State v. Reid

IN THE SUPREME COURT OF TENNESSEE
AT NASHVILLE
February 3, 2005 Session

STATE OF TENNESSEE v. PAUL DENNIS REID, JR.

Automatic Appeal from the Court of Criminal Appeals
Circuit Court for Montgomery County
No. 38887 John H. Gasaway, III, Judge

No. M2001-02753-SC-DDT-DD - Filed May 24, 2005

The defendant, Paul Dennis Reid, Jr., was convicted of two counts of premeditated first degree
murder, two counts of especially aggravated kidnapping, and one count of especially aggravated
robbery. In imposing a death sentence for each count of first degree murder, the jury found three
aggravating circumstances, i.e., that the defendant was previously convicted of one or more felonies
whose statutory elements involved the use of violence to the person, 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 for the purpose of avoiding,
interfering with, or preventing a lawful arrest or prosecution of the defendant or another, had been
proven beyond a reasonable doubt. Tenn. Code Ann. § 39-13-204(i)(2), (5), (6) (2003). In addition,
the jury found that the evidence of aggravating circumstances outweighed evidence of mitigating
circumstances beyond a reasonable doubt. Tenn. Code Ann. § 39-13-204(c) (2003). The Court of
Criminal Appeals affirmed the convictions and the death sentences.

After the case was docketed in this Court, we entered an order identifying numerous issues for oral
argument. We now hold as follows: 1) the trial court did not err in finding that the defendant was
competent to stand trial; 2) the trial court did not err in excluding evidence during the competency
hearing; 3) the trial court did not err in refusing to hold a new competency hearing on the basis that
a court-appointed expert was biased; 4) the evidence was sufficient to support the defendant’s
convictions; 5) the trial court did not err in denying the defendant’s motion to dismiss on the basis
that the aggravating circumstances were not stated in the indictment; 6) the trial court did not err in
allowing the prosecution to amend the indictment; 7) the trial court did not commit reversible error
in limiting extrinsic evidence of inconsistent statements; 8) the evidence was sufficient to support
the aggravating circumstances found by the jury; 9) the death sentences were not arbitrary or
disproportionate as imposed in this case; 10) the evidence was sufficient to support the jury’s finding
that evidence of aggravating circumstances outweighed evidence of mitigating circumstances; 11)
the capital sentencing statutes are not unconstitutional on the basis that they allow evidence to be
admitted in violation of due process and confrontation under the United States Constitution; 12) the
trial court did not err in admitting photographs of the victims at the crime scene during sentencing;
13) the trial court did not commit reversible error in failing to charge the jury on the “catch-all”
statutory provision as to mitigating circumstances; and 14) the trial court did not err in denying a new
trial based on prosecutorial misconduct during sentencing. We also 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

E. RILEY ANDERSON , J., delivered the opinion of the court, in which FRANK F. DROWOTA , III, C.J.,
and JANICE M. HOLDER and WILLIAM M. BARKER, JJ., joined. ADOLPHO A. BIRCH , JR., J., filed a
separate concurring/dissenting opinion.

James A. Simmons and Thomas F. Bloom, Nashville, Tennessee, for the Appellant, Paul Dennis
Reid, Jr.

Paul G. Summers, Attorney General and Reporter; Michael E. Moore, Solicitor General; Jennifer
L. Smith, Associate Deputy Attorney General; John W. Carney, Jr., District Attorney General; and
Arthur F. Bieber, Assistant District Attorney General, for the Appellee, State of Tennessee.

OPINION

The defendant, Paul Dennis Reid, Jr., was indicted for two counts of premeditated murder,
two counts of felony murder during the perpetration of a robbery, two counts of especially
aggravated kidnapping, and one count of aggravated robbery. The evidence presented during trial
is summarized as follows.

Guilt Phase

On the night of April 23, 1997, Angela Holmes, age twenty-one, and Michelle Mace, age
sixteen, were working at a Baskin-Robbins store on Wilma Rudolph Boulevard in Clarksville,
Tennessee. The store regularly closed at 10:00 p.m. At around 10:10 p.m., Craig Mace arrived at
the store to pick up his sister, Michelle. He noticed that Angela Holmes’ car was in the parking lot
and that the lights inside the store were on. He entered the store through an unlocked door and found
no one inside. Mace called 911.

Officers were dispatched to the scene and searched the store. They found the cash register
drawer empty, except for some coins, and a safe in an office with the top removed.1 The victims’
purses were found at the store; no money had been taken from the purses. A mop and bucket were
found in the customer area, and the freezer was left open.

1
The owner of the store testified that $1,565.58 had been stolen.

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 On the morning of April 24, 1997, the bodies of Angela Holmes and Michelle Mace were
found at the Dunbar Cave State Natural Area in Montgomery County, Tennessee, which was
between 2.1 and 3.6 miles from the Baskin-Robbins store.2 Both victims had suffered deep stab
wounds to their necks, as well as stab wounds, cuts, and abrasions to other parts of their bodies.
Both had bled to death.

Lavanda Zimmerman testified that she had visited with the victims at the Baskin-Robbins
store from 9:20 p.m. until 10:00 p.m. on April 23, 1997. At one point, a man in his late twenties or
early thirties entered the store and became “obnoxious” and “very loud” about the prices before
leaving. As Zimmerman left the store at 10:00 p.m., she saw a “shiny red” car enter the parking lot.
Although she testified that a photograph of the defendant’s car – a 1997 red, four-door Ford Escort
– was “consistent” with the car she had seen, she conceded that she told a private investigator prior
to trial that the car was “dark reddish or maroon.” She also conceded that she did not tell officers
about the car when she was interviewed in May of 1997.

George Hertenstein testified that he was driving to work at 9:59 p.m. on April 23, 1997, when
he saw a car driving slowly on Rossview Road near the Baskin- Robbins store. When Hertenstein
attempted to pass the car, the car abruptly turned onto Union Hall Road, which was one road after
the entrance to the Baskin-Robbins store. Hertenstein testified that the car was “identical” to
photographs of the defendant’s car. On cross-examination, Hertenstein admitted that he contacted
police in June of 1997 after he saw pictures of the defendant’s car on the television news. He also
acknowledged that he told a private investigator that the car he saw had two doors, whereas the
defendant’s car had four doors.

Jerry Perdue, a friend of Michelle Mace, testified that he saw a small red car in the Baskin-
Robbins parking lot shortly after 10:00 p.m. on April 23, 1997. He further testified that photographs
of the defendant’s car “could very well be” the car he saw in the parking lot. He acknowledged that
he told law enforcement officers that the car he saw was a two-door hatchback but that he was no
longer sure. He also stated that he told officers that the car had black bumpers.

Elfrieda Lane testified that she was a friend of the defendant and that she lived three miles
from the Baskin-Robbins store in Clarksville, Tennessee. Lane testified that the defendant called
her “once or twice” a week from February to April of 1997 and that they discussed the defendant’s
effort to be re-hired at a Shoney’s restaurant. Lane testified that the defendant was at her home on
or about April 18, 1997, and that he had been driving a red car. According to Lane, the defendant
telephoned her on April 24; he told her that he had planned to visit her the previous evening but that
it had gotten too late.

Business records revealed that the defendant purchased gasoline at a Texaco station in
Clarksville at 9:45 p.m. on April 23, 1997. The Texaco station was 0.7 miles from Lane’s home and

2
Detective Robert Miller testified that three different routes could be taken to travel from Baskin-Robbins to
Dunbar Cave park. The driving time for the three routes ranged from four to five minutes.

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0.9 miles from the Baskin-Robbins store. A signed credit card receipt showed that the defendant
purchased $11.95 worth of gasoline. Handwriting experts confirmed that the signature on the receipt
was the defendant’s. A copy of the receipt was also found in the defendant’s wallet.

