by the trial as later particular ness of a defendant where he not enter judge stated would such is a relevant factor under State’s regarding expert services tain motions capital sentencing. law of See Jurek the district attor for the defense without Texas, 2950, 49 96 S.Ct. no such comment at ney present. There is (1976); L.Ed.2d 929 v. Ra California judge The trial point in the record. mos, [1000-01], U.S. given permission he had remarked that (1983); Spa 77 L.Ed.2d 1171 defense counsel had every expert hire Florida, [461-63], ziano v. 468 U.S. 447 agreed, saying Defense counsel asked for. 3154, 3163, 82 L.Ed.2d 340 S.Ct. any question “I don’t think there is prejudice no to the de that.” There was part defendant lifts of a sentence process employed fendant from Article 19 of the Tennessee Con- § such ex provide defendant with argue prohib- stitution to that a rule which Apparently needed. pert assistance was capital sentencing hearing in a its the required to be filed with affida he motions being parole eligibility from instructed on stating necessity experts. for these vits sentencing and consecutive and concurrent only complaint counsel’s Defense portion of Article 19. That violates they required provide the State were the constitutional article which they copy of the motion and applies to indictments for libel and relies on hire opinion they ought to able to be top, case not touch the facts of this does having experts without the State initial ac side, of such The introduction bottom. cess to what were to be used for. possibility instructions creates the capital question say does that in statute speculation length of time a convict- cases, found where the defendant has been required be to serve ed defendant would having jurisdiction indigent, the court irresponsibility and further tends to breed case, hearing, parte may in an ex premised upon the part jurors on the its discretion determine the need inves proposition that action can be corrective tigative expert services or other similar greater A taken others at a later date. services, that the constitutional instructions stems from the to insure defect such rights of the properly pro- defendant are sume page the reference is to 39-40 of the tected. The require any transcript ap- statute does not where the Court declined to particular point specialist, a defense parte hearing. opposed form for an to a ex psychiatric specialist. Appar- medical or might, The defendant if divulging he fears ently defendant Dr. Bear as an defense, some wanted area of his ask for an expert explain jury, medi- from a particular camera examination bit standpoint, significance Magnetic cal of evidence. Defendant has not he shown Imaging Electroencephalo- Resonance compelled divulge confidential mat- gram findings results the context of the parte hearing ters. The denial of an ex did neuropsychological test, from the clinical comply not with mandate of the stat- history. and social medical interview ute, erroneous, though but even seems to experts appointed by Two were the court to implicate only statutory rights and the trial conduct and evaluate an MRI and EEG court’s failure to appears follow the statute examinations of the defendant. Defen- non-prejudicial and harmless error in argument notwithstanding, dant’s neither any event. Defendant’s constitutional 40-14-207(b) T.C.A. nor Ake v. Okla- right prescribed was to the services homa, 68, 84-6, statute, not in process by they (1985), require 84 L.Ed.2d 53 that a provided. Defendant has not shown expert ap- defendant have an of his choice that he any was forced to disclose informa- pointed. requires The constitution that an protected tion under Tenn.R.Crim.P. indigent provided defendant be with the 16(b)(2) that, information in sub- necessary present adequate tools de- stance, eventually pro- would not have been Having provided fense. been with those through duced discovery the State implements of defense is entitled to no he Moreover, under Tenn.R.Crim.P. 26.2. this more. was the second trial of this case and the prosecutorial raises certainly State was familiar with defen- misconduct as a of his constitu violation theory dant’s of defense. rights tional and cites instances as several complains statutory too of the charges reversible conduct. He the State’s requirement reciprocal discovery for claim- attorney, without of fact in the basis compliance with Court rules denied record, expressing personal opinions with rights process to due equal protec- credibility about the of a defense witness tion because of his indigency. Tenn. attacking integrity. that witnesses requires R.Crim.P. 16 disclosure from the purported This reference is to the attack defendant, most monied as well as the witness, integrity expert of an Dr. poor. A criminal trial is a search for the argued Pamela Auble. The State pertains truth as it to a defendant’s inno- manner which Dr. Auble testified and guilt. providing cence or The rules explanations her what she had said discovery protection mutual and for of a prior affidavit showed bias. Defendant did defendant from disclosure of internal de- remarks, object to these nor to an fense documents made in connection with suggesting earlier statement that Dr. Au- investigation or defense of the case trying ble was to not influence accrue to the benefit of the most destitute put defendant in the electric chair. We equal force as do to the benefit have read the record and considered wealthy. complaint Defendant’s argument of State’s counsel which defen warrants no further discussion. dant jury. was intended to mislead the charge Defendant’s that the trial argument We do not find that to reach the compensation court to authorize refused heights of impropriety suggested by defen for the defense to retain Dr. David Bear is dant. Russell, equally merit. (Tenn.1976), without Defendant has not defendant, cited Court designated place in the record where argument found the of the District Attor expressly appoint the Court declined Dr. ney gone General to beyond pale have expert. legitimate argument, Bear as a We must as- of raising spectre defense

13 conspiracy, worse, of part reliability by deceit and on the required standard of the psychiatrists, psychologists of Eighth and attor- parties Amendment. Both neys. attorney While the State’s in this strayed path by from the directed the testimony case bore down on the of Dr. judge, by direct reference to Auble, argument approach his did not the thereof, by impli- deterrence lack but argument tenor of the in Russell. The cation. One would have to strain to con- attorney State’s argue was entitled to argument sider the State’s to be violative by reasonable inferences raised the evi- rights.” of defendant’s constitutional dence adduced at trial and find his we The same is true of the defense com- argument did not point. exceed that plaint the State’s cross-examination prosecution ar raising parole. Dr. Auble issue gued disregarded deterrence and defense On direct examination counsel did, explicit court’s order. The trial explain why asked Dr. if she Auble could indeed, point prior argu out to counsel pulled trigger gun on a ment that proper deterrence was not evi robbery caused death victim. dence for either the State or the defendant responded judgment She that his and rea- argument. to mention in In this case de soning limited were because brain dam- fense counsel isolated two remarks age, intelligence his was and the ac- low Attorney District argument General robbery tions of the victim was too much thinly-veiled which he describes as “a refer for his On brain. cross-examination the deterrence,” ence to and cites them as re posed Attorney question District based versible error. We do not find either of the response on her to the affirmative last comments attorney made the State’s inquiry by made defense counsel. When judgment have affected the in this case. responded question she to the State’s it For the benefit of both State and defense gets then was asked Leonard Smith “[I]f counsel we can do no than better reiterate very likely back on the street he is Irick, our admonition in State v. repeat type activity that same with those (Tenn.1988); S.W.2d cert. denied results, Objection same he is not?” was 489 U.S. 109 S.Ct. 103 L.Ed.2d question. made to the form of the At a (1989): bench conference defense counsel ex- “Unquestionably, any argument based plained objection question his general on deterrence to others has no imprisonment that it was a reference to life application to aggravating either or miti- parole. without After some discussion it gating Argument circumstances. of this plain attorney general became was inappropriate nature is sentencing at a endeavoring impeach on the the witness

