Clarence Nesbit was convicted in the 1993
Memphis shooting death of Miriam M. Cannon, 20. Cannon had burn marks
and brands on her body, and she appeared to have been beaten on the
soles of the feet with a coat hanger or a similar object.
Supreme Court Affirms Death Penalty for Memphis Murderer
September 28, 1998
The torture and murder of a Memphis mother in the
presence of her children was “especially heinous, atrocious, or
cruel,” the Tennessee Supreme Court said Monday in a ruling upholding
the conviction and death sentence Clarence C. Nesbit received for the
In a 3-1 decision, the court found that evidence
presented during Nesbit’s trial was sufficient to support the death
penalty. Writing for the majority, Justice Frank Drowota also rejected
Nesbit’s argument that testimony by the victim’s mother concerning the
impact of her death on the family should not have been allowed. Chief
Justice Riley Anderson and Justice Janice Holder concurred in the
decision, which affirmed a Court of Criminal Appeals ruling in the
“It is an affront to the civilized members of the
human race to say that at sentencing in a capital case, a parade of
witnesses may praise the background, character and good deeds of the
defendant..., but nothing may be said that bears upon the character of,
or the harm imposed, upon the victims,” Drowota wrote.
In his appeal, Nesbit raised numerous issues, which
the Supreme Court limited to five. Oral arguments before the court
were held March 4 in Dyersburg as part of the Supreme Court’s SCALES
project for high school students.
“After hearing oral argument and carefully
reviewing the record, we have determined that none of the assignments
of error require reversal,” Drowota wrote.
Nesbit, 19 at the time of the crime, shot Miriam
Cannon, 20, in the head with a .357 Magnum revolver while four of her
five young children were in the apartment where the murder took place.
A medical examiner testified that prior to the fatal shooting, the
victim had been burned repeatedly and her feet had been bruised and
scraped during a form of torture known as “falanga.” He said she would
have suffered mental and physical pain and distress during the
torture, which was inflicted over an extended period of time.
In a separate dissenting opinion, Justice Adolpho
A. Birch, Jr. wrote that he viewed the victim impact evidence “in this
case as protracted and, consequently, prone to be unfairly
“Generally, victim impact evidence is unsettling
because its use encourages the jury to quantify the value of the
victim’s life and urges the finding that murder is more reprehensible
if the victim is survived by a bereaved family than if the victim has
no family at all,” he wrote.
In his dissent, Birch wrote that he draws “no
conclusion regarding the penalty imposed,” but found that a jury
should reconsider the penalty “under the correct sentencing guidelines.
Court of Criminal Appeals of Tennessee
April 22, 1997
CLARENCE C. NESBIT, APPELLANT.
SHELBY COUNTY. Honorable ARTHUR T. BENNETT, Judge.
(Capital First Degree Murder).
David G. Hayes, Judge, Concur: (see Opinion
Concurring IN Part; Dissenting IN Part) Gary R. Wade, Judge, William
M. Barker, Judge
The opinion of the court was delivered by: Hayes
The appellant, Clarence C. Nesbit, was convicted of
premeditated first degree murder in the Criminal Court of Shelby
County and sentenced to death by electrocution. The jury's sentence of
death was based upon the aggravating circumstance that the murder was
especially heinous, atrocious, or cruel in that it involved torture or
serious physical abuse beyond that necessary to produce death. Tenn.
Code Ann. § 39-13-204(i)(5) (1991).
In this appeal as of right, the appellant raises
the following issues for our review:
(1) Whether the evidence is sufficient to sustain
the appellant's conviction and sentence;
(2) Whether the State's cross-examination of a
witness, utilized by the defense to establish the appellant's
character for peacefulness, was without a reasonable factual basis and
(3) Whether the trial court improperly admitted
certain items seized from the appellant's person, which created the
inference that the appellant was involved in drug activity;
(4) Whether the trial court erred by instructing
the jury concerning flight;
(5) Whether the prosecutor committed reversible
error by interjecting his personal opinions during closing argument;
(6) Whether the introduction of a "family"
photograph of the victim and two of her children was prejudicial;
(7) Whether the prosecutor committed reversible
error while questioning a witness during the sentencing phase of the
trial, implying that the appellant was involved in satanism or devil
(8) Whether victim impact evidence was properly
admitted during the sentencing phase of the trial;
(9) Whether the trial court erroneously instructed
the jury on all of the statutory mitigating factors, including factors
not relied upon by the defense;
(10) Whether the trial court's instruction
concerning the "heinous, atrocious, or cruel" aggravating circumstance
sufficiently narrows the class of death eligible offenders; and
(11) Whether the Tennessee death penalty statute is
Having carefully considered the appellant's claims,
we find no reversible error. Accordingly, we affirm the conviction and
sentence of death.
A. GUILT/INNOCENCE PHASE
The body of Miriam Cannon was discovered in her
Memphis apartment at approximately 3:00 p.m. on the afternoon of May
20, 1993. Constance Cannon, the victim's sister, testified that the
victim was twenty years old at the time of her death and resided at
the Pershing Apartments. The victim, a single parent, lived with her
five children, whose ages, at the time of trial, ranged from three to
seven. Ms. Cannon last saw her sister at approximately 1:00 p.m. on
May 20, when she and a friend stopped at the victim's apartment in
order to take her to the grocery store. They knocked on the door, but
no one answered. As they were leaving, they saw one of the victim's
children look out the window. After several minutes, the victim opened
the door, advised her sister that she was not ready, and asked that
she return at 3:00 p.m. Ms. Cannon testified that, contrary to her
usual practice, the victim did not invite them inside.
From the doorway of the victim's apartment, Ms.
Cannon saw the appellant sitting on the living room couch with one of
the victim's children. According to Ms. Cannon, the victim had known
the appellant, also known as "Red" and "Pooh," for about one month
before the murder. Although Ms. Cannon had seen the appellant with the
victim once before, she had never formally met the appellant.
Ms. Cannon further testified that, when she last
saw her sister, she noticed a horizontal mark on her sister's neck.
She later identified this mark as the base of the number one found
burned into the victim's neck. Ms. Cannon indicated that the mark had
not been present when she had seen the victim the day before. She also
observed that the victim was fully clothed, but was not wearing shoes.
Ms. Cannon stated that she telephoned her sister at approximately 3:00
p.m., but did not receive an answer.
James Shaw, a boyfriend of the appellant's aunt,
lived in the victim's apartment complex. He testified that, on the
afternoon of May 20, he was sitting outside his apartment drinking a
beer when he heard a gunshot in a nearby apartment unit. Shortly
thereafter, he saw the appellant leave that unit. Shaw testified that
the appellant, who had a "funny look" in his eyes, saw him but did not
say anything. Shaw stated that the appellant casually walked to a blue
Oldsmobile and drove away at a normal rate of speed. After Shaw
finished his beer, he walked down to the parking lot where he noticed
the victim's children walking around and crying. When Shaw asked them
where their mother was, they responded, "She's dead."
Shaw further testified that the appellant later
returned to the complex in a pickup truck. Initially, the appellant
explained to Shaw that the victim had shot herself while playing
Russian Roulette. When Shaw advised the appellant to tell the truth,
the appellant related a different version of the events. The appellant
stated that he had accidently shot Miriam Cannon. He related that he
had thought he had removed the bullets from the gun. The following day,
the appellant further explained that he had been holding the gun with
both hands and pulling the trigger in order to see which way the
cylinder would turn when the gun discharged.
Shaw also stated that the appellant originally told
him that he had thrown the gun away, but later confessed that he had
taken the weapon to a motel where his uncle was staying. Shaw and the
appellant were en route to the motel to retrieve the gun when an
officer approached and asked the appellant to accompany her to the
squad car. Shaw then retrieved the gun from the motel and surrendered
it to the police.
During cross-examination by the defense, Shaw
testified that he was familiar with the appellant's reputation in the
community for peacefulness and violence, stating, "He [Nesbit] didn't
bother nobody." Shaw added that the appellant was a nice young man who
respected everyone. However, during redirect examination, Shaw
revealed that his girlfriend, the appellant's aunt, told him that
someone had said that the appellant worshiped Satan and needed to kill
two people in order to gain more power.
Tracy Davis, a friend of the victim, testified that
she lived in the apartment across from the victim's and that she spoke
with the victim every day. On her way to the laundry room on the
afternoon of May 20, Ms. Davis heard babies crying in the victim's
apartment. On her way back to her apartment, she saw three of the
victim's children walking toward her apartment. The children were
crying and informed her that their mother was asleep and they could
not wake her. Ms. Davis looked in the victim's apartment and saw the
victim lying on the floor in a pool of blood, with her eyes and mouth
open. She stated that one of the children was attempting to "wake" her.
