The Supreme Court of Tennessee

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

Tncourts.gov

September 28, 1998

Court of Criminal Appeals of Tennessee

April 22, 1997

STATE OF TENNESSEE, APPELLEE,
v.
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 unduly prejudicial;

(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 worship;

(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 constitutional.

Having carefully considered the appellant's claims, we find no reversible error. Accordingly, we affirm the conviction and sentence of death.

FACTS

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 shortly thereafter.

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 children's reach.

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 ruthless person.

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.

ANALYSIS

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. Bigbee, 885 S.W.2d 797, 805 (Tenn. 1994); State v. Martin, 702 S.W.2d 560, 564 (Tenn. 1985); State v. Duncan, 698 S.W.2d 63, 67-68 (Tenn. 1985); State v. Strouth, 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. Carey, 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. West, 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 v. Gentry, 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. Anderson, 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 passion]." Id.

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 character.

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. 1995).

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 without merit.

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. 52(a).

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. Payton, 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 colloquy occurred:

MR. HENDERSON: I hope at the end of all of this trial and my other trials, I guess, I can say that, as the Apostle Paul wrote --

MR. JOHNSON: Your Honor, he is putting his personal observation into closing argument.

MR. HENDERSON: It's not my personal feelings, Your Honor.

THE COURT: Overruled. This it [sic] argument. You may proceed, Mr. Henderson.

MR. HENDERSON: I've done what I can to present the truth to you, as much of it as is possible this long after the offense and given the nature of the crime and the evidence. I submit to you that I can say that I have fought the good fight, I have run my course, I have kept the faith. I want you 12 to be able to say the same when it is over. Thank you.

Closing arguments must be temperate, must be based upon evidence introduced during trial, and must be pertinent to the issues being tried. Coker v. State, 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 opinion.

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. Scott, 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 PHASE

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 appellant's objection.

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 leading the

BENCH CONFERENCE

JURY IN

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. Melvin, 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, U.S. , 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. denied, 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. Payne, 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. denied, 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 closing argument.

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. 52(a).

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 mitigating factors."

In view of our supreme court's previous rulings, and absent any showing of prejudice, we conclude that this issue is without merit.

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 STATUTE

The appellant acknowledges that the constitutionality of the death penalty has been upheld by the Tennessee Supreme Court, but raises the following issues in order to preserve them for subsequent proceedings.

The appellant contends that (1) the death penalty statute fails to meaningfully narrow the class of eligible defendants; (2) the prosecution has unlimited discretion in seeking the death penalty; (3) the death penalty is imposed in a discriminatory manner based upon economics, race, geography, and sex; (4) there are no uniform standards for jury selection; (5) juries tend to be prone to returning guilty verdicts; (6) the defendant is denied the opportunity to address the jury's popular misconceptions about parole eligibility, cost of incarceration, deterrence, and method of execution; (7) the jury is instructed it must unanimously agree to a life sentence, and is prevented from being told 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. Teel, 793 S.W.2d 236 (Tenn. 1990); State v. Thompson, 768 S.W.2d 239 (Tenn. 1989).

Conclusion

After a thorough review of the issues and the record before us, as mandated by Tenn. Code Ann. §§ 39-13-206(b), and (c), and for the reasons stated herein, we affirm the appellant's conviction and sentence of death. We conclude that the sentence of death was not imposed in an arbitrary fashion, the evidence supports the jury's finding of the aggravating circumstance, and the evidence supports the jury's finding that the aggravating circumstance outweighs any mitigating circumstances. Moreover, a comparative proportionality review, considering both the circumstances of the crime and the nature of the appellant, convinces us that the sentence of death is neither excessive nor disproportionate to the penalty imposed in similar cases.

DAVID G. HAYES, Judge

CONCUR:

(SEE OPINION CONCURRING

IN PART; DISSENTING IN

PART)

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 consideration.

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 follows:

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 family:

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 particular case.

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 mitigation.

Defense counsel says he shows remorse. ... He has no remorse. There is no mitigating circumstance of remorse. There is only the aggravating factor of ours, of torture and pain and agony and the effect that this had on the family.

... 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