hearing. Deterrence of defendant at tri- report basis of a she had submitted by imposition al penalty of the death is previ- connection affidavit she had seem, and it obvious would redundant. ously report made the case. In the she Debatably, at part least diag- had stated that defendant had been argument State’s specifically directed to- past nosed occasions two two ward deterrence of the defendant personali- people different as an anti-social argument by made rebuttal to defense ty. The trial court admonished attor- argu- counsel. The thrust of the defense general ney question and he to restate suitability ment of a life sen- proceed. There was no allowed tence over execution of the defendant requested. curative instruction The record under the circumstances of the case. A support reviewing argu- simply court does not defendant’s con- propriety deliberately capital sentencing injected ment in a tention that the State proceeding prosecutor’s parole must determine whether the issue of into his cross-examina- sentencing comments affected the continued deci- tion. His cross-examination say clearly sion. If the Court cannot the com- demonstrates his intent to im- sentencing, peach ments had no affect on the expert witness. findWe jury’s then the decision objection does not meet the to be unsustainable. Defense counsel highly impact alert victim information the form of raising objections to testimony cross-examination and argument. He relies on argument appro- when considered it Maryland, Booth v. 482 U.S.

priate. objection Such an was made when 2529, (1987), 96 L.Ed.2d 440 and South the attorney general began reading from a Gathers, Carolina v. United Supreme States Court case in sup- 2207, (1989). S.Ct. 104 876 In L.Ed.2d port argument of his punishment that be (Tenn. Payne, 791 S.W.2d 19 commensurate to the offense committed. 1990), said, this Court “It is an affront to objection proposition was made on the the of the human race to civilized members argument getting that the outside the case, say sentencing capital that in in a a talking evidence and about deterrence. It parade may praise of witnesses the back says was sustained. The defense now ground, good character and deeds of De prosecutor’s the remarks were intended to (as case), fendant was done in this without jury’s rouse the ire and emotions. The nothing relevancy, may limitation as to but referred to it isolated of, upon said that be bears the character attorney statement in a court case. The imposed, the harm upon the victims.” The general’s reference was not nor extensive existed, Court found that if error it was misleading was it a passage use of a from subject analysis to harmless error and judicial a opinion. We do not it find found the issue to be merit. On without

violation of defendant’s constitutional appeal, Supreme the United States Court rights. overruled both Booth v. and Maryland says prosecutor

Defendant Gathers, in holding that if South Carolina v. tentionally jury mislead the as to inferenc permit the State chooses to the admission es to be drawn from the evidence. The impact prosecutorial of victim evidence and Attorney argued District General that the argument subject, Eighth on that may have killed Mrs. Webb be per Amendment erects no se bar. “A State cause she had known him all his life and may legitimately conclude that evidence could objec have identified him. No trial impact about the victim and argument. tion was made to this This was family the murder on the victim’s is rele legitimate inference to be made from the jury’s vant decision as to whether or proof permissible and was to rebut defen penalty imposed. not the death should be dant’s shooting contention that was There is no reason to treat such evidence accidental. The issue is without merit. differently than other relevant is Tennessee, treated.” 501 Payne v. U.S. premise

On the prosecution in- -, -, 2597, 2609, 111 S.Ct. tentionally misrepresented misstated and process L.Ed.2d 720 In the mitigating evidence and the le- expressed Court reaffirmed the view gal considering evidence, standard for Justice Cordoza in Snyder v. Massachu general por- defendant makes a attack on setts, 97, 122, argument tions of the State’s intended to (1934): “Justice, though L.Ed. 674 due to mitigating rebut the evidence. We find no accused, the accuser due to also. indication of such intentional misstate- concept of fairness must not be misrepresentation. ment or This was a strained to a till it is narrowed filament. fought hard case in which both sides ur- keep We are to the balance true.” gently diligently impress endeavored to upon the merits of their case. argues earnestly that the trial either side exceeded the When bounds of give requested court’s refusal his in- argument, appropriate proper objection, non-statutory mitigating structions on cir- judge promptly firmly re- his constitutional cumstances violated sponded. think We do not rights by preventing from consid- in any mislead manner. ering giving effect to mitigating sepa