She returned to her apartment and called 911. The police arrived
Officer Donald E. Wright was dispatched to the
scene of the crime at approximately 3:00 p.m. He found the victim's
body lying face up in a pool of blood in front of the kitchen door.
The officer saw the victim's children in Ms. Davis' apartment. He
testified that they were crying and that they informed him that "Red"
had shot their mother. Officer Wright also stated that, following the
appellant's arrest, a search of the appellant revealed $602.00 in
cash, a beeper, and a driver's license.
Officer Frederick Louis Sansom, another officer
dispatched to the scene of the murder, collected evidence, took
photographs, and drew sketches of the crime scene. He testified that
the victim was fully clothed and was wearing sandals with no socks. He
further testified that he found four cartridges on top of the
refrigerator and a lead bullet fragment on the kitchen floor near the
living room. On the floor next to the body, he also found a cigarette
butt, a match that had been struck, a matchbook, and a barrette. On
the kitchen counter, a radio and hair curling iron had been turned on.
Officer Sansom testified that there was a bullet ricochet mark 4'8"
above the ground, on the range hood over the stove.
Officer Timothy Edward Cook, Sr., who also
investigated the scene, interviewed the appellant at the police
station later that evening. Prior to the interview, the appellant was
informed of his rights and signed a written waiver of those rights. In
response to Cook's questioning, the appellant stated that he had spent
the night before the murder with the victim. He related that he had
brought a gun with him, which he had unloaded, except for one bullet,
and had placed it with the bullets on top of the refrigerator. The
appellant told Cook that the victim subsequently removed the gun from
the refrigerator and began to play with it. She pulled the trigger
several times before the gun finally discharged, killing her. The
appellant grabbed the gun and left the apartment. He claimed that he
tried to telephone Shaw, but could not reach him. Therefore, he went
to a motel to see his uncle, Ashley Nesbit. He told his uncle what had
happened and hid the gun in the motel bathroom behind the toilet.
Officer Samuel Williams conducted a second
interview with the appellant later that evening. Again, the appellant
was advised of his rights and signed a written waiver. The appellant,
at this time, stated that he had shot and killed Miriam Cannon, but
maintained that it had been an accident. He explained that, when he
pulled the trigger, he did not believe that the gun was loaded.
Dr. O'Brian C. Smith, Assistant Medical Examiner
for Shelby County, performed the autopsy on the victim. Dr. Smith
testified that the gun was approximately twelve to thirty-six inches
from the victim's head when the wound was inflicted. The .357 caliber
bullet entered the victim's body through the left ear, about five feet
above the ground, and exited behind the right ear about an inch lower.
The wound would have caused "instantaneous incapacitation." In
addition to the fatal gunshot wound to the head, Dr. Smith observed
burns on the victim's chin, neck, abdomen, forearm, and back, as well
as bruises and scraping on the soles of the victim's feet. Although
some of the burns were inflicted at different times, they all occurred
from six hours to mere minutes before the victim's murder. The burn on
the left side of the victim's neck was in the shape of the number one
and the burn under the chin was triangular. The burn under the chin
was also blistered. Due to the presence of soot deposits, Dr. Smith
concluded that this burn was caused by a flame. The remaining burns
were also thermal in origin, but Dr. Smith could not determine the
exact source of the burns. The bruises on the feet were long and thin
and were consistent with wounds inflicted with a coat hanger. No
defensive wounds were found on the victim's body.
The appellant testified on his own behalf. His
testimony was essentially the same as his last statement to the police.
He recounted that, on the date of this offense, he was nineteen years
old and lived with his parents. The appellant had known the victim for
about one month, and had visited her approximately five times. On the
night before the murder, the appellant had visited his uncle at a
motel in Memphis. During this visit, the police entered the room and
began a search of the premises. The appellant, observing a gun on the
dresser, removed it from the motel room and hid it under his car seat.
While at the motel, the appellant received a "beep" from the victim.
Upon arriving at the Pershing Apartments, he removed the gun from the
car and carried it with him into the victim's apartment. The appellant
testified that he removed the bullets from the gun and placed the gun
and bullets on top of the refrigerator to keep them out of the
The appellant further testified that, the next
afternoon, he grabbed the gun and went to look through the kitchen
window blinds. He admitted that he had no reason for looking through
the blinds. The appellant stated that he then turned around, placed
the gun in both hands, and pointed it sideways. The victim was
standing to his left. He stated that "as [he] was fumbling with the
pistol at the time, pulling the trigger, real slow, feeling the
chamber rotate, the gun fired." The appellant asserted that he had
thought he had removed all of the bullets the night before. When he
left the victim's apartment, the appellant saw Mr. Shaw, but did not
say anything to him because he was afraid and panicking. He left the
complex, attempted unsuccessfully to call Shaw, and then went to the
motel where his uncle was staying. He later returned to the scene of
the murder, where he saw Shaw and his aunt. The appellant explained
that he told Shaw that the victim had shot herself because, again, he
was afraid and panicking. He was in the car with Shaw and his aunt,
preparing to leave and retrieve the gun, when he was apprehended by
the police. The appellant denied burning the victim or ever observing
any burn marks on her.
B. SENTENCING PHASE
Dr. Smith was recalled as a witness during the
sentencing phase of the trial. Again, Dr. Smith testified that the
burns on the victim were inflicted anytime from six hours to mere
minutes before the victim's death. He also stated that the bruises on
her feet were inflicted within several hours of her death. According
to Dr. Smith, the victim would have suffered moderate pain from the
burns and bruises and, as a result of the bruises, would have endured
more pain when walking. The burns sustained were first and second
degree burns, and the bruises were consistent with a type of torture
called "falanga," the forceful application of a rod like instrument
across the soles of the feet. Dr. Smith testified that cases of
falanga are relatively rare. Typically, falanga is inflicted in a
military context, upon prisoners of war, and, to a lesser extent, in
child abuse cases. None of the injuries would have required
hospitalization. However, the victim would have suffered a great deal
of distress anticipating the injuries. Dr. Smith found no marks
indicating that the victim had been restrained. Yet, he testified that
soft ligatures would leave no marks. Additionally, he stated that
mental intimidation could also restrain a victim. Dr. Smith testified
that there were no defensive wounds to the hands, and there were no
signs of sexual activity. Finally, the doctor opined that torture is
not usually inflicted in order to cause death.
Laura May Cannon, the victim's mother, testified on
behalf of the State. She testified that her daughter's death has
devastated their family. She related that her daughter was a kind,
warmhearted person. Ms. Cannon stated that she has legal custody of
four of her daughter's children, and that the children are receiving
therapy designed to help them cope with their loss. She also testified
that several of the children sometimes re-enact the murder.
Mary Wilson, shift commander for the Shelby County
Jail, testified on behalf of the appellant. She stated that the
appellant participates in the jail choir, and she introduced a
certificate to that effect.
Oscar Nesbit, the appellant's brother, asked the
jury to spare his brother's life, testifying that the appellant is a
nice, kind brother. In similar testimony, the appellant's sister,
Lashunda Michelle Nesbit, stated that the appellant is a good brother.
She testified that he has never been abusive and had always helped her
to correct her mistakes.
Annette Nesbit Jones, the appellant's mother, also
asked the jury to sentence the appellant to life imprisonment. She
testified that the appellant was an honest and sincere young man who
had always told the truth and had always done the right thing. She
explained that the appellant completed the tenth grade in school,
after which he moved to Nashville in order to help care for his
grandmother. The appellant obtained several jobs to help pay her bills.
Ms. Jones acknowledged that the appellant had made a mistake and
should be imprisoned, but she further asserted that he is not a
Bernice Stevenson, the appellant's grandmother,
testified that the appellant is the "best grandson a grandmother could
have." She stated that the appellant never got into trouble. She also
asked the jury to spare his life.
The appellant testified on his own behalf. He
stated that, since his incarceration, he has enrolled in the GED
program and has participated in the choir. The appellant testified
that he is sorry for the pain and suffering he has caused. He admitted
that he had made a mistake and asked the jury to give him a chance to
improve himself. The appellant stated that he deserves to be punished,
but not to die, and that he would enjoy continuing his relationships
with friends and family.
As a juvenile, the appellant was arrested for
trespass, driving on a revoked license, and assault. The appellant
testified that he did not have steady employment at the time of the
murder, but was working at odd jobs. The money confiscated from his
person at the time of his arrest, was money he had saved.
As a preliminary matter, the State contends that
the majority of the issues raised by the appellant on appeal have been
waived due to the appellant's failure to timely file his motion for
new trial. See Tenn. R. App. P. 3(e); State v. Givhan,
616 S.W.2d 612 (Tenn. Crim. App. 1980).
The State argues that appellate review should, therefore, extend only
to those issues addressing the sufficiency of the evidence or
sentencing, as well as plain errors affecting the appellant's
substantial rights. Tenn. R. App. P. 3(e), 13(b); Tenn. R. Crim. P.