Jay Smith and Shannon Reeves testified that they saw a car near Dunbar Cave around 10:30
p.m. on the night of April 23, 1997. They were at the home of Smith’s girlfriend, Holly Schmidt,
who lived across the street from the Dunbar Cave entrance and parking lot. Smith testified that the
car was a red four-door and that he thought it was “odd” because the car was not in a parking space.
Smith, a friend of Michelle Mace, conceded that he had told officers the car looked like several
makes of cars, none of which matched the defendant’s car. Smith nonetheless testified that the car
he saw was “consistent” with photographs of the defendant’s car. Reeves testified that he saw a car
in the Dunbar Cave parking lot. Although he could not make out any details about the car, he
noticed that the car’s headlights were on and, at one point, changed from low to high beam.

Samero Zavaro, a serologist and DNA specialist with the Tennessee Bureau of Investigation,
testified that a DNA sample taken from blood found on the defendant’s left tennis shoe was
consistent with the DNA profile of Angela Holmes. In addition, a DNA sample taken from small
blood stains found on the right tennis shoe was consistent with a mixture of two or more donors from
which neither Angela Holmes nor Michelle Mace could be excluded. Zavaro testified that the
probability of selecting an unrelated individual that would have the same DNA profile as the sample
on the defendant’s left shoe was one in 6,800 Caucasian individuals and one in 4,400 African-
American individuals.

Meghan Clement, as associate director of forensic identity testing at Laboratory Corporation
of America (“LabCorp”), testified about additional DNA testing. She testified that the DNA sample
found in the blood on the defendant’s left shoe was consistent with the DNA profile of Angela
Holmes. The DNA sample found in the blood on the defendant’s right shoe did not exclude the
defendant, Angela Holmes or Michelle Mace. Clement testified that a combined statistical analysis
revealed that the probability that the blood found on the defendant’s left shoe was from a person
other than Angela Holmes was one in 1,810,000 in the Caucasian population, one in 3,250,000 in
the African-American population, one in 4,950,000 in the Southeastern Hispanic population, and one
in 4,520,000 in the Southwestern Hispanic population.

Linda Littlejohn, a fiber comparison specialist with the Tennessee Bureau of Investigation,
testified that fibers found on the victims’ clothing were compared to fibers in the defendant’s car.
According to Littlejohn, three fibers found on Angela Holmes’ clothing were consistent with samples
taken from the defendant’s backseat and floor mats. Similarly, eight fibers found on Michelle
Mace’s clothing and shoes were consistent with fibers from the defendant’s backseat, carpet, and the
edge of the backseat. Littlejohn testified that it was “a very rare case that you find eleven fibers that
match one source.” Moreover, the evidence showed that the floor mats found in the defendant’s car
were not standard for the Ford Escort, but rather, had been purchased by the defendant at Wal-Mart
on March 25, 1997.

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 Littlejohn testified that she also analyzed photographs of footprints found at Baskin-Robbins
and Dunbar Cave, as well as nine pairs of shoes belonging to the defendant. Littlejohn conceded that
the shoe prints did not match the defendant’s shoes.

Two witnesses testified that the defendant had told them that he could make money by
committing robberies. Danny Tackett testified that he was working with the defendant at Shoney’s
in January of 1997 when the defendant suggested robbing a “fast food place [in the] middle of the
night” because there were “no witnesses.” Tackett thought the defendant was joking. Likewise,
Jeffery Potter testified that in January of 1997, the defendant expressed dissatisfaction with his job
and suggested robbery as a way to make money.

The evidence showed that the defendant was unemployed and had very little money in his
checking account in the spring of 1997. However, Linda Patton, a friend of the defendant, testified
that shortly after April 23, 1997, the defendant paid half of her air fare to travel to Nashville from
Texas. Patton further testified that the defendant paid cash for her meals, lodging, and entertainment
in Nashville.

Additional circumstantial evidence was introduced by the prosecution. Loretto Diorio and
her twelve-year-old son, Stephen, testified that they believed they saw the defendant at the Dunbar
Cave park on February 17, 1997; however, they were not 100% certain. Barbara Jayroe testified that
she saw the defendant at the Dunbar Cave park on April 8, 1997. She acknowledged that she told
the police she was not sure the defendant was the same man she saw in the park. Mitchell Roberts
testified that the defendant asked him about getting re-hired at Shoney’s in late May or June of 1997.
According to Roberts, the defendant was driving a small red car and was in possession of a knife
with a blade about “eight or nine inches long.”

Dr. Charles Harlan testified that he performed the autopsies on the two victims, Angela
Holmes and Michelle Mace. Dr. Harlan testified that Holmes died as a result of a stab wound to her
neck that went “all the way to her backbone.” The wound, which was consistent with a knife blade
of eight or nine inches, transected the carotid artery and jugular vein. Dr. Harlan testified that Mace
had suffered fourteen stab wounds, including a fatal stab wound in her neck. Dr. Harlan stated that
a compound incision penetrated Mace’s backbone, consisted of three changes in direction, and was
consistent with a sawing motion. According to Dr. Harlan, both victims would have taken five to
fifteen minutes to bleed to death and would have been conscious eighty percent of that time.

Several witnesses testified for the defense in the guilt phase of the proceeding. Catherine
Naylor testified that she saw a dark red or maroon car in the parking lot of Baskin-Robbins at 9:48
p.m. on April 23, 1997. According to Naylor, the car she saw did not match photographs of the
defendant’s car and was not a Ford Escort. Tammy Thompson and Dustin Keller, students at Austin
Peay University, testified that they were at Baskin-Robbins at 9:50 p.m. on April 23, 1997, and that
they were driving a 1993 red Nissan Sentra. They saw a man in Baskin-Robbins with shoulder-
length hair who Thompson described as “scraggly.” Both Thompson and Keller testified that
defendant was not the man they saw in the store that night.

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 Barbara McWilliams and Martin McIntyre, employees at Riverbend Maximum Security
prison in Nashville, testified that they were in the parking lot of the Dunbar Cave park between 10:50
and 11:30 p.m. on April 23, 1997. Both McWilliams and McIntyre testified that they did not see any
other cars in the parking lot during that time.

Dr. William N. Shields, a professor of biology, testified for the defense as an expert in DNA
analysis and zoology and disagreed with the results of the combined statistical analysis performed
by LabCorp. In Shields’ view, the probability that a person other than Angela Holmes was the
source of the blood on the defendant’s left shoe was between one in 122,000 and one in 12,000,000
in the Caucasian population. His “best estimate” was one in 1,200,000. Shields also testified that
there was no reason for LabCorp to have mixed the blood stains found on the defendant’s right shoe
before conducting its analysis.

After considering the evidence, the jury convicted the defendant of two counts of
premeditated first degree murder, two counts of felony murder, two counts of especially aggravated
kidnapping, and one count of especially aggravated robbery. The trial court merged the two counts
of felony murder with the two counts of premeditated first degree murder. A sentencing hearing was
then held for the jury to determine the punishment.

Penalty Phase

The prosecution introduced testimony from several of Angela Holmes’ family members. Her
husband, Tobaris Holmes, testified that his wife’s murder “changed everyone’s life,” including their
infant daughter who “would never know her mother.” He believed he should have been able to
protect his wife. Kim Campbell, Angela’s mother, testified that she had a close relationship with
her daughter and that she could no longer take family photographs because there is a “void.” She
further testified that the murder had “traumatized” her youngest son.

The prosecution also introduced testimony from several of Michelle Mace’s family members.
Craig Mace, the victim’s brother, testified about the effect of his sister’s murder on their family. He
testified that he had become “angry, sad, and fearful,” and that his father was “totally destroyed” by
the killing. Connie Black, the victim’s mother, likewise testified as to the impact of the killing on
the family and its effect on the victim’s older sister. She testified that she no longer had her “little
girl anymore” and that the killing caused a “void inside her.”

Dr. Charles Harlan again described the wounds suffered by Angela Holmes and Michelle
Mace. Both victims had massive incisions to their throats, as well as other cuts, bruises, and
abrasions. The wounds to the victims’ throats had cut vital arteries and veins. The wounds were
deep enough to also injure the victims’ spines. Dr. Harlan repeated his guilt-phase testimony that
the victims would have bled to death in five to fifteen minutes and that the victims would have been
conscious and would have felt pain for eighty percent of that time. Photographs depicting the
victims’ injuries were identified by Dr. Harlan and shown to the jury.

