Number of victims: 1
Date of murder:
Date of arrest:
2 days after (surrenders)
Date of birth: 1945
Victim profile: James
C. Matheny, 32 (church handyman)
Method of murder:
(.38 caliber pistol)
Location: Nashville, Tennessee, USA
Status: Sentenced to death on September 26, 1988. Committed
suicide in prison, 2003
Minister Sentenced to Death
The New York Times
September 27, 1988
A minister convicted of shooting and killing a
church handyman before beheading him and leaving the man's body in
a burning church has been sentenced to death by electrocution.
The Rev. John David Terry, 44, was convicted
Thursday of first-degree murder and arson in the slaying of James
C. Matheny, 32, whose headless body was found June 16, 1987, in Mr.
Terry's burning church.
The jury returned the death sentence against Mr.
Terry on Sunday after 13 hours of debate and a brief church
Mr. Terry admitted he killed Matheny, dressed
the body in his own clothes and set the Emmanuel Church of Christ
Oneness Pentecostal on fire in a scheme to fake his own death.
Prosecutors said Mr. Terry wanted to start a new life and leave
insurance proceeds to his family. Mr. Terry also admitted
misappropriating more than $30,000 in church money.
Terry cut off Matheny's head, part of an arm
and patches of skin marked with tattoos and threw the body parts
into Lake Barkley near Dover, Tenn.
Lionel Barrett, Mr. Terry's lawyer, said his
client's strongest ground for appeal was challenging whether the
murder was committed in conjunction with a larceny, which the jury
listed as one of two aggravating circumstances justifing the death
penalty. But Mr. Barrett argued that it did not amount to larceny
under the terms of Tennessee's felony murder statute.
Judge Walter Kurtz of Circuit Court set Mr.
Terry's execution for April 3. Tennessee has not executed a death
row inmate since 1960.
The Devil Finds Work for Idle Hands
There’s an old joke
in the mental health business that the patient is getting better when he
stops thinking about suicide and starts thinking about homicide.
Unfortunately, it’s not a laughing matter when the patient decides to
take it seriously.
The Rev. John David Terry had a
dream many people share. Faced with an overwhelming sense of having
failed in his life, Rev. Terry wanted to assume a new identity, run away
and begin life all over again.
Unlike most of us, Terry’s dream
consumed him, and with each setback he was dealt in life, he moved
closer to making his dream reality.
Terry was the Associate Bishop
Overseer of the Emmanuel Churches of Christ, and was the pastor of the
Emmanuel Church of Christ Oneness Pentecostal in Nashville.
His plot, which would result in murder, mutilation of a corpse, and
arson, began to take shape in 1983 when Terry entered a depressive state
after his mother passed away. He started looking himself and his
accomplishments, and would later say that he “became overwhelmed by the
sense that he had failed in life.” Suicide was one option, Terry said,
but he rejected that idea.
A change of careers, from
part-time minister to part-time aluminum siding salesman, didn’t alter
his mood, but one day, while perusing Soldier of Fortune magazine, Terry
said an ad jumped out at him.
“How to get lost … How to
disappear,” Terry testified at his sentencing hearing. “It was something
that began to feed a person looking for an escape.”
Answering the ad, Terry obtained a
book about how to establish a new identity. He first tried to create a
new identity using a dead childhood friend, but when he couldn’t get new
documents, he turned to old newspapers looking for someone who had died
prematurely, and whose identity he could steal.
He found 7-year-old Jerry Milom,
who drowned in 1951 and was able to obtain a copy of his birth
certificate and then get a driver’s license and Social Security card in
that name by forging a baptismal certificate.
To further his plan, Terry began
skimming money from the church in 1984.
By 1987, Terry was ready to put his plan into action. His discontentment
with his own life was underscored when he learned that he would not be
named Bishop Overseer of the Emmanuel Churches of Christ.
But it wasn’t enough for him
simply to disappear. He decided that he needed to be a hero or martyr
for his congregants.
At first, he said, it was his plan
to have 32-year-old James Matheney, whose wife was a parishoner at
Terry’s church, help him with the plot by staging “”some kind of a hoax
or some kind of robbery and have . . . him be the one that would come in
and . . . find blood or find some kind of robbery attempt.”
Accordingly, Terry befriended
Matheney, who was down-and-out, by counseling him, bringing him on the
church staff as a handyman, and paying Matheney’s rent.
Matheney “really loved (Terry),” the victim’s ex-wife testified. “He
really wanted that friendship he was offering . . . I guess maybe it was
kind of like a father image because his father died when he was at a
Meanwhile, Terry embezzled $15,000
from his church, and using his Milom identity, purchased and titled a
Suzuki motorcycle. He kept $10,000 in cash.
On June 15, 1987, Terry and
Matheney were preparing to go on a fishing trip for several days. Terry
told the handyman to gas up the car, and gave him his credit card and
keys to the vehicle. According to the murderous pastor, the plan at that
time was still to have Matheney participate in the scam, although
Terry’s claims don’t quite ring true.
About a half-hour after sending
Matheney to get gas, Terry said he was making some phone calls when he
heard a noise in the church. He testified that he went to investigate
and found the ladder to the church’s attic unfolded and the trap door
Several weeks before, Terry had
secreted a duffel bag with a gun and some clothes in the attic. Terry
climbed the stairs, retrieved the gun and shot Matheney in the back of
the head with a .38 caliber pistol.
The prosecution argued at trial
that Terry had encouraged Matheney to go up to the attic to perform some
maintenance work, which Terry denied. His explanation was that he was
afraid Matheney would reveal his escape plot.
Regardless, the bell could not be unrung and Terry was forced to put his
plot into motion.
The preacher first set about
staging a crime scene to make it appear that he was the victim of a
crime. Although Terry and Matheney were of similar body size and type,
no one would mistake one for the other. Terry stripped the handyman’s
body down to his underwear and placed his belt around Matheney’s waist.
Next, with a hacksaw and knife, he
severed Matheney’s head and right forearm, which would (pardon the pun)
come in handy later. He placed Matheney’s head and arm in one bag and
the victim’s clothes and the tools he used to dismember the body in
another. He hid the clothing bag in a storage garage where his
motorcycle was hidden and then, after picking up two cans of gasoline,
returned to the church to drop off the fuel that he intended to use as
Terry then drove to the area of
Matheney’s boarding house, leaving his car a few blocks away. In the car
he left a few “clues” for police: a beer bottle and his own credit cards
with Matheney’s fingerprints (which is why he needed the severed arm), a
towel smeared with his own blood, and some credit cards and Matheney’s
Taking a cab back to the storage shed, he drove his motorcycle to Lake
Barkley, near Dover, Tennessee, where he rented a boat and used it to
dispose of the weighted bag of body parts.
After dark, he returned to the
church where the remains of Matheney’s body were left and with a knife,
removed two tatoos from the victim’s shoulders by cutting away the flesh
and flushing it down a toilet.
Terry wrapped the body in carpet,
doused it in gasoline, set the fire and fled to Memphis where he checked
into a hotel and went to a minor league baseball game.
Prior to leaving town Terry placed $100 bills in his three sons’ wallets
and gave his wife instructions that she should pay some bills that
normally he was responsible for. His wife was the beneficiary of a
$50,000 life insurance policy.
His children had also been named
as beneficiaries of a $100,000 life insurance policy he had taken out on
Although the fire destroyed parts
of the church and damaged Matheney’s body, firefighters were able to
extinguish the blaze before it fully consumed the corpse, and the
medical examiner was able to establish that the body was not Terry’s.
Two days after the murder, Terry contacted a criminal defense attorney
in his hometown and turned himself in to authorities.
He was tried for capital murder
and convicted in 1988, convicted, and sentenced to die in the electric
chair. The sentence was overturned on appeal when the Tennessee Supreme
Court ruled that improper instructions were given to the jury during the
sentencing phase, and he was given a new hearing.
However, a second jury also
returned a recommendation of death, despite an impassioned plea by the
minister that he be spared.
In 2003, just before his appellate
attorneys were scheduled to argue for a new trial, Terry hanged himself
in a bathroom at Riverbend Maximum Security Institution in Nashville,
where he was working as a data-entry clerk while his appeals were
The Rev. Terry was 58 years old. He left a wife and three sons. Matheney
had a 4-year-old son at the time of his death.