52(b). Thus, the question before us is whether this court has
jurisdiction to review those issues presented which are beyond the
scope of sufficiency of the evidence, sentencing, or plain error.
Rule 33(b), Tenn.R.Crim.P., provides that the
written motion for new trial shall be made "within thirty days of the
date the order of sentence is entered." The thirty-day period may not
be enlarged. The jury returned its verdict on February 24, 1995, and
the trial court entered the sentencing order on March 24, 1995. The
appellant did not file his motion for new trial until May 24, 1995.
Accordingly, the motion was late and, in a non capital case, this
court would be divested of jurisdiction to perform appellate review
beyond those areas noted above. See Tenn. R. App. P. 3(e); Givhan, 616
S.W.2d at 613.
We are, however, cognizant of our statutory
obligation of review under Tenn. Code Ann. § 39-13-206 (1996 Supp.)
and the heightened standard of review generally applicable to
convictions resulting in a sentence of death. We find no case law
controlling this issue. However, we note that, in capital cases, under
somewhat analogous circumstances, our supreme court has addressed the
merits of issues that would normally have been waived. See State v.
885 S.W.2d 797, 805 (Tenn. 1994); State
702 S.W.2d 560, 564 (Tenn. 1985); State
698 S.W.2d 63, 67-68 (Tenn. 1985); State
620 S.W.2d 467, 471 (Tenn. 1981).
Accordingly, we conclude that, within the context of a capital case,
this court has jurisdiction to review the issues raised on appeal and
we elect to review the same. See State v. Blanton, 1996 Tenn. Crim.
App. LEXIS 276, No. 01C01-9307-CC-00218 (Tenn. Crim. App. at Nashville,
Apr. 30, 1996); State v. Beckham, 1995 Tenn. Crim. App. LEXIS 799, No.
02C01-9406-CR-00107 (Tenn. Crim. App. at Jackson, Sept. 27, 1995).
1. SUFFICIENCY OF THE EVIDENCE
In his first issue, the appellant contends that the
evidence adduced at trial is insufficient as a matter of law to
sustain the jury verdicts returned in both the guilt and penalty
phases of his trial. Specifically, the appellant argues that the
evidence presented failed to establish, beyond a reasonable doubt, the
requisite elements of premeditation and deliberation. Additionally,
the appellant argues that the single gunshot wound to the victim's
head does not support the application of the "heinous, atrocious, and
cruel" aggravating factor. Tenn. Code Ann. § 39-13-204(i)(5).
When there is a challenge to the sufficiency of the
convicting evidence, this court must review the evidence in the light
most favorable to the prosecution and determine whether "any rational
trier of fact could have found the essential elements of the crime
beyond a reasonable doubt." Jackson v. Virginia,
443 U.S. 307, 319,
99 S. Ct. 2781, 2789, 61 L. Ed. 2d 560
(1979); State v. Cazes,
875 S.W.2d 253, 259 (Tenn. 1994), cert.
denied, 130 L. Ed. 2d 644, U.S. ,
115 S. Ct. 743 (1995); Tenn. R. App. P.
13(e). We do not reweigh or reevaluate the evidence; these are issues
resolved by the trier of fact. State v. Cabbage,
571 S.W.2d 832, 835 (Tenn. 1978).
Furthermore, a guilty verdict accredits the testimony of witnesses for
the State, and a presumption of guilt replaces the presumption of
innocence. State v. Grace,
493 S.W.2d 474, 476 (Tenn. 1973). On
appeal, the State is entitled to the strongest legitimate view of the
evidence and all reasonable inferences that may be drawn therefrom.
State v. Harris,
839 S.W.2d 54, 75 (Tenn. 1992). The
appellant bears the burden of proving that the evidence was
insufficient to support the jury verdict in his case. State v. Tuggle,
639 S.W.2d 913, 914 (Tenn. 1982).
These rules are applicable to findings of guilt
predicated upon direct evidence, circumstantial evidence, or a
combination of both direct and circumstantial evidence. State v.
914 S.W.2d 93, 95 (Tenn. Crim. App.
1995). See also State v. Brown,
836 S.W.2d 530, 541 (Tenn. 1992) ("the
cases have long recognized that the necessary elements of first-degree
murder may be shown by circumstantial evidence"). The weight to be
given circumstantial evidence and "'the inferences to be drawn from
such evidence, and the extent to which the circumstances are
consistent with guilt and inconsistent with innocence, are questions
primarily for the jury.'" Marable v. State,
203 Tenn. 440,
313 S.W.2d 451, 457 (Tenn. 1958)(citation
omitted). In this case, both direct and circumstantial evidence was
available for the jury's consideration.
A. GUILT PHASE
Once a homicide has been proven, it is presumed to
be second degree murder, and the State has the burden of establishing
first degree murder. Brown, 836 S.W.2d at 543. First degree murder not
committed in the perpetration of a statutorily designated crime
requires the "intentional, premeditated and deliberate killing of
another." Tenn. Code Ann. § 39-13-202(a)(1) (1991). Thus, the State
must prove premeditation and deliberation to raise the offense to
first degree murder. Brown, 836 S.W.2d at 543. Premeditation
necessitates "a previously formed design or intent to kill," State v.
844 S.W.2d 144, 147 (Tenn. 1992), and "the
exercise of reflection and judgment," Tenn. Code Ann. §
39-13-201(b)(2) (1991). Deliberation requires a "cool purpose ...
formed in the absence of passion or provocation." Brown, 836 S.W.2d at
538 (citations and internal quotations omitted); Tenn. Code Ann. §
39-13-201(b)(1); Sentencing Commission Comments, Tenn. Code Ann. §
39-13-201. Deliberation also requires "some period of reflection
during which the mind is free from the influence of excitement." Brown,
836 S.W.2d at 538; see also Tenn. Code Ann. § 39-13-201(b)(2).
Again, although the jury may not engage in
speculation, State v. Bordis,
905 S.W.2d 214, 222 (Tenn. Crim. App.),
perm. to appeal denied, (Tenn. 1995), the jury may infer premeditation
and deliberation from the circumstances surrounding the killing. State
881 S.W.2d 1, 3 (Tenn. Crim. App. 1993),
perm. to appeal denied, (Tenn. 1994); Taylor v. State,
506 S.W.2d 175, 178 (Tenn. Crim. App.
1973). Our supreme court has delineated several circumstances that may
be indicative of premeditation and deliberation, including the use of
a deadly weapon upon an unarmed victim, the fact that the killing was
particularly cruel, declarations by the defendant of his intent to
kill the victim, and the making of preparations before the killing for
the purpose of concealing the crime. Brown, 836 S.W.2d at 541-542.
This court has also recently noted several factors from which the jury
may infer the two elements, including planning activity by the
defendant before the killing, evidence concerning the defendant's
motive, and the nature of the killing. Bordis, 905 S.W.2d at 222 (quoting
2 W. LaFave and A. Scott, Jr., Substantive Criminal Law § 7.7 (1986)).
The appellant argues that the only significant
evidence of premeditation and deliberation presented, i.e.,
circumstantial evidence relating to the alleged torture of the victim,
is not sufficient to establish those elements. He asserts that, even
assuming that evidence of torture establishes a motive for the murder,
motive standing alone is not sufficient to establish either
premeditation or deliberation. Moreover, applying the Bordis factors,
he contends that the injuries to the victim inflicted by torture are
not relevant to the nature of the killing. The torture clearly
occurred before the death of the victim. The appellant also relies
upon expert testimony suggesting that torture is usually not inflicted
in order to cause death. Additionally, the appellant contends that the
evidence clearly reflects a lack of planning by the appellant, because,
although the appellant brought a gun with him to the victim's
apartment, immediately following his arrival, he unloaded the gun and
placed it and the bullets on top of the refrigerator.
The appellant cites California case law to support
his argument that the evidence, which could arguably establish a
motive, i.e., the torture, is insufficient by itself to sustain a
first degree murder conviction. See People v. Pensinger,
52 Cal. 3d 1210, 805 P.2d 899,
278 Cal. Rptr. 640 (Cal. 1991); People v.
70 Cal. 2d 15, 447 P.2d 942,
73 Cal. Rptr. 550 (Cal. 1968). The
factors set forth in Bordis, however, merely provide guidelines for
the reviewing court. The ultimate question remains whether the
evidence, circumstantial or direct, can support a rational jury's
finding beyond a reasonable doubt.