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 Finally, the prosecution introduced evidence that the defendant had two prior convictions for
first degree murder3 and a prior conviction for especially aggravated robbery in Davidson County,
Tennessee. In addition, the defendant had one prior conviction for aggravated robbery in Texas.

In mitigation, the defendant presented extensive testimony from mental health and medical
experts. Dr. Xavier Amador, a clinical psychologist, testified that the defendant suffered from
multiple conditions: chronic schizophrenia of the paranoid type, a cognitive disorder not otherwise
specified, documented brain damage, and mental illness associated with brain dysfunction.
According to Dr. Amador, the defendant also had personality change of a combined type caused by
head trauma and characterized by aggressive and impulsive behavior.

Dr. Amador described the defendant’s family history, behavioral problems, and history of
mental illness. The defendant had a documented history of head trauma, which included several
head injuries suffered in his childhood. The defendant had been diagnosed as having brain
dysfunction in 1964 and 1966 and psychotic disorders in 1978 and 1984. Dr. Amador stated that the
defendant believed that he has been under government surveillance since 1978:

There are several delusions that are organized around one central
delusion. He has the long-standing belief that for over twenty years,
he’s been under constant surveillance by a secret government agency.
They videotaped him, they taped – audiotape, they bugged his car, his
house. He had been chosen for this surveillance he believes because
of some special qualities that he possesses. The relationship Mr. Reid
has to the government agency that he believes is doing this to him is
very mixed. At times, he feels tortured and . . . paranoid about this
agency. At other time[s], he talks about his great loyalty to this
agency. . . . And this is simply the center or the core of his
delusional beliefs.

Dr. Amador did not believe the defendant was malingering; to the contrary, he stated that the
defendant suffered from anosognosia, a symptom of psychosis in which a person with a brain injury
compulsively attempts to prove he or she does not have a mental illness. Although the defendant
“wants people to believe he is normal,” Dr. Amador stated that the delusions emerged after hours
of interviews:

He would make references to things that he couldn’t talk about, things
he was not at liberty to say and I had to spend several hours listening
to him talk about things that had nothing to do with the surveillance.
But eventually, and this is over the course of the initial twenty hours
of interview, I was able to document and detail and corroborate . . .

3
The defendant’s convictions and death sentences for these offenses have been affirmed on direct appeal. State
v. Reid, 91 S.W .3d 247 (Tenn. 2002).

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 what other people said he used to talk about. That he was under
government surveillance twenty-four hours a day.

Patricia Allen, a speech and language therapist at Vanderbilt Medical Center in Nashville,
testified that she evaluated the defendant for fifteen hours in 1998. She testified that the defendant
was born with a deformed ear and hearing loss. She stated that the defendant’s speech and language
skills were consistent with one who has had “significant acquired brain injury.” She testified that
the defendant had suffered at least four documented head injuries and that the injuries occurred
during important developmental periods. The defendant was unable to “problem solve in integrated
ways.” According to Allen, the defendant scored “very poor to below average” on tests designed to
measure language and reasoning skills.

Dr. Pamela Auble, a clinical neuropsychologist, testified that she interviewed the defendant,
conducted testing, and reviewed the defendant’s medical and social histories. She testified that the
defendant had been struck in the head by his father in 1962 and that the defendant suffered additional
head injuries from accidents that occurred in 1971, 1972, and 1990. Dr. Auble testified that the
defendant’s left temporal lobe, the area of the brain controlling language and behavior, was
“shrunken and distorted.” According to Dr. Auble, the brain damage caused the defendant’s
psychotic disorder with delusions and resulted in impairments in the defendant’s behavior. Dr.
Auble explained that the defendant had difficulty thinking and that he exhibited aggression,
psychosis, and delusions. The defendant met the criteria for antisocial personality disorder, and he
believed in a government plot to control and to kill him.

Dr. Auble testified that the defendant was not malingering. She explained that the defendant
had a family history of mental illness and that documented evidence of the defendant’s delusions had
“been around for a long time.” She testified that her testing measured whether a person is faking
emotional or mental problems and that the measuring scales were not elevated when applied to the
defendant.

Dr. Robert Kessler, a neurologist, testified that he examined MRI and PET scans of the
defendant’s brain. He described several abnormalities in the defendant’s brain, including evidence
of traumatic injury. Dr. Kessler explained that the folds of the left temporal lobe were shrunken and
indicative of decreased function. He stated that these kinds of brain lesions cause a condition that
mimics schizophrenia and bear a strong statistical association to psychotic disorders.

In rebuttal, the State offered the testimony of Dr. William Bernet, a forensic psychiatrist, who
testified that he believed the defendant was malingering. Although the defendant had an antisocial
personality disorder, Dr. Bernet believed the defendant had fabricated his delusions in the past. He
explained:

I think that [the defendant] has a pattern of malingering . . .
symptoms. And by malingering what I mean is that – he at times
makes things up. At times he fabricates symptoms. Malingering

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 generally means that you pretend that you have something wrong with
yourself when you really don’t.

Dr. Bernet conceded that the defendant had evidence of brain damage and a history of mental
problems, including delusions. Dr. Bernet further testified, however, that he “couldn’t identify any
relationship between [the defendant’s] brain injury and the events that led to his arrest and the killing
of these two women.”

After deliberating, the jury imposed a death sentence for both counts of first degree murder.
The jury found that three aggravating circumstances – the defendant was previously convicted of one
or more felonies whose statutory elements involved the use of violence to the person, the murders
were especially heinous, atrocious or cruel in that they involved torture or serious physical abuse
beyond that necessary to produce death, and the murders were committed for the purpose of
avoiding, interfering with, or preventing a lawful arrest or prosecution of the defendant or another
– had been proven beyond a reasonable doubt. Tenn. Code Ann. § 39-13-204(i)(2), (5), (6) (2003).
In addition, the jury found that the evidence of aggravating circumstances outweighed evidence of
mitigating circumstances beyond a reasonable doubt. Tenn. Code Ann. § 39-13-204(c) (2003).

On appeal, the Court of Criminal Appeals affirmed the defendant’s convictions and death
sentences. The defendant’s appeal was then automatically docketed in this Court.

ANALYSIS

Competency Issues

The defendant argues that the trial court erred in finding that he was competent to stand trial.
In making this argument, the defendant specifically contends that the trial court erred by placing the
burden of proof upon the defense, by excluding evidence, and by relying upon a court-appointed
expert. The State asserts that the trial court correctly found that the defendant was competent to
stand trial after conducting a full and fair competency proceeding.

In September of 1999, eight days before the trial was to begin, the defendant filed a motion
for a determination of his competency. The trial court granted the motion and held a competency
hearing over the course of three days. We begin our review of this issue by summarizing the
evidence in the competency hearing.

Dr. Pamela Auble, a psychologist, testified that she examined the defendant on six occasions
beginning in January of 1998. As part of her evaluation, Dr. Auble also interviewed the defendant’s
family members and reviewed his medical records, educational records, social histories, and other
information. According to Dr. Auble, in January of 1999, the defendant told her that he had been
under surveillance by the government for over thirteen years. The defendant also told Dr. Auble that
the government had radiated his body with a magnetic field, which allowed his actions to be

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monitored on a remote screen by the Central Intelligence Agency. According to Dr. Auble, the
defendant believed that the surveillance method had been developed by the Soviet Union.

Dr. Auble testified that concerns about the defendant’s competency to stand trial emerged
during the defendant’s prior trial for two first degree murder charges in Davidson County,
Tennessee.4 According to information Dr. Auble received from defense counsel, a jury consultant,
and a defense investigator, the defendant seemed primarily concerned with his snacks and meals
during the prior trial, and he did not appear to realize that he might receive a death sentence. The
defendant believed that the judge, jury, and attorneys were playing roles during the trial that had been
scripted. He refused to discuss that case with his attorney, and he believed jurors had been trying
to make comments to him. According to Dr. Auble, the defendant also believed that fingerprint and
blood evidence had been planted against him.

