State v. Odom

IN THE SUPREME COURT OF TENNESSEE
AT MEMPHIS
November 4, 2010 Session

STATE OF TENNESSEE v. RICHARD ODOM

Automatic Appeal from the Court of Criminal Appeals
Criminal Court for Shelby County
No. 91-07049 Chris Craft, Judge

No. W2008-02464-SC-DDT-DD - Filed March 3, 2011

The defendant was convicted of first-degree murder in the perpetration of rape. In the
penalty phase of the trial, the jury imposed a sentence of death, finding three aggravating
circumstances beyond a reasonable doubt: (1) the defendant was previously convicted of one
or more violent felonies; (2) the murder was especially heinous, atrocious, or cruel; and (3)
the murder was committed during the defendant’s escape from lawful custody or from a place
of lawful confinement. The Court of Criminal Appeals affirmed the conviction, but reversed
the death sentence, holding that the trial court’s limitation on the mitigating evidence during
the penalty phase required a new sentencing hearing. This Court affirmed. A second jury
sentenced the defendant to death, concluding that the single aggravating circumstance, that
the defendant had previously been convicted of one or more violent felonies, outweighed the
mitigating circumstances beyond a reasonable doubt. The Court of Criminal Appeals
affirmed. This Court reversed, holding that because the trial court had erroneously admitted
detailed evidence of the defendant’s prior violent felony offense, a third sentencing hearing
was required. The jury again imposed a sentence of death, concluding that two statutory
aggravating factors, that the defendant had been previously convicted of a felony involving
the use of violence to the person and that the murder was committed while the defendant was
engaged in the commission of a robbery, had been established beyond a reasonable doubt,
and further determining that the aggravating circumstances outweighed the evidence of the
mitigating circumstances beyond a reasonable doubt. This sentence was affirmed by the
Court of Criminal Appeals. Upon careful review of the entire record, we hold as follows:
(1) the defendant’s constitutional right to a fair and impartial jury was not violated by the
disqualification of a prospective juror; (2) the prosecutor’s closing argument did not result
in the use of non-statutory aggravating factors in the jury’s weighing process warranting
reversal of the death sentence; (3) the admission of photographs of the body did not
constitute error; (4) the trial court’s instructions on parole did not violate the defendant’s
right to due process of law and heightened reliability; (5) the mandatory criteria of Tennessee
Code Annotated section 39-13-206(c)(1) are satisfied; and (6) the reduction of the amount
of compensation sought by appellate defense counsel by a judge on the Court of Criminal
Appeals did not require his disqualification from participating in this case. The judgment of
the Court of Criminal Appeals is, therefore, affirmed.

Tenn. Code Ann. § 39-13-206(a)(1); Judgment of the Court of Criminal Appeals is
Affirmed

G ARY R. W ADE, J., delivered the opinion of the Court, in which C ORNELIA A. C LARK, C.J.,
J ANICE M. H OLDER, W ILLIAM C. K OCH, J R., and S HARON G. L EE, JJ., joined.

Brock Mehler, Nashville, Tennessee and Gerald Skahan, Memphis, Tennessee, for the
appellant, Richard Odom.

Robert E. Cooper, Jr., Attorney General and Reporter; James E. Gaylord, Assistant Attorney
General; William L. Gibbons, District Attorney General, for the appellee, the State of
Tennessee.

OPINION
Procedural Background
On May 10, 1991, Richard Odom (the “Defendant”) raped and stabbed to death Mina
Ethel Johnson (the “victim”) in a Memphis parking garage. A year later, he was convicted
of first-degree murder committed in the perpetration of rape. See State v. Odom, 928 S.W.2d
18, 20 (Tenn. 1996) (“Odom I”). The jury found three aggravating circumstances beyond
a reasonable doubt: (1) the Defendant was “previously convicted of one or more violent
felonies; (2) the murder was especially heinous, atrocious, or cruel; and (3) the murder was
committed during the [D]efendant’s escape from lawful custody or from a place of lawful
confinement.” Id. at 20-21 (citing Tenn. Code Ann. § 39-13-204(i)(2), (5), (8) (Supp. 1995)).
After determining that the aggravating circumstances outweighed the mitigating
circumstances beyond a reasonable doubt, the jury sentenced the Defendant to death by
electrocution. Id. at 21. Our Court of Criminal Appeals affirmed the conviction but reversed
the death sentence and ordered a second sentencing hearing. See State v. Odom, No. 02C01-
9305-CR-00080, 1994 Tenn. Crim. App. LEXIS 689, at *2 (Tenn. Crim. App. Oct. 19,
1994).

This Court affirmed the Court of Criminal Appeals’ determination that the trial court
had erred during the penalty phase by excluding mitigating evidence in the form of a doctor’s
testimony and by improperly instructing the jury as to non-statutory mitigating circumstances.
However, this Court further held that the evidence was insufficient to support the jury’s
determination that the murder was especially heinous, atrocious or cruel and that there was
“no justification” to support its finding that the murder was committed by the Defendant

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while he was in lawful custody or in a place of lawful confinement or during the Defendant’s
escape from lawful custody or confinement. Odom I, 928 S.W.2d at 21, 27.

On remand, the second jury also sentenced the Defendant to death, concluding that
a single applicable aggravating circumstance, that the Defendant had previously been
convicted of one or more violent felonies, outweighed the mitigating circumstances beyond
a reasonable doubt. State v. Odom, 137 S.W.3d 572, 575 (Tenn. 2004) (“Odom II”). The
Court of Criminal Appeals affirmed the sentence of death. State v. Odom, No. W2000-
02301-CCA-R3-DD, 2002 Tenn. Crim. App. LEXIS 871, at *131 (Tenn. Crim. App. Oct.
15, 2002). On appeal, this Court ordered a third sentencing hearing, holding that the trial
court had erroneously admitted “detailed and graphic evidence” of the Defendant’s prior
violent felony offense.1 Odom II, 137 S.W.3d at 586-87.

Third Sentencing Hearing
At the third sentencing hearing, the State offered proof that at approximately 1:15 p.m.
on the date of her murder, the victim, a seventy-eight-year-old woman, left the residence of
her sister, Mary Louise Long,2 for an appointment with Dr. Stanley Zellner, a podiatrist.
When the victim had not returned by 4:30 p.m., Ms. Long called Dr. Zellner, who informed
her that the victim had failed to attend her scheduled appointment. Ms. Long first telephoned
the police department to report the victim’s disappearance and then contacted John Sullivan,
a long-time acquaintance, who agreed to help look for the victim. The two “traced the route”
the victim had to drive and found her car in a parking garage. When Sullivan approached the
vehicle, he observed the body of the victim on the floor of the backseat. After returning to
the car, he did not inform Ms. Long what he had seen, explaining that “she was a very
nervous, high strung person.” As he drove out of the parking garage, Sullivan encountered
a police car parked on a nearby street and told the officer where he could find the body.
Sullivan then drove Ms. Long to her residence before returning to the crime scene to provide
the police with a statement.

1
The trial court applied a 1998 amendment to Tennessee Code Annotated section 39-13-204(c),
which “allowed the prosecution to prove the facts and circumstances of . . . [a] prior felon[y] . . . to establish
the aggravating circumstance in Tennessee Code Annotated section 39-13-204(i)(2).” Odom II, 137 S.W.3d
at 580; see also Act of Apr. 23, 1998, ch. 915, § 1, 1998 Tenn. Pub. Acts 646, 646. However, the previous
version of the statute, which was in effect at the time of this offense in 1991, did not permit such proof. See
Tenn. Code Ann. § 39-13-204(c) (1991). This Court had “consistently held that it was ‘not appropriate to
admit evidence regarding specific facts of the crime resulting in the previous conviction, when the conviction
on its face shows that it involved violence or the threat of violence to the person.’” Odom II, 137 S.W.3d at
580 (quoting State v. Bigbee, 885 S.W.2d 797, 811 (Tenn. 1994)). The trial court’s retroactive application
of the 1998 amendment ran afoul of our decision in State v. Powers, 101 S.W.3d 383 (Tenn. 2003).
2
Ms. Long died prior to the third sentencing hearing. Her testimony at the initial proceeding was
read into evidence.

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 Donna Michelle Locastro, who was employed by the Memphis Police Department at
the time of the murder, had taken Ms. Long’s missing person’s call prior to the discovery of
the body. She and her partner, Don Crowe, first called the local hospitals, the city wrecker
dispatch, and the traffic bureau before setting out on the route the victim would have driven
to her appointment. The officers arrived at the parking garage at approximately 8:00 p.m.,
shortly after Sullivan had discovered the body. When Officer Locastro looked inside the
vehicle, she noticed what appeared to be blood on the right front passenger’s seat and a
wallet wedged between the emergency brake and the driver’s seat. She also saw that the
victim was clutching what appeared to be a check in her left hand. She and other officers
secured the area and contacted the homicide unit.

Detective Ronnie McWilliams, who was assigned to the case on the day after the
murder, testified that a fingerprint found in the vehicle led to the identification of “Otis
Smith” as a potential suspect. Three days after the murder, “Smith” was arrested. He had
in his possession an “Old Timer’s Light Blade Knife,” which had a fold-out blade of over
four inches. During the arrest, Detective McWilliams informed “Smith” of his rights. When
he signed a waiver, however, Detective McWilliams observed that “Smith” had started to
sign another name. Later, when his true identity was established, “Smith” signed a second
waiver under the name Richard Odom.

In a written statement to the police, the Defendant, thirty years old at the time and
unemployed, admitted killing the victim and provided details of the crime. He stated that just
before the murder, he was in the stairwell trying to relax. When another individual entered
the stairway, he entered the garage area at the same time the victim arrived. Claiming that
he intended only to steal her purse so he could “get something to eat and catch a nap,” he told
officers that when he ran over to grab her purse, he “somehow grabbed her arm or hand or
whatever and we kind of fell back into the car.” He stated that he always kept his knife open
because of potential danger in the area and that “somehow or another,” while “[p]ushing the
lady off of me and over the back seat . . . [,] I managed to . . . cut her, I guess.” The
Defendant also told the police that when “[t]he lady called me, son, . . . I told her, I would
give her a son [and] I went to the back . . . seat with her. I don’t know if I stabbed her when
I got in the back seat with her or when I got back in the front seat.” The Defendant admitted
that he raped the victim and insisted that she was still alive at the time, claiming that she
remarked that she had never had sex before. He told police that he could not remember
whether he had stabbed the victim again after the rape. The Defendant acknowledged
searching the victim’s purse and wallet, but claimed that he found nothing of value and left
the items in the car. While admitting that he took the victim’s car keys, he stated that he
threw them away as he left the parking garage. At the conclusion of his interrogation, the
Defendant remarked, “I need help mentally and psychologically, something I can’t express
just freely and openly.”

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 Dr. Jerry Thomas Francisco, the Shelby County Medical Examiner at the time of the
murder, conducted the autopsy. He found a stab wound at the front of the victim’s chest and
two on the right side of her body towards the back. He also observed cuts on the victim’s
right hand, which he described as defensive wounds. The knife wound to the front of her
chest passed into the right side of the heart, causing two tears which, in turn, caused blood
to accumulate in the heart cavity and the left side of her chest. A wound near the side
penetrated her chest cavity and produced a tear in the lung, which caused bleeding in the lung
cavity. The other wound to the side passed through her abdominal cavity into the liver,
which produced bleeding in the peritoneal cavity. Dr. Francisco, who determined that the
victim was 5 feet 6 inches in height and weighed 113 pounds, characterized each of the three
wounds as lethal. In his opinion, the victim died between one and two hours after the
wounds were inflicted. During his examination of the body, Dr. Francisco also discovered
a tear of the vagina, a wound he described as caused by forcible penetration. Fluid samples
from the victim’s vaginal area “[r]evealed the presence of sperm and enzymes that are
present in seminal fluid.” It was Dr. Francisco’s opinion that the vaginal injuries were likely
the product of forcible rape.

