IN THE SUPREME COURT OF TENNESSEE
AT JACKSON
November 9, 2005 Session
STATE OF TENNESSEE v. STEPHEN LYNN HUGUELEY
Automatic Appeal from the Court of Criminal Appeals
Circuit Court for Hardeman County
No. 6665 Jon Kerry Blackwood, Judge
No. W2004-00057-SC-DDT-DD - Filed March 15, 2006
Defendant, Stephen Lynn Hugueley, was convicted by a jury of one count of first degree
premeditated murder. During the penalty phase of the trial, the jury found four aggravating
circumstances: (1) Defendant was previously convicted of one or more felonies whose statutory
elements involved the use of violence to the person; (2) the murder was especially heinous,
atrocious, or cruel in that it involved torture or serious physical abuse beyond that necessary to
produce death; (3) Defendant committed the murder while he was in a place of lawful confinement;
and (4) the victim was a corrections employee. See Tenn. Code Ann. § 39-13-204(i)(2), (5), (8), (9)
(Supp. 1999). Additionally, the jury determined that the evidence of these aggravating circumstances
outweighed the evidence of mitigating circumstances beyond a reasonable doubt. Id. at (g)(1). The
jury thereupon sentenced Defendant to death. The Court of Criminal Appeals affirmed the
conviction and the death sentence.
After the case was docketed in this Court, we entered an order identifying several issues for
oral argument.1 We now hold as follows: (1) the trial court did not commit reversible error in
concluding that Defendant failed to establish purposeful discrimination by the prosecution in its
exercise of peremptory challenges in violation of Batson v. Kentucky and J.E.B. v. Alabama ex rel.
T.B.; (2) the trial court did not commit reversible error in refusing to dismiss prospective juror
Watkins for cause; and (3) the death sentence is valid under this Court’s mandatory review pursuant
to Tennessee Code Annotated section 39-13-206(c)(1) (2003). We agree with the Court of Criminal
Appeals’ conclusions with respect to the remaining issues, the relevant portions of which are
included in the appendix to this opinion. Accordingly, the Court of Criminal Appeals’ judgment is
affirmed.
Tenn. Code Ann. § 39-13-206(a)(1); Judgment of the Court of Criminal Appeals Affirmed
1
“Prior to the setting of oral argument, the Court shall review the record and briefs and consider all errors
assigned. The Court may enter an order designating those issues it wishes addressed at oral argument.” Tenn. Sup. Ct.
R. 12.2.
CORNELIA A. CLARK, J., delivered the opinion of the court, in which WILLIAM M. BARKER, CJ., AND
E. RILEY ANDERSON , AND JANICE M. HOLDER , JJ., joined. ADOLPHO A. BIRCH , JR., J., filed a
concurring and dissenting opinion.
F. Michie Gibson, Jr. and T. J. Cross-Jones, Nashville, Tennessee, for the appellant, Stephen Lynn
Hugueley.
Paul G. Summers, Attorney General and Reporter; Michael E. Moore, Solicitor General; Michelle
Chapman McIntyre and Michael Markham, Assistant Attorneys General; Elizabeth T. Rice, District
Attorney General; Terry D. Dycus and Colin Campbell, Assistant District Attorneys General, for the
appellee, State of Tennessee.
OPINION
FACTUAL BACKGROUND
GUILT PHASE
The evidence adduced at Defendant’s trial established that, on January 17, 2002, Defendant
was an inmate at the Hardeman County Correctional Facility, where he was housed in the “F” pod.
That day, correctional counselor Delbert Steed entered the “F” pod in order to counsel inmates. Mr.
Steed was sitting at a table when Defendant approached from behind and began stabbing Mr. Steed
with a homemade weapon. Defendant stabbed Mr. Steed a total of thirty-six times. Defendant did
not cease stabbing the victim until the handle of his homemade weapon broke off. Once Defendant
was unable to continue using his weapon, he lay down on the floor of the pod and permitted other
correctional officers to restrain and remove him. The victim was recovered with the sharpened
portion of the weapon still embedded in his back, and he was transported to the infirmary.
Mary Harris testified that she was working in the control room from which she could view
the activity occurring in the pod. She observed Defendant approach the victim from behind and
begin stabbing him. Upon witnessing Defendant’s attack on Mr. Steed, she called for assistance.
Another female officer opened the door to the pod and told Defendant to stop. At that, Defendant
rose and started toward the officer “with the knife drawn back like he was going to stab her.” The
officer closed the door, and Defendant returned to the victim, recommencing his attack. Ms. Harris
testified further that Officer Donald Watkins entered the pod and told Defendant to stop. According
to Ms. Harris, Defendant stabbed the victim once or twice more and then stopped when the handle
on the weapon broke. At that point, Defendant allowed himself to be taken into custody.
Donald Watkins testified that he is a Senior Correctional Officer at the Hardeman County
Correctional Facility. He responded to Ms. Harris’ call for assistance. As he looked through the
door into the pod, he saw Defendant kneeling down next to the victim. When he saw Defendant stab
the victim with a homemade weapon, he entered the pod shouting, “Drop your weapon! Drop your
weapon!” Mr. Watkins stated that Defendant complied immediately and lay face down on the floor.
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Mr. Watkins called for medical assistance, and when he heard the victim making a groaning noise
“like he was in pain,” Mr. Watkins tried to reassure the victim that help was coming.
Pursuant to his employment by the Tennessee Department of Correction as an Internal Affairs
Investigator, Mr. Joseph Vernon reported to the crime scene where he collected evidence and took
photographs. Mr. Vernon was present when the murder weapon was removed from Mr. Steed’s
body. He described the weapon as a “quarter inch rod that ha[d] been sharpened to a very fine point”
on one end. Mr. Vernon stated that the point was “razor sharp.” The weapon measured
approximately eleven inches long. The handle of the weapon was a “Magic Marker” pen.
Mr. Don Dunaway, also an Internal Affairs Investigator with the Tennessee Department of
Correction, interviewed Defendant after the killing. After being informed of his rights and agreeing
to waive them, Defendant gave Mr. Dunaway a lengthy statement in which he described his intense
dislike of the victim. Mr. Dunaway testified about the statement. Additionally, an audio tape of
Defendant’s statement was played for the jury, and a transcript of the tape was provided. Defendant
described numerous conflicts and confrontations that he had had with Mr. Steed in his capacity as
a correctional officer. Defendant claimed that Mr. Steed had threatened to write him up and told
Defendant that he was “friends with these gangs around here! They like me! They love me! . . . you
ain’t nothing!”
Defendant killed the victim on a Thursday. Defendant told Mr. Dunaway that he began
thinking about killing the victim on the previous Monday. On that day, he got his weapon but then
decided to “just . . . leave it alone.” Defendant described to Mr. Dunaway what then occurred on
Thursday, while Mr. Steed was in the pod:
I started to walk up and say something to him, and one of the little gang members that
he talked to a lot there, run up and set down at the table and started talkin’ to him.
And I stood over to the side for a few minutes, and he looked at me, and he just
shook his head . . . just turned around and faced the other direction. And I said,
“F[--]k this!” And I went to the house, and got my damn knife and packed my
property up real quick . . . throwed my s[--]t in a box and un-done my TV, and set it
over to the side, and went and killed his ass! It was that plain and simple.
Defendant admitted to Mr. Dunaway that he intended to kill the victim by stabbing “the most vital
organs first . . . the heart and the lung.”
Mr. Dunaway testified that in May of 2003, Defendant wrote a letter to the district attorney.
Mr. Dunaway obtained this letter and subsequently verified with Defendant that he had written and
signed it. This letter was admitted into evidence and states, in pertinent part, the following: “I did
with malicious intent premeditatedly murder Delbert Steed, and as indicated in my statement to
Internal Affairs, I have no regret or remorse for this crime and I fully intended to kill others that day
but was unable to do so because the handle on my weapon broke.”
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Dr. O’Brian Clary Smith testified as an expert in the field of forensic pathology about the
autopsy to the victim. Dr. Smith removed the murder weapon from the victim’s back. He stated that
the victim’s cause of death was “[m]ultiple stab wounds, thirty-six.” Twelve of these wounds were
lethal. Dr. Smith testified that there were ten wounds to the victim’s chest area, three of which were
fatal. There were fourteen wounds to the victim’s back area, nine of which were fatal. Additionally,
there was one wound to the victim’s abdomen and eleven wounds to the victim’s left arm.
Defendant testified at trial. He stated about his attack on the victim:
I was stabbing Counselor Steed. He was laying on the floor, stomach down.
I was trying to drive it plumb through and hit the concrete below him. That was my
intentions. I heard the door pop behind me. I turned around and it was the Watkins
guy that testified yesterday, and a little girl named Perry. When I seen them, I took
one and a half steps toward them. At that time, I still had the weapon in my hand.
And they said, “He’s got a knife,” and slammed the door.
And they stood outside the door while I stabbed the man while he was laying
on the floor, face down, I stabbed him about eight more times trying to run it plumb
through him. They didn’t come in until when I drawed back going to hit him again,
I didn’t see nothing but a piece of pen, Magic Marker sticking out of my hand. . . .