IN THE SUPREME
COURT OF TENNESSEE
February 6, 2001 Session
JOHN DAVID TERRY
v. STATE OF TENNESSEE
Automatic Appeal from the Court of
Criminal Court for Davidson County
Hon. Randall Wyatt, Jr., Judge
Filed April 25, 2001
The defendant was first convicted of premeditated
first degree murder and arson in 1989. The jury found two statutory
aggravating circumstances: (1) that the murder was especially
heinous, atrocious, or cruel in that it involved torture or
depravity of mind; and (2) that the murder was committed while the
defendant was engaged in committing a larceny. Finding that the
aggravating circumstances outweighed the mitigating circumstances,
the jury sentenced the defendant to death by electrocution. This
Court granted a new sentencing hearing after determining that the
trial court had erroneously charged the jury that the murder was
committed while the defendant was committing a larceny. In 1997, a
jury again sentenced the defendant to death, finding that (1) the
murder was especially heinous, atrocious, or cruel in that it
involved depravity of mind, and (2) the murder was committed for the
purpose of avoiding, interfering with, or preventing a lawful arrest
or prosecution of the defendant. The Court of Criminal Appeals
On automatic appeal, we affirm and hold that: (1) no
prosecutorial misconduct occurred when the prosecutor asked the jury
to consider certain facts and circumstances when weighing statutory
aggravating circumstances against mitigating evidence; (2) the trial
court did not err in allowing the jury to consider relevant facts
and circumstances tending to establish aggravating circumstances or
to rebut mitigating circumstances; (3) the evidence is sufficient to
support a finding that the murder was especially heinous, atrocious,
or cruel in that it involved depravity of mind; (4) the evidence is
sufficient to support a finding that the defendant committed murder
to avoid lawful arrest or prosecution; and (5) the sentence of death
is not disproportionate to the sentence imposed in similar cases.
For all other issues not specifically discussed in this opinion, we
agree with and affirm the Court of Criminal Appeals.
Tenn. Code Ann. § 39-13-206(a)(1) Automatic
Judgment of the Court of Criminal Appeals
William M. Barker, J.,
delivered the opinion of the court, in which
E. Riley Anderson, C.J.,
and Frank F. Drowota,
III, and Janice M.
Holder, JJ., joined.
Adolpho A. Birch, Jr.,
J., filed a dissenting opinion.
Brock Mehler and Michael E. Terry, Nashville, Tennessee, for the
appellant, John David Terry.
Michael E. Moore, Solicitor General; Tonya G. Miner, Assistant
Attorney General, Nashville, Tennessee, for the appellee, State of
On June 15, 1987, the
defendant, John David Terry, shot and killed church handyman James
Matheney and was sentenced to death in 1989. This Court remanded
the case for resentencing after determining that the trial court
erred in charging the jury the aggravating circumstance that the
murder was committed while the defendant was engaged in committing a
The resentencing hearing was
conducted in August 1997, and the jury again returned a verdict of
death based upon its finding of two aggravating circumstances. The
case is now before us on appeal from that judgment.
The events giving rise to the
murder occurred predominantly in March of 1987. At that time, the
defendant was the Associate Bishop Overseer of the Emmanuel Churches
of Christ, a centrally organized governing body of local churches.
He was also the pastor of one of those local churches–the Woodland
Street Church–in Nashville. For several years, the defendant
believed that the current Bishop Overseer would retire at the age of
65, and that he would be appointed the next Bishop.
In March 1987, however, his
expectations were disappointed when the Bishop announced that he was
not going to resign. The defendant testified that soon thereafter,
he became overwhelmed by the sense that he had failed in life, and
he began to contemplate suicide. However, he ultimately pursued a
plan to stage his death and assume a new identity.
In furtherance of his plan,
the defendant, who had been misappropriating church funds since
1984, began to withdraw large sums of money from the church
account. He withdrew five thousand dollars to purchase a motorcycle
and another ten thousand dollars to keep in cash. In April, the
defendant ordered several books advertised in Soldier of Fortune
magazine to learn how to change his identity.
Based on the information he read
in these books, he randomly searched the obituaries at the local
library until he found the obituary of seven-year-old drowning
victim, Jerry Milam, whose birth date was similar to that of the
defendant. He obtained a copy of Jerry Milam’s birth certificate
and forged a copy of a baptismal certificate. Using these
documents, the defendant was able to get a driver’s license, a
social security number, a fictitious mailing address, and the title
to the purchased motorcycle–all in the name of Jerry Milam.
The defendant also made concerted
efforts to befriend the victim, James Matheney, whose ex-wife,
Teresa Seagraves, was a parishioner at the defendant’s church. The
defendant testified that he had wanted to incorporate Mr. Matheney
into his plan to disappear by staging “some kind of a hoax or some
kind of robbery and have . . . [Mr. Matheney] be the one that would
come in and . . . find blood or find some kind of robbery attempt.”
Accordingly, he spent time fostering a
relationship with Mr. Matheney by counseling him through some
personal problems, hiring the unemployed Mr. Matheney as the
church’s second handyman, and renting an apartment for him, paying
the first six weeks’ rent.
On the day of the murder, the defendant and Mr.
Matheney prepared to set out on a fishing trip lasting for several
days. That morning, the defendant picked up Mr. Matheney at his
apartment and drove to the church. He testified that he gave Mr.
Matheney the keys to his car and his credit card to buy gasoline for
his car while he returned phone calls made to the church.
The defendant stated that
approximately thirty minutes later, he heard someone come into the
church. When he went to investigate, he noticed that the fold-down
stairwell leading up to the church attic had been lowered. He
climbed the stairs, saw James Matheney, and shot him in the “side of
the back of the head” with a .38 caliber pistol.
He later cut off the victim’s head
and right forearm.
After undressing the victim down to his underwear and putting his
own belt around the victim’s waist, he placed the clothes in one
sack and the body parts in another sack. Leaving the body up in the
attic, he drove off in his car to first dump the bag containing the
victim’s clothes, the hacksaw, and the knife used to dismember the
body, into a dumpster. Thereafter, he purhased two five-gallon
cans, which he filled with gasoline. He loaded them in the car and
drove to a “mini-warehouse” where his motorcycle was hidden.
Leaving the bag of body parts there, he then drove back to the
church to drop off the gasoline cans.
From there, the defendant drove to the boarding
house where the victim had been renting a room. He parked his car a
few streets away, walked over to the house, and placed his own
wallet in the front room area. He then took a taxi back to the
warehouse, leaving his car parked near the boarding house. Inside
his car he left the following items: a beer bottle; a towel smeared
with the defendant’s own blood that he had withdrawn the previous
night; some of the defendant’s credit cards; and the victim’s tackle
box, rod, and reel. The defendant had placed the victim’s
fingerprints on the beer bottle and credit cards by taking the
victim’s severed forearm and applying the hand to these items.
Back at the warehouse, he
then proceeded on motorcycle, taking the bag of body parts with him,
to Kentucky Lake where he rented a boat. Once on the lake, the
defendant tied a weight of some sort to this bag and dropped it into
the water. He returned to the church after dark, and, according to
his testimony, he removed tattooed pieces of flesh from each of the
victim’s arms, flushing the pieces down the toilet. Finally, he
wrapped the body in a carpet, placed chopped wood in the attic, and
then doused the church with gasoline. After one false start, the
defendant finally set the church ablaze during the early morning
hours of Tuesday, June 16, 1987.
Later that day, the defendant
traveled to Memphis and paid cash for a two-night stay in a motel.
He only stayed the first night, during which he entertained himself
by attending a Double A baseball game. The following day, June 17,
he threw his .38 caliber pistol into the Mississippi river and
called his lawyer. He testified that he “just knew that [he] was in
trouble . . . that [he] had killed somebody.” He then drove back
home to Nashville to turn himself in for the murder.
Meanwhile, the fire department officials
conducted a search of the burned church and discovered the body
wrapped in a carpet. Medical examiner Dr. Charles Harlan, who
conducted the autopsy on the victim’s body, testified that the
decapitation, the amputation of the right forearm, and the excisions
of skin from both shoulders all occurred after the victim’s death.
However, he further testified that “the cause of death [was] not
present in the dismembered body, [but was] located somewhere within
the head.” His examination at the Forensic Science Center revealed
that the head
was very neatly cut all the way across any flesh
area. It was just as smooth as if a steak were to be fileted. . . .
When it came to the bone in the back–through the vertebra in the
back, then those areas were–had real distinct saw marks . . . . The
right arm was cut just below the elbow. It also was obvious that it
was cut very straight, very neat, until it got to the bone portion
and it was a sawing and grains going across the bone that were
obvious to my eye.
On June 18, 1987, police
apprehended the defendant. Detective Robert Moore testified that
the defendant’s demeanor upon arrest was “very matter of fact,” not
demonstrating any emotion whatsoever. Although the defendant was
cooperative, Sergeant Moore explained, “I guess I was looking for
some remorse or some signs. After being involved in a three day
manhunt, like we had, I expected an awful lot more than what I saw.
But I saw nothing but just plain straight up–just no sign of emotion
The State also presented the
testimony of Bishop Ronald Banks. Bishop Banks described in general
the organization of the Emmanuel Churches of Christ, the financial
structure of the church as a whole, the responsibilities of the
Bishop and Assistant Bishop Overseer, and the role of a pastor for a
According to Bishop Banks, David Terry, as the
pastor of a local church, had ultimate control over all business
matters, the theological doctrine, and any administrative matters
concerning his individual church; however, he was required to abide
by the rules and bylaws of the church organization. He failed to
follow church rules when he deposited the proceeds of the sale of
some church property into the tithing account, from which he was
required to draw his salary, instead of into the general fund of the
church. Moreover, the defendant’s withdrawal of money in excess of
his salary was in direct violation of church rules.
In mitigation of the sentence, the defense
presented testimony from some members of the defendant’s family,
former parishioners, prison personnel, and the defendant himself.
The testimony from the defendant’s deceased father, John Calvin
Terry, recorded from a previous proceeding, was read to the jury.