The defendant has raised two evidence. Defendant cites no valid authori- questioning presentation ty rate issues argument for this and the law is to the charges prejudice because only has held that contrary. This Court each statu- applicability of argued the raised State mitigating circumstances those circumstance. charged, tory mitigating be the evidence should State circum- (Tenn.1984), instructing mitigating Buck, but all 670 S.W.2d statutory cir- prejudice, submitting only showing of a in the absence stances jury writing created generally the de- this error would benefit cumstances to require because, the State’s coupled reversal. prejudice fendant and does Hartman, instructional exploitation aggressive (Tenn.1985) to believe the Court said: was mislead ambiguities the the “im- were statutory circumstances deciding, that there “Assuming, without should the defendant portant” ones which non-statutory mitigating circum- guid- no leaving jury the thus prove, evidence, find by the we stances raised evi- the defendant’s “sorting out” ance penalty statutes provision in the death no dence. expressly factors be requiring that such thing in the statutes

charged. only miti- instructions on In reference to the contention under relative to defendant’s jury circumstances delivered gating mitigating circum- is that discussion them, arriving “in informed the expressly are not limited to those stances consider, jury punishment the shall at the 2—203(j).Ac- listed therein. T.C.A. § 39— indicated, any mitigating cir- as heretofore cordingly, we have held that the include, but not be shall cumstances which mitigat- any non-statutory may consider following.” He then listed the limited to circumstances, initiative, ing on its own con- (8) mitigating circumstances eight requirement there is no that and that 2—203(j).He contin- in T.C.A. tained § 39— mitigat- they reveal in their verdict what people may have ued, different “because circumstances, consid- any, if to miti- what tends different views Melson, 342, ered. offense, pro- the law any particular gate Therefore, (Tenn.1982). we hold any may weigh and consider you vides mandatory re- only instructions with circumstances about all facts and spect mitigating circumstances are case, defendant, offense, and the which statutory that those circumstances which proffers for basis raised the evidence shall be ex- are death, you than or which sentence less charged, jury must pressly and the be mitigating or be circumstances believe to weigh they told that shall and consider way limited to You are in no circumstance. any facts or circumstances that are other you mitigating listed circumstances they find to raised the evidence that facts any mitigating consider other should circumstances, making mitigating be not re- The law does or circumstances. circum- the determination of which mitigating quire you specify to list or what stances, mitigating, aggravating or out- find, consider. you weigh or circumstances weigh the other.” re- any facts Mitigating circumstances or character, edu- age, lating to defendant’s judge correctly refused to deliv- The trial cation, environment, life and mentality, proposed instructions er defendant’s the crime background any aspect of mitigating of non-statutory factors because extenuating may itself be considered were submitted. which the form which making culpability or reducing his moral repetition prepared of his Some of it was punishment of deserving him instructions, inappro- less of some was couched mitigating as a may death. consider language. part He included that You priate tends which he circumstance circumstance proffered instructions which consid- imprisonment. life justify penalty of charge delivered to to appropriate ered mitiga- You all evidence In addition to the circumstance must consider jury. give par- violation, weight you tion. The which there was no constitutional is a matter mitigating circumstance denying no error in the instruc- ticular there was moral, legal judgment. factual and your submitted to the court. tions However, you may degree not refuse to consider first murder under the evidence mitigation.” evidence of precluded the case. He from arguing any theory might have less- adequate This instruction was degree culpability. ened his The issue is enable give independent mitigat without merit. ing weight aspects of the defendant’s certain of the trial character and record and circumstances of statutory mitigating court’s instructions on the offense. It met all constitutional re impermissibly circumstances limited and quirements. There is no substance to de jury’s misdirected the consideration of his fendant’s insistence convicted mitigating regarding his mental him felony murder and sentenced him to 39-2-203(j) condition. provides T.C.A. § death making any finding without of fact that in arriving punishment at the regarding personal culpability under consider, indicated, any shall as heretofore authority Florida, of Enmund v. mitigating circumstances which shall in U.S. 102 S.Ct. 73 L.Ed.2d 1140 clude, following: but not be limited to the (1982), Arizona, and Tyson v. (2) The murder was committed while 95 L.Ed.2d 127 This defendant was under the influence ex theory Bullock, refuted Cabana disturbance; (a) treme mental or emotional 474 U.S. 106 S.Ct. 88 L.Ed.2d 704 capacity of the appreciate defendant to (1986), in specifically which the Court re wrongfulness of his conduct or to con jected argument that the Sixth Amend form his requirements conduct to the any ment or provision other constitutional substantially impaired law was as a result provides right a defendant with the to have of mental disease or defect or intoxication jury consider appropriateness of a which was insufficient to establish a de capital sentence. The court concluded that substantially fense the crime but which the decision whether a sentence is so dis judgment. argues affected his proportionate Eighth as to violate the (j)(2) use of the modifier in and (j)(8) mis case, any particular Amendment in like oth jury lead the in its consideration of evi questions bearing er on whether a criminal impair dence of his mental and emotional rights defendant’s constitutional have been ments and intoxication at the time of the violated, long has been as viewed one that offense. In Penry Lynaugh, judge appellate a trial or an fully court is 302, 339-41, 2934, 2958, competent Moreover, to make. there is no (1989); holding L.Ed.2d 256 in that mental question Smith, that Leonard as evidenced may retardation is a factor that well lessen confession, person his was the who shot culpability capital a defendant’s for a of and killed the victim this case. Enmund fense, clearly the court stated that Tyson applicable. are not Eighth preclude Amendment did not argues Defendant also that T.C.A. 39- § execution of a mentally person retarded 2-202(a) Murder) (Felony violates Article convicted of a capital simply by offense 19 of the Tennessee Constitution re- virtue of their mental retardation alone. moving the issue of whether in- They long concluded that so as sentencers kill jury’s tended to from the consideration. give mitigating can consider and effect provision The constitutional is cited out of imposing evidence of mental retardation context and supporting without author- sentence, an individualized determination ity to the effect that “the shall have appropriate pun of whether “death is the right to determine the law and the particular in each ishment” can be made facts, Court, under the direction of the reaching case. that result ob in other criminal cases.” precise- This was virtually served that all of the States with n ly procedure followed this case. The penalty statutory death statutes that list law is contained in the statute which the mitigating factors include mitigating as a judge jury’s directed to the attention circumstance capacity evidence that “[t]he under the presented by the wit- of the appreciate defendant to the criminal properly nesses. Defendant ity was convicted of his conduct or to conform his conduct per- (Tenn.1982). The trial of law substantial requirements regard correctly in this 2956, 109 duties S.Ct. at formed his impaired.” 492 U.S. at ly properly correctly and explicit Tennessee instructions 2956. or defect con advised. ly mention mental disease mitigating circumstance. nection with this argues that noted, instruction, adjunct heretofore rights his constitutional court violated express its reasoned enabled the testi objection to the sustaining the State’s rendering response moral to the evidence on the basis mony of certain witnesses sentencing There no like its decision. objec materiality. These relevancy and in any juror misapplying these lihood of tions involved: given by the trial court. structions brother, (1) Questions asked defendant’s argument, in refer- Insofar as the State’s (a) Smith, positive his wife’s Leroy about issue, concerned, it did not ence to this (b) of their episodes him and influence on limits. of constitutional exceed bounds that did behavior father’s abusive lati- allowed reasonable Counsel must be house- defendant was occur when jury. case to the present tude to their hold. and it was the instructions were correct (2) pastor, Questions asked defendant’s duty to endeavor to convince State’s positive beginnings and his own impairments, if