As a result of her earlier examination, Dr. Auble testified that the defendant was not
competent to stand trial. She stated that the defendant believed that he was being monitored by the
government and that his attorneys were part of a script to kill him. She stated that the defendant’s
brain damage from multiple injuries left the defendant unable to assist in his own defense because
he could not focus on key issues; indeed, Dr. Auble noted that the defendant was preoccupied with
irrelevant topics and the subjects of his delusions:

He believes that the people in the courtroom know that he’s innocent,
including the District Attorney and the Judge and the policemen who
interviewed him, but that nevertheless these charges have been set up.
And there’s a script that people play. That is being acted out. And
therefore, . . . [the defendant] can not appraise the outcome of the
proceedings. . . . His delusions also interfere in his ability to assist
in his own defense. [The defendant’s] reality is distorted. His belief
that everything is predetermined at this point. That it doesn’t matter
if he helps his defense or not.

Dr. Auble also observed that the defendant’s strong desire to appear normal resulted in his insistence
that mitigating evidence not be presented in his own behalf.

On cross-examination, Dr. Auble conceded that the defendant had been diagnosed as
malingering in earlier cases in Texas and that the defendant even admitted that he had “fooled the
shrinks” in the late 1970s or early 1980s. She also conceded that the defendant had discussed aspects
of his prior first degree murder trial with attorneys and that he had ultimately agreed to present
mitigating evidence in that case.

4
Dr. Auble testified on behalf of the defendant in the penalty phase of the earlier trial as well. See Reid, 91
S.W .3d at 268-69.

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 Dr. Xavier Amador, a psychologist, testified that he examined the defendant for over twenty
hours in November of 1998. Although the defendant suffered from delusions and anosognosia, Dr.
Amador initially concluded that the defendant was able to assist in his defense and was, therefore,
competent for his capital murder trial held in April of 1999 in Nashville. However, as the defendant
began to include his attorneys in his delusions, Dr. Amador later determined that the delusions
impaired the defendant’s ability to disclose relevant information and “thwart[ed]” his desire to
present evidence in his own behalf. The defendant referred to one of his attorneys as “Satan,” and
he believed the attorneys, the prosecutors, and the trial judge were being controlled by a surveillance
team with “subliminal magnetic technology.” Dr. Amador stated that the defendant had an
understanding of the legal process but could not apply that understanding to his own proceedings.
As a result, the defendant was not competent to stand trial.

On cross-examination, Dr. Amador acknowledged that the defendant admitted he had faked
delusions in the past and that other mental health professionals had determined the defendant to be
malingering. Dr. Amador also conceded that the defendant agreed with defense counsel’s
presentation of mitigating evidence in the prior capital murder trial. Dr. Amador nonetheless
testified that the defendant’s IQ was in the “low average” range and that the defendant was not
capable of faking mental illness.

Dr. William Bernet, a forensic psychiatrist at Vanderbilt University, testified that the
defendant was competent to stand trial. Dr. Bernet met with the defendant three times, including the
day before the competency hearing. He determined that the defendant suffered from antisocial
personality disorder, delusional paranoia, and “a tendency to malinger.” Dr. Bernet further
determined, however, that the defendant was able to discuss various aspects of his case, including
his refusal to accept a plea bargain because he was innocent, the prosecution’s DNA evidence, and
the use of mitigating proof such as his brain injuries, dyslexia, troubled childhood, and low
intelligence level. He explained:

I talked to [the defendant] about the different charges and the process;
for instance, we talked about what happened in Court, who the
different people are in the Court, the roles of the Defense Attorney,
the Prosecuting Attorney, the witnesses, the Judge, and he seemed to
have a very good understanding of how Court works. He seems to
have an understanding of some of the details and not just kind of the
big picture . . . .

According to Dr. Bernet, the defendant did not want to present evidence of mental illness
because he did not believe he had a mental disorder. Dr. Bernet testified that the defendant was able
to communicate with his attorneys, that he understood that he may be acquitted or convicted, and that
he knew the possible punishments, including death by lethal injection, if he were found guilty. In
sum, Dr. Bernet stated that the defendant was competent to stand trial.

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 Dr. Cynthia Turner-Graham, a board-certified psychiatrist who was appointed to serve as an
independent expert by the trial court, testified that the defendant was competent to stand trial. She
testified that the defendant understood the nature of the charges against him and believed he could
present a successful alibi defense. The defendant believed he had a good working relationship with
his attorneys, though they often disagreed about defense strategy. According to Dr. Turner-Graham,
the defendant discussed the importance of mitigation evidence and understood that he might be
sentenced to death. The defendant denied thinking that he was being watched by the government
or that his trial was being scripted. He said that he “fabricated stories” to “achieve certain things at
certain times.” Dr. Turner-Graham testified that the defendant had an antisocial personality disorder
but was “clearly competent to stand trial.”

Following the competency hearing, the trial court accredited the testimony of Dr. Bernet and
Dr. Turner-Graham and ruled that the defendant was competent to stand trial. The trial court
emphasized the following: that the defendant understood the nature of the proceedings; that the
defendant understood the nature of the charges against him and the possible punishment; that the
defendant was able to assist in his defense by suggesting legal theories and strategy; and that the
defendant was able to communicate with his attorneys about his trial. Although the defendant’s
brain injuries and related conditions made it “difficult” for him to communicate with his attorneys,
the trial court found that these difficulties did not render the defendant incompetent to stand trial.

Defendant’s Competency and Burden of Proof

The defendant argues that the trial court erred in finding that he was competent to stand trial
and in placing the burden of proof upon him to establish incompetency to stand trial. The State
responds that the trial court’s rulings were correct.

The Fourteenth Amendment to the United States Constitution and Article I, section 8 of the
Tennessee Constitution prohibit the trial of a person who is mentally incompetent. Pate v. Robinson,
383 U.S. 375, 378 (1966); State v. Blackstock, 19 S.W.3d 200, 205 (Tenn. 2000). To be competent
to stand trial, a defendant in a criminal case must have “‘the capacity to understand the nature and
object of the proceedings against him, to consult with counsel and to assist in preparing his
defense.’” State v. Black, 815 S.W.2d 166, 174 (Tenn. 1991) (quoting Mackey v. State, 537 S.W.2d
704, 707 (Tenn. Crim. App. 1975)). The trial court’s findings “are conclusive on appeal unless the
evidence preponderates otherwise.” State v. Oody, 823 S.W.2d 554, 559 (Tenn. Crim. App. 1991).

As a threshold issue, we must determine who bears the burden of proof to establish a
defendant’s competency or incompetency. Although we have never addressed this precise issue,5
the Court of Criminal Appeals has concluded that the burden of establishing incompetence to stand

5
This Court’s decisions in State v. Black, 815 S.W .2d 166 (Tenn. 1991), and Jordan v. State, 135 S.W . 327
(Tenn. 1911), did not squarely address the issue. Instead, the holding in Black upheld the trial court’s decision that the
defendant was competent, see Black, 815 S.W.2d at 173, and the holding in Jordan involved a plea of insanity as a
defense to the charged offense. Jordan, 135 S.W . at 329.

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trial rests with the defendant. Oody, 823 S.W.2d at 559.6 In Oody, the defendant presented a clinical
psychologist who testified that the defendant was borderline retarded, psychotic, and incompetent
to be tried. The State, on the other hand, presented testimony from two psychologists who stated that
the defendant was malingering and was competent, as well as the testimony of officers who related
the defendant’s ability to communicate to them. The Court of Criminal Appeals placed the burden
on the defendant to establish incompetence by a preponderance of the evidence and upheld the trial
court’s finding that the defendant was competent to stand trial. Id. at 559-60; see also State v.
Leming, 3 S.W.3d 7, 14 (Tenn. Crim. App. 1998) (applying same standard).