The proof also established that the Defendant had been convicted of murder in Rankin
County, Mississippi in 1998, seven years after the victim’s murder. The 1998 conviction was
for a murder that had occurred some twenty years earlier. The Defendant was sentenced to
a term of life. At the request of defense counsel, the judgment of conviction was admitted
as an exhibit so that the jury would understand that there was “a detainer in Mississippi
waiting on [the Defendant] no matter what happens in this case.” 3

The defense counsel, in an effort to persuade the jury to spare the Defendant’s life,
called Glori Shettles, an investigator who was qualified as an expert in the field of mitigation,
and several other witnesses to testify. Because Ms. Shettles had previously worked for the
Tennessee Board of Probation and Parole, she also qualified as an expert in parole procedure
and policies. She testified that her background study indicated that the Defendant, who had
one older and one younger sister, was born in 1960 to Norman and Nellie Smith, who were
twenty and seventeen years old respectively. Ms. Shettles described his home life as
“unstable” and testified that his mother abandoned the family before the Defendant was two-

3
When a juror asked if a prior conviction could be considered an aggravating factor, the trial court
explained that “I cannot discuss with you whether you should find it to be an aggravating circumstance,” but
confirmed that the State was seeking to prove two aggravating circumstances, one of which was a prior
felony conviction involving the use of violence to the person.

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and-a-half years old. The Defendant never saw his birth mother again.4 After the Defendant
and his sisters were sometimes left at a daycare center “for days,” the State intervened and
the Defendant and his two sisters were adopted by members of the Odom family. The
Defendant was adopted by Jimmy and Shirley Odom, who had three biological children at
the time: Cindy, Jimmy Jr., and Larry, ranging in ages from two to seven. When the
Defendant, at age three, joined the Odom family, he had cigarette burns on his body. Burns
on his feet were so severe that he was unable to wear socks and shoes. About a year after
adopting the Defendant, the Odoms divorced, and his adoptive mother married Marvin
Bruce, who allegedly mistreated the Defendant and his brother Larry. 5 According to Ms.
Shettles, Bruce used “excessive discipline” on both boys and ridiculed the Defendant for
wetting the bed by hanging his sheets and clothes outside for others to see. Ms. Shettles also
learned that when the Defendant and Larry were bathing, Bruce would “would scrub them
excessively . . . would pull and tug on their penis [and] call them names and make fun of
them.” Her investigation indicated the Defendant had also endured cruelty at the hands of
Shirley Odom’s mother, who never accepted the Defendant as part of the family and treated
him differently from her biological grandchildren; no one Ms. Shettles interviewed “[had]
the impression that [Shirley Odom’s mother] cared anything for” the Defendant.

The Defendant, when an adolescent, ran away from the Bruce home and subsequently
was ordered into the Mississippi juvenile court system. A psychological evaluation
performed for the authorities there when the Defendant was fourteen years old indicated that
he suffered from impaired insight, memory, and reasoning. He was diagnosed as having a
moderate to severe personality disturbance. The evaluator determined that the Defendant
only read at “a beginning second grade level” and “strongly urge[d that he not be] place[d]
. . . in any academic situation.” It was recommended that he enter a “complete evaluation
program” in order to avoid psychosis or mental deterioration to the point of
institutionalization.

Thereafter, the Defendant was placed in a Caritas program, but was found unfit to
participate after thirty days. After his release in 1975, the Defendant was returned to the
juvenile authorities. He escaped to be with his birth father, who lived one hundred and thirty
miles away. Afterward, he voluntarily returned and was placed at the Columbia Training

4
Although the Defendant’s birth father was still alive at the time of trial, he declined to attend the
trial because of poor health. The Defendant’s birth mother declined Ms. Shettles’ requests for an interview,
but had previously acknowledged to others that she “wasn’t mother material.”

5
At the time of the sentencing hearing, Larry Odom was serving a seventy-five month sentence in
the Oregon State Penitentiary for a 2001 sexual battery conviction.

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Center.6 According to Ms. Shettles, the Defendant tried to run away from Columbia several
times. Because on one occasion the Defendant was treated for “a severe contusion of the
right eye and jaw,” Ms. Shettles speculated that he had been beaten while institutionalized
there. During this period, a psychologist, who predicted that the Defendant would be
incarcerated his whole life, described him as “brain damaged, incorrigible, antisocial, unable
to respond to usual social contingency program [sic] and a loser with respect to probable
adult adjustments.” The psychologist also believed that the Defendant was “untreatable,
unmanageable and a liability to society for the rest of his natural life,” commenting that “if
this youngster changes for the better, it will be an act of God.” When the Defendant was
fifteen, he was conditionally released and, for a time, helped care for his uncle, who had lost
his legs to gangrene.

Ms. Shettles then addressed the Defendant’s record at Riverbend Maximum Security
Prison, where he had been incarcerated since 1992. During the period since the victim’s
murder, he had obtained his GED and a paralegal certification. He worked as a teacher’s
aide, participated in life skills and Bible study classes, and also engaged in various arts and
crafts. He was described by a correctional officer as a hard worker, having a positive
attitude, being helpful, and treating other inmates and staff with courtesy. The Defendant’s
only infraction was in 1996, when he threw a mop bucket towards a guard, who, while
standing behind a glass barrier, had allegedly taunted him. Ms. Shettles remarked that one
write-up during this period of time was an “extremely low number.” She also commented
that the Defendant’s prison record was “very positive,” rating “in the top three.”

In her capacity as an expert on parole procedures, Ms. Shettles described the
Defendant’s chances for release on a life sentence as “close to impossible.” She made
specific reference to the Defendant’s other murder conviction in Mississippi, his escape from
jail just prior to the murder of the victim, and prior theft and robbery convictions.7 She also
testified that even if the Defendant received parole in Tennessee, he would be returned to
Mississippi to serve the remainder of the life sentence there.

6
Ms. Shettles testified that in 1977, a class action lawsuit was filed “on behalf of the people that had
been housed at Columbia Training Center,” see Morgan v. Sproat, 432 F. Supp. 1130 (S.D. Miss. 1977),
which involved allegations of constitutional violations based on the treatment of the youth who resided there.
She also testified that in 2002, the United States Attorney General conducted an investigation regarding
alleged civil rights violations, including “unconstitutionally abusive disciplinary practices such as hogtying,
pole shackling, improper use and over use of restraints and isolation, [and] staff assaulting youths.”
7
The trial court instructed the jury that the escape was not to be used as an aggravating circumstance,
and that the evidence could only be considered, if at all, “to rebut any mitigating circumstances about his
behavior in prison.” The trial court also gave curative instructions, explaining to the jury that the robbery
was not a crime of violence and had no bearing on the aggravating circumstance relied upon by the State.

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 After reviewing the exhibits pertaining to mitigation, the jury submitted a series of
written questions, including whether “mandatory parole” and “parole” could be “define[d]
in layman’s terms.” Afterward, defense counsel recalled Ms. Shettles, who testified that if
the Defendant was given a life sentence in this case, he would not be eligible for mandatory
parole. She also explained that if sentenced to life imprisonment, the Defendant would be
eligible for discretionary parole after twenty-five years, but that his prior murder conviction
and his escape from prison in Mississippi made parole highly unlikely.8

Tim Terry, an inmate records manager at Riverbend, confirmed that if the Defendant
ever received parole in Tennessee, he would be returned to Mississippi to serve his life
sentence there. He provided assurances that, in the event the Defendant received a life
sentence for the victim’s murder, he would not be moved from Riverbend to a local county
jail.

Dr. Joseph Angelillo, a clinical psychologist who qualified as an expert in forensic
psychology, evaluated the Defendant and reviewed his social history. While admitting that
he was unable to make a specific diagnosis, Dr. Angelillo found indications of “schizoid
personality features,” marked by a tendency to do things alone, sub-par social skills, lack of
joy, withdrawal from others, and a fear of relationships “unless [there is] absolute assurance
that they’re going to be accepted.” In his opinion, the lack of sufficient mental health
treatment afforded the Defendant as a child, the rejection he had experienced, and the
physical and sexual abuse he had undergone all had a profound effect on his development.
Dr. Angelillo testified that the Defendant’s time in the structured environment of Riverbend
had “behaviorally defined . . . his ability . . . to engage in constructive activities.” He
believed that the Defendant would continue to thrive in this structured environment if given
a life sentence.

Dorothy Rowell, the Defendant’s adoptive aunt, also testified on his behalf, describing
him as a “part of our family.” She stated that her mother had adopted one of the Defendant’s
sisters, and that the other had been adopted by Ms. Rowell’s sister. Ms. Rowell, who had
spent a substantial amount of time with the children prior to the Odoms’ divorce, described
the Defendant as “[v]ery sweet,” “[v]ery loving,” “[a]lways smiling,” “[h]appy, and a [v]ery
precious little boy.” She stated, however, that after the divorce of his adoptive parents “[h]e
wasn’t the happy smiling little boy that I remembered.” She testified that the Defendant,
when a teenager, “was very, very good” with her invalid brother, Charles, and “[t]reated him
like a baby.”

8
The trial court properly instructed the jury that it could not consider parole as an aggravating factor,
and that any proof presented that the Defendant might get parole could only be used to rebut the mitigating
circumstances.

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 Cindy Martin, the Defendant’s adoptive sister, described the Defendant as “[t]he
sweetest person you would ever want to meet” prior to the time Marvin Bruce, his stepfather,
became a part of his life. She described Bruce as “horrible” and a “terrible person” who
mistreated the Defendant. She stated that after Bruce’s arrival, the children stayed with their
grandmother more often, and while Ms. Martin enjoyed being there because her grandmother
generally “spoil[ed] kids,” their grandmother “never really accepted [the Defendant] as her
grandchild” and “would hit him with anything she could find.”

Jimmy Odom, Jr., the Defendant’s older adoptive brother, testified that prior to the
Odoms’ divorce, the Defendant was treated well, and that they were “kind of like a family
then.” He also claimed that things changed after his mother remarried, and that the
Defendant “wasn’t treated like a child” and “never was loved.” He described their
grandmother as “a mean woman” who often struck the Defendant “with belts and stuff like
that,” and who never accepted the Defendant into the family. He called Marvin Bruce “a
pervert – [j]ust a sorry person.” He stated that if the Defendant ever tried to reach for food
at the dinner table before someone else, his stepfather “would pop him up beside his head,
. . . and just make him wait.” Although he never witnessed Bruce sexually abusing the
Defendant, Jimmy, Jr. stated that he had “no doubt” that he had physically abused him. He
testified that there was “no love in our family” and that, as a result, the Defendant “never had
a chance.”

Like the Defendant, Jimmy, Jr. was housed at Columbia Training School for a time.
He stated that on each day of their detention, the residents spent forty-five minutes reading
and forty-five minutes on mathematics, but that the rest of the day was spent “in the fields.”
He testified to the excessive forms of discipline at the school, asserting that “[t]hey would
whup you with a board” and that “if you couldn’t take the licks they would get other people
to hold you down.” He also stated that when residents ran away, they would receive a
beating from the staff. Jimmy, Jr., who was an inmate at Parchman Prison at the same time
as the Defendant and their brother Larry, described it as “a real bad prison,” where juvenile
inmates are not housed separately. He stated that both Larry and the Defendant were
sexually abused by the older inmates there and that his efforts to take up for his younger
brothers often resulted in fights at the prison.

Several others who had become acquainted with the Defendant during his time in
prison also testified on his behalf. Celeste Wray, who had been involved in prison ministries
for eighteen years, corresponded with the Defendant on a regular basis and developed a
friendship with the Defendant. She stated that her letters from the Defendant had “been
pleasurable and enjoyable” and that they were “always very respectfu[l], which I
appreciated.” Ricky Harville, who was an instructor at Riverbend, testified that the
Defendant worked as his aide when he began teaching at the prison in 2003. He recalled that

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the Defendant assisted the other inmates with reading and writing and that his interaction
with them was “very positive.” He stated that the Defendant was “very helpful,” that he
approached his job in a very positive manner, and that he served as a role model for other
inmates who sought educational opportunities. In his opinion, the Defendant would continue
to impact other inmates in a positive way if he received a life sentence. Gordon Janaway, a
former teacher in various correctional institutes, taught the Defendant in a GED class at
Riverbend. He testified that after the Defendant obtained his certificate, he became a clerk
in the classroom. Janaway stated that the other inmates “really respected him because he had
earned a GED . . . which is not easy to do in corrections.” Jim Boyd, who taught a life skills
course at Riverbend, met the Defendant while conducting a class. Boyd testified that the
Defendant was “an active participant” in the class and observed that the Defendant had
changed “for the better” during his time in prison. Finally, Helen Cox, who was also
involved in the life skills course, testified that she kept a photo of the Defendant on her desk
that was taken the day he received his GED. She described the Defendant as a part of her
extended family.