jury that defendant’s early years. on him in his influences existed, and sub- less than extreme Clark, (3) Qualifications de- of Robert stantial. principal, relative former fendant’s insists the trial court person developed opinion why as to excluding miti improperly erred relevant ages of at the like defendant was evidence, gating making remarks 12 to 14. prejudiced which defendant’s case Auble, (4) Pamela Testimony of Dr. Eighth eyes jury. Under the and and abusive behavior about violent Amendments to the Federal Fourteenth had grandfather which she capital Constitution a sentencer must other than family from members heard mitigat precluded considering from as a be family history and about the defendant any aspect char factor of a defendant’s people than defen- from other collected any record and circumstances of acter or dant. as a the offense offered the defendant Leroy questions asked Smith Skip less than death. The basis for sentence 1, marginal relevance at Carolina, Bobby were of per 476 U.S. Clark v. South qual- 1669, probably could have been Clark S.Ct. 90 L.Ed.2d T.C.A. best. opinion defense counsel 39-2-203(c) give in ified to his but provides that the sentenc § so, objection attempt to do after may presented made no ing proceeding, evidence be testimony. Dr. Auble’s to his any matter that the Court deems was made as to sentencing and to may testimony in seems relevant punishment to the relevant out, but, pointed clude, to, mitigation as the Court limited the nature and not be but in crime; “getting too far back the defen the evidence was circumstances of the and, event, any in character, family tree” background history, and the dant’s condition; proffered lacked tending to cumulative. evidence physical evidence harmless and its exclusion was statutory aggravating or relevance establish rebut There was an circumstances; and, any tending beyond a doubt. reasonable presented and ad- any mitigating fac abundance of evidence to establish rebut mitigating factors defendant mitted on the either the constitution or the tors. Under ex- however, admission of that statute, tra contends warranted the Court retains its review of the record confirms authority to exclude irrelevant evi cluded. Our ditional presen- 586, 604, in his Ohio, defendant was not restricted dence. Lockett v. The issue is mitigating factors. n. 57 L.Ed.2d tation of n. Johnson, (1978); 632 S.W.2d merit. v. without State Thompson, In mitigating We have factors. reviewed defendant’s complaint provisions supra p. noted T.C.A. 768 S.W.2d at Court 39-2-203(f) (h)3 jurors caused the statute included none of that the Tennessee § them, prevented be mislead and objectionable individu features of the instruc- als, giving mitigating from required effect to his tions in is not Mills. deciding ques on, evidence when the ultimate list, agree existence of much less appropriate punishment. tion of an He any mitigating Thompson, as in facts. says, by prohibiting also from case, emphasized the this the trial court being consequences informed of its autonomy considering mitigating jury’s agree punishment, failure to T.C.A. evidence. 39-13-204(h) unnecessary added confu Bates, supra, defendant relies on a As uncertainty jury’s sion and delibera circumstances, in- mitigating number of tions, creating unacceptable thus risk (1) (2) cluding age of defendant5 the mental imposed that his death sentence was in an defen- the murder committed while the arbitrary recognizes manner. that this of extreme was under influence dant (2) recently Court decided two cases disturbance; (3) mental or emotional his challenge which a similar was mounted and capacity wrongfulness of appreciate rejected. Thompson, State his conduct or conform his conduct to the Bates, (Tenn.1989) supra. requirements of the law he was because previously The Court has other considered defect, impaired by substantially a mental challenges occ to the statute on numerous drug or intoxication which insufficient However, asions.4 submits crime to establish defense to the but unique “in view of the circumstances substantially judgment. which affected appropriate of this case this ... it All of these circumstances were submit- unanimity provi Court re-examine rejected these theo- ted to the penalty sions of the death statute terms proof of defense. Under the this ries they impact jury's how on the delibera record, proper and the correct and instruc- tions.” conveyed jury by tions argued requiring unanimity It is clearly the record indicates that the judge, sentencing verdict rendered they pre- nor jury was not mislead principles violates the established vented, individually collectively, from 367, Maryland, Mills v. 486 U.S. 108 S.Ct. mitigating giving effect 1860, (1988) McKoy 100 L.Ed.2d 384 and deciding question ultimate of an when Carolina, 433, North Bates, appropriate punishment. As in su- 1227, (1990), 108 L.Ed.2d 369 that each nothing pra, we are satisfied that