In response to the appellant's argument, the State
asserts that the evidence does in fact prove beyond a reasonable doubt
that the appellant planned the murder and killed the victim in
accordance with his plan. The State argues, contrary to the
appellant's claim, that the killing was part of a "torture sequence
that occurred over a long period of time." The evidence before the
jury, when viewed in the light most favorable to the State, supports
the guilty verdict beyond a reasonable doubt. The proof establishes
that the appellant obtained a gun immediately prior to his visit to
the victim's apartment. The appellant inflicted separate and distinct
injuries upon an unarmed victim over a six hour period preceding her
death. The appellant's demeanor was one of calmness following the
murder. Calmness immediately after a killing may be evidence of a cool,
dispassionate, premeditated murder. West, 844 S.W.2d at 148 (citing
State v. Browning,
666 S.W.2d 80, 84 (Tenn. Crim. App.
1983); Sneed v. State,
546 S.W.2d 254, 258 (Tenn. Crim. App.
1976)). Moreover, the evidence shows that the appellant hid the murder
weapon and returned to the scene in a different vehicle. The fact that
the concealment occurred immediately after the killing "supports the
theory that the appellant committed the killing [in the absence of
Having reviewed the entire record, we conclude that
a rational trier of fact could have found the essential elements of
premeditated first degree murder beyond a reasonable doubt. Tenn. R.
App. P. 13(e). This issue, therefore, is without merit.
B. PENALTY PHASE
Again, the appellant contends that the proof
introduced at the penalty phase is insufficient to support the jury's
finding of the "heinous, atrocious, or cruel" aggravating circumstance.
Tenn. Code Ann. § 39-13-204(i)(5). Specifically, he asserts that,
because the victim's death was caused by a single gunshot wound to the
head, "the actual murder was not especially heinous, atrocious, or
cruel within the meaning of the statute."
Tenn. Code Ann. § 39-13-204(i)(5) provides that the
death penalty may be imposed if the State proves beyond a reasonable
doubt that "the murder was especially heinous, atrocious, or cruel in
that it involved torture or serious physical abuse beyond that
necessary to produce death." "Torture" has been defined as "the
infliction of severe physical or mental pain upon the victim while he
or she remains alive and conscious." State v. Williams,
690 S.W.2d 517, 529 (Tenn. 1985). "Serious
physical abuse beyond that necessary to produce death" means just that;
there must be serious physical, not mental, abuse, i.e., "an act that
is 'excessive' or which makes 'improper use of a thing,' or which uses
a thing 'in a manner contrary to the natural or legal rules for its
use." State v. Odom,
928 S.W.2d 18, 26 (Tenn.), reh'g denied,
(1996) (quoting Black's Law Dictionary 11 (6th ed. 1990)).
Because the victim died instantaneously from a
single gunshot wound to the head, see, e.g. State v. Pritchett,
621 S.W.2d 127 (Tenn. 1981), the murder
did not involve serious physical abuse beyond that necessary to
produce death. Thus, in order to support the jury's verdict, the
murder must have involved torture. Contrary to the appellant's
argument, there is no requirement that the torture itself must be the
direct cause or "mode" of death. See, e.g., State v. Caughron,
855 S.W.2d 526 (Tenn. 1993) (victim
suffered blows to head but died as result of asphyxiation; evidence of
the beating supported a finding of torture). The statute requires only
that the murder must involve torture, not that it must be caused by
the torture. Tenn. Code Ann. § 39-13-204(i)(5). Moreover, the
definition provided by the supreme court in Williams, 690 S.W.2d at
517, only necessitates that the victim must be alive during the
infliction of the torture.
The evidence establishes that the victim received
first and second degree burns to six areas on her body anytime from
several hours to just minutes before her death. The victim also
sustained bruises across the soles of her feet consistent with a form
of torture called falanga. According to the expert testimony, the
victim would have suffered "moderate" physical pain from the injuries
as well as a "great degree of distress" anticipating the infliction of
the repeated burns and bruises.
The deciding question, therefore, is whether the
evidence is sufficient to support a finding of the infliction of "severe"
mental or physical pain while the victim remained conscious. Based
upon the testimony of the medical examiner, we find that the physical
pain inflicted in the instant case did not rise to the threshold level
of "severe" pain. However, we conclude that evidence in this case of
the appellant's infliction of mental pain and distress to the victim
while she remained conscious over a period of hours before her death
is legally sufficient to support a finding of "severe mental pain."
Cf. State v. Cooper,
718 S.W.2d 256, 259 (Tenn. 1986) (evidence
that appellant taunted the victim for hours before shooting sufficient
to support the heinous, atrocious, or cruel aggravator); State v.
Hodges, 1995 Tenn. Crim. App. LEXIS 428, No. 01C01-9212-CR-00382 (Tenn.
Crim. App. at Nashville, May 18, 1995) (victim was bound and pillow
case placed over head while appellant ransacked victim's residence;
victim then begged for life while the appellant strangled him; heinous,
atrocious, or cruel aggravator upheld). Accordingly, we conclude that
a rational jury could have found the existence of this aggravating
circumstance beyond a reasonable doubt. Tenn. R. App. P. 13(e). This
issue, therefore, is without merit.
2. IMPEACHMENT OF CHARACTER WITNESS
In his next issue, the appellant contends that the
trial court erroneously permitted the State, for purposes of
impeachment, to cross-examine a character witness by questioning the
witness about his knowledge of the appellant's satanic beliefs and
practices. Specifically, he asserts that the prosecutor failed to
establish a reasonable factual basis for this inquiry, that, because
the alleged rumor surfaced after the killing, such questioning did not
properly address the credibility of the witness' testimony, and that
the prejudicial effect of the testimony outweighed any of its
probative value. The State argues that the inquiry was proper. This
issue appears to be one of first impression in this state.
During the cross-examination of the State's witness,
James Shaw, defense counsel asked whether Shaw was familiar with the
appellant's reputation in the community for "peacefulness and violence."
Shaw, who dated the appellant's aunt and had known the appellant for
about twelve years, responded that the appellant had never bothered
anyone and had always avoided trouble. During the State's cross-examinaton,
the prosecutor advised the court of its intent to question Shaw
concerning the appellant's involvement in satanic worship. The court,
upon the appellant's request, promptly held a jury-out hearing to
review this conduct. During the hearing, Shaw testified that, prior to
trial, he had heard the appellant's aunt state that the victim's
family had overheard the appellant tell others that he worshiped Satan
and needed to kill two people to gain more power. Moreover, upon
questioning by the court, the prosecutor acknowledged that several
people had told him about this rumor. The court found that the
prosecutor had a reasonable factual basis for the inquiry. The court
further found that the questions were proper although the witness had
learned of the alleged rumor after the commission of the offense for
which the appellant was on trial. Accordingly, the court permitted
examination of the witness about this information. Shaw's testimony in
the presence of the jury was essentially the same as his testimony
before the Judge: he stated that his girlfriend had told him that she
had obtained this information from the victim's family.
Tenn. R. Evid. 405(a) permits the impeachment of a
witness offering character evidence of another person by relevant
specific instances of that person's conduct. As recognized by the rule,
however, there is always some danger that a carte blanche inquiry into
specific instances of conduct, even if later proven unfounded, will
result in irrevocable prejudice. Accordingly, Rule .405(a) contains
certain safeguards which must be met before a trial court may allow
the cross-examination: (1) the court, upon request, must hold a
hearing out of the jury's presence; (2) the court must determine that
a reasonable factual basis exists for the inquiry; and (3) the court
must determine whether the probative value of the impeachment
testimony outweighs its prejudicial effect on the appellant's
During the jury-out hearing, the examining attorney
must demonstrate to the court that a factual basis exists for the
inquiry. The function of establishing the factual basis is to provide
the court with the means to determine whether the intended questions
are being asked in good faith and are not intended to place unfairly
prejudicial information concerning frivolous rumors before the jury.
Although no specific procedures or standards are provided by the rule,
clearly the better practice would be to establish the "factual basis"
by extrinsic proof, i.e. by means other than through the examining
attorney's statements. Oftentimes, however, this issue develops at
trial, without notice, and there is no time to garner witnesses or
other proof to establish the factual basis. At a minimum, the
examining attorney should at least state the source of the information
underlying the inquiry into the specific instance of conduct. See NEIL
P. COHEN ET AL., TENNESSEE LAW OF EVIDENCE § 405.3, at 197 (3d ed.
Thus, in determining that a reasonable factual
basis does exist, the trial court must be satisfied that the examining
attorney has some justification for asking about the conduct. If the
trial court determines that a reasonable factual basis does exist, on
appeal that finding will not be disturbed unless the proof
preponderates to the contrary. In the present case, the trial court
determined that the prosecutor had a reasonable factual basis for
inquiring into the witness' knowledge of the appellant's involvement
in satanic worship. Although, the rumor originated from the victim's
family after the commission of the offense at issue, we do not believe
that these factors render the trial court's determination unreasonable.