At the conclusion of its deliberations, the jury imposed a sentence of death for the
count of first degree murder, concluding that two statutory aggravating factors, that the
Defendant had been previously convicted of a felony involving the use of violence to the
person and that the murder was committed while the Defendant was engaged in the
commission of a robbery, had been established beyond a reasonable doubt, see Tenn. Code
Ann. § 39-13-204(i)(2), (7) (Supp. 1990), and further determining that the aggravating
circumstances outweighed the evidence of the mitigating circumstances beyond a reasonable
doubt. See Tenn. Code Ann. § 39-13-204(g).

On appeal, the Court of Criminal Appeals held that the death sentence was not
imposed in an arbitrary manner and that the evidence supported the jury’s findings as to the
aggravating and mitigating circumstances. See State v. Odom, No. W2008-02464-CCA-R3-
DD, 2010 Tenn. Crim. App. LEXIS 223, at *107 (Tenn. Crim. App. Mar. 4, 2010). That
court also determined that the sentence was not excessive and was proportional in
comparison to similar cases in which a death sentence has been imposed. Id. Because the
death sentence was affirmed, the appeal was automatically docketed in this Court. See Tenn.
Code Ann. § 39-13-206(a)(1) (2010).

The following issues have been presented for our review: (1) whether the Defendant’s
state and federal constitutional rights to a fair and impartial jury were violated by the
disqualification of a prospective juror; (2) whether the prosecutor’s argument for the jury to
weigh non-statutory aggravating factors warrants reversal of the death sentence; (3) whether
the admission of photographs of the body constituted error; (4) whether the trial court
instructions on parole and prosecutorial misconduct violated the Defendant’s right to due

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process of law and heightened reliability; (5) whether the mandatory criteria of Tennessee
Code Annotated section 39-13-206(c)(1) were satisfied; and (6) whether a judge on the Court
of Criminal Appeals, who had reduced the amount of compensation sought by appellate
defense counsel, should have been disqualified from participating in the case.

Analysis
1. Dismissal of Prospective Juror for Cause
The Defendant argues that his right to an impartial jury under the Sixth, Eighth and
Fourteenth Amendments to the federal Constitution and article I, sections 8, 9, and 16 of the
Tennessee Constitution was violated when the trial court excluded a prospective juror based
on her beliefs about the death penalty. While acknowledging inconsistencies in the juror’s
statements as to whether she could vote to impose the death penalty, the Defendant maintains
that because the trial judge never asked the juror directly if she would refuse to sign the
verdict form, her exclusion constituted reversible error. In response, the State argues that the
juror “equivocated only when pressed about whether she would follow the law if she took
an oath to do so,” but “repeatedly told the trial court that she was not sure she would be able
to sign a verdict of death,” which warranted her dismissal.9

Both the United States Constitution and the Tennessee Constitution guarantee a
criminal defendant the right to trial by an impartial jury. See U.S. Const. amend. VI (“In all
criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an
impartial jury of the State and district wherein the crime shall have been committed . . . .”);
Tenn. Const. art. I, § 9 (“[I]n all criminal prosecutions, the accused hath the right to . . . a
speedy public trial, by an impartial jury of the county in which the crime shall have been
committed . . . .”); see also Uttecht v. Brown, 551 U.S. 1, 9 (2007) (“[A] criminal defendant
has the right to an impartial jury drawn from a venire that has not been tilted in favor of
capital punishment by selective prosecutorial challenges for cause.”). A prospective juror
may, however, be properly excused for cause when his or her views on capital punishment

9
The State also asserts that the Defendant is limited to a plain error review of this issue because he
did not present this issue in his motion for new trial. We apply a five-element plain error analysis when
reviewing errors that are not raised by a defendant in a motion for new trial. Tenn. R. App. P. 36(b);
Grindstaff v. State, 297 S.W.3d 208, 219 n.12 (Tenn. 2009). We have applied the plain error analysis in
numerous capital cases. See, e.g., State v. Jordan, 325 S.W.3d 1, 57-58 (Tenn. 2010); State v. Hester, 324
S.W.3d 1, 56-57 (Tenn. 2010); State v. Reid, 213 S.W.3d 792, 834 (Tenn. 2006) (appendix); State v.
Caldwell, 671 S.W.2d 459, 465-66 (Tenn. 1984). Tennessee Code Annotated section 39-13-206(b) states
that a court reviewing a capital case “shall first consider any errors assigned and then . . . shall review the
sentence of death.” (Emphasis added.). Relying on this statute, we also have reviewed errors assigned on
appeal without using the plain error analysis despite the defendant’s failure to either object at trial or include
the ground in a motion for new trial. See, e.g., State v. Nesbit, 978 S.W.2d 872, 880-81 (Tenn. 1998). Our
conclusion as to the Defendant’s assigned errors in this case would be the same using either approach.

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“would prevent or substantially impair the performance of his duties as a juror in accordance
with his instructions and his oath.” Wainwright v. Witt, 469 U.S. 412, 424 (1985) (internal
quotation marks omitted); see also State v. Thomas, 158 S.W.3d 361, 378 (Tenn. 2005).
While “a juror’s bias need not be proven with ‘unmistakable clarity’ to justify a challenge
for cause,” the trial court “must have the ‘definite impression that a prospective juror could
not follow the law.’” Thomas, 158 S.W.3d at 378 (quoting State v. Hutchison, 898 S.W.2d
161, 167 (Tenn. 1994)). In determining whether a potential juror may properly be removed
for cause, “the trial court makes a judgment based in part on the demeanor of the juror, a
judgment owed deference by reviewing courts.” Uttecht, 551 U.S. at 9. As a result, “[a] trial
court’s findings ‘are accorded a presumption of correctness, and the [defendant] must
establish by convincing evidence that the trial court’s determination was erroneous before
an appellate court will overturn that decision.’” Thomas, 158 S.W.3d at 378 (quoting State
v. Austin, 87 S.W.3d 447, 473 (Tenn. 2002)). Because the right to an impartial jury is a
fundamental aspect of a fair trial, the infraction of this right “‘can never be treated as
harmless error.’” Gray v. Mississippi, 481 U.S. 648, 668 (1987) (quoting Chapman v.
California, 386 U.S. 18, 23 (1967)); see also State v. Bobo, 814 S.W.2d 353, 358 (Tenn.
1991).

During voir dire, the prosecution asked a prospective juror about her answers to the
juror questionnaire. Pertinent portions of the colloquy are as follows:

[The State]: [Y]ou mentioned in your questionnaire that you could not consider
both forms of punishment in a case like this. Is that right?

The Juror: Yes.

....

[The State]: And you indicated that you would not be open to both sentences
in a . . . murder first degree case.

The Juror: Yes.

[The State]: [I]s the basis of your feeling . . . religious or personal or ethical or
all of the above . . . ?

The Juror: Well, I feel it because – me, myself, as a person, I don’t really have
a right to judge somebody for what they’ve done. I wasn’t there when it
happened. I’m not saying that it didn’t happen or I just – I feel strongly about
that.

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 ....

[The State]: Can you think of any circumstance under which . . . you could
vote for the death penalty and sign your name as one of the people . . .
imposing a death penalty on an individual.

The Juror: No.

....

[The State]: [E]ven if I could describe for you just the most horrible . . . case
. . . is it that your feeling against the death penalty is so strong . . . that you
could never consider imposing it in a criminal case?

The Juror: Well, . . . when it comes to . . . innocent little children, then I am for
it.

....

[The State]: Now, are you telling me that there are some circumstances where
you could be open to the possibility of the death penalty, and perhaps sign your
name as a person saying this person should have the death penalty[?]

The Juror: Right. Like I said, it all depends on . . . the situation.

....

[The State]: [D]o you think that you would then have a right to make that
judgment in a case where it was children but maybe you wouldn’t have a right
to make [it] where it was adults that were killed?

The Juror: I guess, children are like – I’m not saying that this adult wasn’t
innocent or anything, but children are more innocent, to me. That’s just how
I feel about it . . . .

....

[The State]: That is, if the State proves for you one or more of those
aggravating circumstances and you weigh it and find that it outweighs any

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mitigation . . . beyond a reasonable doubt, could you vote and sign your name
as one of those people to, you know, vote for the death penalty?

The Juror: No, I can’t. No.

....

[The State]: [T]hat’s why we’re having this conversation because both sides
in this case are entitled to people who could follow the law, such as it is, and
now is the time for us to talk about it . . . And I guess the only thing I know to
do is to ask you . . . [i]f it was a horrible, horrible case against a child could
you perhaps sign your name and say this is, perhaps, a death penalty case?

The Juror: Well, no, I really can’t. I can’t.

Defense counsel then questioned the juror as follows:

[Defense Counsel]: I think you’re like lots of people, in some cases, you
would say, well, I just can’t see the death penalty being appropriate in that
case. But if . . . it does involve a child or the rape of a child or torture of a
person then maybe you would consider it. Is that kind of where you’re coming
from on this?

The Juror: Yeah.

....

[Defense Counsel]: Could you . . . sit and consider whether the State has
brought enough proof beyond a reasonable doubt before you would ever look
or consider the death penalty?

The Juror: No . . . . What I mean, I couldn’t consider the death penalty for him
if they . . . hadn’t brought enough evidence.

....

[Defense Counsel]: So if you were instructed, if they don’t . . . prove it to you
beyond a reasonable doubt, then don’t consider the death penalty. If that’s
what you’re instructed, you can follow that law, can’t you?

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 The Juror: Yes.

[Defense Counsel]: The way that the balancing works is . . . you would only
be asked to consider the death penalty if you had first seen enough proof to say
that the aggravating circumstance is proven beyond a reasonable doubt, and
then enough proof to say that the aggravating circumstance outweighs the
mitigating circumstances beyond a reasonable doubt. . . . Can you do that?

The Juror: I just don’t like judging, I just, no . . . .

[Defense Counsel]: Okay. You don’t like judging other people. . . . but if you
were called upon to follow that duty by the law, can you do that?

The Juror: I would have to. I have no choice.

[Defense Counsel]: All right. And before you could consider [the] death
penalty, would you hold the State to their burden and make them bring enough
proof to prove an aggravating circumstance to you beyond a reasonable doubt?

The Juror: If I have to, yes. If I have to I will.

....

The trial judge then asked the juror whether, if given an oath and sufficient proof as
mandated by the controlling law, she could vote for a death sentence. When the trial judge
observed, “[y]ou’re shaking your head no, but I’m not sure,” the juror responded, “[i]f they
brought enough evidence, I wouldn’t have no choice.” The following exchange then took
place:

The Court: [I]f you are a juror in this case, and I gave you that oath, and you
swore to follow it, the question is, could you sign a verdict of death in a proper
case, if the State proved aggravating circumstances beyond a reasonable doubt.
And you’re the only person that can tell me that.

The Juror: I just – I can’t . . . .

When the trial court commented for the record that the juror was shaking her head, she
responded, “I just don’t feel right signing somebody’s death.” At that point, the trial court
excused the juror for cause, explaining as follows:

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 She said that she would have to follow the law . . . And obviously she would
if she took the oath. But the problem is I’m not going to give her the oath if
she tells me that she can’t sign a death verdict. I find from what she said and
her shaking her head no and everything else that her views whether right or
wrong would substantially impair her function as a juror.

The Defendant, who timely objected to the ruling, contends that the trial judge’s
failure to explicitly ask the juror if she would “refuse to sign the verdict form” means that
“there is no evidentiary support for the trial court’s ruling.” We disagree. Initially, the trial
court asked the juror if she could “sign a verdict of death in a proper case,” to which she
responded “I just don’t feel right signing somebody’s death.” In order to justify exclusion
for cause, trial courts need only determine that a prospective juror’s views on the death
penalty “would prevent or substantially impair the performance of his duties as a juror in
accordance with his instructions and his oath.” Witt, 469 U.S. at 424 (internal quotation
marks omitted).