Mr. Terry, Sr., explained how he and his son worked together in the
ministry and further testified to his son’s devotion to his family
and to his ministry.
Rita Kemp, a member of the Emmanuel Churches of
Christ, described how the defendant, of his own volition, visited
her ailing father each time he was admitted to the hospital. She
stated that her father always felt uplifted by the defendant’s
prayers and seemed comforted after his visits. Fellow prison inmate
Michael Whitsey testified that the defendant helped him turn his
life around through prayer sessions and bible study while they were
Mr. Frank Bainbridge, an
ordained deacon in the Catholic Church, testified that he holds
ecumenical nondenominational Christian services in prison. After
meeting the defendant in 1990, he has maintained a steady
relationship with the defendant. He testified that the defendant
often appears “terribly depressed [and] guilt-ridden about what had
The defendant’s brother, Fred
Russell Terry, maintained that the defendant, as a child, was one
who never caused any trouble or problems but was well-loved by
everyone. He testified to the defendant’s “total commitment” to the
“church, family, mom and dad, his family, our family.” However, he
noticed a change in his brother’s disposition when, in early 1987,
he visited the defendant and found him to appear “troubled, maybe
from the stress of the church or stress from something.”
The defendant’s wife, Brenda Terry, also
testified as to his changing behavior during the period between 1984
and 1987. She stated that he initially experienced intense mood
swings and, over time, he became very withdrawn. Moreover, she
testified that during that time, he had difficulty sleeping, he was
gaining weight, and he was unable to perform sexually.
Dr. Robert Begtrup, a retired psychiatrist, who
had originally evaluated the defendant’s competency to stand trial,
testified that although the defendant was not insane at the time of
the offense and was legally competent to stand trial, the defendant
was suffering from major depression when he committed the murder.
Dr. Begtrup characterized the defendant’s
depression as a serious mental illness. He testified that the
defendant’s problem probably started four years prior with the death
of his mother, with whom he was very close and who he regarded as
his “only confidante.” Dr. Begtrup found that the defendant had
never recovered from his mother’s death.
The defendant testified on
his own behalf. He described his disappointment when the Bishop
refused to retire, his subsequent feelings of inadequacy and lack of
control over his life, and his attempts to commit suicide. The
defendant conceded that he contemplated killing James Matheney
before the date of the incident and expressed his sorrow and remorse
over “the worst thing that [he had] ever done.”
The defense also presented other
witnesses who testified that the defendant frequently helped others
while he was incarcerated by holding prayer sessions, bible study,
and otherwise counseling his fellow inmates. Several witnesses
described the defendant as a model prisoner, a model employee in the
prison’s data processing unit, and a regular participant in worship
services at the prison.
At the close of the proof, the jury was
instructed on the following statutory aggravating factors: (1) the
murder was especially heinous, atrocious, or cruel in that it
involved depravity of mind; and (2) the murder was committed for the
purpose of avoiding, interfering with, or preventing a lawful arrest
or prosecution of the defendant for his underlying crime of
embezzlement of church funds. The jury was also instructed to
consider the following non-exclusive list of mitigating
(1) The defendant has no significant history of
prior criminal activity.
(2) The murder was
committed while the defendant was under the influence of extreme
mental or emotional disturbance.
(3) Prior to the commission of the
murder, the defendant had been a positive and contributing member of
the community, as a caring pastor, husband, and parent.
(4) The defendant has accepted
responsibility for his crime and has exhibited remorse.
(5) For the last ten (10) years,
the defendant has exhibited a serious and consistent effort to
rehabilitate himself, by functioning at a high level within the
limits of his confinement.
(6) The capacity of the defendant
to appreciate the wrongfulness of his conduct or to conform his
conduct to the requirements of the law was substantially impaired as
a result of mental disease or defect or intoxication[,] which was
insufficient to establish a defense to the crime but which
substantially affect[ed] his judgment.
(7) Any aspect of the defendant’s
character or record or any aspect of the circumstances of the
offense favorable to the defendant which is supported by the
The jury found that the
State proved the two statutory aggravating circumstances beyond a
reasonable doubt, and that these two aggravating circumstances
outweighed the mitigating circumstances beyond a reasonable doubt.
Consequently, on August 6, 1997, the defendant was again sentenced
to death. The trial court entered a judgment in accordance with the
jury’s verdict, and the Court of Criminal Appeals later affirmed the
The case was automatically
docketed in this Court for review of the death sentence.
After considering the record in this case, this Court requested
additional briefing and argument on the following issues: (1)
whether the prosecutor presented non-statutory aggravating
circumstances to be weighed against the mitigating evidence, and if
so, whether such error adversely affected the sentence; (2) whether
Tennessee Code Annotated section 39-13-204 confines the jury to
weighing only statutory aggravating circumstances against the
mitigating evidence, and whether allowing the jury to consider a
“myriad of factors” in deciding whether death is the appropriate
punishment violates the defendant’s federal right to due process of
law; (3) whether Tennessee Code Annotated section 39-2-203(i)(5) is
unconstitutionally vague, and whether the evidence is sufficient to
support the finding of the aggravator in this case; (4) whether the
Tennessee Code Annotated section 39-2-203(i)(6) aggravating
circumstance is unconstitutionally overbroad as applied, and whether
the evidence is sufficient to support the finding of the aggravator
in this case; and (5) whether the death sentence is an excessive and
disproportionate punishment given the nature of the defendant and
the circumstances of this case.
After reviewing the record and
considering the issues raised by the defendant, we find no
reversible error and affirm the judgment of the trial court and the
judgment of the Court of Criminal Appeals.
I. Prosecutorial Misconduct
The defendant first
contends that the State erred in its closing argument when it asked
the jury to “consider in the balance,” “weigh . . . in the balance,”
and “put in the balance” six “unique circumstances” against the
mitigating proof. Specifically, the prosecutor listed the following
factors on a handwritten chart for the jury to consider: (1)
“extreme premeditation”; (2) “innocent victim”; (3) “brutality of
murder”; (4) “violated private trust”; (5) “burning a church”; and
(6) “concealment of crime.” Next to these factors, the prosecutor
then listed several of the mitigating factors in this case.
The defendant argues that the
prosecution was improperly urging the jury to treat these “unique
circumstances” in the same manner as aggravating circumstances,
i.e., as non-statutory aggravating circumstances to be weighed
in the balance against the mitigating evidence. Although the
defendant concedes that the prosecutor cautioned the jury that these
six “unique circumstances” were not aggravating factors, his concern
is that the State proceeded to treat those circumstances or factors
as non-statutory aggravators by urging the jury to weigh them
against the mitigating evidence.
As a result, the defendant contends that the
prosecutor engaged in misconduct that created a “‘substantial risk
that the death penalty [was] inflicted in an arbitrary or capricious
manner,’ i.e., on the basis of factors other than those
deemed by the legislature to be proper predicates for the sentencing
determination.” Cozzolino v. State, 584 S.W.2d 765, 768
(Tenn. 1979) (quoting Gregg v. Georgia, 428 U.S. 188, 196
(1976)). In response, the State maintains that it was properly
arguing facts and circumstances to establish and assign weight to
the two statutory aggravating circumstances.
This Court has long recognized that closing
arguments are a valuable privilege that should not be unduly
restricted. See State v. Sutton, 562 S.W.2d 820, 823
(Tenn. 1978) (citing Smith v. State, 527 S.W.2d 737 (Tenn.
1975)). Consequently, attorneys are given greater leeway in arguing
their positions before the jury, and the trial court has significant
discretion in controlling these arguments, to be reversed only upon
a showing of an abuse of that discretion. Id.
In a capital sentencing
hearing, evidence may be presented tending to establish or rebut any
statutory aggravating circumstances or mitigating circumstances.
Moreover, a jury must be permitted to consider evidence pertaining
to the nature and circumstances of the crime even if the proof is
not necessarily related to a statutory aggravating circumstance.
State v. Nesbit, 978 S.W.2d 872, 890 (Tenn. 1998). However, the
State may not rely upon non-statutory aggravating circumstances
in seeking the imposition of the death penalty. See id.;
see also State v. Thompson, 768 S.W.2d 239, 251 (Tenn.
At the time of the defendant’s
offense, Tennessee’s capital sentencing procedure required the jury
to make two separate determinations before imposing a sentence of
death: (1) that the State has proven at least one statutory
aggravating circumstance beyond a reasonable doubt; and (2) that the
proven statutory aggravating circumstance(s) outweigh any mitigating
circumstances. Tenn. Code Ann. § 39-13-204(g)(1).
Therefore, in determining whether death is the
appropriate punishment for the offense and for the individual
defendant, the jury is free to consider “a myriad of factors”
relevant to punishment, that is, relevant to establishing and
assigning weight to aggravating and mitigating circumstances.
Nesbit, 978 S.W.2d at 890. This “myriad of factors” serves to
individualize the sentence imposed on each defendant to insure that
the sentence is just and appropriate considering the characteristics
of the defendant and the circumstances of the crime. See
Zant v. Stephens, 462 U.S. 875, 879 (1983).