At that point, Defendant threw the weapon handle away and lay down on the floor. Defendant also
testified about a grievance he had filed in which he set forth various complaints about the victim and
the victim’s supervisor. He explained that he had made numerous cell change requests and requests
to be placed in the anger management program, “all in an effort to get away from Counselor Steed”
and the unit manager. Defendant stated that the victim “had a smart ass mouth” which was the
source of their “problem.” Defendant continued: “He had a habit of shooting his mouth off to
inmates, threatening them, and I wasn’t going to stand for it in any way, shape or form.”
On cross-examination, Defendant stated, “In the world I live in, you die for disrespect. It
should apply to both employee and inmate.” He explained that he had made the murder weapon
from a piece of metal removed from a laundry cart. He used sandpaper from a belt sander to sharpen
the point. He stated that he would not have quit stabbing the victim if the handle of the weapon had
not broken off. He admitted that he aimed for the victim’s vital organs.
Defendant acknowledged that his actions in killing the victim were both intentional and
premeditated. He also acknowledged that during his conversations with defense counsel he had
consistently maintained that he wanted the death penalty.
Upon considering this proof, the jury returned a verdict of guilty on Defendant’s charge of
first degree premeditated murder.
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PENALTY PHASE
During the penalty phase of Defendant’s trial, the State introduced by stipulation three
certified judgments of conviction against Defendant. These judgments established that Defendant
was convicted in 1986 of first degree murder; in 1992 of first degree murder; and in 1998 of attempt
to commit first degree murder.
Dr. Smith testified and described the instant murder weapon as one that would cause pain “on
a living, awake individual.” He stated that the manner of death in this case would qualify as
“overkill.” Dr. Smith explained that the term “overkill” was used in forensic pathology to mean that
“there was excessive injury done to the body far in excess of what would be necessary to cause
death.”
Willie Leroy Steed, the victim’s older brother, testified about all of the assistance that the
victim had provided to their family members prior to his murder. Mr. Steed stated that their brother,
Paul, who is handicapped, had been able to live unassisted prior to the murder. After the murder,
because the victim was no longer able to help with Paul’s needs, Paul had to move to a supervised
facility. Their sister, Barbara, was also adversely affected by the murder, having since become “very
nervous,” a condition for which she requires medical help. She also now requires the use of a
walking cane. Their sister, Onita, suffered a “nervous breakdown” as a result of the murder and has
visions of the victim at night. Their sister, Margaret, suffered a heart attack after the murder and was
subsequently moved to a nursing home. On cross-examination, Mr. Steed acknowledged that he and
another brother, as executors of the victim’s estate, had filed a lawsuit against “CCA2 and Hardeman
County” alleging negligence with regard to the victim’s death.
In a colloquy with the court, Defendant waived his right to present any mitigating evidence.
At the close of proof, the trial court instructed the jury on four statutory aggravating
circumstances as follows:3
Tennessee law provides that no sentence of death or sentence of
imprisonment for life without possibility of parole shall be imposed by a jury but
upon a unanimous finding that the state has proven beyond a reasonable doubt the
existence of one (1) or more of the statutory aggravating circumstances, which shall
be limited to the following:
[(2) the defendant was previously convicted of one (1) or more felonies, other than
the present charge, the statutory elements of which involve the use of violence to the
2
W e take judicial notice of the fact that the Hardeman County Correctional Facility is managed by Corrections
Corporation of America.
3
The trial court’s instructions to the jury were not transcribed. This Court is relying upon the written
instructions included with the jury’s verdict form contained in the technical record.
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person. The state is relying upon the crime(s) of murder & att. [sic] murder, which
is (are) a felony involving the use of violence to the person[;]
[(5) The murder was especially heinous, atrocious, or cruel in that it involved torture
or serious physical abuse beyond that necessary to produce death[;]
[(8) The murder was committed by the defendant while [he] was in lawful custody
or in a place of lawful confinement[;]
[(9) The murder was committed against any law enforcement officer, corrections
official, corrections employee, engaged in the performance of official duties.
“HEINOUS” means grossly wicked or reprehensible, abominable; odious; vile.
“ATROCIOUS” means extremely evil or cruel; monstrous; exceptionally bad;
abominable.
See Tenn. Code Ann. § 39-13-204(i)(2), (5), (8), (9) (Supp. 1999). As to mitigating circumstances,
the trial court instructed the jury as follows:
Tennessee law provides that in arriving at the punishment, the jury shall
consider as previously indicated, any mitigating circumstances raised by the proof[.]
Any other mitigating factor which is raised by the evidence produced by
either the prosecution or defense at either the guilt or sentencing hearing; that is, you
shall consider any aspect of the defendant’s character or record, or any aspect of the
circumstances of the offense favorable to the defendant which is supported by the
evidence.
The defendant does not have the burden of proving a mitigating circumstance.
If there is some evidence that a mitigating circumstance exists, then the burden of
proof is upon the state to prove, beyond a reasonable doubt, that the aggravating
circumstance or circumstances outweigh any mitigating circumstance or
circumstances.
There is no requirement of jury unanimity as to any particular mitigating
circumstance, or that you agree on the same mitigating circumstance.
See id. at (e)(1).
Following deliberations, the jury found that the State had proven all four aggravating
circumstances beyond a reasonable doubt. The jury further determined that the aggravating
circumstances outweighed any mitigating circumstances beyond a reasonable doubt. The jury
sentenced Defendant to death for his first degree premeditated murder of Delbert Steed.
On appeal, the Court of Criminal Appeals affirmed Defendant’s conviction and death
sentence. Defendant’s appeal was then automatically docketed in this Court.
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ANALYSIS
I. Jury Selection Issues
A. Batson Claims
1. Allegedly Race-based Peremptory Challenges
We first address Defendant’s contention that his constitutional rights were violated by the
prosecution’s exercise of peremptory challenges to certain potential jurors. Defendant asserts in his
appellate brief that the State struck eight jurors on the basis of their race in violation of his equal
protection rights under Batson v. Kentucky, 476 U.S. 79 (1986). The State responds that no
violation occurred because the basis of each challenge was race-neutral.
In Batson, the United States Supreme Court held that “the Equal Protection Clause [of the
United States Constitution] forbids the prosecutor to challenge potential jurors solely on account of
their race . . . .” Id. at 89. The Court crafted a three-pronged analysis for determining whether the
suspect challenges were impermissibly based on the potential juror’s race. At the outset, the
defendant must establish a prima facie case of purposeful discrimination.4 In doing so, the defendant
may rely “solely on evidence concerning the prosecutor’s exercise of peremptory challenges at the
defendant’s trial.” Id. at 96. That is, the defendant need not prove a past pattern of racially
discriminatory jury selection practices by the prosecution. Id. at 92-93; cf. Swain v. Alabama, 380
U.S. 202, 223 (1965), overruled in part by Batson, 476 U.S. at 91-92 (recognizing that an inference
of purposeful discrimination may be raised on proof that the prosecution struck qualified blacks “in
case after case, whatever the circumstances, whatever the crime and whoever the defendant or the
victim may be. . .”). Once the defendant makes out a prima facie case, the State has the burden of
producing a neutral explanation for its challenge. Batson, 476 U.S. at 97. This explanation must
be a clear and reasonably specific account of the prosecutor’s legitimate reasons for exercising the
challenge. Id. at 98 n.20. However, the race or gender neutral explanation need not be persuasive,
or even plausible. Purkett v. Elem, 514 U.S. 765, 767-68 (1995). “’Unless a discriminatory intent
is inherent in the prosecutor’s explanation, the reason offered will be deemed race neutral.’” Id. at
768 (quoting Hernandez v. New York, 500 U.S. 352, 360 (1991) (plurality opinion)). If a race-
neutral explanation is provided, the trial court must then determine, from all of the circumstances,
whether the defendant has established purposeful discrimination. Batson, 476 U.S. at 98. The trial
court may not simply accept a proffered race-neutral reason at face value but must examine the
prosecutor’s challenges in context to ensure that the reason is not merely pretextual. See Miller-El
v. Dretke, __ U.S. __, 125 S. Ct. 2317 (2005) (“Miller-El II”). In that case, the Court reiterated that
“the rule in Batson provides an opportunity to the prosecutor to give the reason for striking the juror,
and it requires the judge to assess the plausibility of that reason in light of all evidence with a bearing
4
The Supreme Court subsequently ruled that the State may also lodge a Batson objection upon perceived
discriminatory peremptory challenges by the defendant. See Georgia v. McCollum, 505 U.S. 42, 59 (1992). W e refer
here to the objecting party as “defendant” for ease of reading.
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on it.” Id. at 2331. If the trial court determines that the proffered reason is merely pretextual and
that a racial motive is in fact behind the challenge, the juror may not be excluded. Woodson v.
Porter Brown Limestone Co., 916 S.W.2d 896, 903 (Tenn. 1996).
As this Court has noted in the past, “determination of the prosecutor’s discriminatory intent
or lack thereof turns largely on the evaluation of the prosecutor’s credibility, of which the attorney’s
demeanor is often the best evidence.” State v. Smith, 893 S.W.2d 908, 914 (Tenn. 1994). We
accord a trial court’s findings in this regard great deference and will not set them aside unless clearly
erroneous. Woodson, 916 S.W.2d at 906; see also Batson, 476 U.S. at 98 n.21 (“Since the trial
judge’s findings in [this] context . . . largely will turn on evaluation of credibility, a reviewing court
ordinarily should give those findings great deference.”). For this reason, “[t]he trial judge must
carefully articulate specific reasons for each finding on the record, i.e., whether a prima facie case
has been established; whether a neutral explanation has been given; and whether the totality of the
circumstances support a finding of purposeful discrimination.” Woodson, 916 S.W.2d at 906.