juror permitted and must be to consider statutes, Tennessee and the instructions give mitigating effect to evidence when jury, given to the the verdict form deciding question the ultimate whether to likely to jury, submitted to the lead vote for a sentence of death. Both Mills any juror to that he or she was believe however, sentencing McKoy, and deal with considering mitigating cir- precluded from agree require schemes that to agreed jurors cumstances unless all mitigat- unanimously upon the existence that circumstances existed. they circumstances become a before speculates that sentencing process. The Ten- because factor judge statutory requirement; scheme has no such deviated from the nessee 39-13-204(f) considering language of T.C.A. in deliv- juror each is autonomous 1989, 127, Melson, (Tenn. 1981); Sup- Amended 1 November T.C.A. 1990 S.W.2d 141 State v. 3. 342, (Tenn.1982); plement. S.W.2d 367 State v. 638 Strouth, 467, (Tenn.1981); 620 S.W.2d 471 659, Barber, e.g., See State v. 753 S.W.2d 670 4. 387, (Tenn. Taylor, State v. 771 S.W.2d 399 Buck, (Tenn.1988); State v. (Tenn. 1984); State v. 670 S.W.2d 1989). Simon, 635 S.W.2d State, (Tenn.1982); Houston v. years age. 5. Defendant was 23 Pritchett, (Tenn.1980); challenged by the instruc- misdirected jury at the ering his instructions to the sentencing proceedings that a tions. phase of interpreted the juror reasonable could have that the trial contends mitigating to mean that instructions examination counsel’s limited defense court con- circumstances evidence were in reference to jurors prospective together, thus seriatim rather than sidered non-statutory against they might have bias the erroneous was mislead and He makes refer circumstances. mitigating regarding instruction misdirected them court ruling of the trial one isolated ence to weigh mitigating aggravating how to great lati where, having exercised after instructing under evidence. After ju prospective in his examination tude they impose could what circumstances objection by rors, subjected to he was death, the trial court instructed sentence of question, asking the counsel after State’s aggravating circumstances them that if the capital pun to the area of regard “And in proved outweigh beyond “do a reason- not you ishment, factors would con what other mitigating cir- every able doubt each for the death not to vote sider as reasons punish- or circumstances the cumstance response objection to an penalty?” language life.” This varied ment shall be he had respond not until juror could 39-2-203(f) (1982), from that of T.C.A. § court facts in the case the trial heard the August, at the time of the trial right. That’s “That’s correct. ruled: they informed the that if found prove beyond a reasonable must mitigating to one or more circumstances aggravating circumstance doubt statutory circum- outweigh aggravating a miti you can consider as then once—then re- proved stances the State anything in the evi gating circumstance quired impose a life sentence. The stat- case, the de anything about dence revised, ute was effective November you is a the offense that believe fendant or provide that a sentence would be life point And at this mitigating circumstance. aggravating imposed when circumstances might say he can he I don’t see how what proven outweigh “any have not been mitigating as a circumstance.” consider mitigating The trial circumstances." exercising proper judge The trial language “any did not use the miti- scope of voir dire. authority to control gating circumstances” because that termi- asking precluded from Defendant was nology not in the statute at the time of ability spe juror’s to consider trial. It is not wise deviate non-statutory mitigating circum cific statutory language instructing from There was stances he intended to raise. However, jury. dictionary definitions cir attempt such ask about never depar- judge’s make it clear that the trial sustained properly The court cumstances. path ture from the directed was harmless inquiry made. objection to the the State’s beyond Dictionary Black’s a doubt. Law There is no error. Ed.Rev.1979), (5th p. informs us denial of individual “any” equivalent protests to “each.” Defendant

the word qualifica- death sequestered the term voir dire on p.At 498 we are advised that “all,” grant an trial court declined to “every” equivalent is sometimes to tion. The sequestered dire. On the individually of the voir and sometimes to “each.” His use dire, prospective day group voir singular plural and of “circumstance” fol- second overnight she every” juror mentioned that lowing phrase “each and also Abbott change ideas jury they weigh begun to had to her about informed the were (2) mitigat- penalty. prospective other aggravating against circumstances death Two listening a result of individually jurors and col- indicated that as circumstances both feelings the death lectively. The trial court used the term to Abbott their stronger. Upon further every” jury penalty grown had “each and elsewhere persons meaning. on this issue these instructions with a similar Con- examination entirety, for cause. Defendant sidering the instructions their were excused (2) were qualified jurors could mislead he lost two who no reasonable have been subsequently excused for jury. cause when case had been submitted to the This changed positions their listening after failure to take action constitutes a waiver responses prospective jurors. other procedure employed, to the which we find constitutionally sound. The issue is previously This Court has re without merit. jected position qualification that death capital of a must be conducted prej Defendant has failed to show individually sequestered voir dire. State v. udice as the result of denial of a motion to Johnson, (Tenn.1985); 698 S.W.2d proposed questionnaire pro submit a Porterfield, 746 S.W.2d 447 spective jurors prior to the dire. The voir (Tenn.1988). These cases turned on a questionnaire requested response somewhat different issue in than that questions. ap different The trial court However, one, volved here. no in a case at proved eight questions the first on the list trial, jurors. loses property is the essentially which were the material re of neither a defendant nor the State. De quired 24(g) under Rule of the Rules of only right fendant’s is to have a fair trial at Criminal Procedure. Defendant was af unprejudiced, hands of an unbiased and opportunity forded the during voir dire to impartial jury. right He has no to select question prospective jurors on of the jurors. certain He only right has questionnaire. issues contained in his prospective jurors excuse tendered who are There was no abuse discretion and prejudiced. biased and The terms “biased” issue is without merit. “prejudiced” have been limited and de complains Defendant that the trial fined statute and Long case law. See sentencing phase court erred in the of the State, (Tenn.1948). allowing proof trial the State to admit may constitutionally trial court exclude previous robbery indictment for armed capital sentencing from juries jurors those subsequently plead guilty which he to sim unwilling are obey who or unable to ple robbery. This Court noted review of law or to their Wainwright follow oath. previous appeal that the indict Witt, 412, 421-25, ment, conviction, as well as the rele 851-52, 83 L.Ed.2d 841 Defendant underlying vant to show the facts of the has not group established that the voir dire offense in order to establish that each of prejudiced him to the extent that the entire fense involved the use or of violence threat dire impartiality voir of the were person. at 764. S.W.2d invalidated. By assignment next defendant con- says the order of exam felony tends that the murder rule consti- ining jurors, questioning punishment. tutes cruel and unusual prospective jurors going first and defense argues degree of the crime is last, possibility foreclosed the of rehabilita degree enhanced to first murder jurors tion improperly excused killing place during fact that the took for cause. There must be some order in robbery attempted robbery. To allow jurors. the voir dire examination of That is robbery attempted robbery, to fur- duty the court’s function. It is the punishment ther enhance the to a death to conduct the voir dire in a penalty finding without a further some manner which assures the selection of an willful, deliberate or intentional act to kill competent jury. unbiased injure, or should amount to cruel or unusu- points examples in says to several which he punishment. al jurors initially opposed to the penalty, respond death led to in a manner The jury aggravating found two circum- subject them to exclusion that made for They stances this returned case. a ver- cause, and then turned over to the guilty degree defense dict of of first murder. Their finding for rehabilitation. Defendant failed to could killing have been that procedure objection raise to the em theory was intentional. The that the homi- by judge until ployed the trial after the cide presented was accidental was in miti-