Evidence appropriate for
the jury’s consideration can include the nature and circumstances of
the crime; the defendant’s character, background history, and
physical condition; any evidence tending to establish or rebut the
aggravating circumstances; and any evidence tending to establish or
rebut any mitigating factors. Tenn. Code Ann. § 39-13-204(c).
We have examined the record in
light of the defendant’s claims and find that the State’s argument
concerning “unique circumstances” was not improper for two reasons.
First, the six factors were within the realm of permissible evidence
contemplated by the statute. Second, after reviewing the closing
argument as a whole, we conclude that the prosecutor properly
offered these “unique circumstances” as specific evidence to support
and give weight to the two statutory aggravating circumstances: (1)
that the murder was heinous, atrocious, or cruel in that it involved
depravity of mind, Tenn. Code Ann. § 39-2-203(i)(5); and (2) that
the murder was committed for the purpose of avoiding, interfering
with, or preventing a lawful arrest or prosecution of the defendant,
Tenn. Code Ann. § 39-2-203(i)(6).
The record reflects that the prosecutor began his
closing argument by introducing the two statutory aggravating
circumstances to be established and by informing the jury that it
had to find that at least one of them had been proven beyond a
reasonable doubt before considering a sentence of death.
Specifically, the prosecutor stated:
We’ve talked about your duties as jurors. And
the Judge is going to get very specific with you. But, basically,
it’s like there’s two charges here that we have to prove beyond a
reasonable doubt. You have to find at least one of them before you
go to the next part of your consideration. Have we proved this was
heinous, atrocious, or cruel? Have we proved the defendant murdered
James Matheney as part of the plan to avoid being prosecuted?
The prosecutor then prefaced his
discussion of the evidence tending to establish these two
aggravating circumstances as follows:
Now, when you analyze and balance
and you talk all about this, individually, and now, collectively,
and the Judge will give you more instructions about that, these two
Aggravating Factors, if you decide that one of them has been proven
beyond a reasonable doubt, then you have to balance them against
anything favorable to the defendant that’s been introduced. They’re
called Mitigating Factors. And how do you balance them?
Well, there are murders and there
are murders. You can kill someone to avoid an arrest by driving by
in a car and shooting them, no thought, no planning. But that’s not
exactly the same thing we have here. Every case is different.
Every case depends on its facts. So it’s the facts, Ladies and
Gentlemen, that decides how important, how serious, how bad this
Well, let me show you some of the
facts, some of [the] things that I think you should consider in the
balance, on how important, how weighty what he did or things that
make it bad. These are not Aggravating Factors, but they are
evidence that make this crime more serious.
The defendant argues that urging the jury to
consider some of the facts in the balance was “prosecutorial sleight
of hand” for treating the specific facts, or “unique circumstances,”
in the same manner as aggravating circumstances, i.e., to be
weighed in the balance against mitigating evidence.
Although the prosecutor did
approach the line of impermissible conduct in his argument, we find
that the trial judge did not err in failing to restrict the
prosecutor’s line of argument. The complained of portion of the
closing argument, when viewed in context with the prosecutor’s
argument as a whole, reveals that the prosecutor first, properly
identified the two aggravating circumstances to be proven, and
second, offered six factors to establish or give weight to these
Even assuming that the prosecutor
approached the line of impermissible conduct, any adverse effects
from his closing argument were erased by the trial court’s
instructions to the jury as to its role in considering the
evidence. Specifically, the trial judge first instructed the jury
that it could only consider the two statutory aggravating
circumstances presented by the State as the basis for determining
whether the death penalty would be appropriate in this case.
The jury was then told that it had to unanimously
find that the State had proven at least one of the two aggravators
beyond a reasonable doubt before considering a penalty of death;
only upon this unanimous determination could the jury then consider
The trial court explained, “If you conclude that
any evidence supports a mitigating circumstance or circumstances,
then you should consider that mitigating circumstance or
circumstances to be established, and then determine the weight to
which it is entitled.” Finally, the trial court instructed the jury
that if it unanimously found that the aggravators outweighed any
mitigating circumstances, the jury shall impose a sentence of death.
It is a well-established presumption in law that
jurors are deemed to have followed the instructions given by the
court, Nesbit, 978 S.W.2d at 894, and we see no evidence from
the record to rebut this presumption. In fact, the record reflects
that after the verdict was read, each juror was polled to determine
whether that individual imposed a sentence of death in accordance
with the trial court’s instructions.
The record indicates that
all twelve jurors, individually and collectively, imposed the death
penalty after finding first, that the two statutory aggravating
circumstances were proven beyond a reasonable doubt, and second,
that the aggravators outweighed the mitigating circumstances.
Therefore, after carefully
reviewing the record, we simply do not find evidence that the jury
was presented with non-statutory aggravating circumstances to be
weighed against mitigating circumstances. Rather, the jury was
properly asked to consider certain facts and circumstances of the
offense establishing and giving weight to the existence of the two
aggravating circumstances. Accordingly, we hold that the
prosecutorial argument was not improper, and therefore, this issue
is without merit.
II. Consideration of Non-Statutory Aggravating Factors
The defendant continues to argue that the trial
court erred in allowing the jury to consider and weigh non-statutory
aggravating circumstances as a basis for imposing the death penalty,
thereby violating the defendant’s constitutional rights. As we have
previously discussed at length, the prosecutor clearly explained to
the jury that the State sought to prove only two statutory
aggravating circumstances. All evidence presented served only to
establish and give weight to these aggravators. Because we hold
that the State did not advance non-statutory aggravating
circumstances, this issue is without merit.
Heinous, Atrocious, or Cruel Aggravating Circumstance (i)(5)
The defendant also
challenges the application of the statutory “heinous, atrocious, or
cruel” aggravating circumstance. At the time of the offense, this
aggravator, set out in Tennessee Code Annotated section
39-2-203(i)(5) (1982), provided that “[t]he murder was especially
heinous, atrocious, or cruel in that it involved torture or
depravity of mind.”
The defendant, citing as authority
the decisions in Houston v. Dutton, 50 F.3d 381 (6th Cir.
1995), and Coe v. Bell, 161 F.3d 320, 332-33 (6th Cir. 1998),
asserts that the definitions of “heinous,” “atrocious,” and “cruel”
are unconstitutionally vague and that the modifier “torture or
depravity of mind” does not serve to cure this problem of
The role of the aggravating
circumstance is to “circumscribe the class of persons eligible for
the death penalty.” See Barclay v. Florida, 463 U.S.
939, 952-56 (1983); Zant, 462 U.S. at 877-78. Statutory
aggravating circumstances are constitutional if they meet two
requirements: “‘First, the circumstance may not apply to every
defendant convicted of a murder; it must apply only to a subclass of
defendants convicted of murder. Second, the aggravating
circumstance may not be unconstitutionally vague.’” Carter v.
Bell, 218 F.3d 581, 607 (6th Cir. 2000) (quoting Tuilaepa v.
California, 512 U.S. 967, 972 (1994)). Therefore, the nature of
the aggravator must be sufficiently definite so as to prevent
arbitrary or discriminatory imposition of death.
We have consistently upheld the constitutionality
of this pre-1989 aggravating circumstance, and we have rejected the
argument that the terms are vague or overbroad. See
Strouth v. State, 999 S.W.2d 759, 764 (Tenn. 1999); State v.
Middlebrooks, 995 S.W.2d 550, 555-56 (Tenn. 1999); State v.
Blanton, 975 S.W.2d 269, 280 (Tenn. 1998); State v. Thompson,
768 S.W.2d 239, 252 (Tenn. 1989). In State v. Williams, 690
S.W.2d 517, 527-30 (Tenn. 1985), we examined the language of the (i)(5)
aggravating circumstance and clarified its application by defining
each term according to its ordinary and natural meaning. The trial
court in this case used the definitions set forth in Williams
in its instructions to the jury:
“Heinous” means grossly wicked or reprehensible;
abominable; odious; vile.
“Atrocious” means extremely evil or cruel,
monstrous, exceptionally bad, abominable.
“Cruel” means disposed to inflict pain or
suffering; causing suffering; painful.
“Depravity” means moral
corruption, wicked or perverse act.
We continue to reject the claim
that this aggravating circumstance is vague or overbroad.
Furthermore, we conclude that the defendant’s reliance on Houston
v. Dutton and Coe v. Bell, Sixth Circuit habeas corpus
decisions holding the (i)(5) aggravating circumstance
unconstitutionally vague, is misplaced. In Middlebrooks, we
recognized that the trial courts in those cases either failed to
define the terms in their instructions to the jury or provided only
incomplete definitions of the terms.
Middlebrooks, 995 S.W.2d at 557. This was not the situation
in this case. Moreover, and more importantly, this Court is not
bound by federal court decisions other than those of the United
States Supreme Court, id. (citing State v. McKay, 680
S.W.2d 447, 450 (Tenn. 1984)), which has not yet held this
aggravating circumstance unconstitutional. Therefore, for the
foregoing reasons, we hold that the (i)(5) aggravating circumstance
is sufficiently definite so as to prevent arbitrary or
discriminatory imposition of the death sentence.