In this case, defense counsel objected at trial to the State’s peremptory challenge of five
potential jurors: Ms. Ida Ferguson, Mr. Everette Woods, Ms. Phyllis McKinnie, Ms. Willie Heard,
and Ms. Helen Pruitt. The record indicates that all of these persons are African-American;
Defendant is Caucasian.5 Before this Court, Defendant alleges that the prosecution improperly
excluded eight African-American venire persons,6 adding Mr. Johnny Hudson, Ms. Gertrude Gibbs,
and Ms. Linda Pirtle. Defendant’s argument as to these additional three venire persons is waived
because Defendant failed to object to the State’s challenges to these three persons in a timely fashion.
See State v. Peck, 719 S.W.2d 553, 555 (Tenn. Crim. App. 1986). This Court is not bound to grant
relief to a party who fails to take “whatever action was reasonably available to prevent or nullify the
harmful effect of an error.” Tenn. R. App. P. 36(a). In this case, Defendant had the opportunity at
trial to object to each and every one of the State’s peremptory challenges, thereby giving the trial
court the opportunity to assess the constitutionality of the State’s choices. Defendant did not do so
with respect to Mr. Hudson, Ms. Gibbs, and Ms. Pirtle. Accordingly, he will not now be heard to
complain about the State’s challenges to these three venire persons. See State v. Johnson, 980
S.W.2d 414, 419 (Tenn. Crim. App. 1998). We will, therefore, limit our examination of Defendant’s
race-based Batson claim to the five venire persons previously named.
Ida Ferguson
During voir dire questioning by the State, Ms. Ferguson acknowledged that she had a
religious belief against the death penalty, but stated she could “follow the law.” She acknowledged
having stated on her jury questionnaire that she felt a sentence of life without parole was “adequate”
and that she would not want to consider the death penalty, but reiterated that she “ha[d] to obey the
5
Defendant’s race is indicated in the Report of Trial Judge in Capital Cases prepared and submitted by the trial
court pursuant to Tennessee Supreme Court Rule 12.1.
6
In Powers v. Ohio, 499 U.S. 400, 415-16 (1991), the Supreme Court determined that the defendant and the
excluded juror need not be of the same race in order for there to be an equal protection claim.
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laws of the land.” In response to subsequent questions by defense counsel, Ms. Ferguson stated that
she “would have to have very hard evidence to consider” imposing either life in prison with no
opportunity for parole or the death penalty. The State thereafter used one of its peremptory
challenges to remove Ms. Ferguson from the panel. Upon defense counsel’s Batson objection, the
prosecutor referred to Ms. Ferguson’s response in the jury questionnaire to the question, “do you
have any personal, moral or religious beliefs against imposition of the death penalty?” According
to the prosecutor, Ms. Ferguson had answered, “yes,” with the explanation that she believed that a
“life sentence without parole is adequate, vengeance is mine said the Lord.” The prosecutor
maintained that “the State is striking her based upon the answer to that question.” The trial court
thereupon overruled defense counsel’s Batson objection.
Everette Woods
The State asked Mr. Woods during voir dire if he believed in the death penalty. Mr. Woods
responded that he did not believe in it. He stated further, however, that he could follow the law and
sign the death warrant if Defendant was guilty. After the State peremptorily challenged Mr. Woods,
defense counsel lodged a Batson objection. The prosecutor responded that Mr. Woods had indicated
on his jury questionnaire that he did not believe in the death penalty. Defense counsel claimed that
Mr. Woods had been rehabilitated during voir dire. The trial court stated nothing on the record but
excused Mr. Woods.
Phyllis McKinnie
Defense counsel objected to the State’s challenge of Ms. McKinnie, stating that she was the
sixth African-American struck by the State. The State had lodged five peremptory challenges prior
to challenging Ms. McKinnie. The State referred to Ms. McKinnie’s statement on her questionnaire
that she “just [does not] want to be a part of putting any person to death because it could turn out to
be an innocent person after you have put him or her to death.” The prosecutor also averred that “all
six of the individuals [he] struck [had] indicated on the back of their jury questionnaires they would
have a problem with the death penalty.” Defense counsel claimed that Ms. McKinnie had been
rehabilitated. The trial court found that the State had established a racially neutral reason for its
challenge and overruled the objection.
Willie Heard
The State next challenged Ms. Heard, stating that she had indicated on her questionnaire that
she had personal, moral, or religious beliefs against the death penalty, and that she did not like it but
could not stop it. Defense counsel responded,
this is their seventh black juror and it’s their sixth woman that they have struck. She,
like the others, went through and said she could listen to all three sentencing phases
just like the others but we feel at this point in time you’ve got seven black jurors that
have been stricken from the record.
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The trial court then stated, “The Court finds that there is a racially neutral reason for the challenge
but you might be careful about rehabilitating. The Court will look at it a little closer next time.”
Helen Pruitt
On defense counsel’s Batson objection to the State’s challenge of Ms. Pruitt, the prosecutor
stated,
This is the one I challenged because when I was questioning her, Judge, her
eyes, she looked like she was going to cry to the point that I backed off asking her
questions because she was sitting on the far side over there and I really felt that she
was about to break out in tears and I backed off and I noticed when she was going
into the jury box she got teary-eyed again and was shaking her head no. That’s the
reason.
Defense counsel replied, “Your Honor, we just want for the record that’s the eighth African-
American person and it’s the seventh African-American woman stricken.” The prosecutor retorted
that they “still have four7 on there,” and the trial court ruled that the State’s reason for challenging
Ms. Pruitt was “not racially motivated.”
The State lodged no further peremptory challenges. The Report of Trial Judge in Capital
Cases, filed by the trial court pursuant to Tennessee Supreme Court Rule 12.1 (“the Rule 12
Report”), indicates that seven of the twelve jurors that decided Defendant’s case were white.
As noted previously, this Court has instructed trial courts that, when making a determination
regarding a Batson objection, they “must carefully articulate specific reasons for each finding on the
record, i.e., whether a prima facie case has been established; whether a neutral explanation has been
given; and whether the totality of the circumstances support a finding of purposeful discrimination.”
Woodson, 916 S.W.2d at 906. Thus, we are initially constrained to point out that the trial court’s
findings on Defendant’s Batson objections at trial are barely adequate to permit our review. After
each of defense counsel’s objections, the trial court failed to make a specific finding that a prima
facie case of purposeful discrimination had been made. Nevertheless, the prosecutor’s response to
each objection clearly implies that the trial court expected the State to proffer its reasons for
challenging the subject venire person. That is, after each Batson objection by defense counsel, the
trial court indicated in some fashion that the second prong of the Batson analysis was called into
play. Thus, we assume that the trial court determined that, as to each of these five venire persons,
Defendant had made out a prima facie case of impermissible discrimination. See Woodson, 916
S.W.2d at 905 (even where trial court made no explicit finding that the objecting party had made out
a prima facie case, it was appropriate to conclude that the trial court had done so because
“[o]therwise, the court would not have required [the striker] to explain the challenge”). Nor did the
7
The record does not indicate whether the prosecutor was referring to four women, four African-American
persons, or four African-American women.
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trial court offer much commentary on the State’s proffered reasons for its strikes, or render detailed
findings about its reasons for overruling each of Defendant’s Batson claims. We are especially
concerned about the trial court’s failure to make specific findings in light of the United States
Supreme Court’s recent decision in Miller-El II. Although decided after the trial of this case, Miller-
El II demonstrates the importance of a complete record and comprehensive findings by the trial
court.
In Miller-El II, the United States Supreme Court expounded on the methodology used to
assess a Batson claim. In that case, the defendant was tried and convicted on a capital murder charge
and sentenced to death. 125 S. Ct. at 2322. During jury selection, the prosecution used peremptory
strikes against ten qualified African-American venire men. Id. The defendant argued, and the Court
agreed, that the prosecution’s challenges were racially motivated. Id. at 2340. In analyzing the
defendant’s claim, the Court engaged in an exhaustive and fact-intensive inquiry, relying upon not
only the transcript of the voir dire, but the completed juror questionnaires and the juror cards utilized
by the prosecution.8
As it examined the extensive evidence before it, the Court noted numerous factors indicative
of the prosecution’s impermissible motive in challenging the black venire members. Initially, the
Court pointed to the fact that the prosecution had peremptorily struck ten of the eleven, or 91%, of
the eligible African-American venire members. Id. at 2325. What it found “[m]ore powerful than
these bare statistics,” however, were the results of “side-by-side comparisons of some black venire
panelists who were struck and white panelists allowed to serve.” Id. In making these comparisons,
the Court determined that, “[i]f a prosecutor’s proffered reason for striking a black panelist applies
just as well to an otherwise-similar nonblack who is permitted to serve, that is evidence tending to
prove purposeful discrimination to be considered at Batson’s third step.” Id. Thus, “disparate
treatment” of potential jurors who responded similarly to similar questions may be indicative of
impermissible discrimination where the only significant difference between the persons is their race.