21 mitigation of ease as of the entire unanimously by the gation rejected merit to this There is no the offense.” jury. The issue is without merit. Brown, v. 479 U.S. issue. See California says refusal the trial court’s (1987); 837, 934 538, 93 L.Ed.2d 107 S.Ct. ju- post-verdict to allow counsel to conduct 484, Parks, v. Saffle prevented him from deter- ror interviews (1990); v. 1257, 415 State 108 L.Ed.2d informa- mining prejudicial if extraneous 589, (Tenn.1990), 598 797 Boyd, S.W.2d factors in tion or outside influences were 1074, 111 S.Ct. cert. denied 498 U.S. death sen- jury’s determination of his 861 112 L.Ed.2d trial a to the motion for new tence. Prior 39-13- that T.C.A. Defendant contends § submission of motion filed to authorize rights by 203(g) his constitutional violates ju- to the post-verdict jury questionnaire a impose death mandating jury must that case. The trial rors who had decided the findings mitigating circum- upon that motion for the reason that judge denied the aggravating cir- outweigh stances do ques- jurors asked the questionnaire cumstances, mandating jury to by tions their state of mind and being upon preconditions met. impose death during things they considered the tri- that that this statute has been He concedes Blackwell, al. S.W.2d by this Court. to be constitutional found (Tenn.1984), adopted this Federal Court previ- specific been These contentions have 606(b) govern- as the rule Rule Evidence by the court ously rejected addressed admissibility and exclusion of evi- Black, v. cases. See State several impeach verdict in this dence to (Tenn.1991). is The issue S.W.2d Thomas, recently, More State. State merit. without (Tenn.1991),this Court 7-29, Supreme discussed Court Rule EC raised several con Defendant has litigants which allows and their counsel to by issues his contention stitutional investigations make reasonable to deter- overruling a motion to erred in trial court subject legal if chal- mine a verdict is illegality the indictment due to dismiss lenge. investigation The extent of is frailty of T.C.A. 39-2- and constitutional § implicitly purposes limited stated in 203, says he that 39-2-203 205. First § sanctioning post-trial communica- the rule guidance to the provides insufficient jurors. tions between counsel and former concerning proof on whether the burden 606(b) on to note that Rule Court went in outweighs aggravation and mitigation lists those factors that invalidate a verdict: standard of directions on the sufficient information, prejudicial improp- Extraneous apply making proof jury should influence, agreement er outside or an properly in judge The trial determination. quotient gambling bound verdict. in this case that the State structed the The record in this case does not reflect that prove aggravating cir had the burden requested denied the defendant ever or was and, beyond a reasonable doubt cumstances jurors. permission personally interview aggravating circumstance any, if such authority He was denied the to submit outweighed any and all or circumstances questionnaire jurors which post-trial mitigating circumstances. This same issue questions exceeding the bound- included supra, and Payne, was raised 606(b). The issue aries established Rule defendant’s view of the contrary settled merit. without matter. to defendant’s com- error for There is no merit it was sufficiently does not during plaint 39-2-203 judge to instruct the jury’s discretion exercise of the stage sympathy no limit the penalty have aggravation are found. objected to once matters in the defendant. The instruction carefully jurors to con- impose the statute directs “You cannot was as follows: mitigat- preju limitation all relative penalty sympathy, sider without death because factors; however, The trial instructed arbitrary ing evidence. dice other prove beyond the State must weigh any you jury find in the the that you may factor aggravating freakishly imposed. reasonable doubt that See Lewis v. Jef outweigh mitigating 764, 774-76, factors must fers, fac- U.S. S.Ct. tors. sug- Defendant offers no basis for Accordingly, 111 L.Ed.2d 606 gesting disregarded that the in- jury these sentencing discretion is where afforded a structions. body grave on a matter so as the determi nation a human life should be tak whether Defendant contends that 39-2-203 in- § spared, en or that discretion must be suit sufficiently limits jury’s the exercise of the ably directed minimize and limited so as to by mandatorily discretion requiring the wholly arbitrary capricious the risk of jury impose to a sentence of death if it Lewis, supra, p. action. 497 U.S. at aggravating finds the out- circumstances to p. citing Gregg 110 S.Ct. at v. Geor weigh mitigating circumstances. We 153, 189, 2909, 2932, gia, 428 U.S. depth considered this issue State Melson, supra, In L.Ed.2d 859. Boyd, supra, p. 797 S.W.2d at which said, p. 366, 638 S.W.2d at this Court statute, entirety, we said: “The taken its ‘mercy,’ idea that could be extended “[T]he in any way constitutionally does not de- incorporated to a defendant is in the in prive the sentencer of the discretion man- factors; mitigating structions on and the dated the individualized sentence re- against being by passion admonition ruled quirements of the constitution.” Thus, prejudice throughout.” runs previously We have considered defen- guides jury statute exercise complaint dant’s that 39-2-203 allows § dispense discretion and enables them to its jury weight to accord too little to non- mercy they on the basis statutory mitigating factors and limits the they have heard and the instructions have jury’s options impose to a life sentence. received. judge specifically The trial instructed the jury they mitigat- were not limited to listed expresses dissatisfac ing any circumstances and should consider tion with 39-2-203 on it the basis that § mitigating other factors or circumstances. provides requirement jury no that the make mitigating He went on to define circum- findings presence as fact or ab jurors stances and told the must that mitigating sence of circumstances. He mitigation. consider all evidence of says shortcoming prevents this ef asserted appellate disagree fective review. We Defendant next to say seems that his conclusion for the reasons set forth require because the statute does not Melson, supra, p. at “There 368. jury to make the ultimate determination proof mitigating is no fac burden of appropriate, that death is it violates tors; may jury and the find that factor jury’s duty weigh constitution. It is the outweighs any aggravating circumstance.” aggravating mitigating and balance any aggravating If a finds cir circumstances accordance with the law. outweighed, cumstances are there is noth statutory arbitrary This scheme avoids the ing change which the State can do to this imposition penalty by of the death channell- outcome, opposite finding while an is re ing the discretion of the and thus reviewing viewable this Court. Eight meets Amendment standards. death sentence the court must determine the failure of the supports jury’s that the evidence find ability statute to inform the of its any mitigating cir absence of impose mercy a life sentence out of ais sufficiently cumstances substantial to out violation of the constitution. There no weigh aggravating circumstances Eighth requirement Amendment may be found. capital should be so informed. Our 39-2-203(h) alia, provides, punishment princi doctrine is rooted in the T.C.A. inter ple Eighth jury, and Fourteenth that the shall not instruct the Amend ment cannot infliction nor attorneys permitted tolerate the of a shall the be legal systems sentence of death under jury, comment at time to the on the unique permit penalty wantonly jury’s agree this effect of the failure to on a to answer of the court that, that the refusal recognizes punishment. Defendant the defen- statute, prejudicial in hung jury inquiry results the was under the postulates that automatic life sentence and dants. unconstitutionally to him is detrimental this says this Court The defendant juror deprived of the because each the imposition the concede that should knowledge can stand that he or she alone for constitution penalty violates the death in him the electric chair the between in in the dissent State articulated reasons hung jury retrial on that a means belief (Tenn.1981). He Dicks, 615 S.W.2d v. not the question life or death. That is the in reference to the issue also raises logical and there is no mer- only conclusion by electrocution. its execution method of In contention. it to defendant’s Williams majority rejected position This State, 191 Tenn. during every case decided in Dicks as (1950), jury inquired from interim, recently most 10-year not, if the defendants