The Oody standard is consistent with the United States Supreme Court’s holding that
defendants may properly be required to establish their incompetency by a preponderance of the
evidence. Medina v. California, 505 U.S. 437, 446 (1992). In Medina, the Court held that a statute
requiring defendants to establish their incompetency by a preponderance of the evidence did not
violate due process. In reaching that conclusion, the Court observed:

Based on our review of the historical treatment of the burden of proof
in competency proceedings, the operation of the challenged rule, and
our precedents, we cannot say that the allocation of the burden of
proof to a criminal defendant to prove incompetence “offends some
principle of justice so rooted in the traditions and conscience of our
people as to be ranked as fundamental.”

Id. (quoting Patterson v. New York, 432 U.S. 197, 202 (1977)). Moreover, the Court emphasized
that “[o]nce a State provides a defendant access to procedures for making a competency evaluation,
. . . we perceive no basis for holding that due process further requires the State to assume the burden
. . . of persuading the trier of fact that the defendant is competent to stand trial.” Id. at 449.

In contrast, the United States Supreme Court has invalidated an Oklahoma statute that
required defendants to prove their incompetency by clear and convincing evidence. Cooper v.
Oklahoma, 517 U.S. 348, 369 (1996). In reaching its holding, the Court observed that forty-six
states and the federal government either required the prosecution to establish a defendant’s
competency or required defendants to establish incompetency by a preponderance of the evidence.
Id. at 360-62. The Court further emphasized that the “clear and convincing evidence standard affects
a class of cases in which the defendant has already demonstrated that he is more likely than not
incompetent.” Id. at 364.

6
A variety of approaches are taken in other jurisdictions. Many place the burden of proof on the defendant to
establish his or her incompetency either by statute or case law. See Colo. Rev. Stat. Ann. § 16-8-111; Conn. Gen. Stat.
Ann. § 54-56d; Mo. Ann. Stat. § 552.020; Pa. Cons. Stat. Ann. tit. 50, § 7403; R.I. Gen. Laws § 40.1-5.3-3; Utah Code
Ann. § 77-15-5; Va. Code Ann. § 19.2-169.1; State v. Kleypas, 40 P.3d 139 (Kan. 2001), overruled on other grounds
by State v. Marsh, 102 P.3d 445 (Kan. 2004). Others place the burden on the prosecution. See Ill. Comp. Stat. Ann.
ch. 725 § 5/104-11; S.D. Codified Laws § 23A-10A-6.1; W is. Stat. Ann. § 971.14.

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 We have reviewed the approaches taken in other jurisdictions, and in our view the better
reasoned choice is the standard that requires defendants to establish their incompetency by a
preponderance of the evidence. This standard was identified by the Court of Criminal Appeals in
1991, and it has been applied since that time with no apparent difficulty or prejudice to either the
defense or the prosecution. Oody, 823 S.W.2d at 559; Leming, 3 S.W.3d at 14. Indeed, placing the
preponderance burden on defendants appears to strike an appropriate balance in several respects:

After balancing the equities . . . the burden of proof may
constitutionally rest on the defendant. . . . The main concern of the
prosecution . . . is that a defendant will feign incompetence in order
to avoid trial. If the burden of proving incompetence rests on the
government, a defendant will have less incentive to cooperate in
psychiatric investigations. . . . A defendant may also be less
cooperative in making available friends or family who might have
information about the defendant’s mental state. States may therefore
decide that a more complete picture of a defendant’s competence will
be obtained if the defense has the incentive to produce all the
evidence in its possession.

Medina, 505 U.S. at 455 (O’Connor, J., concurring). Finally, the preponderance of the evidence
standard is consistent with due process. Id. at 446.

In applying these principles to this case, we conclude that the evidence in the record does
not preponderate against the trial court’s finding that the defendant was competent to stand trial.7
The trial court held an exhaustive evidentiary hearing and considered the expert testimony of Dr.
Auble, Dr. Amador, Dr. Bernet, and Dr. Turner-Graham. The trial court found that the defendant
suffered from a brain injury and had difficulties communicating at times. The trial court further
found, however, that the defendant understood the nature of the proceedings, understood the charges
against him, and communicated with his attorneys by suggesting defenses. The fact that not all of
the defendant’s defense strategies or suggestions were pursued does not indicate that he lacked the
ability to assist in his defense. In short, the trial court heard the evidence and accredited the
testimony of Dr. Bernet and Dr. Turner-Graham. After carefully reviewing the record, we conclude
that the evidence does not preponderate against the trial court’s finding that the defendant was
competent to stand trial.

7
Indeed, we note that the trial court, out of an abundance of caution, evaluated the evidence and reached the
same conclusion under two separate standards: placing the burden on the defendant to establish incompetency by a
preponderance of the evidence and placing the burden on the State to establish competency by a preponderance of the
evidence.

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 Competency and Exclusion of Evidence

In a related issue on competency, the defendant argues that the trial court erred in excluding
the testimony of Reverend Joe Ingle, a minister who had visited with the incarcerated defendant, and
the testimony of Mary Ann Hea, a social worker for the public defender’s office who had
interviewed the defendant several times. The defendant maintains that these witnesses would have
supported his claim of incompetency. The State argues that the trial court did not err in excluding
these witnesses because the defendant asserted applicable privileges that prevented them from
testifying.

The record shows that the defense called Reverend Ingle to testify at the competency hearing.
According to defense counsel, Ingle would have testified that he met with the defendant on numerous
occasions and that the defendant often tried to portray himself as normal. Ingle would have further
testified that the defendant had bizarre, delusional thoughts and that the defendant was the most
mentally ill prisoner he had ever counseled. The trial court refused to allow Ingle to testify, however,
because the defendant declined to waive the clergy-penitent privilege. See Tenn. Code Ann. § 24-1-
206 (2000).

Similarly, the record shows that the defense called Mary Ann Hea during the competency
hearing to testify about her numerous interviews with the defendant as a social worker for the public
defender. After determining that Hea was part of the defense team, the trial court refused to allow
her to testify because the defendant declined to waive the applicable privilege, i.e., the attorney-client
privilege.

In our view, the trial court did not err in excluding the testimony. First, our conclusion that
a defendant bears the burden of establishing his or her incompetency necessarily means that he or
she has not been found to be incompetent before or during the competency proceeding itself. As a
result, nothing prevents a defendant from invoking an applicable privilege during a competency
proceeding as a matter of law. Moreover, the trial court is free to reconsider the issue of the
defendant’s invocation of privileges while evidence of the defendant’s mental status is presented
during the hearing by both the defense and prosecution.

Second, a defendant’s right to present evidence to meet the burden of proof does not
eliminate the trial court’s discretion in determining relevance and materiality of the evidence. Here,
the defendant presented extensive expert testimony to show that he was not competent to stand trial.
The expert witnesses related the basis of their opinions, which included analysis of the defendant’s
family background, history of head injuries, and mental illness. Dr. Auble, for instance, testified that
evidence was gathered not only from the defendant but also the defendant’s attorneys, jury
consultant, and investigators. Dr. Auble and Dr. Amador testified effectively on behalf of the
defense; Dr. Bernet and Dr. Turner-Graham likewise testified fully and effectively on behalf of the
prosecution. In sum, the defendant’s exercise of his privileges did not prevent the trial court from
fully considering the material evidence and making a thorough assessment of the relevant issues

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pertaining to the defendant’s competency to stand trial. Accordingly, we conclude that the trial court
did not err in excluding the testimony of the witnesses.

Competency and the Court-Appointed Expert

The defendant next argues that the trial court erred in denying his motion for a new
competency proceeding on the ground that the court-appointed expert, Dr. Cynthia Turner-Graham,
allegedly knew one of the victims. The State maintains that there was no evidence establishing that
Dr. Turner-Graham had a conflict of interest or that the defendant was prejudiced in any way.

As part of a motion for a new trial, the defendant introduced the affidavit of an Assistant
Public Defender, Gary C. Tamkin. The affidavit stated that Tamkin and Dr. Turner-Graham were
friends and that the latter had told him “she believed she had met one of the victims.” According
to Tamkin’s affidavit, Dr. Turner-Graham said that her son knew one of the victims and that the
victim had been to her house.