Another factor indicative of the prosecution’s improper motive was its “disparate
questioning” of the venire members, depending upon the member’s race. The Court found that, for
94% of the white members, the prosecutors gave a “bland description” of the death penalty before
asking for individual feelings on the subject. Id. at 2334. Only 47% of the African-American venire
members heard the “bland” description, with the remaining 53% hearing what the Court described
as a “graphic script.” Id. The Court appeared to agree with the defendant that the prosecution used
this tactic in an attempt to “prompt some expression of hesitation to consider the death penalty and
thus to elicit plausibly neutral grounds for a peremptory strike of a potential juror subjected to it, if
not a strike for cause.” Id. at 2333. A second form of disparate questioning involved what the Court
8
The record in this case does not contain the juror questionnaires or the juror cards used by either party. The
record does contain a transcript of the voir dire and the written peremptory challenges filed by each party. The record
also contains the Rule 12 Report which contains some information about the jury.
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described as “trickery.” Id. at 2337. The Court elucidated:
The prosecutors asked members of the panel how low a sentence they would consider
imposing for murder. Most potential jurors were first told that Texas law provided
for a minimum term of five years, but some members of the panel were not, and if
a panel member then insisted on a minimum above five years, the prosecutor would
suppress his normal preference for tough jurors and claim cause to strike.
Id. The State conceded that the manipulative questioning was used to create cause to strike, but
claimed that the five-year information was omitted not on the basis of race, but on stated opposition
to or ambivalence about the death penalty. Id. The Court found, however, that, while all African-
American panel members who had expressed opposition to or ambivalence about the death penalty
were asked the trick question, “most white panel members who expressed similar opposition or
ambivalence were not subjected to it.” Id. The Court then stated, “[o]nce again, the implication of
race in the prosecutors’ choice of questioning cannot be explained away.” Id. at 2338.
In addition to examining the questions asked and treatment of venire members, the Supreme
Court relied upon history: “We know that for decades leading up to the time this case was tried
prosecutors in the Dallas County office had followed a specific policy of systematically excluding
blacks from juries . . . .” Id. In the Miller-El II case, the prosecutors had marked the race of each
venire member on their juror cards and “took their cues [on jury selection] from a 20-year old
manual of tips” which included reasons for excluding minorities from jury service.9 Id. at 2339-40.
The Court concluded:
It blinks reality to deny that the State struck Fields and Warren . . . because
they were black. The strikes correlate with no fact as well as they correlate with race,
and they occurred during a selection infected by shuffling and disparate questioning
that race explains better than any race-neutral reason advanced by the State. The
State’s pretextual positions confirm [the defendant’s] claim, and the prosecutors’
own notes proclaim that the Sparling Manual’s emphasis on race was on their minds
when they considered every potential juror.
9
In finding racially motivated discrimination by the prosecution, the Court also took into account “a procedure
known in Texas as the jury shuffle.” Miller-El II, 125 S. Ct. at 2332. This procedure permits either side to “literally
reshuffle the cards bearing panel members’ names, thus rearranging the order in which members of a venire panel are
seated and reached for questioning.” Id. Panel members seated in the back are less likely to be questioned, and those
not questioned by the end of the week are dismissed. Id. at 2333. Thus, a party engaging in racially discriminatory jury
selection may shuffle the jury in an attempt to have, for instance, African-American members reseated in the back. Id.
In Miller-El II, the prosecution had shuffled the jury several times. The Court found that “no racially neutral reason has
ever been offered in this case [for the shuffling], and nothing stops the suspicion of discriminatory intent from rising to
an inference.” Id. Jury shuffling is not available in Tennessee.
-12-
The state court’s conclusion that the prosecutors’ strikes of Fields and Warren
were not racially determined is shown up as wrong to a clear and convincing degree;
the state court’s conclusion was unreasonable as well as erroneous.
Id. at 2340. The Court thereupon granted the defendant’s claim for habeas corpus relief. Id.
In contrast to Miller-El II, the sole indication of purposeful impermissible discrimination by
the State in this case is the fact that each of the peremptory challenges used by the State was
employed against an African-American venire person.10 A close examination of the record convinces
us, however, that the prosecution’s exercise of these challenges was for race-neutral reasons.
With respect to the State’s proffered reasons for its challenges, the prosecutor maintained
that, with respect to Ms. Ferguson, Mr. Woods, Ms. McKinnie, and Ms. Heard, he was challenging
each of these venire persons based upon his or her convictions about the death penalty. According
to the State, each of these persons had indicated some personal or religious disinclination to sentence
an individual to death. This is certainly a facially race-neutral reason for exercising a peremptory
challenge against a potential juror in a capital case. As to Ms. Pruitt, the prosecutor stated that he
excused her because, while he was questioning her, she looked as though she was going to cry. She
later became “teary-eyed” again and “was shaking her head no.” We are satisfied that the prosecutor
also provided a facially race-neutral reason for his challenge to this juror.
The trial court ultimately determined that, under all the circumstances, Defendant failed to
establish purposeful discrimination. “Because the core issue is the prosecutor’s discriminatory
intent, or lack thereof, the trial court’s finding ‘largely will turn on evaluation of credibility.’” State
v. Ellison, 841 S.W.2d 824, 827 (Tenn. 1992) (quoting Batson, 476 U.S. at 98 n.21). Both this Court
and the United States Supreme Court have previously recognized that “‘[t]here will seldom be much
evidence bearing on th[e] issue [of discriminatory intent], and the best evidence often will be the
demeanor of the attorney who exercises the challenge.’” Id. (quoting Hernandez v. New York, 500
U.S. 352, 365 (1991) (plurality opinion)). Obviously, we are in no position to second-guess the trial
court’s assessment of the prosecutor’s demeanor unless the record, as it did in Miller-El II, contains
clear objective indications that the prosecutor’s averments concerning his or her reasons for
challenging a juror are simply not credible. We remain cognizant of Batson’s holding that the
ultimate burden of establishing purposeful discrimination lies with the party objecting to the
peremptory challenge. 476 U.S. at 93; see also Purkett, 514 U.S. at 768 (recognizing that “the
ultimate burden of persuasion regarding racial motivation rests with, and never shifts from, the
opponent of the strike”). We must, examine, therefore, whether the record before us contains such
strong evidence of impermissible discriminatory intent by the prosecution as to render clearly
10
During the first round of peremptory challenges, the State challenged Mr. Hudson, Ms. Gibbs, and M s. Pirtle.
The State lodged a Batson objection to a peremptory challenge exercised by Defendant against, as described by the
prosecutor, “a Caucasian . . . male.” In response, defense counsel asserted that, during its initial peremptory challenges,
the State excused “three black people.” Neither the trial court nor the prosecutor commented on this description of Mr.
Hudson, Ms. Gibbs, and Ms. Pirtle. W e conclude, therefore, that each of these persons is African-American.
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erroneous the trial court’s determination that Defendant failed to establish purposeful discrimination
by the prosecution in its peremptory challenges.
Taking our cue from Miller-El II, we first examine the “bare statistics” in this case regarding
jury selection. The State exercised eight of its available fifteen peremptory challenges.11 All of them
were against African-American persons. We do not know, however, how many eligible African-
American venire members were available. Defense counsel exercised sixteen peremptory
challenges, one of which was against an alternate. See Tenn. R. Crim. P. 24(e). The record indicates
that the State lodged Batson objections to two of these challenges, one of them on the basis that the
juror was white. The record indicates that at least one of the other venire persons excused by the
defense was white, but we are unable to ascertain the race of the remaining fourteen venire persons
peremptorily challenged by Defendant. The United States 2000 Census provides that 41% of the
population of the county in which Defendant was tried is black or African-American. It is reasonable
to infer, therefore, that a significant proportion of the venire panel was African-American. The Rule
12 Report further indicates that five of the eventual twelve jurors in this case were non-Caucasian.
The State had seven peremptory challenges remaining to it at the time the jury, including these five
nonwhites, was sworn. These bare statistics do not, in and of themselves, convince us that the
State’s proffered race-neutral reasons for excusing the five named persons were merely pretextual.
A close review of the transcript of the voir dire reveals no disparate treatment based on race.
All but one of the eight persons peremptorily challenged by the State had expressed some hesitation
about the death penalty.12 No other person expressed such hesitation and was left unchallenged.
That is, the State was completely successful in eliminating every potential juror who had indicated
at some point in the process that he or she had reservations about imposing the death penalty. There
is no indication in the record that any nonblack person who expressed hesitation about the death
penalty was left unchallenged by the State.
There is furthermore no indication in the record that the prosecution tailored its questions
regarding the death penalty depending on the race of the targeted venire person(s). Nor does this
Court observe any manipulative questioning by the State during voir dire which we would describe
as “trickery.” Finally, there is nothing before us to indicate that the prosecutors in Hardeman County
have ever followed a specific policy of systematically excluding African-Americans from juries.
Certainly, more thorough findings by the trial court upon Defendant’s Batson objections
would have been helpful in our review of this issue. However, our close and careful review of the
record before us convinces us that there is no basis for us to determine that the trial court erred
11
Tennessee Rule of Criminal Procedure 24(d) provides that, where the charged offense is punishable by death,
the defendant and the State are each entitled to fifteen peremptory challenges.