Impeachment evidence, by its very nature, brings to light the
testifying witness' complete knowledge of the character in question.
The remaining question is whether the probative
value of this impeaching evidence outweighed its prejudicial impact.
The appellant cites Tennessee Law of Evidence, § 405.3, which suggests
that the difference in the balancing tests between Rules 403 and 405 "is
intentional and is consistent with the common law's traditional
hesitation to admit character evidence [and] is designed to make it
easier to exclude character evidence because of the potential harm."
However, having reviewed the entire record in light of the appellant's
argument, we are unable to conclude that the prejudicial effect
outweighed the probative value of the impeachment evidence. There was
no other evidence before the jury substantiating the truthfulness of
this rumor. Nor was there any evidence in the record associating this
killing with devil worship. When asked whether the rumor would change
his opinion of the appellant, Shaw responded in the negative. Moreover,
as the State correctly points out, after the witness testified, the
trial Judge immediately provided the jury appropriate limiting
instructions, State v. Sims,
746 S.W.2d 191, 194 (Tenn. 1988), which
the jury is presumed to have followed. See State v. Smith,
893 S.W.2d 908, 923 (Tenn. 1994), cert.
denied, U.S. ,
116 S. Ct. 99 (1995). This issue is
3. INTRODUCTION OF APPELLANT'S BEEPER AND MONEY
Next, the appellant contends that the trial court
erroneously permitted the introduction into evidence of his beeper and
$602.00 in cash, which were found on his person at the time of his
arrest. Specifically, he argues that the admission of these items was
irrelevant and unduly prejudicial, because it suggested to the jury
that the appellant was involved in illegal drug activity. Tenn. R.
Evid. 403; see also State v. Banks,
564 S.W.2d 947 (Tenn. 1978).
The State initially sought to introduce the
contested evidence "simply to show what was found on [the appellant]
and discount any robbery motive." The appellant made a contemporaneous
objection, which was overruled, claiming that the evidence was
irrelevant to the issue of premeditation. Under Rule 402, "all
relevant evidence is admissible except as provided. . . Evidence which
is not relevant is not admissible." Rule 401 defines relevant evidence
as "evidence having any tendency to make the existence of any fact
that is of consequence to the determination of the action more
probable or less probable than it would be without the evidence."
The State also argues on appeal that the
appellant's testimony adequately justified his possession of the
beeper and currency. Both items in question were introduced by the
State during its case-in- chief. The appellant subsequently testified
that he went to the victim's apartment the night before the murder in
response to a "beep" he received from the victim. Regarding the
$602.00 in cash, the appellant testified that he had been saving money
he had earned from several odd jobs.
We agree that the introduction of the beeper and
$602.00 in cash was not relevant to the existence of any issue that
the jury was required to decide and, thus, was improperly admitted. We
conclude, however, that the appellant was not unfairly prejudiced by
their admission. Nothing in the record before us suggests that the
appellant was involved in illegal drug activity. The appellant's
testimony sufficiently explained his possession of the contested
evidence. Accordingly, we find that any error in admitting the beeper
and currency was harmless. Tenn. R. App. P. 36(b); Tenn. R. Crim. P.
4. INSTRUCTION ON FLIGHT
The appellant contends that the trial court
incorrectly provided the jury with an instruction on flight.
Specifically, he argues that his ultimate return to the crime scene
negated any inference that he intended to flee. The State asserts that
the instruction was properly given, noting that the instruction
provides that flight, in and of itself, is not evidence of one's guilt.
The trial court's instruction on flight mirrors the instruction found
in T.P.I. -- Crim. § 37.16. The court instructed the jury that whether
the appellant fled was a question solely for their decision, that they
need not infer flight, and that flight alone was insufficient to prove
guilt. In this case, the evidence demonstrated that the appellant did
indeed leave the scene of the murder and hide the weapon. He returned
in a different vehicle and was about to leave the scene again when he
was apprehended. We find no error in the submission of this
instruction to the jury.
5. CLOSING ARGUMENT DURING GUILT PHASE
The appellant also contends that the prosecutor
committed reversible error by interjecting personal opinions during
his closing argument. The State contends that the argument was proper,
or, in the alternative, merely harmless error.
Closing arguments are an important tool for both
parties during the trial process. Consequently, attorneys are usually
given wide latitude in the scope of their arguments, see Bigbee, 885
S.W.2d at 809, and trial courts, in turn, are accorded wide discretion
in their control of those arguments. See State v. Zirkle,
910 S.W.2d 874, 888 (Tenn. Crim. App.),
perm. to app. denied, (Tenn. 1995). Moreover, a trial court's finding
will not be reversed, absent an abuse of that discretion. State v.
782 S.W.2d 490, 496 (Tenn. Crim. App.
1989) (citations omitted). Such scope and discretion, however, is not
completely unfettered. To determine whether the prosecutor committed
reversible misconduct during closing argument, the reviewing court
must ascertain "whether the improper conduct could have affected the
verdict to the prejudice of the defendant." Harrington v. State,
215 Tenn. 338,
385 S.W.2d 758, 759 (Tenn. 1965); see
also Judge v. State,
539 S.W.2d 340, 343 (Tenn. Crim. App.
1976). Five factors should be considered in making this determination:
1) the conduct complained of, viewed in light of the facts and
circumstances of the case; 2) the curative measures undertaken by the
court and the prosecutor; 3) the intent of the prosecutor in making
the improper statement; 4) the cumulative effect of the improper
conduct and any other errors in the record; and 5) the relative
strength or weakness of the case. State v. Buck,
670 S.W.2d 600, 609 (Tenn. 1984); Judge,
539 S.W.2d at 344.
During the State's closing argument, the following
MR. HENDERSON: I hope at the end of all of this
trial and my other trials, I guess, I can say that, as the Apostle
Paul wrote --
MR. JOHNSON: Your Honor, he is putting his personal
observation into closing argument.
MR. HENDERSON: It's not my personal feelings, Your
THE COURT: Overruled. This it [sic] argument. You
may proceed, Mr. Henderson.
MR. HENDERSON: I've done what I can to present the
truth to you, as much of it as is possible this long after the offense
and given the nature of the crime and the evidence. I submit to you
that I can say that I have fought the good fight, I have run my course,
I have kept the faith. I want you 12 to be able to say the same when
it is over. Thank you.
Closing arguments must be temperate, must be based
upon evidence introduced during trial, and must be pertinent to the
issues being tried. Coker v. State,
911 S.W.2d 357, 368 (Tenn. Crim. App.),
perm. to app. denied, (Tenn. 1995); State v. Tyson,
603 S.W.2d 748, 754 (Tenn. Crim. App.
1980). The prosecutor must not express a personal belief or opinion,
but whether that qualifies as a misconduct often depends upon the
specific terminology used. Coker, 911 S.W.2d at 368. The appellant
claims the prosecutor expressed his personal opinion by stating he had
presented the "truth" to the jury. However, the jury was instructed
that it possessed the ultimate duty of deciding the "truth." Moreover,
as noted by the court in Coker, if the argument contains phrases such
as "I think" or "I submit," it is unlikely to be adJudged a personal
The appellant further contends that the prosecutor
improperly compared himself to the Apostle Paul. It is settled law in
this state that references to biblical passages or religious law
during a criminal trial are inappropriate. See State v. Stephenson,
878 S.W.2d 530, 541 (Tenn. 1994);
Kirkendoll v. State,
198 Tenn. 497,
281 S.W.2d 243, 254 (Tenn. 1955). Such
references, however, do not constitute reversible error unless the
appellant can clearly establish that they had some effect on the
verdict. Stephenson, 878 S.W.2d at 541; Kirkendoll, 281 S.W.2d at 254.
In this case, no reference to religious law was made. We conclude this
isolated remark had no affect upon the verdict in this case. Moreover,
we find no comparison by the prosecutor of himself to the Apostle Paul.
This issue is without merit.
6. INTRODUCTION OF PHOTOGRAPH
The appellant contends that the introduction of a
family photograph of the victim with two of her children during the
guilt phase of trial was irrelevant and was introduced solely for the
purpose of inflaming the jury. Additionally, he contends that the
photograph had a prejudicial effect on the jury's determination during
the sentencing phase of the trial.
Tennessee courts have followed a policy of
liberality in the admission of photographs in both civil and criminal
cases. State v. Banks, 564 S.W.2d 947, 949 (Tenn. 1978) (citations
omitted). This policy translates into the rule that "the admissibility
of photographs lies within the discretion of the trial court." Id. The
trial court's "ruling, in this respect, will not be overturned on
appeal except upon a clear showing of an abuse of discretion." Id. (citations
omitted); see also Stephenson, 878 S.W.2d at 542; Bordis, 905 S.W.2d
at 226. However, before a photograph may be admitted into evidence, it
must be relevant to an issue that the jury must decide and the
probative value of the photograph must outweigh any prejudicial effect
that it may have upon the trier of fact. State v. Braden,
867 S.W.2d 750, 758 (Tenn. Crim. App.),
perm. to appeal denied, (Tenn. 1993) (citation omitted); see also Tenn.