The defendant next contends
that the evidence is insufficient to support the jury’s finding that
this murder involved “depravity of mind.” When the sufficiency of
the evidence supporting an aggravating circumstance is challenged,
the appellate court must determine whether, after viewing the
evidence in the light most favorable to the State, a rational trier
of fact could have found the existence of the aggravating
circumstance beyond a reasonable doubt. See State v.
Nesbit, 978 S.W.2d 872, 886 (Tenn. 1998); State v. Cazes,
875 S.W.2d 253, 259 (Tenn. 1994).
The evidence demonstrates that the
defendant had devised an elaborate scheme to simulate his own death
and then disappear under an assumed identity. His plan involved
murdering an individual similar in size to himself and dismembering
the corpse to remove identifiable body parts so as to make the body
appear to be his own. Consequently, the defendant selected James
Matheney, who was approximately the same size and often wore the
defendant’s clothes. For months, he worked to foster a close
relationship with the victim. Using his position as pastor, he
counseled the victim, employed him, found and paid for his housing,
and eventually earned his trust and friendship.
At the same time, he was hiding weapons at the
scene of the crime in preparation for the murder. Finally, on the
pretense of taking the victim on a fishing trip, the defendant shot
and killed the victim at his own church. After examining the
record, we conclude that this extensive plan to single out the
victim for execution illustrates the “wickedness” and “perverseness”
of the murder and is evidence from which a rational jury could infer
the defendant’s depraved mind at the time he fatally shot the
Moreover, the dismemberment of the corpse
establishes depravity of mind in this case. The key inquiry is the
defendant’s state of mind at the time of the murder. In
Williams, we held that if acts occurring after the death of the
victim are relied upon to show the defendant’s depravity of mind,
then such acts must be shown to have occurred close to the time of
the death to provide a rational basis for the trier of fact to infer
that the defendant’s state of mind at the time of the killing was
depraved. Williams, 690 S.W.2d at 529-30.
The defendant argues that
the time factor propounded by Williams is too relative and
uncertain a standard for distinguishing those persons eligible for
the death penalty. However, the time factor merely assists in
directly relating the post-mortem mutilation to the commission of
the murder, thereby establishing the defendant’s depravity of mind
at the time of the murder. As the Court of Criminal Appeals
reasoned in this case, any dismemberment of a corpse can establish
depravity of mind if the acts can be considered “incident to the
murder and not . . . separate, distinct or independent from it.”
Viewing the evidence in the light
most favorable to the State, the record demonstrates that the
defendant dismembered the victim’s body as soon as fifteen minutes
to one hour after the victim’s death. Additionally, the defendant
concedes that the murder was committed to simulate his own death,
and that the dismemberment of identifying body parts was required to
conceal the victim’s identity.
Specifically, the defendant decapitated the body
and removed a forearm; bagged the body parts and disposed of them in
a lake; sliced off pieces of tattooed flesh and flushed them down
the toilet; and finally, set fire to his own church to burn the body
beyond all recognition. We conclude that the defendant’s
post-mortem acts occurred in close temporal proximity to the
victim’s death, were incident to the murder as part of a plan, and
were of such a despicable nature that a rational jury could easily
infer the defendant’s depraved mind at the time of the murder.
Accordingly, after reviewing the evidence in the
light most favorable to the State, we hold that the evidence is more
than sufficient for any rational trier of fact to find, beyond a
reasonable doubt, that the murder was especially heinous, atrocious,
or cruel in that it involved depravity of mind.
Murder to Prevent Arrest Aggravating Circumstance (i)(6)
The next issue is whether the (i)(6)
aggravating circumstance was supported by the evidence in this
case. This aggravating circumstance provides that “[t]he murder was
committed for the purpose of avoiding, interfering with, or
preventing a lawful arrest or prosecution of the defendant or
another.” Tenn. Code Ann. § 39-2-203(i)(6) (1982).
At the sentencing hearing, the State theorized
that the defendant killed the victim as part of his plan to avoid
arrest or prosecution for his embezzlement of church funds. The
defendant argues that this case presents a novel factual situation
in which the murder did not involve a victim of, or a witness to,
another crime, but rather, it involved an unsuspecting individual
completely unaffiliated with the defendant’s underlying crime of
Thus, the defendant asserts, the evidence does
not support the finding that this murder was committed to avoid
arrest or prosecution for the embezzlement of church funds. In
response, the State argues that this aggravator does not require
that the murder victim know or be able to identify the defendant.
Thus, the State argues, the aggravator was appropriately applied to
the evidence in this case.
Again, we reiterate that the purpose of
legislatively defined aggravating circumstances is to effectively
narrow the class of death-eligible defendants. “If the sentencer
fairly could conclude that an aggravating circumstance applies to
every defendant eligible for the death penalty, the circumstance is
constitutionally infirm.” See Arave v. Creech, 507
U.S. 463, 474 (1993).
We have held that the
language of this aggravator is sufficiently clear to put defendants
on notice of what homicides are punishable by death. See
State v. McCormick, 778 S.W.2d 48, 53 (Tenn. 1989). Moreover,
this statute is sufficiently definite to inform the jury of the
evidence to be proven before a death sentence may be imposed.
The defendant insists that because
the victim in this case was not the victim of the defendant’s crime
of embezzlement, nor a witness to this crime, nor even a law
enforcement officer attempting to arrest the defendant for the
underlying crime, this aggravator may not be applied. We have
previously held that this statute is not limited in its application
to only these situations. See State v. Hall, 976
S.W.2d 121, 133 (Tenn. 1998) (refuting the notion that (i)(6)
applies only when a victim knows or can identify the defendant).
Rather, the focus must remain on the defendant’s motives for
committing the murder. See Hall, 976 S.W.2d at 133
(citing State v. Smith, 868 S.W.2d 561, 580 (Tenn. 1993)).
We do not require that the desire to avoid arrest or prosecution be
the sole motive for killing the victim. Instead, such a desire need
only be one of the purposes motivating the defendant to kill.
See State v. Carter, 714 S.W.2d 241, 250 (Tenn. 1986).
While the facts giving rise
to the crime of embezzlement are undisputed,
there is also evidence, when viewed in a light most favorable to the
State, from which a reasonable jury could find that the defendant
committed murder, at least in part, to prevent his apprehension for
The record shows that the
defendant painstakingly planned his escape to leave behind the “old
David Terry” and start his life anew, under a new identity and
indeed, with a new appearance such that he could remain “dead”
forever. For several months, he purchased legal documents under a
new name, purchased additional life insurance for the provision of
his family, and carefully planned the murder itself to make it look
like he died at the hands of James Matheney. Once the murder was
committed, the defendant altered his appearance so as to avoid
detection and possible apprehension. As Sergeant Moore testified,
I had seen photographs . . . of
John David Terry. . . [but] the person that I saw that morning, I
had no idea who I was looking at. It was just a striking
difference. . . . [H]is head was shaved, he had a dark tan, he was
in casual khaki clothes and he just looked entirely different. I
wouldn’t have known him on the street.
The defendant testified that he had considered
creating the illusion that he had been brutally kidnapped, or that
he otherwise suffered some brutality before “disappearing,” leaving
only his bloodstains as evidence of his questionable demise. Given
these circumstances, a reasonable jury could conclude that because
of his desire to avoid arrest or prosecution for his theft, he
decided, at least in part, to commit murder and leave behind a body,
charred beyond all recognition, to prevent any investigation that
would have inevitably occurred had he merely “disappeared.” As the
State aptly phrases the principle, “law enforcement officials do not
look for dead men, and they are certainly not prosecuted.” As the
State theorized in its closing argument,
He told you that he was thinking about committing
suicide, but the evidence is not there to support it. The evidence
is there to support that this man was going to selfishly leave his
church, leave his family, steal the money, and start new somewhere
else. There’s no evidence to support that he was going to stick a
gun in his mouth and pull the trigger like he told you he tried to
do many times but simply couldn’t do it. There’s no evidence to
support that, because he didn’t have any qualms at all about pulling
that trigger and shooting James Matheney.
He’s planning to leave because
he’s realized he stole the money, he’s going to take out a big
amount to plan his new life. But he has to leave behind the old
David Terry so that he can’t be prosecuted in his new life, so that
he can’t be found. So he plans the plan that you’ve heard about.
He plans to murder James Matheney.
. . . .
. . . The murder was absolutely committed for no
other reason other than for Mr. Terry to get away, to get away from
the church and start a new life, because he’d been stealing. And he
knew that he’d eventually get caught and would be prosecuted.
Examining the evidence in the light most
favorable to the State, we hold that a rational jury could have
concluded beyond a reasonable doubt that the defendant committed
this murder, at least in part, to prevent his arrest for the
separate crime of theft.
We now conduct comparative
proportionality review to determine whether the defendant’s sentence
of death for premeditated first degree murder “is disproportionate
to the sentences imposed for similar crimes and similar
defendants.” State v. Bland, 958 S.W.2d 651, 664 (Tenn.
1997); see also Tenn. Code Ann. § 39-13-206(c)(1)(D)
(requiring reviewing courts to determine whether the death sentence
is excessive or disproportionate to the penalty imposed in similar
cases, considering both the nature of the crime and the defendant).