12
Although we have determined that Defendant waived his right to appeal the State’s exercise of peremptory
challenges to Mr. Hudson, Ms. Gibbs, and Ms. Pirtle, a review of the circumstances surrounding their dismissals is
appropriate to the comprehensive analysis set forth in Miller-El II. Each of these three persons expressed some
reservation about imposing the death penalty during voir dire.
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during the third step of the Batson analysis. This Court has previously recognized that a juror’s
reservations about the death penalty may constitute a legitimate explanation for the State’s exercise
of a peremptory strike. See Smith, 893 S.W.2d at 914. As to the State’s dismissal of Ms. Pruitt, we
acknowledge that “neutral explanations that are based on subjective assessments, such as the juror’s
demeanor, must be carefully scrutinized.” State v. Carroll, 34 S.W.3d 317, 320 (Tenn. Crim. App.
2000). We note, however, that defense counsel did not in any way indicate during the jury selection
process that the prosecution’s description of Ms. Pruitt’s conduct in the jury box was inaccurate. A
potential juror who verges on tears and shakes her head “no” during voir dire would, we are sure,
prompt many a trial lawyer to exercise a peremptory challenge for legitimate reasons. Thus, we are
confident that the trial court accurately assessed the prosecutor’s credibility with regard to his
explanations and properly determined that, under all the circumstances, Defendant had not
established purposeful discrimination by the State in its exercise of its peremptory challenges.
Accordingly, we hold that Defendant is not entitled to relief on this issue.
2. Allegedly Gender-based Peremptory Challenges
We turn now to Defendant’s claim that the prosecution peremptorily challenged Ms. Prewitt,
Ms. Heard, Ms. McKinnie, and Ms. Ferguson because of their gender.13 In J.E.B. v. Alabama ex rel.
T.B., 511 U.S. 127, 129 (1994), the United States Supreme Court held that “gender, like race, is an
unconstitutional proxy for juror competence and impartiality.” We analyze a party’s claim that a
peremptory challenge is impermissibly gender-based in the same manner as a claim that a challenge
is racially motivated. See id. at 144-45.
Initially, we note that Defendant first lodged a Batson objection to a peremptory challenge
by the State upon the prosecution’s removal of Ida Ferguson. By this time in the proceedings, the
State had peremptorily challenged Linda Pirtle, Gertrude Gibbs, and Johnny Hudson. Thus, the State
used three of its first four peremptory challenges to remove women from the jury. The record does
not indicate the specific basis for Defendant’s Batson claim as to Ms. Ferguson. Nor do the trial
court’s findings indicate a specific ruling as to what type of prima facie case Defendant apparently
made out. Nevertheless, the trial court determined that the State’s rejection of Ms. Ferguson was
permissible. We see nothing in the record before us to indicate that the trial court’s conclusion in
this regard was clearly erroneous.
The State peremptorily challenged four more jurors, three of them female. Thus, of a total
of eight peremptory challenges exercised by the prosecution, six were utilized against female venire
persons, or 75%. However, as to each of the four women peremptorily challenged and to which
Defendant lodged a Batson objection, the State proffered gender-neutral reasons for their removal.
The trial court obviously determined that the State’s proffered reasons were legitimate and not
merely pretextual. The record before us does not convince us that the trial court thereby erred. The
13
Because Defendant failed to object at trial to the State’s peremptory challenges to Ms. Pirtle and Ms. Gibbs,
we hold that Defendant has waived his equal protection claim as to the exclusion of these venire persons. See Tenn. R.
App. P. 36(a); Johnson, 980 S.W .2d at 419.
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jury that tried Defendant included six female jurors.14 The State had seven of its peremptory
challenges remaining when the jury was empaneled. All but one of the venire persons peremptorily
challenged by the State and to which Defendant lodged a Batson objection had indicated some
disinclination to impose the death penalty. The other person, Ms. Pruitt, had exhibited a demeanor
that caused the prosecutor to doubt her ability to sit on the jury in a composed manner. In sum, we
are satisfied that the trial court’s findings on Defendant’s gender-based Batson claims are not clearly
erroneous. Accordingly, Defendant is not entitled to relief on this issue.
B. Trial Court’s Refusal to Dismiss Juror for Cause
Defendant also asserts in this appeal that the trial court erred in refusing to dismiss potential
juror Barry Watkins for cause. The State disagrees.
During the trial court’s initial questioning of the venire, Mr. Barry Watkins responded that
he knew something about the case. When asked for the source of his information, Mr. Watkins
replied that one of his brothers worked at the prison where the killing occurred. Mr. Watkins stated,
however, that the information he had obtained had not caused him to form an opinion about
Defendant’s guilt or innocence. Defense counsel subsequently requested a sequestered voir dire of
Mr. Watkins, which the trial court granted. During this additional voir dire, defense counsel asked
Mr. Watkins if he was a convicted felon. Mr. Watkins responded that he had been arrested but not
convicted. He explained that more than twenty years earlier, he had been arrested for a robbery.
While he was being held, they arrested “the guy that did it.” The charges against Mr. Watkins were
then dismissed. He was under the impression that his arrest was still “on record” because he was
not allowed to buy guns.15
Mr. Watkins stated that Mr. Donald Watkins was his half-brother. Mr. Watkins explained
that he knew his half-brother might be called as a prosecution witness, but maintained that “that’s
all I knew.” His half-brother told him that he would need to advise the court of their relationship.
When asked by the court if this relationship would affect his judgment, Mr. Watkins replied, “I can
listen to the facts and what’s been proven to me. He is my brother but he can be mistaken like
anybody else.” Mr. Watkins maintained that he would not give his relative’s testimony any more
weight or believability than that of the other witnesses. Mr. Watkins told the trial court that his
brother had not told him what his testimony would be about, or what he claimed the facts to be. Mr.
Watkins stated that he had not heard Defendant’s name until “today.”
14
W e base this conclusion on our review of the jurors’ names listed in the trial court’s order of conviction.
15
Defendant avers in this appeal that “[b]ased on Barry W atkins’s own testimony that he was not allowed to
own a gun and that an Aggravated Robbery was cleared up several years earlier, one could surmise that this juror was
in fact a convicted felon.” W hile we acknowledge that persons convicted of aggravated robbery are incompetent to serve
as jurors, see Tenn. Code Ann. § 22-1-102(a)(2) (1994), this Court is not going to “surmise” that Mr. W atkins has been
convicted of same absent any proof in the record.
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Following this individual voir dire, defense counsel moved to strike Mr. Watkins for cause
on the grounds that “it’s too hard to overcome the bias of your brother testifying in the State’s case
in chief.” The trial court denied defense counsel’s request. Defendant now contends that the trial
court’s ruling resulted in a violation of his constitutional rights to a fair and impartial jury.
We are initially constrained to point out that Defendant did not raise this issue in his motion
for new trial. Accordingly, this issue has been waived. See Tenn. R. App. P. 3(e) (“[I]n all cases
tried by a jury, no issue presented for review shall be predicated upon error in the admission or
exclusion of evidence, jury instructions granted or refused, misconduct of jurors, parties or counsel,
or other action committed or occurring during the trial of the case, or other ground upon which a new
trial is sought, unless the same was specifically stated in a motion for a new trial; otherwise such
issues will be treated as waived.”). Nevertheless, because this is a capital case, and because this
issue involves Defendant’s fundamental constitutional rights to a fair and impartial jury, we choose
to address it on the merits.
Both the United States and Tennessee Constitutions guarantee criminal defendants the right
to a trial by an “impartial jury.” U.S. Const. amend. VI; Tenn. Const. art. I, § 9. “The impartial jury
guaranteed by constitutional provisions is one which is of impartial frame of mind at the beginning
of trial, is influenced only by legal and competent evidence produced during trial, and bases its
verdict upon evidence connecting defendant with the commission of the crime charged.” State v.
Lawson, 794 S.W.2d 363, 367 (Tenn. Crim. App. 1990). To protect this right, litigants have the
right to lodge a “propter affectum” challenge for cause to a potential juror on the basis that he or she
is biased or prejudiced for or against one of the parties. See Toombs v. State, 270 S.W.2d 649, 650
(Tenn. 1954); State v. Akins, 867 S.W.2d 350, 355 (Tenn. Crim. App. 1993). A propter affectum
challenge should be upheld where some bias or partiality is either actually shown to exist or is
presumed to exist from circumstances. Durham v. State, 188 S.W.2d 555, 559 (Tenn. 1945).
Circumstances justifying a presumption of bias include a juror’s willful concealment of “ulterior and
prejudicial motives” arising from his prior conviction and prior involvement as prosecuting witness
in a case very similar to the defendant’s, see id. at 559, and a juror’s failure to disclose a “very close”
familial relationship between the juror and the prosecuting attorney’s wife, see Toombs, 270 S.W.2d
at 651.
In this case, the trial court overruled defense counsel’s challenge for cause to Mr. Watkins
after both the prosecution and defense counsel had an opportunity to closely question him during a
period of sequestered voir dire and after the trial court itself probed Mr. Watkins’ impartiality. The
trial court was obviously satisfied that Mr. Watkins’ relationship would not prevent or substantially
impair the performance of his duties as a juror in accordance with his instructions and his oath. A
determination of the qualifications of a juror rests within the sound discretion of the trial court.