R. Evid. 401 and 403.
At trial, the challenged photograph was introduced
through the testimony of the victim's sister. The record indicates
that the photograph was offered by the State to establish the victim's
identity as a "creature in being." In Bolden v. State,
140 Tenn. 118,
203 S.W. 755 (Tenn. 1918), our supreme
court held that the evidence necessary "to establish the corpus
delicti in [a homicide case] must show that the life of a human being
has been taken, which question involves the subordinate inquiry as to
the identity of the person charged to have been killed. . . ." Thus,
the State, in the present case, was required to prove, in its case-in-chief,
that the person killed was the same person named in the indictment.
See also 40 C.J.S. Homicide § 170 (1991); Annotation, Homicide:
identification of victim as person named in indictment or information,
86 A.L.R.2d 722, 725 (1962). Thus, employing the test espoused in
Banks, 564 S.W.2d at 949, we find no error in the admission of the
photograph during the guilt phase of the trial. See, e.g., State v.
626 S.W.2d 25, 28 (Tenn. Crim. App.
1981); But see State v. Dicks,
615 S.W.2d 126, 128 (Tenn.), cert. denied,
454 U.S. 933,
102 S. Ct. 431, 70 L. Ed. 2d 240 (1981) (pictures
of homicide victim while alive should not be admitted at trial unless
relevant to a material issue, although such an error may not be
prejudicial to the outcome). Finally, the appellant asks this court to
speculate about the effect of the photograph upon the jury during the
sentencing phase of the trial. Having concluded that the photograph
was admissible during the guilt phase of trial, we find no prejudicial
impact during the sentencing phase. This issue is without merit.
7. PROSECUTORIAL MISCONDUCT IN THE SENTENCING
Next, the appellant contends that, during the
sentencing phase of the trial, the prosecutor posed an improper
question to a witness, which implied that the appellant was involved
in Satan or devil worship. The appellant argues that this question was
asked, not for the purpose of presenting evidence, but for the sole
purpose of inflaming the jury. The appellant argues that the error was
compounded by similar improper evidence introduced during the guilt
phase. See (supra) Section 2. The State asserts that the question was
not error, and, even if it was error, the error was harmless given the
trial Judge's curative instruction to the jury following the
The allegedly erroneous question must be considered
within the context in which it was posed. During the cross-examination
of Dr. Smith, defense counsel questioned this witness concerning the
"particular profile" of a person who would engage in falanga. Dr.
Smith offered, as a non-exhaustive list, three categorical profiles:
(1) "serving the needs of the State"; (2) "expression of individual
hatred"; and (3) "sexual gratification." Defense counsel then
attempted to place the appellant outside these three categories of
torturers. Referring to the three categories elicited by defense
counsel, the State, on re-direct, inquired further into the
categorical profiles of torturers:
MR. HENDERSON: Are those exclusive categories, or
are there other reasons for torturing people?
DR. SMITH: There are many more reasons.
MR. HENDERSON: Extracting information is one of
them; isn't that correct?
MR. JOHNSON: I object to leading, Your Honor.
THE COURT: All right. Sustained.
MR. HENDERSON: Let me ask you this then. Have you
ever heard of the use of torture in any sort of devil or Satan worship?
MR. JOHNSON: Your Honor, I object. He is still
THE COURT: Ladies and gentlemen, disregard that
question that was just asked at this time.
Because of defense counsel's prompt objection, the
witness never had an opportunity to respond to the question. Moreover,
immediately after the trial court sustained the objection, the court
gave a curative instruction to the jury. It has long been recognized
that a prompt instruction by the trial court to the jury "generally
cures any error." State v. Tyler,
598 S.W.2d 798, 802 (Tenn. Crim. App.
1980)(citations omitted). Moreover, without evidence to the contrary,
the jury is presumed to have followed these instructions. State v.
913 S.W.2d 195, 201 (Tenn. Crim. App.),
perm. to appeal denied, (Tenn. 1995). The appellant has failed to
establish that the jury did not follow this instruction. Accordingly,
we find no merit in this issue.
Additionally, the appellant argues that the
prosecutor committed prosecutorial misconduct in interposing the
alleged "innuendo-laden question to the jury." Considering the factors
set forth in Judge, 539 S.W.2d at 344, and the context within which
the question was posed, we conclude that the question presented did
not constitute prosecutorial misconduct.
8. VICTIM IMPACT EVIDENCE
In this issue, the appellant contends that the
testimony of the victim's mother pertaining to the character of her
daughter and the impact her daughter's death had upon the family was
irrelevant to any sentencing determination and highly inflammatory.
Specifically, the appellant argues that the evidence was admitted in
violation of the death penalty statute, Tenn. R. Evid. 403, Article I,
§§ 8 and 16 of the Tennessee Constitution, and the Eighth and
Fourteenth Amendments to the United States Constitution. In summary
response, the State contends that the courts of this state have
previously found this type of evidence to be proper.
Evidence regarding the victim and the impact of her
death upon her family is not precluded under either the Eighth
Amendment to the United States Constitution or Article I, § 16 of the
Tennessee Constitution. Payne v. Tennessee,
501 U.S. 808,
111 S. Ct. 2597, 115 L. Ed. 2d 720
(1991); Bigbee, 885 S.W.2d at 811-12; State v. Brimmer,
876 S.W.2d 75, 86 (Tenn.), cert. denied,
115 S. Ct. 585 (1994). Consequently, the
appellant's challenge to the introduction of this evidence pursuant to
these constitutional provisions must fail. The appellant, however,
also challenges the admissibility of this evidence under our death
penalty statute and the Rules of Evidence.
Although the plurality decision in Payne bars an
Eighth Amendment challenge to the use of victim impact evidence at a
capital sentencing hearing, (supra) , the Supreme Court expressly
declined to foreclose challenges pursuant to statutory sentencing
guidelines and the 14th Amendment. Payne,
501 U.S. 827, 111 S. Ct. at 2609. In
Furman v. Georgia, 408 U.S. at 256, 92 S. Ct. at 2735, the Supreme
Court held that the death penalty may not be imposed under sentencing
procedures that create a substantial risk that the punishment will be
inflicted in an arbitrary and capricious manner. Thus, the federal
Constitution requires those states, which have sanctioned the
imposition of the death penalty, to adopt procedures that narrow the
class of persons eligible for the death penalty. Zant v. Stephens,
462 U.S. 862, 877,
103 S. Ct. 2733, 2742, 77 L. Ed. 2d 235
(1983). A proper narrowing device insures that, even though some
defendants who fall within the restricted class of death eligible
defendants manage to avoid the death penalty, those who receive it
will be among the worst murderers, i.e., those whose crimes are
particularly serious or for which the death penalty is particularly
appropriate. See Gregg v. Georgia,
428 U.S. 153,
96 S. Ct. 2909, 49 L. Ed. 2d 859 (1976).
Narrowing the class of death eligible offenders may be accomplished
either by providing restrictive definitions of first degree or capital
murder or by utilizing aggravating circumstances at the sentencing
hearing. Lowenfield v. Phelps,
484 U.S. 231, 246,
108 S. Ct. 546, 555, 98 L. Ed. 2d 568
(1988). Tennessee has accomplished this "narrowing procedure" through
the use of aggravating circumstances. State v. Middlebrooks,
840 S.W.2d 317 (Tenn. 1992), cert. denied,
510 U.S. 124,
114 S. Ct. 651, 126 L. Ed. 2d 555 (1993).
In sum, the question before us is whether, under Tennessee's current
capital sentencing scheme, the introduction of victim impact evidence
will assist the jury in the "narrowing" function of determining
whether the defendant being sentenced is "among the worst" of those
murderers who have been found death eligible.
Under Tennessee's capital sentencing scheme, "the
only evidence which is relevant during the sentencing phase ... is
that evidence which is relevant to establish or disprove the existence
of aggravating circumstances or mitigating factors." State v. Black,
815 S.W.2d 166, 179 (Tenn. 1991) (citing
Cozzolino v. State,
584 S.W.2d 765, 768 (Tenn. 1979)) (emphasis
added); Tenn. Code Ann. § 39-13-204(c). Any evidence that does not go
to the proof of one or the other of those issues is irrelevant to the
jury's deliberation. Cozzolino, 584 S.W.2d at 768. Placing irrelevant
evidence before the jury increases the risk that the death penalty may
be inflicted in an arbitrary or capricious manner. Id. (citing Gregg
v. Georgia, 428 U.S. at 188, 96 S. Ct. at 2932). Notwithstanding the
decision in Payne, our state legislature has chosen not to amend our
capital sentencing scheme to include victim impact evidence. See
generally Tenn. Code Ann. § 39-13-204. The victim impact testimony
presented during the sentencing phase did not pertain to an
aggravating or mitigating circumstance. Accordingly, we conclude that
the testimony of the victim's mother was irrelevant to the jury's
sentencing determination and, therefore, inadmissible. See State v.