The purpose of comparative
proportionality review is to ensure that the death penalty is
applied consistently and not arbitrarily or capriciously. The
presumption is that a sentence of death is proportional to the crime
of first degree murder, State v. Hall, 958 S.W.2d 679, 699
(Tenn. 1997), as long as sentencing procedures focus discretion on
the “‘particularized nature of the crime and the particularized
characteristics of the individual defendant,’” McCleskey v. Kemp,
481 U.S. 279, 308 (1987) (quoting Gregg v. Georgia, 428 U.S.
153, 206 (1976)).
Applying the precedent-seeking
approach, we undertake to compare this case to other cases in which
the defendants were convicted of the same or similar crimes.
Bland, 958 S.W.2d at 664. We look at the facts and
circumstances of the crime, the characteristics of the defendant,
and the aggravating and mitigating factors involved. Id.
Because no two cases involve identical circumstances, our objective
cannot be to limit our comparison to those cases where a defendant’s
death sentence “is perfectly symmetrical,” but only “to identify and
to invalidate the aberrant death sentence.” Id. at 665.
In Bland and its progeny,
we enumerated several nonexclusive factors relevant to the process
of identifying and comparing similar cases. These include: (1) the
means of death; (2) the manner of death (e.g., violent or
torturous); (3) the motivation for the killing; (4) the place of
death; (5) the similarity of the victim’s circumstances including
age, race, and physical and mental conditions; and the victim’s
treatment during the killing; (6) the absence or presence of
premeditation; (7) the absence or presence of provocation; (8) the
absence or presence of justification; and (9) the injury to and
effects on nondecedent victims. Id. at 667.
Moreover, we have identified several nonexclusive
factors relevant to the comparison of the characteristics of
defendants: (1) the defendant’s prior criminal record or prior
criminal activity; (2) the defendant’s age, race, and gender; (3)
the defendant’s mental, emotional or physical condition; (4) the
defendant’s involvement or role in the murder; (5) the defendant’s
cooperation with authorities; (6) the defendant’s remorse; (7) the
defendant’s knowledge of the helplessness of victim(s); (8) the
defendant’s capacity for rehabilitation.
Applying these factors, we note that the evidence
in this case demonstrates that the victim was most likely shot in
the back of the head. There is no evidence of provocation. At
least one motivation for this killing was for the defendant to stage
his death and escape into obscurity, thereby avoiding arrest or
prosecution for his underlying crime of embezzlement.
The defendant killed the victim in his own
church. The record indicates that the defendant had planned this
murder for months. He ordered books to learn about how to change
his identity and, using this information, he extensively researched
obituaries at the library until he located a decedent whose identity
he could easily adopt. Putting his plan into motion, he created or
otherwise procured documents necessary to establishing his new
identity. The defendant also carefully selected the murder victim–a
man approximately the same size as himself–whose body would appear
to be his own. For weeks prior to the murder, the defendant
fostered a close relationship with the victim while simultaneously
hiding weapons, clothes, and money taken from the church in
anticipation of committing the murder and making a clean escape.
Once the victim was dead, the defendant expertly dismembered the
body and disposed of the body parts in a lake. After setting the
church on fire, the defendant escaped to Memphis.
The defendant, a middle-aged Caucasian male, was
the pastor of a local church and has no prior record of criminal
activity. Although the defense presented expert proof that he
suffered from major depression at the time of the murder, the proof
also demonstrates that he did not suffer from such a severe mental
illness so as not to understand the criminality of his acts.
Moreover, the record reflects that upon arrest, the defendant, while
cooperative with authorities, was devoid of any feelings of
remorse. While incarcerated, however, the defendant has shown
remorse and has demonstrated a continuous effort to rehabilitate
himself by participating in religious activities, counseling fellow
inmates, and working hard at his job in prison to send money on a
monthly basis to his wife and daughter.
While the facts of this case are admittedly
unique, our research nevertheless reveals several cases containing
similar circumstances. In State v. Carter, 714 S.W.2d 241
(Tenn. 1986), the jury found that the defendant’s motive for the
murder was to kill the victim to avoid arrest for another crime.
The defendant had been planning to steal an automobile and decided
upon the victim’s truck. The defendant shot the victim–a stranger
to the defendant and completely unsuspecting of the impending
crime–and disposed of the body in a lake in an attempt to conceal
the murder and to avoid arrest. The jury imposed the sentence of
death after finding the (i)(6) and (i)(7) aggravating circumstances
beyond a reasonable doubt.
In State v. Smith, 868 S.W.2d 561 (Tenn.
1993), the death penalty was imposed and upheld for a forty-year-old
defendant who murdered his estranged wife and two stepsons.
Witnesses testified that for several months prior to the murder, the
defendant had publicly plotted to kill his family. Expert testimony
revealed that he mutilated two of the bodies shortly after the
victims’ deaths, and the jury concluded that the evidence was
sufficient to support the aggravating circumstance that the offense
was “especially heinous, atrocious, or cruel in that it involved
torture or depravity of mind.” Tenn. Code Ann. § 39-2-203(i)(5).
Moreover, the jury found that the proof supported a finding that at
least one motive for killing the step-sons was the threat they posed
of the defendant’s apprehension. Tenn. Code Ann. § 39-2-203(i)(6).
In State v. Zagorski, 701 S.W.2d 808
(Tenn. 1985), two victims died from gunshot wounds at the hand of
the defendant. The defendant and the victims planned to meet at a
designated location in the woods and conduct a drug transaction;
however, upon arriving at the meeting place, the victims were shot
and their money stolen. The defendant also slit their throats and
left them in the woods. Due to the advanced stage of decomposition
of the bodies, the pathologist performing the autopsy was unable to
tell whether the victims died before or after their throats had been
cut. The jury found the evidence of the needless mutilation of the
victims sufficient to infer that the defendant possessed a depraved
state of mind at the time of the killings. Therefore, the jury
imposed a sentence of death for each killing, finding that (1) the
murders were committed by the defendant while he was engaged in
robbing the victims, Tenn. Code Ann. § 39-2-203(i)(7); and (2) that
the murders were especially heinous, atrocious, or cruel in that
they involved torture or depravity of mind, Tenn. Code Ann. §
In State v. Bondurant, 4 S.W.3d 662 (Tenn.
1999), the defendant beat an unarmed and unsuspecting victim to
death after a card game. The beatings continued for thirty minutes
after the victim had died. Immediately thereafter, the defendant
and his brother dismembered the victim’s body, transported the
pieces to their parents’ home, and burned the corpse. Mitigating
evidence portrayed the defendant as an exemplary son, a good family
man, and a hard-working employee. The jury convicted the defendant
of first degree premeditated murder and arson and sentenced the
defendant to death; the defendant’s convictions were reversed and
the case remanded for a new trial on other grounds.
Moreover, the sentence of death has been affirmed
in cases containing similar mitigating evidence. See
State v. Burns, 979 S.W.2d 276 (Tenn. 1998) (upholding a death
sentence in spite of evidence of the defendant’s religious faith and
involvement); State v. Pike, 978 S.W.2d 904 (Tenn. 1998)
(upholding a death sentence even though defendant had no significant
history of criminal activity and was apparently mentally disturbed
at the time of the murder); State v. Hall, 958 S.W.2d 679
(Tenn. 1997) (upholding a death sentence even though defendant had
no prior criminal record and had a personality disorder and severe
emotional problems at the time of the murder).
We have also found one somewhat similar case in
which the death penalty was not imposed. In State v. Harris,
989 S.W.2d 307 (Tenn. 1999), the jury found the defendant guilty of
first degree murder and imposed a sentence of life imprisonment
without the possibility of parole. The defendant and her friends
had carjacked the victim’s truck late one night. The victim started
screaming for help. Afraid that someone would hear the screams, one
of the defendant’s friends shot and killed the victim. The group
then took the body to a deserted area, dismembered it, and buried
it. At trial, the defendant presented evidence that she suffered
from psychological disorders, was chemically dependent, and had been
abused as a child. A clinical psychologist opined that the
defendant participated in the murder of the victim because she is
dependent upon men and was following her boyfriend’s directions that
night. The State sought the death penalty upon the basis of the (i)(5)
and (i)(6) aggravating circumstances. The jury, based upon the
extensive mitigating proof and the fact that the defendant was not
the actual killer, returned a verdict of life imprisonment.
Although the death penalty may be imposed for an
offense involving circumstances similar to those of an offense in
which only a sentence of life imprisonment is imposed, the death
sentence is not disproportionate if this Court can ascertain some
basis for the imposition of the lesser sentence. Hall, 958
S.W.2d 679, 699 (Tenn. 1997). We find several factors that
distinguish Harris from the case at bar: the defendant’s
extensive mitigating evidence consisting of her psychological
disorders, substance abuse, and traumatic childhood involving sexual
abuse occurring at an early age; the fact that the defendant did not
fire the shot that killed the victim; and finally, the absence of
the extreme premeditation that occurred in this case. Nevertheless,
even if this case could not be distinguished, “the isolated decision
of a jury to afford mercy does not render a death sentence
disproportionate.” State v. Keen, 31 S.W.3d 196, 222 (Tenn.