State v. Howell, 868 S.W.2d 238, 248 (Tenn. 1993). We find no abuse of discretion in the trial
court’s refusal to excuse juror Watkins for cause in this case.
Defendant relies heavily on the Court of Criminal Appeals’ opinion in State v. Pamplin, 138
S.W.3d 283 (Tenn. Crim. App. 2003). In that case, the defendant was on trial for assaulting a city
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police officer and resisting arrest. One of the potential jurors was a county deputy sheriff who knew
both the assaulted officer and the defendant. The deputy had previously served as a judicial
commissioner for eight years and his sister-in-law worked for the district attorney. The deputy was
a member of the same law enforcement agency as one of the prosecution’s primary witnesses;
indeed, the deputy was a subordinate employee of that witness. The deputy reported for jury duty
in his uniform, including his badge and sidearm. The trial court denied the defendant’s challenge
to excuse the deputy from jury duty for cause. Because the defendant had exhausted all of his
peremptory challenges, the deputy remained on the jury and was subsequently elected its foreman.
On appeal, the intermediate appellate court determined that the trial court had committed
manifest error in refusing to excuse the deputy juror, finding that his “professional relationship and
interest in the case was entirely too close to that of [the State’s witness] and [the victim].” Id. at 286.
The court noted not only the relationship between the deputy and the State’s witnesses, but the nature
of the case (involving an assault on a police officer) and the fact that the deputy served on the jury
while in full uniform and wearing his sidearm. Id. The court emphasized that “the jury selection
process should endeavor to select jurors who are not only fair and impartial but are also free from
the suspicion of impartiality.” Id. at 287.
We find the Pamplin case to be readily distinguishable from Defendant’s. The combination
of factors present in the Pamplin case created an egregious set of circumstances which are simply
not present in the case before us. While we certainly agree that a close familial relationship between
a juror and a witness may give rise to a suspicion of partiality, we are reluctant to conclude that a
half-sibling connection is sufficient, in and of itself, to raise a presumption of bias so as to require
a trial court to grant a propter affectum challenge. We recognize that many ties of kinship do not
result in close relationships, and we are therefore unwilling to presume any particular level of bias
arising from the familial relationship between Mr. Watkins and the State’s witness. Rather, we agree
with Maryland’s high court on this point: “Although the relationship of a juror to one of the
witnesses may present an opportunity for prejudice, bias will not be presumed and the defendant is
not relieved of the burden of presenting facts in addition to mere relationship which would give rise
to a showing of actual prejudice.” Bristow v. State, 219 A.2d 33, 34 (Md. 1966); see also Bowman
v. State, 598 S.W.2d 809, 812 (Tenn. Crim. App. 1980) (recognizing that, when the challenged juror
disclosed her social relationship with one of the prosecuting attorneys, “[t]he burden is on the
defendant to demonstrate that the juror was in some way biased or prejudiced” because the
prosecuting attorney testified as a rebuttal witness).
In this case, Defendant has failed to present sufficient facts about juror Watkin’s relationship
with his half-brother to demonstrate either actual prejudice or that a presumption of prejudice is
justified. Juror Watkins was forthcoming about his relationship with one of the State’s witnesses.
Moreover, he obviously convinced the trial court that he could judge the evidence in a non-biased
manner and with no preconceived notion of Defendant’s guilt. There is nothing in the record before
us that convinces us that the trial court erred in reaching this conclusion.
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Moreover, as this Court has previously held, “the failure to correctly exclude a juror for cause
is grounds for reversal only if the defendant exhausts all of his peremptory challenges and an
incompetent juror is forced upon him.” Howell, 868 S.W.2d at 248 (emphasis added). In this case,
Defendant did, indeed, exhaust all of his peremptory challenges, using one of them to excuse Mr.
Watkins. However, we disagree with Defendant that an incompetent juror was thereby thrust upon
him. Defendant argues that “[b]ased on the non-exclusion of . . . Barry Watkins for cause, [he] was
forced to accept at least three (3) jurors that were incompetent, biased and/or not impartial” because
they had prior knowledge of the allegations against Defendant from the media or personal
relationships. Defendant particularly targets the jury foreperson, Mr. Burrough, who acknowledged
some prior familiarity with the case from an acquaintance who worked at the Hardeman County
Correctional Facility.
Mr. Burrough answered affirmatively the trial court’s initial inquiry as to whether he had
“heard or read anything at all about this case[.]” Mr. Burrough explained that his source of
information was an acquaintance that worked at the prison. Mr. Burrough stated that the information
he had heard had not caused him to form an opinion about Defendant’s guilt or innocence and stated
further that he would be able to base his verdict on the law and evidence charged by the trial court.
Similarly, jurors Edna Blake and Eric Bolden indicated that they had each gained some information
about the case from the media and/or “hearsay at work” prior to trial. Each assured the trial court
that they had not formed an opinion about Defendant’s guilt or innocence based on what they had
heard.
Our rules of criminal procedure provide that a prospective juror may be challenged for cause
where
[t]he prospective juror’s exposure to potentially prejudicial information
makes the person unacceptable as a juror. Both the degree of exposure and the
prospective juror’s testimony as to his or her state of mind shall be considered in
determining acceptability. A prospective juror who states that he or she will be
unable to overcome preconceptions shall be subject to challenge for cause no matter
how slight the exposure. If the prospective juror has seen or heard and remembers
information that will be developed in the course of trial, or that may be inadmissible
but is not so prejudicial as to create a substantial risk that his or her judgment will be
affected, the prospective juror’s acceptability shall depend on whether the testimony
as to impartiality is believed. If the prospective juror admits to having formed an
opinion, he or she shall be subject to challenge for cause unless the examination
shows unequivocally that the prospective juror can be impartial.
Tenn. R. Crim. P. 24(b)(2). The record reveals that defense counsel made no attempt to challenge
Mr. Burrough, Ms. Blake, or Mr. Bolden for cause. Apparently, defense counsel determined that
none of these persons was so biased or prejudiced by the information they had heard prior to trial as
to justify a for-cause challenge. Yet, Defendant now contends that he was forced to accept these
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“incompetent, biased and/or not impartial” jurors because he exercised a peremptory challenge
against Mr. Watkins.
Defendant fails to explain how these jurors’ mild familiarity with the case prior to trial
rendered them incompetent as jurors. Defendant has demonstrated neither partiality on the part of
any of these jurors, nor any prejudice that he suffered as a result of any of these three persons sitting
on the jury. “Juror bias must be shown, not just suspected.” Lawson, 794 S.W.2d at 367 (citing
Smith v. Phillips, 455 U.S. 209 (1982)). We are not persuaded that any of these three jurors was
“incompetent” as required by Howell. Defendant has simply failed to demonstrate that he is entitled
to a new trial on the basis of the trial court’s refusal to dismiss Barry Watkins for cause.
Accordingly, Defendant is not entitled to relief on this issue.
II. Mandatory Review
When a defendant has been sentenced to death, we must conduct a mandatory review of the
sentencing process pursuant to Tennessee Code Annotated section 39-13-206(c)(1) (2003). That
provision of our criminal code requires us to determine whether a) the death sentence was imposed
in any arbitrary fashion; b) the evidence supports the jury’s finding of statutory aggravating
circumstances; c) the evidence supports the jury’s finding that the aggravating circumstances
outweigh any mitigating circumstances; and d) the sentence of death is excessive or disproportionate
to the penalty imposed in similar cases, considering both the nature of the crime and the defendant.
Id.
A. Imposition of Death Penalty
Initially, we find that the sentencing phase of Defendant’s trial was conducted pursuant to
the procedure established in the applicable statutory provisions and rules of criminal procedure.
Accordingly, we conclude that the death penalty was not imposed in an arbitrary fashion.
B. Sufficiency of Aggravating Circumstances
We turn now to the sufficiency of the evidence supporting the jury’s finding of statutory
aggravating circumstances. In this case, the jury determined that the State had proven beyond a
reasonable doubt four aggravating circumstances: (a) Defendant was previously convicted of one
or more felonies, other than the present charge, whose statutory elements involve the use of violence
to the person; (b) Defendant’s murder of the victim was especially heinous, atrocious, or cruel in
that it involved torture or serious physical abuse beyond that necessary to produce death; (c)
Defendant committed the murder while he was in lawful custody or in a place of lawful confinement;
and (d) the murder was committed against a corrections employee who was engaged in the
performance of official duties. See Tenn. Code Ann. § 39-13-204(i)(2), (5), (8), (9) (Supp. 1999).
We must now review the evidence supporting each of these aggravating circumstances in the light
most favorable to the State and determine whether a rational trier of fact could have found the
existence of each beyond a reasonable doubt. State v. Bane, 57 S.W.3d 411, 426 (Tenn. 2001).