While the juror at issue was equivocal in some of her responses in the voir dire, she
also expressed an unwillingness “to judge somebody for what they’ve done” when she
“wasn’t there when it happened.” Under similar circumstances, in State v. Duncan, 698
S.W.2d 63, 71 (Tenn. 1985), this Court found exclusion proper where the juror stated that
“she did not ‘believe’ she could consider the death penalty as an alternative punishment
unless she saw the crime committed” and that “she just did not ‘want to be put in a position
to judge another human being on the basis of what one says against what another person
says.’” A fair interpretation of the juror’s comments here is that she could have approved the
death penalty only in the murder of a child victim. Because this prosecution involved an
adult victim, the juror’s personal reservations, in our view, could have “prevent[ed] or
substantially impair[ed] the performance of h[er] duties.” Witt, 469 U.S. at 424. More
importantly, the trial judge personally observed the juror’s physical responses to the
questions presented. An assessment of the juror’s ability to adhere to her oath made by the
trial court, based upon not only the answers to questions posed by counsel but also non-
verbal responses, is owed deference. See Uttecht, 551 U.S. at 9. In short, the record does
not convincingly establish that the juror at issue would have been able to follow the
requirements of law. The trial court, therefore, did not err in dismissing the juror.

2. Prosecutorial Misconduct in Urging the Jury to Weigh Non-Statutory
Aggravating Factors
The Defendant contends that during closing arguments, the prosecution improperly
argued non-statutory aggravating factors by making reference to the fear the victim
experienced during the assault, the photographs of her body, and the Defendant’s prior
criminal convictions. The Defendant asserts that because Tennessee is a “weighing” state,

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these non-statutory aggravating factors “skew[ed] the . . . process” in violation of article I,
sections 8, 11, and 16 of the Tennessee Constitution, the Ex Post Facto Clause and the Eighth
and Fourteenth Amendments of the United States Constitution, and Tennessee Code
Annotated section 39-13-204. In response, the State submits that the prosecutor’s argument
“directly related to both the permissible evidence contemplated by Tenn. Code Ann. § 39-13-
204 and to the aggravating circumstances and mitigating evidence in the case.” In the
alternative, the State argues that “the adverse effect, if any, of the prosecutor’s closing
argument was ‘erased’ by the trial court’s proper instructions to the jury as to weighing the
aggravating and mitigating circumstances.”

It is well-established that the State may not rely upon non-statutory aggravating
circumstances when it seeks the imposition of the death penalty. See Terry v. State, 46
S.W.3d 147, 156 (Tenn. 2001); see also Nesbit, 978 S.W.2d at 890 (“[T]he State may not rely
upon non[-]statutory aggravating circumstances to support imposition of the death penalty,
but is limited to those aggravating circumstances listed in the statute.”). While closing
arguments must be, among other things, based upon the evidence presented at trial and
“pertinent to the issues,” Jordan, 325 S.W.3d at 64, the arguments are considered “a valuable
privilege that should not be unduly restricted.” State v. Sutton, 562 S.W.2d 820, 823 (Tenn.
1978). As a result, our courts have traditionally “give[n] wide latitude to counsel in arguing
their position in a case to the jury.” Id.; see also Terry, 46 S.W.3d at 156. Because a trial
court has broad discretion in controlling these arguments, a decision to allow an attorney to
argue a particular point to a jury will only be reversed upon a showing of an abuse of
discretion. Sutton, 562 S.W.2d at 823. “Generally, an abuse of discretionary authority
occurs only when the trial court applies an incorrect legal standard or reaches a decision
which is against logic and reason.” Frazier v. State, 303 S.W.3d 674, 679 (Tenn. 2010).

This broad latitude afforded attorneys during closing arguments must also be viewed
in light of our capital sentencing scheme. In determining whether death is the appropriate
punishment for a particular defendant, a jury may consider “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) (Supp.
1990); see also State v. Harris, 919 S.W.2d 323, 331 (Tenn. 1996) (“[B]oth the State and the
defendant may introduce any evidence relating to the circumstances of the crime, relevant
aggravating circumstances or any mitigating circumstances, so that the jury will have
complete information relevant to punishment.”). We have construed the statute to permit the
sentencing jury “to consider ‘a myriad of factors’ relevant to . . . establishing and assigning

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weight to aggravating and mitigating circumstances.”10 Terry, 46 S.W.3d at 156-57; Nesbit,
978 S.W.2d at 890 (“[O]nce a capital sentencing jury finds that a defendant falls within the
legislatively defined category of persons eligible for the death penalty, the jury is free to
consider a myriad of factors to determine whether death is the appropriate punishment to the
offense and the individual defendant.”); State v. Nichols, 877 S.W.2d 722, 731 (Tenn. 1994);
see also Ramos, 463 U.S. at 1008. Accordingly, counsel may address during closing
argument any of the evidence admissible pursuant to the statute.

In this instance, the prosecutor surmised that, upon the victim’s encounter with the
Defendant, “[she] must have been scared to death,” and that “[s]he probably got a little
nervous, all one hundred and five pounds of her when he barged into the front seat of her car
with his knife and demanded money.” She further speculated that the unsuspecting victim
had no idea that “[the Defendant] killed before . . . [and] had walked away from jail.” The
prosecutor then referred to one of the photographs admitted into evidence, pointing out that
the victim is shown “clutching the check. . . . [i]n her frail little dead hand . . . [b]ecause he
demanded money.” She hypothesized that because of his escape status, he could not “go
apply for a job,” so he was “lurking around in the parking garage trying to find” a vulnerable
victim. The prosecutor argued that, in an effort to mollify the Defendant, the victim might
have displayed her checkbook and “[s]aid, here, what do you want?” She then described the

10
The Defendant argues that a jury’s consideration of a “myriad of factors” in making a sentencing
determination is only proper in a “non-weighing” state, as opposed to a “weighing” state, because “in a non-
weighing [s]tate there is no ‘scale’ and the jury is not required to weigh aggravation against mitigation in
order to arrive at punishment.” In Barclay v. Florida, 463 U.S. 939, 948-49 (1983), however, the United
States Supreme Court determined that in Florida, a weighing state, the jury’s consideration of non-statutory
information relevant to an aggravating factor was a constitutionally permissible way of determining the
weight to be given a particular aggravating factor. The Court concluded that “‘[o]nce the jury finds that the
defendant falls within the legislatively defined category of persons eligible for the death penalty, . . . the jury
then is free to consider a myriad of factors to determine whether death is the appropriate punishment.” Id.
at 950 (quoting California v. Ramos, 463 U.S. 992, 1008 (1983)); cf. id. at 967 (Stevens, J., concurring)
(“[T]he Constitution does not prohibit consideration at the sentencing phase of information not directly
related to either statutory aggravating or statutory mitigating factors, as long as that information is relevant
to the character of the defendant or the circumstances of the crime.”). Furthermore, the Terry decision
established that the “myriad of factors” that may be considered by the jury are guided by statute, which
allows evidence of “the nature and circumstances of the crime; the defendant’s character, background
history, and physical evidence; any evidence tending to establish or rebut the aggravating circumstances; and
any evidence tending to establish or rebut any mitigating factors.” 46 S.W.3d at 156-57 (internal quotations
omitted). This evidence, in turn, must first be reviewed by the trial court to ensure its probative value. See,
e.g., State v. Sims, 45 S.W.3d 1, 14 (Tenn. 2001) (“Our constitutional standards require inquiry into the
reliability, relevance, value, and prejudicial effect of sentencing evidence to preserve fundamental fairness
and protect the rights of both the defendant and the victim’s family.”). These safeguards adequately guide
the jury’s discretion and guard against the arbitrary imposition of the death penalty based upon irrelevant
evidence. See Barclay, 463 U.S. at 950-51.

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struggle that ensued, submitting that the jury should “know . . . from the pictures” that the
struggle began in the front seat of the car before the Defendant pushed the frail victim into
the back seat, first raping her, and then stabbing her again. The prosecutor asked the jury to
consider that the Defendant had taken advantage of the trust of “all those suckers in
Parchman [Prison]” in order to complete his escape. Further, the prosecutor specifically
argued the applicability of the two aggravating factors, pointing out that the jury had the
prerogative to weigh the circumstances “as you wish,” and was critical of portions of the
testimony for the defense, suggesting that the social history failed to include the Defendant’s
crimes and prison record between 1974 and 1992. In reference to the mitigating
circumstances involving the Defendant’s upbringing, the prosecutor simply stated that the
jury could assess the weight and credibility to be given the proof, and that they did not “have
to take [the testimony] at face value.”

In response to this opening argument by the State, defense counsel stressed that the
two aggravating factors were the only ones that could be considered by the jury during the
weighing process. Defense counsel also addressed, at length, the State’s use of the
photographs and how they were being used to “inflame you,” making it “so hard to limit
yourself to just those aggravators.” Defense counsel asserted that the State introduced the
pictures “[b]ecause they don’t want you to use the law. They want you to use passion and
anger.”

In rebuttal, the State again addressed the weighing of the two aggravating
circumstances against the mitigating circumstances, arguing that the process involved an
evaluation of “quality as opposed to quantity.” This, the prosecutor claimed, was “why [the
State] put up pictures of [the victim]. . . . to try to give you a little bit of [an] idea of what her
last minutes on this planet were like. They don’t support or prove an aggravator, but they’re
to assist you in your weighing decision.”

Our analysis in Terry is instructive as to the propriety of the State’s closing arguments.
In Terry, the defendant argued that the State erred “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.” 46 S.W.3d at 156. These six circumstances - “extreme
premeditation,” “innocent victim,” “brutality of murder,” “violated private trust,” “burning
a church,” and “concealment of crime” - had been displayed on a chart to contrast the
mitigating factors claimed by the defense. Id. This Court held that the use of the “unique
circumstances” was not improper because (1) they were “within the realm of permissible
evidence contemplated by” the statute governing capital sentencing and (2) the closing
argument as a whole showed that the prosecutor used the “unique circumstances” to support
and give weight to the aggravating circumstances. Id. at 157. The Court found no error with
the argument, holding that the prosecutor had “first, properly identified the two aggravating

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circumstances to be proven, and second, offered six factors to establish or give weight to
these aggravating circumstances.” Id. at 158. Further, this Court ruled that even if the
prosecutor’s closing argument approached the point of impermissibility, any error was cured
by the trial court’s instructions, which required the jury to consider only the aggravating
circumstances proven by the State in determining the appropriate sentence and which
informed the jury of the weighing process. Id.

The Terry rationale is persuasive, and after reviewing the content of the record, our
view is that the State’s argument did not result in the erroneous injection of non-statutory
aggravating factors into the weighing process. The prosecutor clearly relied upon only two
aggravating circumstances and, during argument, attempted to provide context to both the
aggravating and mitigating circumstances. See Terry, 46 S.W.3d at 158; accord State v.
Cunningham, 824 N.E.2d 504, 524 (Ohio 2004) (“Prosecutors are entitled to urge the merits
of their cause and legitimately argue that defense mitigation evidence is worthy of little or
no weight.”).

Further, the prosecutor’s references to the victim’s slight weight, the fear she must
have felt, and the content of the photographs of the body related to the “nature and
circumstances” of the crime. That the victim had a check in her hand at the time of her death
was further evidence that the murder was committed in the perpetration of robbery. As
previously indicated, this evidence is explicitly permitted by the statute. See Tenn. Code
Ann. § 39-13-204(c). Finally, the Defendant’s escape from Simpson County Jail and his
theft and robbery convictions were used to rebut his claim of good behavior during his
incarceration as a mitigating circumstance. See State v. Bane, 57 S.W.3d 411, 424 (Tenn.
2001) (“[T]he prosecution is permitted to rebut any mitigating factors relied on by a
defendant.”); accord State v. Schmeiderer, 319 S.W.3d 607, 621 (Tenn. 2010).

In summary, the Defendant is not entitled to relief on this issue. Moreover, even if
the argument on behalf of the State at any point crossed the line of impermissibility, here, as
in Terry, the trial court properly instructed the jury as to the weighing of the aggravating and
mitigating circumstances; it must be presumed that a jury has followed the instructions given
by the court. 46 S.W.3d at 158.