The defendant argues that
his situation is unique because, unlike the defendants in these
other cases, he had selflessly served the community for many years
prior to suffering a mental breakdown. Although the exact
combination of facts and circumstances in this case is not
replicated in our comparative pool of similar cases, no two cases
are identical. Indeed, we have identified cases involving
circumstances similar to the crime in this case, i.e.,
extreme premeditation, an unarmed victim, mutilation of the victim’s
body, and concealment of the crime to avoid detection and arrest.
Furthermore, we have identified cases containing similar mitigating
evidence, i.e., lack of prior criminal history, existence of
mental illness, and involvement in religious activities. Based on
our review of these cases in which the death penalty was upheld, we
conclude that the defendant’s case, taken as a whole, is not plainly
lacking in circumstances that have previously justified death
sentences. Accordingly, we conclude that the death sentence imposed
for the premeditated murder of victim James Matheney was neither
disproportionate to the penalty imposed in similar cases, nor
In conclusion, we have carefully reviewed the
record, and, based on the facts and circumstances of this case, we
have determined that the defendant’s allegations of error are
without merit. There exists no evidence of prosecutorial
misconduct; the evidence is sufficient to support the jury’s finding
of two statutory aggravating circumstances beyond a reasonable
doubt; and the evidence supports the jury’s finding that the
aggravating circumstances outweigh the mitigating evidence beyond a
reasonable doubt. With respect to issues not specifically addressed
in this opinion, we agree with and affirm the decision of the Court
of Criminal Appeals, authored by Judge David G. Hayes and joined by
Judges David H. Welles and Norma McGee Ogle. Relevant portions of
that opinion are attached as an appendix.
Therefore, we hold that the
sentence of death was neither disproportionate, nor arbitrarily
applied. The conviction and sentence of John David Terry is
affirmed and shall be carried out on the 17th day of October, 2001,
unless otherwise ordered by this Court or proper authority. As the
record reflects that the defendant is indigent, costs of this appeal
are assessed against the State of Tennessee.
WILLIAM M. BARKER, JUSTICE
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
FEBRUARY SESSION, 2000
The appellant, John David
Terry, appeals as of right, his punishment of death by
electrocution. In 1989, the appellant was convicted by a Davidson
County jury of the premeditated murder of James Matheney and was
sentenced to death. At the motion for new trial, the trial court
affirmed the appellant’s conviction but, finding that it had
erroneously charged an invalid aggravating circumstance, granted a
new sentencing hearing.
The State appealed this decision and our supreme court affirmed the
action of the trial court.
See State v. Terry, 813 S.W.2d 420 (Tenn. 1991).
The appellant’s case was remanded to the Criminal Court of Davidson
County for re-sentencing. At the conclusion of the re-sentencing
hearing in August 1997, the jury found the presence of two
aggravating circumstances, i.e., (1) that the murder was
especially heinous, atrocious or cruel, Tenn. Code Ann. §
39-2-203(i)(5) (1982) (repealed 1989), and (2) that the
murder was committed for the purpose of avoiding, interfering with,
or preventing a lawful arrest or prosecution, Tenn. Code Ann. §
The jury further determined that the mitigating circumstances did
not outweigh the aggravating circumstances and imposed a sentence of
death by electrocution. The trial court approved the sentencing
verdict. The appellant appeals presenting for our review the
I. Whether the heinous,
atrocious, cruel aggravating circumstance, Tenn. Code Ann. §
39-2-203(i)(5), is unconstitutionally vague;
II. Whether the evidence is
sufficient to support application of the heinous, atrocious, cruel
aggravating circumstance, Tenn. Code Ann. § 39-2-203(i)(5);
III. Whether Tenn. Code Ann. §
39-2-203(i)(6), murder perpetrated to avoid prosecution, is
IV. Whether the evidence is
sufficient to support application of aggravating circumstance Tenn.
Code Ann. § 39-2-203(i)(6), that the murder was perpetrated to avoid
V. Whether prosecutorial
misconduct during closing argument affected the verdict to the
prejudice of the appellant;
VI. Whether Tennessee’s death
penalty statutes, Tenn. Code Ann. § 39-2-203 and § 39-2-205 are
VII. Whether the jury imposed an
arbitrary and disproportionate sentence.
After review, we find no error of law requiring
reversal. Accordingly, we affirm the jury’s imposition of the
sentence of death in this case.
Proof at the August 1997
Re-sentencing Hearing [DELETED]
I. Imposition of Aggravator (i)(5) [DELETED]
II. Imposition of Aggravator (i)(6) [DELETED]
III. Prosecutorial Misconduct [DELETED]
IV. Constitutional Challenges to Death
The appellant raises numerous challenges to the
constitutionality of Tennessee’s death penalty provisions. The
appellant concedes that these issues have been previously rejected
by the Tennessee Supreme Court, however, he raises these challenges
to preserve them for future appellate review. Specifically,
included within his challenge that the Tennessee death penalty
statutes violate the Fifth, Sixth, Eighth and Fourteenth Amendments
of the United States Constitution, and Article I, Sections 8, 9, 16,
and 17, and Article II, Section 2 of the Tennessee Constitution are
1. Tennessee’s death
penalty statutes fail to meaningfully narrow the class of death
eligible defendants, specifically, the statutory aggravating
circumstances set forth in Tenn. Code Ann. § 39-2-203(i)(2), (i)(5),
(i)(6), and (i)(7) have been so broadly interpreted whether viewed
singly or collectively, fail to provide such a “meaningful basis”
for narrowing the population of those convicted of first degree
murder to those eligible for the sentence of death.
This argument has been rejected by our supreme court. See
State v. Vann, 976 S.W.2d 93, 117-118 (Tenn. 1998)
(Appendix), cert. denied, – U.S. –, 119 S.Ct. 1467 (1999);
State v. Keen, 926 S.W.2d 727, 742 (Tenn. 1994).
2. The death sentence is imposed
capriciously and arbitrarily in that
(a) Unlimited discretion is
vested in the prosecutor as to whether or not to seek the death
penalty. This argument has been rejected. See Hines,
919 S.W.2d 573, 582 (Tenn. 1995), cert. denied, 519 U.S. 847,
117 S.Ct. 133 (1996).
(b) The death penalty is imposed
in a discriminatory manner based upon economics, race, geography,
and gender. This argument has been rejected. See Hines,
919 S.W.2d at 582; State v. Brimmer, 876 S.W.2d 75, 87
(Tenn.), cert. denied, 513 U.S. 1020, 115 S.Ct. 585 (1994);
Cazes, 875 S.W.2d at 268; State v. Smith, 857 S.W.2d
1, 23 (Tenn.), cert. denied, 510 U.S. 996, 114 S.Ct. 561
(c) There are no uniform
standards or procedures for jury selection to insure open inquiry
concerning potentially prejudicial subject matter. This argument
has been rejected. See State v. Caughron, 855 S.W.2d
526, 542 (Tenn.), cert. denied, 510 U.S. 979, 114 S.Ct. 475
(d) The death qualification
process skews the make-up of the jury and results in a relatively
prosecution prone guilty-prone jury. This argument has been
rejected. See State v. Teel, 793 S.W.2d 236, 246
(Tenn.), cert. denied, 498 U.S. 1007, 111 S.Ct. 571 (1990);
State v. Harbison, 704 S.W.2d 314, 318 (Tenn.), cert.
denied, 470 U.S. 1153, 106 S.Ct. 2261 (1986).
(e) Defendants are prohibited
from addressing jurors’ popular misconceptions about matters
relevant to sentencing, i.e., the cost of incarceration
versus cost of execution, deterrence, method of execution. This
argument has been rejected. See Brimmer, 876 S.W.2d
at 86-87; Cazes, 875 S.W.2d at 268; Black, 815 S.W.2d
(f) The jury is instructed that
it must agree unanimously in order to impose a life sentence, and is
prohibited from being told the effect of a non-unanimous verdict.
This argument has been rejected. See Brimmer, 876
S.W.2d at 87; Cazes, 875 S.W.2d at 268; Smith, 857
S.W.2d at 22-23.
(g) Requiring the jury to agree
unanimously to a life verdict violates Mills v. Maryland and
McKoy v. North Carolina. This argument has been rejected.
See Brimmer, 876 S.W.2d at 87; Thompson, 768
S.W.2d at 250; State v. King, 718 S.W.2d 241, 249 (Tenn.
1986), superseded by statute as recognized by, State v.
Hutchinson, 898 S.W.2d 161 (Tenn. 1994).
(h) The jury is not required to
make the ultimate determination that death is the appropriate
penalty. This argument has been rejected. See Brimmer,
876 S.W.2d at 87; Smith, 857 S.W.2d at 22.
(i) The defendant is denied final
closing argument in the penalty phase of the trial. This argument
has been rejected. See Brimmer, 876 S.W.2d at 87;
Cazes, 875 S.W.2d at 269; Smith, 857 S.W.2d at 24;
Caughron, 855 S.W.2d at 542.
3. Death by electrocution
constitutes cruel and unusual punishment. This argument has been
rejected. See Black, 815 S.W.2d at 179; see also
Hines, 919 S.W.2d at 582.