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1. Prior Convictions
During the sentencing phase of Defendant’s trial, the State introduced by stipulation three
certified judgments against Defendant. These documents indicate that judgments of conviction were
entered against Defendant in 1986 for first degree murder; in 1992 for first degree murder; and in
1998 for criminal attempt to commit first degree murder. Obviously, the statutory elements of the
felony of first degree murder involve the use of violence to the person. See Tenn. Code Ann. § 39-
13-202(a). This Court has further held that the statutory elements of attempted murder involve the
use of violence to the person. State v. Cribbs, 967 S.W.2d 773, 782-83 (Tenn. 1998). Accordingly,
we hold that the evidence is sufficient to support the jury’s finding of the existence of this
aggravating circumstance. See Tenn. Code Ann. § 39-13-204(i)(2) (Supp. 1999).
2. Especially Heinous, Atrocious, or Cruel
The jury determined that Defendant’s murder of Steed was especially heinous, atrocious, or
cruel in that it involved torture or serious physical abuse beyond that necessary to produce death.
See id. at (i)(5). This aggravating circumstance may be applied if the evidence is sufficient to
support either torture or serious physical abuse beyond that necessary to produce death. State v.
Suttles, 30 S.W.3d 252, 262 (Tenn. 2000).
This Court has defined “serious physical abuse beyond that necessary to produce death” as
follows:
The word “serious” alludes to a matter of degree. The abuse must be physical, as
opposed to mental, and it must be “beyond that” or more than what is “necessary to
produce death.” “Abuse” is defined as an act that is “excessive” or which makes
“improper use of a thing,” or which uses a thing “in a manner contrary to the natural
or legal rules for its use.”
State v. Odom, 928 S.W.2d 18, 26 (Tenn. 1996) (quoting Black’s Law Dictionary 11 (6th ed. 1990)).
The proof in this case established that Defendant stabbed Steed a total of thirty-six times. Twelve
of the wounds were fatal. Dr. Smith testified that Defendant’s infliction of so many wounds to the
victim qualified for application of the term “overkill.” He explained: “there was excessive injury
done to the body far in excess of what would be necessary to cause death.” The proof is more than
sufficient to support the jury’s finding of this aggravating circumstance.
3. Defendant in Lawful Custody
The proof at trial that Defendant was in lawful custody or in a place of lawful confinement
at the time he killed Steed is clear and uncontroverted. The evidence is therefore sufficient to
support the jury’s finding of this aggravating circumstance. See Tenn. Code Ann. § 39-13-204(i)(8)
(Supp. 1999).
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4. Corrections Employee Victim
The record in this case contains a copy of the jury’s verdict form which includes the written
jury instructions provided to the jury by the trial court. These instructions informed the jury that it
could apply as an aggravating circumstance that “[t]he murder was committed against any law
enforcement officer, corrections official, corrections employee, engaged in the performance of
official duties.” The verdict form returned by the jury contains a handwritten finding by the jury that
it applied as an aggravating circumstance that “the murder was committed against any law
enforcement officer, corrections official, corrections employee, engaged in the performance of
official duties.”
The written instruction provided to the jury on this aggravating circumstance was erroneous.
Our criminal code provides that the fact-finder may consider as an aggravating circumstance that
[t]he murder was committed against any law enforcement officer, corrections
official, corrections employee, emergency medical or rescue worker, emergency
medical technician, paramedic or firefighter, who was engaged in the performance
of official duties, and the defendant knew or reasonably should have known that such
victim was a law enforcement officer, corrections official, corrections employee,
emergency medical or rescue worker, emergency medical technician, paramedic or
firefighter engaged in the performance of official duties.
Id. at (i)(9) (emphasis added). The trial court’s written instruction to the jury in this case omitted
the element requiring that Defendant knew or reasonably should have known that the victim was a
law enforcement officer, corrections official, or corrections employee engaged in the performance
of official duties.
Defendant did not raise this issue at trial, in his motion for new trial, or on appeal.
Nevertheless, this Court will review a patently incomplete instruction at a capital sentencing hearing
under the “plain error” doctrine, regardless of a defendant’s failure to raise the issue. See State v.
Stephenson, 878 S.W.2d 530, 554 (Tenn. 1994); see also State v. Hines, 758 S.W.2d 515, 523 (Tenn.
1988) (characterizing as “plain error” the trial court’s incomplete instructions on two of three
aggravating circumstances found by the jury). This Court will grant relief under the plain error
doctrine only “where necessary to do substantial justice.” Tenn. R. Crim. P. 52(b). As we have
stated previously, “the error must be of such a great magnitude that it probably changed the outcome
of the trial.” State v. Faulkner, 154 S.W.3d 48, 58 (Tenn. 2005). An appellate court will reverse for
plain error only if:
(a) the record . . . clearly establish[es] what occurred in the trial court;
(b) a clear and unequivocal rule of law [has] been breached;
(c) a substantial right of the accused [has] been adversely affected;
(d) the accused did not waive the issue for tactical reasons; and
(e) consideration of the error is “necessary to do substantial justice.”
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State v. Smith, 24 S.W.3d 274, 282 (Tenn. 2000) (quoting State v. Adkisson, 899 S.W.2d 626, 641-
42 (Tenn. Crim. App. 1994)). All five factors must be established and an appellate court need not
consider all five factors if any one factor indicates that relief is not warranted. Id. at 283.
In this case, the proof at trial was uncontroverted that Defendant knew the victim was a
corrections employee: indeed, Defendant committed the murder because of the victim’s performance
in that role. The proof at trial was further uncontroverted that Defendant knew the victim was
engaged in the performance of his official duties when Defendant brutally stabbed him to death.
Defendant told Mr. Dunaway that he approached the victim during a counseling session only to be
ignored. At that point, Defendant determined to kill the victim.
The trial court’s error in its written instruction to the jury on this aggravating circumstance
is analogous to that committed when a trial court omits from its instructions an essential element of
an offense. In State v. Garrison, 40 S.W.3d 426, 433 (Tenn. 2000), the trial court omitted from its
charge one of the mens rea elements of the indicted offense. This Court found the erroneous
instruction harmless beyond a reasonable doubt because proof of the omitted element was not
contested at trial and was essentially conceded by the defendant. Id. at 435; see also Neder v. United
States, 527 U.S. 1, 18-20 (1999) (finding trial court’s failure to instruct on an element of offense
harmless beyond a reasonable doubt where omitted element was supported by uncontroverted
evidence). The same result obtains here for the same reason: Defendant admitted his knowledge
of the victim’s employment and that the victim was engaged in official duties at the time Defendant
killed him. Thus, the instructional error did not adversely affect a substantial right of the accused.
Finally, given the nature of the proof in this case, we are convinced beyond a reasonable
doubt that the jury would have found and applied this aggravating circumstance had it received the
correct instruction. Therefore, Defendant suffered no prejudice as a result of the trial court’s error
and we need not reverse his sentence of death in order to “do substantial justice.” Defendant is
entitled to no relief on the basis of the trial court’s instructional error on this aggravating
circumstance.
C. Aggravating Circumstances Outweigh Mitigating Circumstances
After the close of the State’s proof during the sentencing phase of Defendant’s trial, and
while the jury was out, the trial court questioned Defendant about his decision regarding the
presentation of proof of mitigating circumstances. Defendant stated that he did not want his lawyers
to present any proof of mitigating circumstances. Furthermore, Defendant chose not to testify on his
own behalf during the sentencing phase. Accordingly, the defense presented no proof during the
sentencing phase of Defendant’s trial of any mitigating circumstances that might counteract the
State’s proof of aggravating circumstances. The only proof in the nature of mitigating circumstances
presented during the guilt phase of Defendant’s trial was Defendant’s testimony about how the
victim had treated him.
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We conclude that the State’s proof of aggravating circumstances outweighs any mitigating
circumstances beyond a reasonable doubt.
D. Proportionality
We turn now to our analysis of whether the sentence imposed in this case is excessive or
disproportionate to the penalty imposed in similar cases. This review identifies aberrant, arbitrary,
or capricious sentencing by determining whether the death sentence is “‘disproportionate to the
punishment imposed on others convicted of the same crime.’” State v. Bland, 958 S.W.2d 651, 662
(Tenn. 1997) (quoting Pulley v. Harris, 465 U.S. 37, 42-43 (1984)). We begin with the presumption
that a death sentence is proportional with the crime of first degree murder. State v. Hall, 976 S.W.2d
121, 135 (Tenn. 1998).
In conducting this review, we employ the precedent-seeking method of comparative
proportionality review, in which we compare this case with other cases involving similar defendants
and similar crimes. See Bland, 958 S.W.2d at 665-67. While no defendants or crimes are identical,
a death sentence is disproportionate if a case is “plainly lacking in circumstances consistent with
those in cases where the death penalty has been imposed.” Id. at 668. Our inquiry, however, does
not require a finding that “a sentence less than death was never imposed in a case with similar
characteristics.” Id. at 665. This Court has repeatedly held that the pool of cases considered by this
Court in its proportionality review 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.” State v. Reid, 164 S.W.3d 286, 316 (Tenn. 2005).
In reviewing the applicable pool of cases, we consider numerous 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. Bland, 958 S.W.2d at
667. In addition, we consider numerous factors about the defendant: (1) prior criminal record or
activity; (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.; see also Bane, 57 S.W.3d at 428-29 .