3. Admission of Photographs
The Defendant contends that the trial court erred by admitting into evidence two
photographs, Exhibits 5 and 6, each of which depicted the body of the victim, because they
were “cumulative, irrelevant to the issues in the re-sentencing hearing, and prejudicial.” In
support of this argument, the Defendant initially asserts that the rationale for upholding the
admission of the photos – that they were relevant to show the nature and circumstances of
the crime – “conflicts with the rule in State v. Teague, 897 S.W.2d 248, 251 (Tenn. 1995),

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that evidence about the circumstances of the crime [must] be ‘carefully limit[ed] . . . to
essential background.’” Moreover, the Defendant questions the admissibility of the
photographs by the application of the guidelines set out in State v. Banks, 564 S.W.2d 947
(Tenn. 1978). In response, the State asserts that the trial court properly applied the “law of
the case” doctrine by allowing the photographs to be seen by the jury as “relevant to the
circumstances of the offense.”

A. “Law of the Case” Doctrine
In Odom II, this Court upheld the admission of the two photographs at issue as
relevant evidence, illustrative of the “nature and circumstances” of the crime. 137 S.W.3d
at 588. More specifically, this Court observed as follows:

The first photograph, which was three-by-five inches in size, showed the
victim in the back seat floorboard of her car and the multiple stab wounds and
bleeding she suffered. The second photograph, which was also three-by-five
inches in size, showed the victim on the floorboard with her head facing the
rear of the car and a rolled up check in her hand. In sum, the photographs
were relevant for the prosecution to show the “nature and circumstances” of
the crime, i.e., the position of the victim’s body, the location of the offense, the
defendant’s actions, and the injuries suffered by the victim.

Id. We also determined that the photographs were not unfairly prejudicial. Id.

During the sentencing hearing, the trial court took particular note of this Court’s
resolution of the photograph issue in Odom II, concluding that the ruling had become the
“law of the case.” The trial court, which had excluded several photographs offered by the
State as overly prejudicial, also made its own assessment, however, holding that the
photographs at issue were admissible, as they were not particularly incendiary, even though
the victim was depicted in a “pitiful” state. Because “the State has a right to prove the nature
of the offense” and the jury had “a right to know about the murder itself,” the trial court
permitted the two photographs as exhibits. While the defense offered to stipulate a verbal
description of the photographs’ content, the trial court observed that “you can’t stipulate to
the circumstances [of the crime].” The Court of Criminal Appeals agreed, holding that the
photographs properly illustrated “the position of the victim’s body where the homicide
occurred and help[ed] explain the circumstances surrounding the offense.” Odom, 2010
Tenn. Crim. App. LEXIS 223, at *55.

“[U]nder the law of the case doctrine, an appellate court’s decision on an issue of law
is binding in later trials and appeals of the same case if the facts on the second trial or appeal
are substantially the same as the facts in the first trial or appeal.” Memphis Publ’g Co. v.

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Tenn. Petroleum Underground Storage Tank Bd., 975 S.W.2d 303, 306 (Tenn. 1998). This
doctrine “applies to issues that were actually before the appellate court in the first appeal and
to issues that were necessarily decided by implication,” but it is inapplicable to dicta. Id.
(citation omitted). The doctrine “is not a constitutional mandate nor a limitation on the
power of a court,” but “is a longstanding discretionary rule of judicial practice which is based
on the common sense recognition that issues previously litigated and decided by a court of
competent jurisdiction ordinarily need not be revisited.” Id. (citations omitted). Application
of the doctrine promotes finality, efficiency, consistent results, and obedience to appellate
decisions. Id.

There are three “limited circumstances” that may justify a departure from the law of
the case doctrine and subsequent reconsideration of an issue decided in a previous appeal:

(1) the evidence offered at a trial or hearing after remand was substantially
different from the evidence in the initial proceeding; (2) the prior ruling was
clearly erroneous and would result in a manifest injustice if allowed to stand;
or (3) the prior decision is contrary to a change in the controlling law which
has occurred between the first and second appeal.

Id. at 306. While neither the first nor second ground for a departure from the law of the case
doctrine is present, the Defendant argues that the admission of the photographs “would seem
to be in conflict with the rule in State v. Teague.” The Teague opinion, however, was filed
prior to our decision in Odom II; therefore, the controlling law did not change between the
first and second appeal. Id. at 306. In consequence, the trial court properly applied the law
of the case doctrine in these circumstances.

B. Nature and Circumstances of the Crime
The Defendant also argues that the photographs did not provide “essential
background” for purposes of showing the “nature and circumstances” of the crime and,
therefore, this Court’s ruling in Odom II that the photographs were relevant for these
purposes, see 137 S.W.3d at 588, is in direct conflict with the ruling in Teague, 897 S.W.2d
at 248. Because the re-sentencing jury did not have the benefit of the proof introduced at the
guilt phase, the State contends that its familiarity with the circumstances of the crime was
“essential to ensure both individualized sentencing by the jury and effective comparative
proportionality review by the appellate courts.” The Court of Criminal Appeals declined to
address the Defendant’s argument, stating that “[a]s an intermediate appellate court, we are
bound by the decisions of our supreme court and without authority to consider whether these
decisions are in conflict.” Odom, 2010 Tenn. Crim. App. LEXIS 223, at *52.

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 Our resolution of this issue requires both a review of the standard by which evidence
is admitted during a capital sentencing hearing and an examination of our holding in Teague.
Generally, “photographs of a murder victim’s body are admissible if they are ‘relevant to the
issues on trial, notwithstanding their gruesome and horrifying character.’” State v. Carter,
114 S.W.3d 895, 902 (Tenn. 2003) (quoting Banks, 564 S.W.2d at 950-51). While the Rules
of Evidence govern the admissibility of photographs at trial, Tennessee Code Annotated
section 39-13-204(c) controls the admission of evidence in the sentencing hearing of a capital
case. The statute allows for the admission of evidence on “any matter that the court deems
relevant to the punishment” including, but not limited to, “the nature and circumstances of
the crime . . . regardless of its admissibility under the rules of evidence.” Tenn. Code Ann.
§ 39-13-204(c) (emphasis added); see also Carter, 114 S.W.3d at 903 (noting that, under the
statute, “any evidence relevant to the circumstances of the murder, the aggravating
circumstances relied upon by the State, or the mitigating circumstances is admissible if such
evidence has probative value in the determination of punishment”). Although a trial court
may use the Rules of Evidence as guidance in capital sentencing proceedings, Carter, 114
S.W.3d at 903, the rules “should not be applied to preclude introduction of otherwise reliable
evidence that is relevant to the issue of punishment, as it relates to mitigating or aggravating
circumstances, the nature and circumstances of the particular crime, or the character and
background of the individual defendant.” Sims, 45 S.W.3d at 14. Instead, the relevant
inquiries for the trial court are the “reliability, relevance, value, and prejudicial effect” of the
evidence. Id. The admission of photographs lies within the sound discretion of the trial court
and will not be overturned on appeal absent a showing that the trial court abused that
discretion. Banks, 564 S.W.2d at 949.

In Teague, the issue was whether a defendant could present exculpatory evidence in
a re-sentencing hearing as a means of mitigating his culpability for his crimes. 897 S.W.2d
at 249. While holding that a “defendant has the right to present at the [re-]sentencing hearing
. . . evidence relating to the circumstances of the crime or the aggravating or mitigating
circumstances, including evidence which may mitigate his culpability,” id. at 256, this Court
also expressed general approval of the State’s introduction of “background evidence,” setting
out guidelines as follows:

[E]vidence of how the crime was committed, the injuries, and aggravating and
mitigating factors are admissible. There appears to be no reason why such
guidelines, carefully limiting evidence to the essential background, should not
apply in capital cases in order to ensure that the jury acts from a base of
knowledge in sentencing the defendant.

Id. at 251 (quoting State v. Teague, 680 S.W.2d 785, 787-88 (Tenn. 1984)). Nothing in
Teague suggests that photographs of a murder victim at the scene of the crime cannot be

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considered “essential background” relevant to the nature and circumstances of the offense.
In our view, Exhibit 5 demonstrates “how the crime was committed.” The victim’s stab
wounds illustrate the severity of the attack. See Teague, 897 S.W.2d at 251. Exhibit 6,
which depicts the victim clutching a check in her hand, is probative of the State’s assertion
that the murder was committed while the Defendant was engaged in a robbery, an
aggravating circumstance warranting the imposition of the death penalty. Id. In our view,
there is no conflict between our determination in Odom II that the photographs were
admissible to show the nature and circumstances of the crime and the principle established
in Teague.

C. Abuse of Discretion
The Defendant also argues that the trial court abused its discretion by admitting the
photographs because any information conveyed to the jury had already been provided
through the testimony of witnesses. While it is true that the photographs may have been
cumulative of live testimony, it does not necessarily follow that their admission was
improper. For example, this Court has observed that where the jury is without the benefit of
the factual background established by the proof during the guilt phase, “the parties are
entitled to offer evidence relating to the circumstances of the crime” in order to allow the jury
to “ac[t] from a base of knowledge in sentencing the defendant.” Carter, 114 S.W.3d at 903
(citations and internal quotation marks omitted). In Carter, we found that when “the
photographs corroborate testimony presented at the sentencing hearing, the information
sought to be conveyed by the photographs, even if cumulative, is clearly admissible.” Id. at
904; cf. State v. Brown, 836 S.W.2d 530, 551 (Tenn. 1992) (upholding the admission at trial
of nine photographs of murder victim, despite the fact that “oral testimony . . . graphically
describing the [victim’s] injuries” was also admitted). In this instance, the jury, as in Carter,
had not been exposed to the proof ordinarily introduced during the guilt phase of a capital
trial. In the context of the testimony provided, the two photographs at issue allowed the jury
to “see for itself what [was] depicted in the photograph[s].” State v. Griffis, 964 S.W.2d 577,
594 (Tenn. Crim. App. 1997). We hold, therefore, that the trial court’s admission of the
photographs was not an abuse of discretion.

The Defendant also argues that the trial court erred by admitting the photographs in
light of the factors set out in Banks, 564 S.W.2d at 949. While not explicitly addressing the
factors articulated in Banks, the Court of Criminal Appeals generally found that the
photographs’ “admission was appropriate under the criteria set out.” Odom, 2010 Tenn.
Crim. App. LEXIS 223, at *55.

In Banks, this Court ruled that “certain factors are to be considered by the trial judge”
when determining the admissibility of photographs of a murder victim for the purposes of
trial, including

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 the value of photographs as evidence, that is, their accuracy and clarity, and
whether they were taken before the corpse was moved, if the position and
location of the body when found is material; the inadequacy of testimonial
evidence in relating the facts to the jury; and the need for the evidence to
establish a prima facie case of guilt or to rebut the defendant’s contentions.
If the inflammatory nature of the photograph is thus outweighed, it is
admissible.

564 S.W.2d at 951. The Court commented on the difficulty of establishing that the probative
value of particularly gruesome photographs outweighs their prejudicial effect and observed
that the State’s burden on this matter is often difficult to meet “[i]n the presence of an offer
to stipulate the facts shown in the photograph.” Id.

While the Defendant asserts that his offer to stipulate to the facts reflected in the
photographs means that they were improperly admitted under Banks, this standard applies
only during the guilt phase of the trial under the more rigid guidelines established by our
Rules of Evidence. See Banks, 564 S.W.2d at 949-51. Although the Rules may serve as a
guide in determining the admissibility of evidence in capital sentencing hearings, “[t]rial
judges are not . . . required to adhere strictly” to them during a sentencing hearing because
they “are too restrictive and unwieldy in the arena of capital sentencing.” Sims, 45 S.W.3d
at 14. We hold, therefore, that the trial judge did not err by admitting these photographs
during the penalty phase of the trial.