4. The reasonable doubt
instruction violates due process. This argument has been routinely
rejected. See Vann, 976 S.W.2d at 116 (Appendix);
Nichols, 877 S.W.2d at 734; Bush, 942 S.W.2d at 504-05.
5. The appellate review process
in death penalty cases is constitutionally inadequate in that (1)
the reviewing court cannot properly evaluate the proof due to the
absence of written findings concerning mitigating circumstances; (2)
the information relied upon for comparative review is inadequate and
incomplete; (3) the methodology is flawed because the pool of cases
is unduly narrow, the determination is entirely subjective, and the
review fails to properly function as a safeguard. This argument has
been rejected by our supreme court on numerous occasions. See
Cazes, 875 S.W.2d at 270-71; State v. Harris, 839
S.W.2d 54, 77 (Tenn. 1992), cert. denied, 507 U.S. 954, 113
S.Ct. 1368 (1993); Barber, 753 S.W.2d at 664. Moreover, the
supreme court has recently held that, “while important as an
additional safeguard against arbitrary or capricious sentencing,
comparative proportionality review is not constitutionally
required.” See State v. Bland, 958 S.W.2d 651, 663
(Tenn. 1997), cert. denied, 523 U.S. 1083, 118 S.Ct. 1536
Based upon the above case
decisions, the appellant’s constitutional challenges to Tennessee’s
death penalty statutes are rejected.
V. Proportionality Review [DELETED]
In accordance with the mandate
of Tenn. Code Ann. § 39-13-206(c)(1) and the principles adopted in prior
decisions of the Tennessee Supreme Court, we have considered the entire
record in this cause and find that the sentence of death was not imposed
in any arbitrary fashion, that the evidence supports, as previously
discussed, the jury’s finding of the statutory aggravating
circumstances, and the jury’s finding that the aggravating circumstances
outweighed mitigating circumstances beyond a reasonable doubt. Tenn.
Code Ann. § 39-13-206(c)(1)(A)(C). 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.
Likewise, we have considered the appellant’s sentencing issues raised on
appeal and have determined that none have merit. Accordingly, the
appellant’s sentence of death by electrocution is affirmed.
DAVID G. HAYES, Judge
DAVID H. WELLES, Judge
NORMA MCGEE OGLE, Judge
The defendant was originally convicted of first degree murder
and arson in 1989. The jury sentenced the defendant to death
after finding that the State had proven the existence of two
aggravating circumstances beyond a reasonable doubt: (1) the
murder was especially heinous, atrocious, or cruel in that it
involved depravity of mind, Tenn. Code Ann. § 39-2-203(i)(5)
(1982); and (2) the murder was committed while the defendant was
engaged in committing, or was an accomplice in the commission
of, or was attempting to commit, or was fleeing after committing
or attempting to commit larceny, Tenn. Code Ann. §
39-2-203(i)(7) (1982). The defendant filed a motion for a new
trial and for a new sentencing hearing. The trial court denied
the motion for a new trial on the issue of guilt or innocence;
however, the trial court found that it had erroneously charged
to the jury the (i)(7) aggravating circumstance, and therefore,
it granted a new sentencing hearing. The State appealed; we
affirmed the trial court’s decision in State v. Terry,
813 S.W.2d 420 (Tenn. 1991).
The record reflects that Mr. Matheney was approximately the same
size as the defendant and often wore the defendant’s clothing.
On cross-examination, the defendant testified that he had, some
two or three weeks prior, hidden a duffel bag containing the gun
and some getaway clothes in the attic. However, the record is
unclear why Mr. Matheney went into the attic in the first
place. On cross-examination, the prosecutor alluded to the fact
that the defendant purposely sent him upstairs to perform some
maintenance work; the defendant denied such an allegation.
Although the defendant testified that he had waited between one
and two hours before removing parts of the body, medical
examiner Dr. Charles Warren Harlan, who conducted the autopsy on
the victim’s body, testified that the removal of these body
parts could have occurred as soon as ten to fifteen minutes
after the time of death.
Because this offense occurred before the 1989 amendments to the
capital sentencing statute, the trial court should not have
instructed the jury regarding the weighing standard under the
language of the amended statute. In State v. Brimmer,
876 S.W.2d 75, 82 (Tenn. 1994), we held that the legislature
intended that sentencing hearings must be conducted in
accordance with the law in effect at the time of the offense
because the 1989 amendments contained no express or implied
retroactivity clause. However, as the instructions required the
jury to impose the death penalty on a higher standard of proof,
any irregularity is harmless.
See Tenn. Code Ann. § 39-13-206(a)(1) (1997) (“Whenever
the death penalty is imposed for first degree murder and when
the judgment has become final in the trial court, the defendant
shall have the right of direct appeal from the trial court to
the court of criminal appeals. The affirmance of the conviction
and the sentence of death shall be automatically reviewed by the
Tennessee supreme court.”).
Application of this pre-1989 version of the (i)(5) aggravating
circumstance is proper as the offense was committed in 1987.
See State v. Brimmer, 876 S.W.2d 75, 82 (Tenn. 1994).
The trial court correctly deleted “torture” from the
instruction, as both parties concede that the evidence does not
support a finding that the murder involved torture. See
State v. Van Tran, 864 S.W.2d 465, 478-79 (Tenn. 1993)
(citing State v. Pritchett, 621 S.W.2d 127, 139-40 (Tenn.
1981) (holding that a trial court should charge only those
aspects of an aggravating circumstance supported by the evidence
in a case)).
In Houston v. Dutton, the whole instruction given to the
jury regarding the “heinous, atrocious, or cruel” aggravating
circumstance was as follows: “The murder was especially heinous,
atrocious, or cruel in that it involved torture or depravity of
mind.” Houston, 50 F.3d at 387. The federal court found
the trial court’s jury instruction to be constitutional error.
Similarly, in Coe v. Bell, the federal court again found
the trial court’s jury instructions constitutionally infirm in
that they were incomplete. Charging all aspects of this
aggravator, the trial court only provided definitions for the
terms “heinous,” “atrocious,” and “cruel” and did not define
“torture” or “depravity of mind.” Coe, 161 F.3d at 333.
The record reflects that for several years prior to the murder,
the defendant had committed a predicate crime, separate and
distinct from the murder, of the embezzlement of church funds.
The defendant testified that he first started “skimming money”
out of the church’s accounts in 1984. Although the evidence
revealed that the pastor of a church had absolute control and
discretion over all church accounts and in fact, was supposed to
withdraw a salary from the church’s tithe account, the defendant
unlawfully withdrew sums of money in excess of his salary for
his own personal use. He testified that in 1984, when he was
considering resigning from the ministry, he used church money to
pay for a commercial driver’s course and to buy a van. In
response to questioning, the defendant conceded that he “just
used [the money] because it was available.” He eventually
admitted that he “stole” the money. In addition, in March 1987,
the defendant deposited over $33,000 into either the church’s
tithe account or into his own personal account. Of this money,
the defendant spent $5,000 on the purchase of the motorcycle
used in leaving Nashville after the murder; he paid $15,000 to
his attorney when he returned from Memphis; and he hid $10,400
in cash at his residence.
Specifically, the trial court found that it had erroneously
instructed the jury upon the (i)(7) aggravator, that the murder
was committed while the defendant was engaged in committing a
larceny. See Tenn. Code Ann. § 39-2-203(i)(7).
The supreme court’s review was limited to the application of the
felony murder aggravating circumstance. The appellant did not
cross-appeal his conviction for first degree murder.
Prior to the re-sentencing hearing, the State filed an
interlocutory appeal with this court to determine whether the
State was permitted to assert a new aggravating circumstance,
Tenn. Code Ann. § 39-2-203(i)(6) upon remand. Under the
authority of State v. Harris, 919 S.W.2d 323 (Tenn.
1996), this court permitted the State to introduce proof of any
aggravating circumstance which is otherwise legally valid.
See State v. John David Terry, No.
01C01-9201-CR-00304 (Tenn. Crim. App. at Nashville, June 28,
1995), as modified, (Tenn. Crim. App. at Nashville, July
We note that factors (i)(2) and (i)(7) do not pertain to this
case as they were not relied upon by the State. Thus, any
individual claim with respect to these factors is without
merit. See, e.g., Hall, 958 S.W.2d at 715;
Brimmer, 876 S.W.2d at 87.
The United States Supreme Court, acknowledging recent amendments
to Section 922.10 of the Florida statutes permitting election
between death by electrocution or death by lethal injection,
dismissed as moot a grant of certiorari in a capital habeas
corpus action to determine whether there is evidence to show
that a particular method of execution, i.e.,
electrocution, violates the Eighth Amendment protection against
cruel and unusual punishment. Bryan v. Moore, No.
99-6723 (U.S. Jan. 24, 2000). This ruling implies that the
issue now before this court is likewise moot. See Tenn.
Code Ann. § 40-23-114(c) (1998 Supp.) (election by capital
defendant of death by electrocution or death by lethal
No execution date is set. Tenn. Code Ann. § 39-13-206(a)(1)
provides for automatic review by the Tennessee Supreme Court
upon affirmance of the death penalty. If the death sentence is
upheld by the higher court on review, the supreme court will set
the execution date.