In this case, the incarcerated Defendant armed himself with a weapon he had created
specifically to use against another human being, walked up behind the seated and unarmed victim,
a corrections counselor, and began repeatedly stabbing him, aiming initially for the victim’s vital
organs. Defendant stabbed the victim thirty-six times; twelve of the wounds were lethal. Defendant
committed the killing intentionally and with premeditation. Defendant killed the victim because
he felt the victim had “disrespected” him. The victim was fifty-seven years old. Defendant killed
Mr. Steed while he was engaged in his official duties. Defendant has expressed no remorse for the
killing; indeed, Defendant has made clear that he would commit the killing again if given the
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opportunity. Prior to the instant murder, Defendant had killed two other persons and attempted to
kill a third person. Defendant has demonstrated no potential for rehabilitation.
In State v. Taylor, 771 S.W.2d 387, 401(Tenn. 1989), this Court affirmed a sentence of death
after the defendant was convicted of the first degree murder of a prison guard. In Taylor, the
defendant was incarcerated at the Turney Center. The defendant believed he had been treated
unfairly by Corrections Officer Moore on several occasions. On the day of the killing, Officer
Moore reprimanded the defendant for failing to properly clean an area, and this incident angered the
defendant. Later that day, the defendant approached Officer Moore from behind as the officer was
talking to some inmates, grabbed him, and began stabbing him repeatedly with a prison-made knife.
Despite pleas from other inmates to cease his attack, the defendant continued to stab the officer,
brandishing his weapon at those who tried to come to Moore’s aid. The jury sentenced the defendant
to death on the basis of four aggravating circumstances: (1) the defendant had previously been
convicted of a felony that involved the use or threat of violence to the person; (2) the murder was
especially heinous, atrocious, or cruel in that it involved torture or depravity of mind; (3) the murder
was committed by the defendant while he was in lawful custody or in a place of lawful confinement;
and (4) the murder was committed against a corrections employee, who was engaged in the
performance of his duties, and the defendant knew that the victim was a corrections employee
engaged in the performance of his duties. Id. at 392. This Court upheld the death sentence. Id. at
401.
In State v. Henderson, 24 S.W.3d 307, 310 (Tenn. 2000), the defendant murdered a deputy
by shooting him in the back of the head during an escape attempt. While incarcerated, the defendant
had his girlfriend smuggle to him a handgun. The defendant then arranged for a visit to a dentist.
While awaiting treatment, the defendant pulled the handgun, threatening the dentist and his assistant.
The dentist called for help, and the deputy, who had been in the reception area, responded. The
defendant fired at the deputy, grazing him with a gunshot. The deputy fell and struck his head,
rendering him unconscious. The defendant left the treatment room, but then returned and fired a shot
into the back of the unmoving deputy’s head at point blank range, killing him. The defendant then
escaped, only to be apprehended a short time later. The defendant pled guilty to first degree
premeditated murder and waived a jury as to his sentencing. Id. at 311. The trial court subsequently
imposed the death sentence on the basis of four aggravating circumstances: (1) that the defendant
knowingly created a great risk of death to two or more persons, other than the victim murdered,
during the act of murder; (2) that the defendant committed the murder for the purpose of avoiding,
interfering with, or preventing a lawful arrest or prosecution of the defendant or another; (3) that the
defendant committed the murder while in lawful custody or in a place of lawful confinement or
during the defendant’s escape from same; and (4) the murder was committed against any law
enforcement officer who was engaged in the performance of official duties. Id. at 312. This Court
affirmed the defendant’s sentence of death. Id. at 319.
In State v. Sutton, 761 S.W.2d 763, 764 (Tenn. 1988), the defendant was convicted of the
first degree murder of a fellow inmate. The State’s proof indicated that the defendant had stabbed
the victim multiple times with a prison-made knife after the victim had sold him unsatisfactory
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marijuana. The jury found and applied three aggravating circumstances: (1) the defendant was
previously convicted of one or more felonies involving the use or threat of violence to the person;
(2) the murder was especially heinous, atrocious, or cruel in that it involved torture or depravity of
mind; and (3) the defendant committed the murder while he was in a place of lawful confinement.
Id. This Court affirmed the death sentence. Id.
This Court has upheld the death penalty in numerous cases where the sole aggravating
circumstance was the defendant’s prior conviction of a violent felony offense. See, e.g., State v.
McKinney, 74 S.W.3d 291 (Tenn. 2002) (upholding death sentence of defendant convicted of
premeditated murder for shooting and killing an off-duty police officer at night club where sole
aggravating circumstance was based on defendant’s prior conviction of aggravated robbery); State
v. Chalmers, 28 S.W.3d 913 (Tenn. 2000) (upholding death sentence of defendant convicted of
felony murder for shooting and killing victim during robbery where sole aggravating circumstance
was based on defendant’s prior convictions of attempted especially aggravated robbery and
attempted first degree murder); State v. Keough, 18 S.W.3d 175 (Tenn. 2000) (upholding death
sentence of defendant convicted of premeditated murder for stabbing and killing estranged wife
during argument where aggravating circumstance was based on defendant’s prior convictions for
assault to commit voluntary manslaughter and manslaughter); State v. Smith, 993 S.W.2d 6 (Tenn.
1999) (upholding death sentence of defendant convicted of felony murder for shooting and killing
victim during robbery where aggravating circumstance was based on defendant’s prior convictions
of robbery and first degree murder); State v. Adkins, 725 S.W.2d 660 (Tenn. 1987) (upholding death
sentence of defendant convicted of first degree murder for shooting and killing estranged girlfriend’s
friend where aggravating circumstance was based on defendant’s prior convictions of second degree
murder and aggravated assault). As this Court has frequently stated, this aggravating circumstance
is “more qualitatively persuasive and objectively reliable than other[]” aggravating circumstances.
Howell, 868 S.W.2d at 261.
This Court has also upheld numerous death sentences where the defendant stabbed to death
the victim and the jury applied the heinous, atrocious, or cruel aggravating circumstance. See, e.g.,
Reid, 164 S.W.3d at 296-97 (upholding two death sentences upon defendant’s convictions for two
premeditated murders where defendant stabbed victims to death in course of robbery, and jury
applied as aggravating circumstances defendant’s previous violent felonies, that the murders were
especially heinous, atrocious, or cruel in that they involved torture or serious physical abuse beyond
that necessary to produce death, and that the murders were committed to avoid prosecution); Suttles,
30 S.W.3d at 260 (upholding death sentence of defendant convicted of premeditated murder for
multiple stabbing death of estranged girlfriend and jury found as aggravating circumstances that the
murder was especially heinous, atrocious, or cruel in that it involved torture or serious physical abuse
beyond that necessary to cause death and that defendant was previously convicted of violent
felonies); State v. Bush, 942 S.W.2d 489 (Tenn. 1997) (upholding death sentence upon defendant’s
conviction of premeditated murder for stabbing victim forty-three times, killing her, and jury
determined the murder to have been heinous, atrocious, or cruel and committed to avoid
prosecution); State v. Hines, 919 S.W.2d 573 (Tenn. 1995) (upholding death sentence upon
defendant’s conviction of felony murder in perpetration of robbery where defendant stabbed victim
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to death in such a manner as to justify heinous, atrocious, or cruel aggravator; jury also applied prior
violent felony aggravator); State v. Payne, 791 S.W.2d 10 (Tenn. 1990) (upholding two death
sentences upon defendant’s convictions of two first degree murders where defendant stabbed mother
and young daughter multiple times and jury applied heinous, atrocious, or cruel aggravating
circumstance); State v. Jones, 789 S.W.2d 545 (Tenn. 1990) (upholding death sentence upon
defendant’s first degree murder conviction for stabbing victim multiple times during course of
robbery and jury applied prior violent felonies; heinous, atrocious, or cruel; and felony murder
aggravating circumstances); State v. Thompson, 768 S.W.2d 239 (Tenn. 1989) (upholding death
sentence upon defendant’s conviction of first degree murder for stabbing victim to death where jury
applied heinous, atrocious, or cruel aggravating circumstance together with aggravators for
committing the murder to avoid prosecution and committing the murder during a robbery or
kidnapping); State v. West, 767 S.W.2d 387, 391 (Tenn. 1989) (upholding two death sentences
where defendant involved in stabbing two victims to death, involving “torture wounds,” and jury
applied heinous, atrocious, or cruel; murder committed to avoid prosecution; and felony murder
aggravating circumstances).
CONCLUSION
In accordance with Tennessee Code Annotated section 39-13-206(c)(1) and the principles
adopted in prior decisions, we have considered the entire record in this case and conclude that the
sentence of death has not been imposed arbitrarily, that the evidence supports the jury’s finding that
the aggravating circumstances outweigh any mitigating circumstances beyond a reasonable doubt,
and that the sentence is not excessive or disproportionate.
We have reviewed all of the issues raised by Defendant and conclude that they do not warrant
relief. With respect to issues that were raised in this Court but not addressed in this opinion, we
affirm the decision of the Court of Criminal Appeals. Relevant portions of that opinion are
incorporated herein and are attached as an appendix. Defendant’s conviction and sentence of death
are affirmed. The sentence of death shall be carried out as provided by law on the 15th day of
August, 2006, unless otherwise ordered by this Court or other proper authority. It appearing that
Defendant Stephen Lynn Hugueley is indigent, costs of this appeal are taxed to the State of
Tennessee.
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CORNELIA A. CLARK, JUSTICE
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