4. Parole Instruction and Abuse of Prosecutorial Discretion
The Defendant argues that the trial court’s instruction to the jury that if the Defendant
was sentenced to life imprisonment, he would be eligible for parole after twenty-five years,
created a “false choice” in sentencing. He alleges that at the time of the re-sentencing
hearing, he had already been imprisoned for seventeen years, meaning that he “would be
considered parole-eligible in [eight] years if given a ‘life sentence.’” The Defendant argues
that by instructing the jury as it did, “the trial court effectively eliminated a reasonable
alternative sentence to the death penalty,” which violated his right to due process of law and
heightened reliability under the federal and state constitutions. The State responds that the
Defendant’s argument “flies in the face” of the proof he presented during sentencing, which
indicated that he would not be paroled if he received a life sentence, and that the Defendant
“invited any error with regard to the alleged instruction.”

The Defendant also asserts that the prosecution should have allowed him to plead to
an additional charge, such as rape or robbery, “with the understanding that the sentence for
that crime would be added to the 25 calendar years if the jury sentenced him to life in
prison.” He argues that this also would have “created a reasonable alternative . . . to the

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death penalty.” The State responds that the possibility of a life sentence gave the jury a
reasonable alternative to a sentence of death.

A. Parole Instruction
At the time of this offense, a sentence of life without the possibility of parole was not
an option. The two sentence alternatives were life with the possibility of parole and death.11
Prior to the re-sentencing hearing, defense counsel objected to the instruction that the
Defendant, if sentenced to life imprisonment, would be required to serve at least twenty-five
calendar years before being eligible for parole, contending that because of his imprisonment
for seventeen years since the commission of the offense, jurors would be less willing to
consider a life sentence if the Defendant might be eligible for parole in only eight more years.
When, before trial, defense counsel sought permission to question prospective jurors about
these concerns, the trial court asked how the jury would know that the Defendant had not
been convicted “a month ago for this offense.” Defense counsel responded that “we intend
to prove to them he was convicted in 1992.” The trial court allowed defense counsel to
conduct a voir dire on this issue, and two jurors subsequently inquired whether twenty-five
years included the time already served by the Defendant. While explaining that the law
directed that the jurors be told that a life sentence included eligibility for parole in twenty-
five years, the trial court pointed out that other parole-related information was not relevant
to sentencing, and that the jury could not “consider [it] in deciding whether or not [the
Defendant] should be sentenced to death.”

After the proof had been submitted, the trial court charged the jury as follows:

Tennessee law provides that a person convicted of murder in the perpetration
of rape shall be punished by death or by imprisonment for life.

11
While Tennessee Code Annotated section 39-13-204(e)(2) (2010) provides that “[t]he jury shall
be instructed that a defendant who receives a sentence of imprisonment for life shall not be eligible for parole
consideration until the defendant has served at least twenty-five (25) full calendar years of the sentence,” as
noted by the Court of Criminal Appeals, this instruction was not mandatory until after July 1, 1993. See Act
of May 19, 1993, ch. 473, §§ 1, 4, 16, 1993 Tenn. Pub. Acts 824, 825, 829 (amending the capital sentencing
law to allow life without parole, to require that the jury be instructed that a defendant sentenced to life with
parole would have to serve at least twenty-five years prior to being eligible, and to make these changes
applicable to offenses committed on or after July 1, 1993). Because the Defendant committed this offense
in 1991, the trial court was not required to give this instruction. Nevertheless, the Defendant does not
challenge the instruction on this basis. Because the trial court allowed defense counsel to put on significant
evidence demonstrating that the Defendant was almost certain never to obtain parole, the inclusion of the
instruction did not result in a sentence that is violative of due process.

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 A defendant who receives a sentence of imprisonment for life shall not be
eligible for parole consideration until the defendant has served at least twenty-
five full calendar years of such sentence.

The United States Supreme Court has made the following observations regarding a
challenge to jury instructions:

a judgment of conviction is commonly the culmination of a trial which
includes testimony of witnesses, argument of counsel, receipt of exhibits in
evidence, and instruction of the jury by the judge. Thus not only is the
challenged instruction but one of many such instructions, but the process of
instruction itself is but one of several components of the trial which may result
in the judgment of conviction.

Cupp v. Naughten, 414 U.S. 141, 147 (1973) (citations omitted). The key consideration in
reviewing a criminal defendant’s challenge to a particular instruction, therefore, is “‘whether
the ailing instruction by itself so infected the entire trial that the resulting conviction violates
due process.’” State v. Rimmer, 250 S.W.3d 12, 31 (Tenn. 2008) (quoting Cupp, 414 U.S.
at 147); see also Middleton v. McNeil, 541 U.S. 433, 437 (2004) (“[N]ot every ambiguity,
inconsistency, or deficiency in a jury instruction rises to the level of a due process
violation.”).

In support of his argument that the trial court’s instruction deprived him of due
process, the Defendant relies upon two United States Supreme Court decisions: Beck v.
Alabama, 447 U.S. 625 (1980) and Simmons v. South Carolina, 512 U.S. 154 (1994). Both
of these cases, however, are distinguishable. In Beck, the Alabama law required the jury to
either convict a defendant of a capital crime and impose the death penalty or acquit – there
was no room for a lesser-included offense instruction. 447 U.S. at 628-29. The Court found
that “when the evidence . . . leaves some doubt with respect to an element that would justify
conviction of a capital offens[e,] the failure to give the jury the ‘third option’ of convicting
on a lesser included offense would seem inevitably to enhance the risk of an unwarranted
conviction.” Id. at 637. The Court determined that the state statute “interject[ed] irrelevant
considerations into the factfinding process, diverting the jury’s attention from the central
issue of whether the State has satisfied its burden of proving beyond a reasonable doubt that
the defendant is guilty of a capital crime.” Id. at 642.

Here, the jury, having received instructions that it could impose either the death
penalty or a life sentence with the possibility of parole, was not presented with an “all-or-
nothing” choice. While the instruction provided that the Defendant would be eligible for
parole after serving twenty-five full calendar years, he was allowed to offer proof

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demonstrating that parole was out of the question because of his previous criminal
convictions. This evidence went unchallenged by the State.

In Simmons, the prosecution argued the future dangerousness of the defendant in an
effort to secure a sentence of death. The trial court refused to instruct the jury that the
defendant was ineligible for parole. The Court held that the ruling violated due process and
ordered a new sentencing hearing, Simmons, 512 U.S. at 168-69, observing that the
defendant “‘had no opportunity to deny or explain.’” Id. at 161 (quoting Gardner v. Florida,
430 U.S. 349, 362 (1977)). Unlike Simmons, this is not a case where the Defendant had no
opportunity to present evidence that he would never be released on parole. Instead, defense
counsel presented the testimony of Ms. Shettles and Tim Terry, both of whom explained that
the Defendant had little chance to ever receive parole in Tennessee, and that even if he did,
he would immediately be sent back to Mississippi to finish serving his life sentence for the
murder conviction there.

While it is true that the prosecution here argued that a factor for the jury to consider
in sentencing was “protect[ing] people like Mina Johnson from [the Defendant],” any due
process concerns were cured, not only by the evidence presented by the defense, but the
instructions of the trial court. See Simmons, 512 U.S. at 169 (“Because truthful information
of parole ineligibility allows the defendant to deny or explain the showing of future
dangerousness, due process plainly requires that he be allowed to bring it to the jury’s
attention by way of argument by defense counsel or an instruction from the court.”) (internal
quotation marks omitted). In our view, the instruction did not violate the Defendant’s due
process rights.

B. Abuse of Prosecutorial Discretion
The Defendant argues that the prosecution abused its discretion by failing to extend
a plea offer in this case to an additional charge, such as rape or robbery, which he argues
would have presented the jury with a “reasonable alternative” to the death penalty. The jury,
however, was presented with an alternative to the death penalty, namely, life imprisonment
with the possibility of parole. Further, while the Rules of Criminal Procedure state that “[t]he
district attorney general and the defendant’s attorney . . . may discuss and reach a plea
agreement,” Tenn. R. Crim. P. 11(c)(1) (emphasis added), this language is permissive, not
mandatory. In addition, “[t]here is no obligation on the part of the State to offer any benefit
or advantage to the defendant by reason of entering a guilty plea.” State v. Hodges, 815
S.W.2d 151, 155 (Tenn. 1991); see also Weatherford v. Bursey, 429 U.S. 545, 561 (1977)
(observing that “there is no constitutional right to plea bargain”). This claim, therefore, is
without merit.

5. Mandatory Review Pursuant to Tennessee Code Annotated § 39-13-206

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 A. The death sentence was not imposed in an arbitrary manner
Constitutional concerns regarding the imposition of the death penalty arise when
“‘sentencing procedures . . . create a substantial risk that the punishment will be inflicted in
an arbitrary and capricious manner.’” Zant v. Stephens, 462 U.S. 862, 910 (1983) (Marshall,
J., dissenting) (quoting Godfrey v. Georgia, 446 U.S. 420, 427 (1980)). The United States
Supreme Court has held that these concerns can be alleviated by “a carefully drafted statute
that ensures that the sentencing authority is given adequate information and guidance.”
Gregg v. Georgia, 425 U.S. 153, 195 (1976). Tennessee’s capital sentencing procedures
have been upheld as satisfying these constitutional requirements. State v. Kiser, 284 S.W.3d
227, 271 (Tenn. 2009).

The Defendant argues that the cumulative effect of the following errors resulted in a
“deviatio[n] from applicable statutes and procedural rules” such that his death sentence was
arbitrarily imposed: (1) the trial court’s dismissal of a prospective juror for cause; (2) the
admission of photographs of the victim’s body at the crime scene; (3) the prosecutor’s
highlighting of the victim’s age, frailty, and helplessness during closing argument; (4) the
prosecution’s “urg[ing] the jury to weigh non-statutory factors as part of the aggravation in
this case”; (5) the trial court’s charge to the jury concerning parole; (6) the fact that the
Defendant “was not informed that he had a limited privilege against self-incrimination if he
testified about mitigation in the sentencing hearing”; and (7) the trial court’s use of a
reasonable doubt instruction “whose further use this Court has discouraged.” The State
asserts that there was no error as to these issues, and that because the sentencing hearing
adhered to the applicable statutes and procedural rules, the sentence was not imposed in an
arbitrary manner.

We have previously determined that there was no error as to the first five issues
presented in support of the Defendant’s argument that his death sentence was arbitrarily
imposed, and our review of the record confirms that the trial court correctly adhered to the
procedural guidelines required in a capital sentencing hearing. As to issues six and seven,
we agree with the Court of Criminal Appeals’ ruling that there was no error, and that the
Defendant is not entitled to relief on either basis.12 We conclude that because the sentencing

12
As to issue six, the Court of Criminal Appeals previously found that the Defendant chose not to
testify at this sentencing hearing because he did not have the benefit of evidence he would have allegedly
obtained through a discovery request that had been denied in an earlier proceeding. See State v. Odom, No.
W2006-00716-CCA-R10-DD, 2007 Tenn. Crim. App. LEXIS 305, at *15 (Tenn. Crim. App. Apr. 13, 2007).
While conceding that his “‘colloquies with counsel and the court ostensibly satisfied the procedural
requirements of Momon[v. State, 18 S.W.3d 152 (Tenn. 1999)],’” the Defendant argued that his waiver of
the right to testify at the sentencing hearing was not knowing, intelligent and voluntary because he was “not
advised that if he chose to testify about collateral mitigating circumstances he could not be cross-examined
(continued...)

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hearing was performed in accordance with this state’s statutory mandates and procedural
rules regarding capital sentencing hearings, the Defendant’s death sentence was not
arbitrarily imposed.