Cribbs, 1997 Tenn. Crim. App. LEXIS 142, No. 02C01-9508-CR-00211 (Tenn.
Crim. App. at Jackson, Feb. 14, 1997); State v. Byrd, 1996 Tenn. Crim.
App. LEXIS 809, No. 02C01-9508-CR-00232 (Tenn. Crim. App. at Jackson,
Jan. 2, 1997).
Under Tennessee's current capital sentencing scheme,
the use of victim impact testimony or evidence may lead to the
disparate treatment of similarly situated offenders. A capital
sentencing determination must be made without whim, passion, prejudice,
or mistake. Eddings v. Oklahoma,
455 U.S. 104, 118,
102 S. Ct. 869, 878, 71 L. Ed. 2d 1
(1982) (O'Connor, J., Concurring). The use of victim impact evidence
shifts the focus away from the defendant as a unique, individual human
being, Booth v. Maryland,
482 U.S. 496, 504,
107 S. Ct. 2529, 96 L. Ed. 2d 440 (1987),
overruled by, Payne, 501 U.S. at 808, 11 S. Ct. at 2597, and, possibly
results in disparate treatment of capital offenders based upon such
extraneous factors as the wealth of the victim's family, the ability
of the victim's family to articulate its feelings, and the jury's
opinion as to the victim's moral character. Booth, 482 U.S. at
517-518, 107 S. Ct. at 2540-2541 (White, J., Dissenting).
Having concluded that victim impact evidence is
irrelevant in the context of our capital sentencing scheme, our review
must focus upon whether the impermissible testimony so affected the
jury's determination as to require a remand for another sentencing
hearing. State v. Irick,
762 S.W.2d 121, 131 (Tenn. 1988), cert.
489 U.S. 1072,
109 S. Ct. 1357, 103 L. Ed. 2d 825
(1989). Erroneously admitted victim impact evidence does not mandate
reversal when the admission of that evidence can be construed as
harmless error. See State v. Smith,
857 S.W.2d 1, 14 (Tenn.), cert. denied,
510 U.S. 996,
114 S. Ct. 561 (1993) (citing State v.
791 S.W.2d 10, 19 (Tenn. 1990), affirmed
by, 501 U.S. at 808, 111 S. Ct. 2597 (1991)); see also Bigbee, 885 S.W.2d
at 812. Before this court can find that the victim impact testimony
admitted during the sentencing phase was "harmless error," we must
first conclude, beyond a reasonable doubt, that the sentence would
have been the same absent such evidence. See State v. Howell,
868 S.W.2d 238, 260 (Tenn. 1993), cert.
510 U.S. 1215,
114 S. Ct. 1339, 127 L. Ed. 2d 687
(1994). In making its determination, this court may properly consider
the quantity of victim impact evidence admitted at the sentencing
hearing and the emphasis placed upon this evidence by the State in its
In this case, victim impact evidence was introduced
solely through the testimony of the victim's mother, Laura May Cannon.
It is important to note that none of the children testified, nor was
any expert testimony offered for the purpose of establishing the
psychological trauma experienced by the children as a result of their
mother's death. Ms. Cannon attested to the victim's good character and
to the impact her death has had upon her family, including the
victim's five small children. The content of Ms. Cannon's testimony
revealed that her daughter's death was devastating to the whole family.
Ms. Cannon was forced to resign her job in order to take care of four
of the victim's five children. With respect to the impact of their
mother's death upon the children, Ms. Cannon testified that they have
nightmares, they reenact the murder, and they also require therapy.
Notwithstanding the inadmissibility of this victim impact evidence,
these consequences, as described by the witness, were directly
fashioned by the appellant and were clearly foreseeable. See Payne,
501 U.S. at 838, 111 S. Ct. at 2615-2616 (Souter, J., Concurring). The
appellant was certainly aware that the victim was a single parent
whose children were totally dependent upon her. Moreover, at the time
of the murder, the children were present in the apartment and observed
their mother lying in a pool of blood. These facts were established
during the guilt phase and, thus, constitute circumstances of the
offense. The fact that the death of a family member is devastating to
the family requires no proof.
We conclude that a rational trier of fact could
have reasonably inferred these resulting consequences from the
attendant facts of the murder. Moreover, we find that the State did
not overemphasize Ms. Cannon's testimony in its closing arguments.
Before the jury retired for deliberation, the trial Judge correctly
instructed the jury concerning the aggravating and mitigating
circumstances. Given the overwhelming evidence establishing the
aggravating circumstance, "heinous, atrocious, or cruel," we conclude
that any error in admitting the victim impact evidence during the
penalty phase was harmless. Tenn. R. App. P. 36(b); Tenn. R. Crim. P.
9. INSTRUCTIONS ON MITIGATING EVIDENCE
Next, the appellant contends that the trial Judge
committed reversible error by charging all of the statutory mitigating
factors, even though the appellant was not relying upon all of them in
his defense. Only those mitigating circumstances raised by the
evidence should be charged. Buck, 670 S.W.2d at 608. Absent a showing
of prejudice, this error generally benefits the defendant and does not
require reversal. Cazes, 875 S.W.2d at 267; Smith, 857 S.W.2d at 15.
Although the appellant concedes that this issue has been held harmless,
he disagrees with our supreme court that this error is one
"beneficial" to him. Specifically, the appellant claims this "serves
to undermine [his] actual mitigation, emphasizes for the jury the
number of mitigating circumstances missing from the case, and further
highlights the distinction between statutory and non-statutory
In view of our supreme court's previous rulings,
and absent any showing of prejudice, we conclude that this issue is
10. INSTRUCTION ON THE AGGRAVATING CIRCUMSTANCE
The appellant further argues that the language of
the "heinous, atrocious, or cruel" aggravating circumstance and the
accompanying instruction provided to the jury failed to sufficiently
channel the jury's discretion and meaningfully narrow the class of
death eligible defendants. This aggravator provides that the death
penalty may be imposed if "the murder was especially heinous,
atrocious, or cruel in that it involved torture or serious physical
abuse beyond that necessary to produce death." Tenn. Code Ann. §
39-13-204(i)(5) (emphasis added). Specifically, the appellant claims
that the use of the phrase "in that" instead of "and" improperly
suggests to the jury that it can automatically assume that the murder
was "especially heinous, atrocious, or cruel" once it finds the
existence of torture.
While this is a novel argument on the part of the
appellant, it must fail nonetheless. The appellant contends that the
language of the (i)(5) aggravator violates his rights under the Eighth
and Fourteenth Amendments to the United States Constitution. However,
our supreme court has recently found the language of this aggravating
circumstance constitutionally sufficient to narrow the class of
offenders eligible for the death penalty. Odom, 928 S.W.2d at 18. The
jury was properly instructed according to the language of the statute
and the definitions provided in Williams, 690 S.W.2d at 529. Thus, we
find no error.
11. CONSTITUTIONALITY OF THE DEATH PENALTY
The appellant acknowledges that the
constitutionality of the death penalty has been upheld by the
Tennessee Supreme Court, but raises the following issues in order to
preserve them for subsequent proceedings.
The appellant contends that (1) the death penalty
statute fails to meaningfully narrow the class of eligible defendants;
(2) the prosecution has unlimited discretion in seeking the death
penalty; (3) the death penalty is imposed in a discriminatory manner
based upon economics, race, geography, and sex; (4) there are no
uniform standards for jury selection; (5) juries tend to be prone to
returning guilty verdicts; (6) the defendant is denied the opportunity
to address the jury's popular misconceptions about parole eligibility,
cost of incarceration, deterrence, and method of execution; (7) the
jury is instructed it must unanimously agree to a life sentence, and
is prevented from being told the effect of a non-unanimous verdict;
(8) courts fail to instruct the juries on the meaning and function of
mitigating circumstances; (9) the jury is deprived of making the final
decision about the death penalty; (10) the defendant is denied the
final argument during the sentencing phase; (11) electrocution is
cruel and unusual punishment; and (12) the appellate review process in
death penalty cases is constitutionally inadequate.