In denying the motion for new trial, the trial court found it “inconceivable” that an assistant
public defender in possession of such information would wait until after trial to reveal it to his
colleagues. The trial court further noted that the defense had presented no testimony in support of
the issue and had failed to establish “when, how well, or for how long” Dr. Turner-Graham knew
one of the victims. The Court of Criminal Appeals upheld the trial court’s ruling.

In our view, the record supports the trial court’s ruling. The defendant failed to show that
Dr. Turner-Graham had a conflict of interest or that her testimony was affected by allegedly meeting
one of the victims. The defendant failed to produce any facts with regard to Dr. Turner-Graham’s
knowledge of the victim and failed to establish any prejudice resulting from Dr. Turner-Graham’s
testimony. Moreover, the record reveals that the trial court conducted a full and fair competency
proceeding and fully considered the extensive evidence presented by both the defendant and the
prosecution. We conclude that the trial court did not err in denying the motion for a new trial and
a new competency hearing.

Guilt Phase Issues

Sufficiency of Evidence

The defendant argues that there was insufficient evidence of premeditation and deliberation
to support the first degree murder convictions. The State maintains that the evidence was sufficient
to support the convictions.

When evaluating the sufficiency of the evidence, we must determine whether “any rational
trier of fact could have found the essential elements of the crime beyond a reasonable doubt.”
Jackson v. Virginia, 443 U.S. 307, 319 (1979) (emphasis in original). We are required to afford the

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prosecution the strongest legitimate view of the evidence in the record, as well as all reasonable and
legitimate inferences which may be drawn therefrom. See State v. Bland, 958 S.W.2d 651, 659
(Tenn. 1997). Questions concerning the credibility of the witnesses, the weight to be given the
evidence, and factual issues raised by the evidence are resolved by the trier of fact. Id.; see also State
v. Cazes, 875 S.W.2d 253, 259 (Tenn. 1994). Moreover, these principles of review apply even if a
conviction is based upon circumstantial evidence. State v. Cole, 155 S.W.3d 885, 897 (Tenn. 2005).

The offense of first degree murder includes a “premeditated and intentional killing of
another.” Tenn. Code Ann. § 39-13-202(a)(1) (2003). A premeditated act is “an act done after the
exercise of reflection and judgment” and means that “the intent to kill must have been formed prior
to the act itself.” Tenn. Code Ann. § 39-13-202(d) (2003). An intentional act refers to “the nature
of the conduct or to a result of the conduct when it is [a] person’s conscious objective or desire to
engage in the conduct or cause the result.” Tenn. Code Ann. § 39-11-106(a)(18) (2003).

In Bland, we identified and discussed circumstances that, if established by the proof, may
warrant the trier of fact to find or infer premeditation. The circumstances include the use of a deadly
weapon upon an unarmed victim, the particular cruelty of a killing, any threats or declarations of
intent to kill made by the defendant, proof that the defendant procured a weapon, any preparations
to conceal the crime undertaken before the crime is committed, and the defendant’s calm demeanor
immediately after a killing. Bland, 958 S.W.2d at 660.

We agree with the Court of Criminal Appeals’ conclusion that the evidence was sufficient
to support the first degree murder convictions. There was extensive evidence connecting the
defendant to the crimes: the defendant was near the Baskin- Robbins store at approximately the time
the two victims had been closing the store on April 23, 1997; several witnesses saw a red car similar
to the defendant’s car; and credit card receipts revealed that the defendant had purchased gasoline
at a Texaco station that was minutes away from Baskin-Robbins. There was also extensive evidence
connecting the defendant to the victims: the defendant or his car had been seen at or near the Dunbar
Cave area in which the victims’ bodies were found; blood found on the defendant’s left shoe had a
DNA profile that was consistent with that of Angela Holmes; blood found on the defendant’s right
shoe had a DNA profile that did not exclude the defendant or the victims; and fibers found on the
clothing of Holmes and Michelle Mace were consistent with fibers found in the defendant’s car.
Finally, there was evidence that the defendant had acted with intent and with premeditation: the
victims had suffered deep, penetrating stab wounds to their throats; the stab wounds had been
inflicted with enough force to penetrate the victims’ spines; the stab wounds had been inflicted with
a knife blade several inches long; and the victims bled to death in a secluded area. See State v.
Keough, 18 S.W.3d 175, 181 (Tenn. 2000) (upholding a finding of premeditation based on the nature
of the killing where a defendant stabbed the victim to death with a large knife).

The defendant characterizes the evidence as circumstantial and emphasizes inconsistent
statements made by witnesses, inconsistent descriptions of the defendant’s car, and other alleged
discrepancies in the evidence. However, it is the jury’s function to weigh the credibility of the

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witnesses and to resolve the factual conflicts in the evidence. Our task is to review the legal
sufficiency of the evidence under the standards stated above.

Accordingly, we conclude that the evidence was sufficient to support the two convictions for
first degree murder. Similarly, we conclude that the evidence was sufficient to support the
defendant’s convictions for especially aggravated kidnapping, see Tenn. Code Ann. § 39-13-305(a)
(2003), and especially aggravated robbery. See Tenn. Code Ann. § 39-13-403(a) (2003).

Motion to Dismiss Indictment

The defendant asserts that the trial court erred in failing to dismiss the indictment because
the indictment did not charge the aggravating circumstances used to seek the death penalty. The
defendant, citing Apprendi v. New Jersey, 530 U.S. 466 (2000), and Ring v. Arizona, 536 U.S. 584
(2002), argues that aggravating circumstances must be charged in the indictment, submitted to the
jury, and established beyond a reasonable doubt. The State maintains that Tennessee’s capital
sentencing scheme does not require aggravating circumstances to be charged in the indictment.

In Apprendi, the United States Supreme Court held that “[o]ther than the fact of a prior
conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum
must be submitted to a jury, and proved beyond a reasonable doubt.” 530 U.S. at 490. In Ring, the
Supreme Court addressed the capital sentencing scheme in Arizona, under which guilt or innocence
was determined by a jury and the presence of aggravating factors required for the imposition of the
death penalty was determined by a trial judge. Relying on Apprendi’s holding that the Sixth
Amendment required a jury determination of any facts that would expose a defendant to a penalty
exceeding the maximum, the Court found Arizona’s scheme unconstitutional. Ring, 536 U.S. at 609.
As in Apprendi, however, the Court did not apply the Fifth Amendment right to presentment or grand
jury indictment; instead, the Court reiterated that the Fourteenth Amendment “has not . . . been
construed to include the Fifth Amendment right to ‘presentment or indictment of a Grand Jury.’”
Ring, 536 U.S. at 597 n.4 (quoting Apprendi, 530 U.S. at 477 n.3).

As the parties recognize, this Court has consistently held that Apprendi does not affect capital
sentencing in Tennessee and does not require aggravating circumstances to be pled in an indictment.
See State v. Leach, 148 S.W.3d 42, 59 (Tenn. 2004); State v. Berry, 141 S.W.3d 549, 562 (Tenn.
2004); State v. Holton, 126 S.W.3d 845, 863 (Tenn. 2004); State v. Dellinger, 79 S.W.3d 458, 467
(Tenn. 2002). In addition, we have clarified that Ring, as well as the more recent decision in Blakely
v. Washington, 124 S. Ct. 2531 (2004), “do not change our analysis . . . regarding whether
aggravating circumstances must be pled in the indictment.” Berry, 141 S.W.3d at 560; State v.
Davis, 141 S.W.3d 600, 616 (Tenn. 2004). As we explained in Berry, “[t]he focus in Apprendi,
Ring, and Blakely was on the Sixth Amendment right to trial by jury,” and “the Court expressly
declined to impose the Fifth Amendment right to presentment or grand jury indictment upon the

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States.” Berry, 141 S.W.3d at 560.8 Moreover, we emphasized that defendants in capital cases
receive written notice of the State’s intent to seek the death penalty prior to trial, as well as written
notice of the aggravating circumstances, under Rule 12.3 of the Tennessee Rules of Criminal
Procedure. Id. at 562.