B. The evidence establishes aggravating circumstances
“In determining whether the evidence supports the application of the aggravating
circumstances, the proper standard to consider is whether, after reviewing the evidence in a
light most favorable to the State, a rational trier of fact could have found the existence of the
aggravating circumstances beyond a reasonable doubt.” State v. Stevens, 78 S.W.3d 817,
841 (Tenn. 2002). The two aggravating circumstances submitted by the State were the
Defendant’s prior violent felony, see Tenn. Code Ann. § 39-13-204(i)(2), and that the murder
was committed during an attempt to commit robbery, see Tenn. Code Ann. § 39-13-204(i)(7).
In support of the (i)(2) aggravating circumstance, the jury was presented with evidence of
the Defendant’s conviction for the 1978 murder of Becky Roberts in Mississippi. The
Defendant did not dispute the judgment of conviction for that crime. The Defendant’s
statement to the police was offered in support of the (i)(7) aggravating circumstance. He
admitted that he had planned to steal the victim’s purse. He also admitted to looking through
the purse for something of value. This evidence establishes a basis for the jury’s finding that
the (i)(7) aggravating circumstance was established beyond a reasonable doubt. Cf. State v.
Keen, 31 S.W.3d 196, 206-08 (Tenn. 2000) (finding that defendant’s statement, and
inferences gleaned from it, established a reasonable basis for the jury’s finding of the
“especially heinous, atrocious or cruel” aggravating circumstance). Under these

12
(...continued)
about the crime unless he opened the door.” Odom, 2010 Tenn. Crim. App. LEXIS 223, at *90, *94.
Although decided after this sentencing hearing, our opinion in Rimmer held that a criminal defendant does
not have to be informed that he will not waive his privilege against self-incrimination if he testifies to
collateral mitigating factors in a capital sentencing hearing. 250 S.W.3d at 28. In Rimmer, we observed that
“the Defendant has not cited, and we have not found, a case from any other jurisdiction that requires a
defendant to acknowledge his awareness of a limited cross-examination rule” before waiving his right to
testify at a capital sentencing hearing. Id. Similarly, the Defendant in this appeal has not pointed us to any
authority justifying a different result. Accordingly, we find that our intermediate court correctly determined
that the Defendant is not entitled to relief on this issue.

As to issue seven, the Defendant challenged the portion of the trial court’s jury instruction providing
that “[r]easonable doubt does not mean a doubt that may arise from possibility.” Odom, 2010 Tenn. Crim.
App. LEXIS 223, at *95. While we noted in Rimmer that “the language of this particular instruction may
not be helpful,” and subsequently discouraged its use, 205 S.W.3d at 31, this opinion was, as noted above,
released after the Defendant’s sentencing hearing in this case, and therefore “the trial court was not privy
to [our] advice on continued use of this instruction.” Odom, 2010 Tenn. Crim. App. LEXIS 223, at *98. The
Court of Criminal Appeals concluded that, because this instruction had been upheld on numerous occasions
prior to our opinion in Rimmer, its use in the sentencing hearing did not result in a violation of the
Defendant’s due process rights. Id. at *98-99.

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circumstances, a rational trier of fact could have found the (i)(2) and (i)(7) aggravating
circumstances beyond a reasonable doubt.

C. The evidence establishes that the aggravating circumstances outweigh any
mitigating circumstances
The Defendant argues that the mitigating circumstances of his difficult childhood and
his rehabilitation while in prison are not outweighed by the two aggravating circumstances
found by the jury. He contends that a rehabilitated inmate “cannot be among the ‘worst’
murderers for whom the death penalty is intended” and that his death sentence should be
modified to one of life imprisonment as a result. Additionally, he argues that the Court
should use a de novo standard of review in determining the weight to be given the
aggravating and mitigating circumstances. In response, the State contends that the evidence
clearly supports the jury’s weighing of the aggravating and mitigating circumstances.

The standard consistently utilized by this Court to review a capital sentencing jury’s
weighing of the aggravating and mitigating circumstances is “whether, after reviewing the
evidence in the light most favorable to the State, a rational trier of fact could have found that
the aggravating circumstance[s] outweighed the mitigating circumstance[s] beyond a
reasonable doubt.” State v. Stephenson, 195 S.W.3d 574, 593 (Tenn. 2006); see also State
v. Reid, 164 S.W.3d 286, 314 (Tenn. 2005); accord State v. Woods, 23 P.3d 1046, 1075
(Wash. 2001) (noting that in “determin[ing] whether there was sufficient evidence to justify
the affirmative finding that there were not sufficient mitigating circumstances to merit
leniency,” the reviewing court must “ask whether, after reviewing the evidence in the light
most favorable to the prosecution, any rational trier of fact could have found sufficient
evidence to justify that conclusion beyond a reasonable doubt”).

The Defendant claims that because the imposition of a death sentence ultimately turns
on the weighing of the aggravating and mitigating circumstances, de novo review is
warranted in order to ensure that only those criminal defendants who genuinely deserve the
ultimate punishment receive it. While we are mindful of the need for “a greater degree of
reliability when the death sentence is imposed,” Lockett v. Ohio, 438 U.S. 586, 604 (1978),
the Defendant does not cite to any authority in support of his argument that a departure from
the traditional standard of review would render more reliable results in the imposition of the
death penalty. Further, the statute in question requires that we determine if the evidence
supports the jury’s findings. See Tenn. Code Ann. § 39-13-206(c)(1)(C). A jury’s finding
as to the weight of the evidence is entitled to deference. See State v. Davis, 141 S.W.3d 600,
611 (Tenn. 2004) (“Questions concerning the credibility of the witnesses, the weight to be
given the evidence, and any factual issues raised by the evidence are resolved by the trier of
fact.”); State v. Flake, 88 S.W.3d 540, 553 (Tenn. 2002) (noting that it is the jury’s
responsibility to assess the credibility of witness testimony and the weight of the evidence

-31-
(quoting United States v. Barton, 992 F.2d 66, 70 (5th Cir. 1993))). In Flake, we applied the
“rational trier of fact” standard of review to evaluate a jury’s rejection of a defendant’s
insanity defense and observed that, while it is “properly deferential to the finding of the trier
of fact,” it does “not totally insulate the jury’s finding from appellate review,” but rather
“enhances appellate review by virtue of its similarity to the familiar sufficiency standard
which appellate courts are accustomed to applying.” 88 S.W.3d at 554. We hold the same
to be true when this standard is used by an appellate court to review the jury’s weighing of
aggravating and mitigating circumstances in a capital sentencing hearing. Our view is that
the current standard of review more properly “gives full play to the responsibility of the trier
of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw
reasonable inferences from basic facts to ultimate facts.” Jackson v. Virginia, 443 U.S. 307,
318-19 (1979).

With this standard in mind, we must address the weighing of the aggravating and
mitigating circumstances. The State proved that the Defendant had murdered Becky Roberts
in 1978. The jury was presented with the judgment of conviction for that crime. The State
also presented evidence that the Defendant murdered the victim in this case during a robbery.
The State submitted photographic and testimonial evidence describing the nature and
circumstances of the crime, which allowed the jury to assess the weight to be given the
proffered aggravating circumstances.

In mitigation, the defense presented the Defendant’s personal history, which outlined
his abandonment by his birth parents and separation from his siblings at a young age. It
illustrated the abusive home life the Defendant experienced as a result of his adoptive
mother’s remarriage, the emotional rejection he experienced as a child, and his involvement
with juvenile authorities in Mississippi. The defense described his stay at the Columbia
Training Center, where two psychological evaluations identified the Defendant’s need for
psychological treatment, which he never received. The jury also heard evidence concerning
the Defendant’s almost spotless record while incarcerated at Riverbend, where he received
his GED and a paralegal certification, worked as a teacher’s aide, participated in a variety
of classes, and engaged in arts and crafts. Several parties who had come into contact with
the Defendant during his incarceration testified to the Defendant’s efforts at self-
improvement and his capacity for rehabilitation in a structured prison environment. The jury
also heard from Dr. Joseph Angelillo, who believed the Defendant suffered from “schizoid
personality features” and opined that the Defendant had the capacity to do well in the prison
environment. The State rebutted this evidence by describing the Defendant’s escape from
prison and his prior theft and robbery convictions, both of which were committed after his
escape.

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 While the defense offered extensive proof of circumstances in mitigation of the crime,
the two aggravating circumstances were firmly established by the evidence. The State also
presented evidence that the jury could have used to assess the weight to be given the
aggravating and mitigating circumstances. As a result, there was a sound basis for the jury’s
determination that the aggravating circumstances outweighed the mitigating ones beyond a
reasonable doubt.

D. The sentence of death is not excessive or disproportionate to the penalty imposed
in similar cases
The Defendant argues that, because of his status as a rehabilitated inmate, his
execution would be aberrant, and that the causal connection between his early life experience
and his later criminal behavior diminishes his culpability. The State contends that the death
sentence is neither excessive nor disproportionate in light of similar cases in which the
penalty has been imposed.

This Court’s proportionality review begins with a presumption that the sentence “is
not disproportionate to the crime in the traditional sense;” however, we must inquire as to
whether “the penalty is nonetheless unacceptable in a particular case because
disproportionate to the punishment imposed on others convicted of the same crime.” Reid,
213 S.W.3d at 820 (internal quotation marks omitted); see also Terry, 46 S.W.3d at 163.
“‘[T]he pool of cases considered by this Court . . . includes those first degree murder cases
in which the State seeks the death penalty, a capital sentencing hearing is held, and the
sentencing jury determines whether the sentence should be life imprisonment, life
imprisonment without the possibility of parole, or death.’” Reid, 213 S.W.3d at 820 (quoting
Davis, 141 S.W.3d at 620). The Court’s function in this review is not limited to those cases
which are “perfectly symmetrical,” but rather to “identify and to invalidate the aberrant death
sentence.” Terry, 46 S.W.3d at 164 (citation omitted). “Before we may hold that the death
sentence received by the Defendant was disproportionate, we must find that the facts of this
case are ‘plainly lacking in circumstances consistent with those in cases where the death
penalty has been imposed.’” Rimmer, 250 S.W.3d at 34 (quoting Reid, 213 S.W.3d at 820).

There is no formula for comparing similar cases; however, this Court generally looks
to the following factors regarding the offense:

(1) the means of death; (2) the manner of death; (3) the motivation for the
killing; (4) the place of death; (5) the victim’s age, physical condition, and
psychological condition; (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 effect upon non-decedent victims.

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Reid, 213 S.W.3d at 820 (quoting Davis, 141 S.W.3d at 620). As to the defendant, this Court
considers the following factors: “‘(1) prior criminal record, if any; (2) age, race, and gender;
(3) mental, emotional, and physical condition; (4) role in the murder; (5) cooperation with
authorities; (6) level of remorse; (7) knowledge of the victim’s helplessness; and (8) potential
for rehabilitation.’” Id.

Here, the Defendant sought out an elderly victim and murdered her in the course of
a robbery. This Court has, on numerous occasions, upheld the death sentences of defendants
where an elderly victim was attacked and killed during the course of a robbery or burglary.
See State v. Rollins, 188 S.W.3d 553 (Tenn. 2006); State v. Leach, 148 S.W.3d 42 (Tenn.
2004); State v. Mann, 959 S.W.2d 503 (Tenn. 1997); State v. Smith, 893 S.W.2d 908 (Tenn.
1994); State v. Van Tran, 864 S.W.2d 465 (Tenn. 1993); State v. McNish, 727 S.W.2d 490
(Tenn. 1987).

As stated, the State proved two aggravating circumstances. See Tenn. Code Ann. §
39-13-204(i)(2) and (i)(7). We have previously upheld death sentences where the murder
was committed in the course of a robbery or burglary and where there was at least one other
aggravating circumstance. See Carter, 114 S.W.3d at 895; State v. Chalmers, 28 S.W.3d 913
(Tenn. 2000); State v. Cribbs, 967 S.W.2d 773 (Tenn. 1998); State v. Cazes, 875 S.W.2d 253
(Tenn. 1994); State v. Barber, 753 S.W.2d 659 (Tenn. 1988); State v. Coleman, 619 S.W.2d
112 (Tenn. 1981).

Evidence was presented showing that the Defendant had a troubled upbringing, spent
time in the custody of juvenile authorities, never received recommended psychological
treatment, and suffered from “schizoid personality features” as an adult. We have upheld the
death sentences of other defendants who experienced similarly troubled childhoods and were
affected adversely by these experiences. Schmeiderer, 319 S.W.3d at 607 (affirming death
sentence where defendant was shown no affection during his childhood, was housed in a
juvenile facility from ages fifteen to eighteen, and had not received treatment advised by a
psychiatric evaluator); Leach, 148 S.W.3d at 42 (upholding death sentence where mitigation
showed that defendant was neglected as a child, physically and sexually abused from
childhood through his adult years in prison, and suffered from low self-esteem, depression,
and suicidal tendencies); State v. Keen, 31 S.W.3d 196 (Tenn. 2000) (affirming death
sentence where defendant grew up in an extremely abusive home until the age of four, at
which point he was adopted, and never received recommended psychological care); State v.
Blanton, 975 S.W.2d 269 (Tenn. 1998) (affirming defendant’s death sentence despite
mitigating evidence that defendant was abused by his father as a child and grew up under
difficult familial and economic circumstances); State v. Hines, 919 S.W.2d 573 (Tenn. 1995)
(affirming death sentence of defendant who experienced a troubled childhood, during which

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his father abandoned him and his mother was an alcoholic, and he suffered from paranoid
personality disorder and chronic depression).