These issues have repeatedly been rejected by the
Tennessee courts. See Smith, 893 S.W.2d at 908; Brimmer, 876 S.W.2d at
75; Cazes, 875 S.W.2d at 253; Smith, 857 S.W.2d at 1; Black, 815 S.W.2d
at 166; State v. Boyd,
797 S.W.2d 589 (Tenn. 1990); State v.
793 S.W.2d 236 (Tenn. 1990); State v.
768 S.W.2d 239 (Tenn. 1989).
After a thorough review of the issues and the
record before us, as mandated by Tenn. Code Ann. §§ 39-13-206(b), and
(c), and for the reasons stated herein, we affirm the appellant's
conviction and sentence of death. We conclude that the sentence of
death was not imposed in an arbitrary fashion, the evidence supports
the jury's finding of the aggravating circumstance, and the evidence
supports the jury's finding that the aggravating circumstance
outweighs any mitigating circumstances. Moreover, a comparative
proportionality review, considering both the circumstances of the
crime and the nature of the appellant, convinces us that the sentence
of death is neither excessive nor disproportionate to the penalty
imposed in similar cases.
DAVID G. HAYES, Judge
(SEE OPINION CONCURRING
IN PART; DISSENTING IN
GARY R. WADE, Judge
WILLIAM M. BARKER, Judge
OPINION CONCURRING IN PART: DISSENTING IN PART
The failure to timely file a motion for new trial
precludes review of most of the grounds alleged. Tenn. R. App. P.
3(a). Included among those grounds waived are the claims that evidence
of the defendant's reputation as a satan worshipper should have been
excluded during the guilt phase of the trial and that evidence of
victim impact should have been excluded during the sentencing phase.
In my view, this death sentence can be approved only by the
application of that strict rule of waiver; our supreme court rarely
implements such strict procedural guidelines in a capital case,
preferring instead to rule on the merits of the issues presented.
There is logic in that. There is, of course, a constitutional
guarantee to the effective assistance of counsel in every trial. The
failure of defense counsel to file a timely motion for new trial
clearly violates that principle; thus, any post-conviction challenge
to this sentence, as is routine in these cases, should be successful
unless the extensive victim impact evidence presented during the
sentencing phase of the trial was, as the majority has concluded,
harmless beyond a reasonable doubt. With all due respect to an
otherwise impeccably reasoned opinion, I cannot agree that it was.
The circumstances of this senseless crime would
warrant the death penalty. Based upon the evidence presented in each
of these proceedings, this jury appears to have exercised its
discretion in a responsible manner. Yet our legislature has chosen not
to include, among the various statutory circumstances warranting
capital punishment, the impact of the murder upon the family of the
victim. Some states do. It is a subject worthy of legislative
During the guilt phase in this trial, the state was
allowed to cross-examine a character witness about a rumor that the
defendant was a satan worshipper. While I agree that information, in
the context of the guilt phase of trial, had no effect upon the
conviction, I cannot conclude beyond doubt that the death sentence was
imposed without some degree of sympathy for the victim's parents and
her five orphaned children.
In assessing whether the victim impact evidence was
harmless, this court should consider the quantity of impact evidence
introduced by the state and the emphasis placed upon this evidence in
its closing argument. Here, there were nine transcribed pages of
victim impact evidence. In a similar case where this court found
harmless error, there were about six lines of testimony to the effect
that the victim was a warm and caring person who would be missed by
her family. See State v. Antonio M. Byrd, 1996 Tenn. Crim. App. LEXIS
809, *61, No. 02C01-9508-CR-00232, slip op. at 40-41 (Tenn. Crim. App.,
at Jackson, Jan. 2, 1997), perm. to app. filed, Feb. 29, 1997.
In an opinion from our own supreme court in State
v. Payne, victim impact evidence was minimal:
The evidence complained of consisted of Mrs.
Zvolanek's answer to one question. The question and answer are as
Q. Ms. Zvolanek, how has the murder of Nicholas's
mother and his sister affected him?
A. He cries for his mom. He doesn't seem to
understand why she doesn't come home. And he cries for his sister
Lacie. He comes to me many times during the week and asks me,
Grandmama, do you miss my Lacie. And I tell yes. He says, I'm worried
bout my Lacie.
State v. Payne, 791 S.W.2d 10, 17-18 (Tenn. 1990)
aff'd, 501 U.S. 808, 115 L. Ed. 2d 720, 111 S. Ct. 2597 (1991). There,
the court observed that "while technically irrelevant, that statement
did not create a constitutionally unacceptable risk of an arbitrary
imposition of the death penalty, and was harmless beyond a reasonable
doubt." Id. at 18. In other cases similar to Payne our appellate
courts have generally ruled the limited quantity of victim impact
evidence was harmless error. See State v. Perry Cribbs, 1997 Tenn.
Crim. App. LEXIS 142, No. 02C01-9508-CR-00211, slip op. at 18-19 (Tenn.
Crim. App., at Jackson, Feb. 14, 1997) (limited argument on victim
impact did not warrant a new sentencing hearing); Byrd, slip op. at
40-41 (harmless error in a life without parole case where there were
only a few lines of testimony that the victim was a warm, caring
person who would be missed by her family). The amount of victim impact
evidence in this case is however, substantially greater than that in
Payne. Over one-third of the state's proof during the sentencing phase
of the trial qualifies as victim impact evidence.
The state's rebuttal closing argument was almost
solely argument based on the impact of the victim's death upon her
There's no proof he did it [the murder or torture]
in front of them. He just left her there bleeding, knowing those four
young babies were in the house with a dead mother. He didn't know, I
guess, that they were going to try to wake mommy out and try to shake
her out of the blood and the brains. No, maybe he didn't know. ... He
didn't care either. ...
... If there has ever been a case of torture, this
is it. ...
How do you weigh this? Well, you have to look at
the impact of the crime. That's why the people are here to testify
with about her life, Miriam Cannon, because we sometimes forget in
these trials that, while we're here to take care of the defendant and
provide Justice for him there is someone else in this case, and it is
not just Miriam Cannon. There are those babies, those orphan children.
There are the rest of her family. There is the rest of society that
has been deprived of Miriam Cannon. There are lots of victims in this
Now the defendant's family would like to see him.
All right. Balance that against, doesn't everybody understand that
little Terrica [one of the victim's children] and the rest of the
children would like to see their mother, too? Sure, that balances. ...
And the relatives of the [defendant] will tell you
to please spare his life. Wouldn't it have been nice if Ms. Cannon and
the rest [of the] family could have been there to beg for Miriam's
life? They could have looked at him and said, "Please, don't kill my
daughter. Go ahead and torture her, but don't kill her."
But they didn't get the chance to. We give him that
chance, but she doesn't get that chance. So when you go to balance the
aggravating circumstances against that mitigation, remember if it had
been possible they would have been there begging for their daughter's
life. Those children would have begged for their mother's life had
they been given that opportunity. So you balance that against the
Defense counsel says he shows remorse. ... He has
no remorse. There is no mitigating circumstance of remorse. There is
only the aggravating factor of ours, of torture and pain and agony and
the effect that this had on the family.
... You've heard from the testimony here today, it
is going to take a whole lot more than that for Terrica and the rest
of those children to restore what can be restored to them. You can't
restore their mother or their life to them. ...
Some day those children are going to grow up. Some
day they're going to be asking questions. "What happened to the man
that hurt my mommy? Was Justice done for my mommy and for us? What
happened?" Only your verdict can answer that.
(emphasis added). I am moved by this argument.
Surely the jury was. While the compelling nature of this summation is
a tribute to the effectiveness of the prosecution, the natural
consequence is one of sympathy, especially for the children affected
by this brutal crime. Portions of this argument are similar to the
language found harmless in Payne. See Payne, 791 S.W.2d at 18-19.
Where this argument crosses the rule of law, however, is the attempt
to characterize victim impact as an aggravating circumstance to be
weighed against the mitigating evidence. As of this time, there is no
legislation permitting a jury to do that.
Victim impact evidence is usually minimal. See
Payne, 791 S.W.2d at 18-19; Cribbs, supra. Yet the extensiveness of
the victim impact testimony and the persuasiveness of the state's
final summation suggest that the verdict may have been reached for
reasons other than the aggravating and mitigating circumstances
prescribed by statute. For that reason, I am constrained to depart
from the majority's Conclusion that the impact on the victim's family
had no effect on the death sentence. Because of the heightened
scrutiny in the review of capital cases, I would classify the
admission of so much of this evidence as plain error; that would
preclude a strict application of the waiver rule and narrow possible
grounds for relief in any subsequent post-conviction attack against
the conviction and sentence.
Accordingly, I concur in upholding the conviction
for first degree murder. Because the victim impact evidence should
have been limited by our current legislative scheme, I respectfully
Dissent as to the sentence of death. While the result might be the
same in any new proceeding, a jury should be allowed to reconsider the
penalty under current evidentiary guidelines.
Gary R. Wade, Judge
Clarence C. Nesbitt