judge whether 178. De Black, p. at supra 815 S.W.2d or 99 imprisonment, to life were sentenced reason to overrule given has us no fendant they pardoned in 10 or 15 years, could be precedent. them that the that years? The informed govern their actions as only instructions to approach defendant scattergun In a in the written jurors embodied it is unconstitutional because the statute charge. considering matter this discriminatorily on the imposed has been proper response to Court found this was a race, sex, geographic region in the basis inquiry, saying: State, political economic and and on the jury pass province It was the gives us no status of the defendant. defen- upon guilt or innocence of the assertion authority for this evidence or and, guilty, if to decide what dants found reject summarily. which we punishment their crime merited. exclu- power grant pardons is vested portion of 39- Defendant cites a Governor, jury and the sively hearsay 2-203(c) complaint that for the engage speculations as to should may provided admitted be statements may may respect not do what he opportunity to is afforded a fair defendant penitentiary. to those incarcerated does any such evidence. rebut inqui- to this responded If the Court had the statute any not cite instance which jury by stating the ry of the Governor incompetent use evi permitted the State to any power pardon had the at time he Nonetheless, the stat against dence him. so, had proper saw to do or the court for the benefit of ute enacted jury that the Commissioner stated it as well as the State because pa- authority has the of Institutions any evidence tend the admission allows serving prisoner after role a life statutory any or rebut to establish behavior, good years, less time for introduced into aggravating circumstances punish- thereupon fixed the had tending to any estab evidence and evidence death, the defendants would ment at factors, any mitigating or rebut lish good ground insisting have had the court any evidence which addition this instruction the would but for on the issue probative value deems toMiave imposed only penitentiary likely have may long as punishment be received so inqui- It is inferable from this sentence. opportuni a fair the defendant is accorded considering a life ry hearsay so ad ty any to rebut statement only on condition penitentiary term in the not authorize the mitted. The statute does par- defendants could not be secured vio introduction of hence, doned; court advised had the of the United lation of the Constitution pardoned could be at them that The stat or the State of Tennessee. conviction, likely most States time after right ute does not violate imposed a death sentence. would have confrontation. of the case it cannot be said In this view objects procedure Shortly foregoing matters to the after the were attorney general whereby argument the State has final to discussed the offered sentencing phase. says proof prior the convictions he intended to at the stating, in heightened introduce “I intend read each that due to the standard of (3) prior of the three convictions the indict- reliability penalty that attaches in a death relating charge ment to the for which he sentencing hearing, if that he chooses to do convicted, judgment. was and then read the so, argue he should be allowed to the conviction, Particularly the murder the cases, Herring last. He cites two judgment just form cannot be handed to York, New 422 U.S. 95 S.Ct. the because it shows that the life (1975); L.Ed.2d 593 and Gardner v. Flori sentence the Pierce is to be da, [for homicide] 51 L.Ed.2d consecutively by to the death elec- served (1977), support neither of which his trocution” the No Webb [for homicide]. position. State, supra, In Melson v. this in reference to the other mention was made saying, Court dealt with the issue “this prior in sentences each of the convictions. argument provides closing statute for first by State, defendant, by then proof In the introduction of the State’s by last the State. This is the same order of attorney general copy read a of an argument in any proceeding, which exists indictment, County from Carter rob- having party proof with the the burden of bery deadly weapon. a Attendant with Thus, arguing first and last. this order is guilty plea simple documents showed a inherently prejudicial not to the defendant (6) robbery years of six with sentence to the State in its use at the favorable penitentiary. sentencing stage penalty pro of a death The second indictment showed a convic- ceeding.” We held that the Tennessee robbery tion armed no sentence with Penalty Death Statute is constitutional. indicated. provided nothing Defendant has us The third indictment for the first was applied arbitrarily, show that the statute is degree judg- Pierce. The murder Mr. passion in capriciously or with this case. showing that defendant ment was read provides T.C.A. 39-2-205 for mandato- guilty degree murder found of first ry review of death sentence. In con- judgment jury. The indictment and were ducting required this review we are to de- tendered as an exhibit. termine whether the sentence of death was general attorney The then said “Your imposed any arbitrary fashion. In view Honor, I judgment the last that indicated necessity of the to remand for re-sentenc- degree for the of first murder conviction statutory we omit this review. that was fixed would show the sentence at imprisonment.” objection life No However, deeply we are troubled about made the defense. the overall effect of the admission of evi- dence sentence the Pierce case at The the introduc sentencing hearing in the second trial. to his earlier pertaining tion of the evidence sentencing in this prejudiced sentence context, put prior To the issue to the of the case. He relies on the observation sentencing phase of the trial the held case in which Court the earlier Justice hearing. very a motion It is difficult to Brock, opinion, com the author transcript from na- discern exact matter, mented, making practical “As a rulings by the ture of the motions and the punish known to the the defendant’s judge. is clear that defense counsel It ], effectively elim ment that case [Pierce objected to admission of evidence surround- option imprisonment inated the of life as a aggravating cir- ing the Pierce case as an sentence for defendant the Webb case.” Although rulings ap- cumstance. State, hand, parently plain participants, they are on the other while quite reading agreeing clear from a proof that of the sentence for the record. murder was error under this Pierce Court’s during perpe was committed has murder ruling, the error earlier insists The Middlebrooks robbery. failure to ob- tration of a by defendant’s been waived ag that the fail- elimination suggestion is made ject. rule establishes murder strategic maneuver object ure to circumstance gravating life the defense to obtain a sentence. en defendant was while committed robbery re of a perpetration gaged in the coun- either or both The issue whether the evidence to reconsider quires sandbag is attempting to the other sel were is of death if the sentence to determine pure speculation. What seems a matter of appropriate in this case. however, the life quite apparent, is that considered sentence in the Pierce case was The guilt is affirmed. judgment The sentencing in the case before us. during court for to the trial case is remanded point early on in their deliberations At a opin- resentencing in accordance with this asking sent a note Court defen- against are assessed ion. Costs following information. dant. sentence; “(1) life Define continue Drowota and O’Brien Justices (2) and concurrent Define consecutive in Middlebrooks to their dissent to adhere apply if a would life terms and which resen- a remand for they stated wherein given; second life sentence was tencing was unwarranted. (3) parole apply.” would When previously the As we have noted JJ., ANDERSON, and DROWOTA proper respond, declined to and concur. ly in the Pierce so. The error admission of by ig sentencing compounded DAUGHTREY, J., C.J., filed REID, and noring given by this Court the admonition Dissenting Concurring and Separate “[Tjhat prejudice case the earlier Opinions. punish the defendant is and the obvious Justice, concurring part REID, Chief in the case should have been ment Webb dissenting part. and regard to the Pierce determined without punishment case or to the to which sen- I concur with the reversal case.” was sentenced in that tence; however, the convic- I affirm would prior singular exception The made impris- to life reduce the sentence tion and homi that evidence of the Pierce case was reasons stated State For the onment. excluded, except cide insofar (Tenn.1992), Middlebrooks, 840 S.W.2d through might it relevant or admissible be I, 16 of Article Section I hold that would proof in some other manner prohibits the the Tennessee Constitution aggravating pur or as an circumstance case. penalty in this imposition of the death persuaded poses sentencing. We are killing not show that the record does The sen only solution is a new viable accompa- or intentional or was deliberate hearing. tencing producing purpose a conscious nied Moreover, ruling based on that death realization death or a conscious Ray v. Donald Middle the Court (Reid, C.J., likely Supra occur. at 353 will (Tenn.1992), brooks, dissenting). concurring and remanded to the trial court for case is be resentencing. Defendant was indicted and Justice, concurring in DAUGHTREY, degree murder in the first convicted for part. dissenting part and during perpetration of a Webb Novella reached the result (2) I concur in ag two robbery. has found expressed in the view (1) majority and circumstances; defen gravating dissenting opinion. in his (1) Reid Chief Justice previously of one dant was convicted pre- tried case has been twice felonies, present Because this than the more other I again, viously must now be tried threat of charge, involved the use or every (2) emphasize separately to person, the write violence to effort should be made to avoid further ORDER DENYING PETITION thereby error and litigation. invite TO REHEAR further carefully Court has considered the juncture, principal At this decision Petition to Rehear filed this cause and upon rehearing make, is for the state to concludes it should be denied. and that is whether once more to seek the penalty. death If the state does ask for penalty death must there- REID, C.J., DROWOTA, selected,