In the course of the proportionality review, our Court of Criminal Appeals did not
specifically address the mitigating circumstance of rehabilitation. The Defendant offered
proof of a significant period of good behavior during his years of incarceration, which was
bolstered by the testimony of several individuals who believed that he had significantly
improved himself while he was imprisoned and would continue to thrive in the structured
environment of Riverbend. The Defendant also obtained his GED, along with several other
certifications, and engaged in a variety of constructive activities within the prison system.
We have identified, however, several cases in which death sentences have been upheld
despite evidence of rehabilitation during a term of imprisonment. For instance, in State v.
Austin, 87 S.W.3d 447 (Tenn. 2002), the defendant hired another person to kill the victim,
was convicted of murder, and subsequently sentenced to death. Id. at 457. In a re-sentencing
hearing taking place several years after the initial trial, the defendant presented evidence that
he was “a model prisoner and a man of good character” who had only “one minor
disciplinary write-up in his twenty-two years on death row and had achieved the highest
classification level possible based on good behavior.” Id. at 458. The Defendant also
worked as a teacher’s aide and tutored fellow inmates in preparation for the GED. Id. Two
guards testified that the defendant helped save their lives during a prison riot. Id. Despite
these mitigating factors, this Court upheld the sentence of death. Id. at 467; see also
Stephenson, 195 S.W.3d at 584 (affirming after re-sentencing hearing death sentence of
defendant who was described as “cream of the crop,” completed paralegal and construction
training courses, served as inmate advisor on disciplinary board, spoke to troubled youth, was
an ordained minister, participated in religious programs, and played in multi-racial gospel
band); State v. Cauthern, 967 S.W.2d 726 (Tenn. 1998) (affirming after re-sentencing
hearing death sentence of defendant who obtained his GED and paralegal certification while
at Riverbend, served as a teacher’s aide, made greeting cards, and introduced statements from
prison officials and teachers attesting to his positive attitude and behavior).

After carefully reviewing the record and the pertinent case law, we conclude that the
Defendant’s case is not “plainly lacking in circumstances consistent with those in cases
where the death penalty has been imposed.” Rimmer, 250 S.W.3d at 36 (quoting Davis, 141
S.W.3d at 620).

6. Recusal
The Defendant argues that Judge John Everett Williams, who served on the panel of
the Court of Criminal Appeals, should have granted the motion to recuse because of his prior

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disapproval of the full amount of compensation sought by his appellate counsel.13 The
Defendant maintains that Judge Williams’ participation in the case “created an appearance
of having prejudged the merits of [his] appeal, [or] of harboring bias against the Defendant
. . . or [his] counsel.” He further contends that Judge Williams failed to apply the standard
required by Tennessee Supreme Court Rule 10, Canon 3E(1), which provides, in pertinent
part, that “[a] judge shall disqualify himself or herself in a proceeding in which the judge’s
impartiality might reasonably be questioned.” The Defendant claims that Judge Williams’
use of a subjective standard violated his “state and federal rights to due process of law and
heightened due process,” as well as his Eighth Amendment right to meaningful appellate
review. In response, the State describes the Defendant’s assertions as an intemperate
reaction to an adverse ruling – and insufficient grounds for recusal. See Keisling v. Keisling,
92 S.W.3d 374, 380 (Tenn. 2002).

“‘The right to a fair trial before an impartial tribunal is a fundamental constitutional
right.’” Bd. of Prof’l Responsibility v. Slavin, 145 S.W.3d 538, 548 (Tenn. 2004) (quoting
Austin, 87 S.W.3d at 470). The Tennessee Constitution provides that “[n]o judge . . . shall
preside on the trial of any cause in the event of which he may be interested.” Tenn. Const.
art. VI, § 11; cf. Tumey v. Ohio, 273 U.S. 510, 523 (1927) (“[I]t certainly violates the
Fourteenth Amendment and deprives a defendant in a criminal case of due process of law to
subject his liberty or property to the judgment of a court, the judge of which has a direct,
personal, substantial pecuniary interest in reaching a conclusion against him in his case.”).
The purpose of this constitutional protection “‘is to guard against the prejudgment of the
rights of litigants and to avoid situations in which the litigants might have cause to conclude
that the court had reached a prejudged conclusion because of interest, partiality or favor.’”
Slavin, 145 S.W.3d at 548 (quoting State v. Benson, 973 S.W.2d 202, 205 (Tenn. 1998)).
As a result, recusal is necessary in some instances in order to preserve the public confidence
in judicial neutrality and impartiality. See Slavin, 145 S.W.3d at 548. The test in
determining whether recusal is necessary is an objective one, “‘since the appearance of bias
is as injurious to the integrity of the judicial system as actual bias.’” Id. (quoting Davis v.
Liberty Mut. Ins. Co., 38 S.W.3d 560, 565 (Tenn. 2001)); see also Reid, 213 S.W.3d at 815
(quoting Davis, 38 S.W.3d at 565); accord Caperton v. A.T. Massey Coal Co., __ U.S. __,
__, 129 S. Ct. 2252, 2262 (2009) (“The inquiry [regarding recusal] is an objective one. The
Court asks not whether the judge is actually, subjectively biased, but whether the average
judge in his position is ‘likely’ to be neutral, or whether there is an unconstitutional ‘potential
for bias.’”). Under this objective test, recusal becomes necessary “‘when a person of
ordinary prudence in the judge’s position, knowing all of the facts known to the judge, would
find a reasonable basis for questioning the judge’s impartiality.’” Reid, 213 S.W.3d at 815

13
Judge Alan Glenn authored the unanimous opinion of the Court of Criminal Appeals. Judge J.C.
McLin also served on the panel with Judge Williams. See Odom, 2010 Tenn. Crim. App. LEXIS 223.

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(quoting Alley v. State, 882 S.W.2d 810, 820 (Tenn. Crim. App. 1994)); Slavin, 145 S.W.3d
at 548; see also Tenn. Sup. Ct. R. 10, Canon 3E(1). This decision is left to the sound
discretion of the judge whose recusal is sought and will not be disturbed on appeal unless
“clear abuse appears on the face of the record.” Reid, 213 S.W.3d at 815; see also Bean v.
Bailey, 280 S.W.3d 798, 805 (Tenn. 2009).

The Defendant’s appellate attorneys, Brock Mehler and Gerald Skahan, sought Judge
Williams’ disqualification after he reduced the amount of their compensation application by
$4,305 and $3,372, respectively.14 In the order denying relief, Judge Williams found that the
motion for recusal was “predicated on grounds that cannot be supported pursuant to
Tennessee Supreme Court Rule 10, Canon 3E.” He explained that the “primary reason” for
reducing attorney Skahan’s compensation was because much of the research for which
compensation was sought involved issues that either “were never addressed or thought
sufficient to be included in this appeal.” Attorney Mehler’s compensation was reduced
because Judge Williams “concluded that some of the hours claimed seemed excessive to
complete the task and some work appeared duplicitous.” While Judge Williams pointed out
that he had formed no opinion concerning the merits of the Defendant’s appeal and otherwise
expressed “high regard” for both attorneys, the order “question[ed] the reasonableness of the
time they expended.” The order further provided that, after the opinion by the Court of
Criminal Appeals had been filed, counsel could “request the authoring judge to review all
fee petitions filed in this case,” as Judge Williams felt that he “may be in a better position to
determine the reasonableness of the fee than I was when I was asked to review it initially.”

In our view, Judge Williams evaluated the motion for recusal as required by
Tennessee Supreme Court Rule 10, Canon 3E, which directs the use of an objective test in
questions of recusal. While it is defense counsel’s prerogative to challenge the propriety of
the denial of the full amount of the fees sought, it does not follow that the Defendant was
deprived of an impartial judge on the panel of the Court of Criminal Appeals. The issues are
separate and distinct, and the disposition on one has no bearing on the other. The order does
not reflect prejudice or bias against the Defendant, but merely provides that at the time
counsel submitted their claim, Judge Williams could not approve the compensation sought
based on his assessment of the hours worked. While the Defendant’s counsel assert that their
subsequent motions to reconsider were “unavailing,” they are not able to point to any portion

14
Judge Williams authorized compensation in the amount of $5,122.50 for Mehler and $600 for
Skahan.

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of the record as support for their inference that Judge Williams had somehow displayed
prejudice either to them or to the Defendant.15

While it is apparent that the Defendant’s counsel disagreed with Judge Williams’
decision to reduce their compensation, this, without some indication that the reduction was
tied to some type of bias or prejudice, does not meet the threshold for recusal. Cf. Bean, 280
S.W.3d at 805-06 (finding that recusal of trial judge was required where it was publicly
known that the attorney and the judge had an extensive “acrimonious relationship” and
numerous “hostile meetings” had taken place between the judge and members of the
attorney’s law firm). This Court has previously ruled that “the mere fact that a judge has
ruled adversely to a party . . . is not grounds for recusal” because “[i]f the rule were
otherwise, recusal would be required as a matter of course since trial courts necessarily rule
against parties . . . in every case.” Davis, 38 S.W.3d at 565; see also Keisling, 92 S.W.3d at
380; Alley, 882 S.W.2d at 821 (“Rulings of a trial judge, even if erroneous, numerous and
continuous, do not, without more, justify disqualification.”). As indicated, nothing in this
record suggests that Judge Williams’ failure to approve the entire amount of compensation
sought by the Defendant’s counsel was based on anything other than his determination that
the time spent researching certain issues was unreasonable. See Hines, 919 S.W.2d at 578-79
(holding that where the trial judge “stated that he was not prejudiced against the defendant”
and there was “no indication in the record” that the rejection of the defendant’s plea
agreement was a biased decision against him, recusal was not warranted). Because the
Defendant has failed to establish that prejudice or bias on the part of Judge Williams affected
his ability “to render an impartial decision,” id. at 579, his refusal to grant the motion to
recuse does not qualify as an abuse of discretion. See State v. Ferrell, 277 S.W.3d 372, 378
(Tenn. 2009) (“The abuse of discretion standard contemplates that before reversal the record
must show that a judge ‘applied an incorrect legal standard, or reached a decision which is
against logic or reasoning that caused an injustice to the party complaining.’” (quoting State
v. Shirley, 6 S.W.3d 243, 247 (Tenn. 1999))).

Conclusion
We hold that (1) the Defendant’s right to a fair and impartial jury was not violated by
the disqualification of a prospective juror; (2) the prosecutor’s closing argument did not
result in the erroneous injection of non-statutory aggravating factors into the weighing
process warranting reversal of the death sentence; (3) the admission of photographs of the

15
The Defendant’s counsel appear to take issue with Supreme Court Rule 13 for several reasons,
including the fact that, after their motions to reconsider were denied, they were “left with no recourse
because [the Rule] no longer provides for an appeal from the denial of claims for compensation.” The
mechanics of this Rule, however, are not before us in this appeal; therefore, we are unable to address the
merit of their complaints.

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body did not constitute error; (4) the trial court’s instructions on parole did not violate the
Defendant’s right to due process of law and heightened reliability; (5) the mandatory criteria
of Tennessee Code Annotated section 39-13-206(c)(1) are satisfied; and (6) the reduction of
the amount of compensation sought by appellate defense counsel by a judge on the Court of
Criminal Appeals did not necessitate the judge’s disqualification from participating in the
case.

Accordingly, the judgment of the Court of Criminal Appeals is affirmed. The
sentence of death shall be carried out on the 13th day of March, 2012, unless otherwise
ordered by this Court or other proper authority. It appearing that the Defendant is indigent,
the costs of this appeal are taxed to the State.

_________________________________
GARY R. WADE, JUSTICE

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