In short, we have held repeatedly that Tennessee’s capital sentencing scheme does not require
that aggravating circumstances be included in an indictment. The defendant’s arguments, therefore,
are without merit.

Amendment of the Indictment

The defendant also argues in a related indictment issue that the trial court erred in allowing
the indictment to be amended to change the predicate felony underlying the two counts of felony
murder from “especially aggravated robbery” to “robbery.” The State responds that the trial court
did not err because the amended indictment did not include a new or different charge.

We conclude that the trial court did not err in allowing the State to amend the indictment.
First, an indictment may be amended without the defendant’s consent before jeopardy attaches if “no
additional or different offense is thereby charged and no substantial rights of the defendant are
thereby prejudiced.” Tenn. R. Crim. P. 7(b). Second, the indictment initially charged that two
counts of felony murder occurred in the course of “especially aggravated robbery”; the amendment
stated that the two counts of felony murder occurred during the course of “robbery,” which is simply
a lesser included offense of “especially aggravated robbery.” Tenn. Code Ann. §§ 39-13-401; -403
(2003). As a result, no new or different offenses were alleged; to the contrary, the amended
indictment, like the original indictment, charged two counts of felony murder pursuant to Tennessee
Code Annotated section 39-13-202(a)(2).

The defendant also argues that he was prejudiced because the amended indictment no longer
required the State to prove the elements of especially aggravated robbery. We disagree. The State
was required by the amended indictment to prove the required elements of the charged offenses, i.e.,
felony murder. Because the amended indictment did not charge new or different offenses, see Tenn.
R. Crim. P. 7(b), the defendant had notice of the charges and their required elements. State v.
Hammonds, 30 S.W.3d 294, 300 (Tenn. 2000) (stating that notice is the purpose of an indictment).
Finally, the defendant’s convictions for two counts of felony murder were merged with his
convictions for two counts of premeditated first degree murder. In sum, the trial court did not err,
and the defendant is entitled to no relief on this ground.

8
Furthermore, we noted that the majority of states have likewise declined to require the inclusion of aggravating
circumstances in the indictment. Berry, 141 S.W .3d at 561 n.4.

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 Extrinsic Evidence of Prior Inconsistent Statements

The defendant contends that the trial court erred in excluding extrinsic evidence of
inconsistent statements offered during the testimony of Sgt. R. W. Knight to impeach two of the
State’s witnesses. See Tenn. R. Evid. 613(b). The State responds that the trial court did not abuse
its discretion and that any error was harmless.

We begin our review of this issue by summarizing the relevant portions of the transcript. The
defense questioned the State’s witness, Sgt. R. W. Knight, about statements made to him by a
witness for the prosecution, Jay Smith. Although Smith had testified that he saw a car similar to the
defendant’s at Dunbar Cave on the night of April 23, 1997, and said that he did not recall contacting
the police, Sgt. Knight testified that Smith had called the police on May 1, 1997, to provide the
license number of a car he had seen at Dunbar Cave. Sgt. Knight further testified that the license
number provided by Smith did not belong to the defendant.

Similarly, the defense questioned Sgt. Knight about prior statements made by another witness
for the prosecution, Lavanda Zimmerman. Zimmerman had testified that she saw a car similar to
the defendant’s in the Baskin-Robbins parking lot on the night of April 23, 1997, but said that police
officers did not ask her whether she had seen any cars at that time. Sgt. Knight testified, however,
that the police asked Zimmerman whether any cars had been in the parking lot.

The trial court denied the defendant’s request to introduce Sgt. Knight’s written summaries
of the interviews with Smith and Zimmerman, even though the defendant had asked Sgt. Knight
about the witnesses’ statements and had properly moved that the summaries be admitted into
evidence during Sgt. Knight’s testimony. The trial court concluded that evidence of a prior
inconsistent statement may be introduced only by either (1) using a second witness to relate the prior
inconsistent statements or (2) using extrinsic evidence of the prior statement during the examination
of the witness who is being impeached. The Court of Criminal Appeals held that the trial court did
not abuse its discretion because Sgt. Knight’s written summaries were cumulative to his testimony
in court.

Extrinsic evidence of a witness’s prior inconsistent statement “is not admissible unless and
until the witness is afforded an opportunity to explain or deny the same and the opposite party is
afforded an opportunity to interrogate the witness thereon, or the interests of justice otherwise
require.” Tenn. R. Evid. 613(b). The Advisory Commission Comments to Rule 613(b) clarify that
the “only requirement” for the use of extrinsic evidence is that the witness must be “afforded an
opportunity to explain or deny.”9 The extrinsic evidence may be “the written or recorded content
of the prior statement itself or the testimony of another witness as to the content of the prior written
or oral statement.” Neil Cohen et al., Tennessee Law of Evidence, § 613.4 (4th ed. 2003).

9
An additional limitation, however, is that extrinsic evidence may not be used where the trial court determines
that the extrinsic evidence concerns a collateral matter. Neil Cohen et al., Tennessee Law of Evidence, § 613.5 (4th ed.
2003).

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 In our view, the trial court erred in concluding that the defendant could not introduce the
written summaries of the statements made by Smith and Zimmerman to Sgt. Knight. Rule 613(b)
requires only that the witnesses be given an opportunity to explain or deny their prior statement.
This requirement was met during the defense’s cross-examination of Smith and Zimmerman during
the State’s proof regarding their prior statements. Moreover, Rule 613(b) does not expressly limit
the impeaching party to one form of extrinsic evidence, nor does it require an impeaching party to
choose between two available forms of extrinsic evidence. In short, the trial court’s ruling, which
limited the defense to the use of the testimony of Sgt. Knight and precluded the use of the witnesses’
statements, was erroneous under Rule 613(b).

We also conclude, however, that the trial court’s error did not affect the result of the
proceeding. The defendant attempted to elicit inconsistencies between Smith and Zimmerman’s in-
court testimony and their prior statements. The defendant asked both Smith and Zimmerman about
their prior statements on cross-examination; thus, both witnesses were given an opportunity to
explain or deny their statements. The defense then used Sgt. Knight’s testimony as extrinsic
evidence of the prior inconsistent statements made by Smith and Zimmerman. Although there were
written summaries of the witnesses’ prior statements, the defense did not establish that the written
summaries would have been more effective than Sgt. Knight’s testimony or otherwise critical to the
defense. In sum, the trial court’s error was harmless, and the defendant, therefore, is not entitled to
relief on this issue.

Penalty Phase Issues

Sufficiency of Aggravating Circumstances

The defendant contends that the evidence was insufficient to support the jury’s application
of the “heinous, atrocious, or cruel” aggravating circumstance set forth in Tennessee Code Annotated
section 39-13-204(i)(5) (2003). The State maintains that the evidence was sufficient to support the
jury’s application of this aggravating circumstance.

Our analysis requires that we determine whether, after viewing the evidence in a light most
favorable to the State, a rational trier of fact could have found the existence of the aggravating
circumstance beyond a reasonable doubt. Terry v. State, 46 S.W.3d 147, 160-61 (Tenn. 2001).
Although the defendant has challenged only one of the three aggravating circumstances in this case,
we will address each in turn. See Tenn. Code Ann. § 39-13-206(c)(1)(B) (2003) (requiring review
of aggravating circumstances found by the jury).

1. Tennessee Code Annotated section 39-13-204(i)(2)

The aggravating circumstance found in Tennessee Code Annotated section 39-13-204(i)(2)
(2003) is as follows: “The defendant was previously convicted of one (1) or more felonies, other
than the present charge, whose statutory elements involve the use of violence to the person[.]” The
plain statutory language requires the prosecution to prove that the defendant had (1) a prior

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conviction, (2) for a felony offense, (3) whose statutory elements involved the use of violence to a
person. Davis 141 S.W.3d at 618.

In this case, the prosecution established this aggravating circumstance by relying on the
defendant’s prior convictions in Tennessee for two counts of first degree murder and one count of
especially aggravated robbery. These three convictions were clearly felony offenses whose statutory
elements involved the use of violence to the person. See Tenn. Code Ann. §§ 39-13-202(a); -403.
The prosecution also relied on the defendant’s prior conviction in Texas for the offense of
aggravated robbery, which the parties stipulated was a violent felony.