fore significant be several issues ANDERSON, JJ., DAUGHTREY and present They themselves. are matters that concur.

I believe cannot be merely dismissed as

“discretionary court,” with the trial there-

by evading substantive review. Discretion

assumes the exercise of a wise choice be- (or among) alternatives,

tween upon based

developed pertaining par- standards question

ticular to be determined. example, rehearing,

For the need for change another ought of venue to be care- TENNESSEE FARMERS MUTUAL fully reassessed, as should the need for COMPANY, INSURANCE individual, sequestered voir dire prospec- Plaintiff-Appellee, jurors tive on such matters as the effect of pre-trial publicity, the existence of individu- bias, al personal and the convictions of WITT, Defendant-Appellant. Roland venireperson each penalty. about the death cases, In this inas most group voir dire on Supreme Tennessee, Court of preliminary questions may be appropriate, at Knoxville. expeditious. hand, well as On the other June 1993. very there is beyond expedition little gained by group exposure to sensitive Rehearing July Denied 1993. questions regarding the formulation of opinion guilt about the by any prospective juror,

one concerning his or ability

her capital to follow the law

punishment. time, At the same there is individual,

much to utilizing be lost

sequestered voir dire. case,

Under the circumstances of this

goal making the verdict immune to chal-

lenge on the juror basis of contamination

prior to trial or during voir dire surely

worth the relatively minor inconvenience of

moving venue, the trial to another or the

relatively small amount of extra time re-

quired by questioning. individual Many opinion

the issues discussed in the lead will sentencing

not arise at the new hearing. others,

Others will. Of the it seems to me impartiali-

that the most crucial concern the and, thus,

ty integrity

their verdict.

Case Details

Case Name: State v. Smith

Court Name: Tennessee Supreme Court

Date Published: Jun 28, 1993

Citation: 857 S.W.2d 1

Court Abbreviation: Tenn.