Accordingly, the evidence was sufficient to support the jury’s application of this aggravating
circumstance beyond a reasonable doubt.

2. Tennessee Code Annotated section 39-13-204(i)(5)

The aggravating circumstance in Tennessee Code Annotated section 39-13-204(i)(5) applies
where the “murder was especially heinous, atrocious, or cruel in that it involved torture or serious
physical abuse beyond that necessary to produce death.” The defendant argues that this aggravating
circumstance should not have been applied because the facts of this case were not as severe or
aggravated as other cases in which this aggravating circumstance has been applied.

“Torture” has been defined as “the infliction of severe mental or physical pain upon the
victim while he or she remains alive and conscious.” State v. Williams, 690 S.W.2d 517, 529 (Tenn.
1985). “Serious physical abuse beyond that necessary to produce death” has been defined 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));
see also State v. Morris, 24 S.W.3d 788, 797 (Tenn. 2000).

In this case, the evidence supports a finding of torture and serious physical injury beyond
that necessary to produce death. Both victims were stabbed multiple times. Both victims were
stabbed in the throat or neck with such severe force that the murder weapon penetrated bone; indeed,
the wounds inflicted on Michelle Mace included five cuts to her vertebral column as a result of a
“sawing” motion. Both victims were alive and conscious for five to fifteen minutes as they bled to
death in great pain. In sum, the evidence was sufficient to support the jury’s application of this
aggravating circumstance beyond a reasonable doubt. See State v. Mann, 959 S.W.2d 503, 511
(Tenn. 1997) (victim beaten, strangled, and stabbed eleven times).

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 3. Tennessee Code Annotated section 39-13-204(i)(6)

The aggravating circumstance in Tennessee Code Annotated section 39-13-204(i)(6) applies
where a “murder was committed for the purpose of avoiding, interfering with, or preventing a lawful
arrest or prosecution of the defendant or another.” Section 204(i)(6) focuses on a defendant’s
motives in committing a murder, and it is not limited to the killings of eyewitnesses or those
witnesses who know or can identify the defendant. See Terry, 46 S.W.3d at 162. Moreover, the
defendant’s desire to avoid arrest or prosecution need not be the sole motive for killing the victim
and instead may be just one of the purposes motivating the defendant to kill. Id.; see also Davis, 141
S.W.3d at 618-19.

Here, the victims were robbed, kidnapped, taken to a remote area, stabbed, and abandoned.
The evidence supported a finding that one of the defendant’s purposes in committing the murders
was to avoid arrest or prosecution for the robbery and kidnapping offenses. Accordingly, the
evidence was sufficient to support the jury’s application of this aggravating circumstance beyond a
reasonable doubt.

Proportionality

Where a defendant has been sentenced to death, we must apply a comparative proportionality
analysis pursuant to Tennessee Code Annotated section 39-13-206(c)(1)(D) (2003). The analysis
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.’” Bland, 958
S.W.2d at 662 (quoting Pulley v. Harris, 465 U.S. 37, 42-43 (1984)).

In conducting this analysis, this Court employs the precedent-seeking method of comparative
proportionality review, in which we compare a 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 alike, 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.

We have 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. See State v. Godsey,
60 S.W.3d 759, 783 (Tenn. 2001). We have explained that the pool does not include first degree
murder cases in which a plea bargain is reached with respect to the punishment or in which the State
does not seek the death penalty:

[C]onsideration of cases in which the State, for whatever reasons, did
not seek the death penalty would necessarily require us to scrutinize
what is ultimately a discretionary prosecutorial decision. We
previously have declined to review the exercise of prosecutorial

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 discretion, and it would be particularly inappropriate to do so in
conducting comparative proportionality review, where our function
is limited to identifying aberrant death sentences, not identifying
potential capital cases.

Id. at 784 (citations omitted) (emphasis added).

Accordingly, our comparative proportionality review of the applicable pool of cases considers
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. We also consider numerous factors about the
defendant: (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.; see also State v.
Bane, 57 S.W.3d 411, 428-29 (Tenn. 2001).

In this case, we begin by reviewing the nature of the offenses. The defendant robbed and
kidnapped the victims in Clarksville, Tennessee, on April 23, 1997. The defendant drove the victims
to a secluded area and stabbed them to death. The victims suffered deep, penetrating stab wounds
to their throats. The stab wounds had been inflicted with a knife blade several inches long with
enough force to penetrate their spines. The victims were alive five to fifteen minutes after being
stabbed and were conscious for eighty percent of that time as they bled to death. The defendant’s
conduct was intentional and premeditated. He acted alone in these offenses, without any evidence
of provocation or justification.

We next consider evidence regarding the defendant and his background. The defendant was
unemployed at the time of these offenses, and he had prior convictions for first degree murder,
especially aggravated robbery, and robbery. He also had a history of mental illness and brain damage
stemming from a number of head injuries. Dr. Xavier Amador testified that the defendant suffered
from chronic schizophrenia of the paranoid type, a cognitive disorder, documented brain damage,
and mental illness characterized by aggressive and impulsive behavior. Dr. Pamela Auble testified
that the defendant’s brain damage caused the defendant’s significant mental disorders and resulted
in pervasive impairments in the defendant’s behavior, that the defendant had difficulty thinking,
exhibited aggression, psychosis, and delusions, and that he believed he was under government
surveillance and control. Dr. Robert Kessler testified that the defendant had several brain
abnormalities, including traumatic brain injuries, that bore a strong statistical association to
psychotic disorders. Although mental health professionals testified that the defendant was
schizophrenic and delusional, there was also evidence regarding the defendant’s history of
malingering. Finally, no evidence was presented to show that the defendant cooperated with the
authorities, exhibited remorse for the killings, or was amenable to rehabilitation.

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 For the following reasons, we conclude that the death sentence as applied to the defendant
in this case was not excessive or disproportionate when compared to defendants in other cases. See
Tenn. Code Ann. § 39-13-206(c)(1)(A), (C), (D) (2003).

First, this Court has upheld death sentences in numerous similar cases where the defendant
stabbed a victim or victims. See Leach, 148 S.W.3d at 42; Keough, 18 S.W.3d at 183; State v. Bush,
942 S.W.2d 489 (Tenn. 1997); State v. Hines, 919 S.W.2d 573 (Tenn. 1995); State v. Thompson,
768 S.W.2d 239 (Tenn. 1989); State v. West, 767 S.W.2d 387 (Tenn. 1989). In several of these
cases, like the present case, a victim was stabbed to death in the course of a robbery or other felony.
Leach, 148 S.W.3d at 60; Bush, 942 S.W.2d at 507; Hines, 919 S.W.2d at 584; West, 767 S.W.2d
at 397.

Second, this Court has upheld numerous death sentences in cases involving a defendant with
prior convictions for felonies whose statutory elements involved the use of violence to the person,
i.e., one of the aggravating circumstances applied by the jury in this case. See, e.g., Leach, 148
S.W.3d at 60. As this Court often has said, this aggravating circumstance is “more qualitatively
persuasive and objectively reliable than other[]” aggravating circumstances. State v. Howell, 868
S.W.2d 238, 261 (Tenn. 1993).

Likewise, we have upheld the death penalty in similar cases involving the other two
aggravating circumstances applied in this case, i.e., the murder was heinous, atrocious or cruel in that
it involved torture or serious injury beyond that necessary to produce death, and the murder was
committed to avoid or prevent the defendant’s arrest or prosecution. Leach, 148 S.W.3d at 59
(aggravating circumstance (i)(5)); Bush, 942 S.W.2d at 504-05 (aggravating circumstances (i)(5) and
(6)); Hines, 919 S.W.2d at 584 (aggravating circumstance (i)(5)); Thompson, 768 S.W.2d at 252
(aggravating circumstances (i)(5) and (i)(6)).

Finally, we have upheld sentences in numerous cases involving defendants who presented
similar evidence of mitigating circumstances. For example, several cases have involved defendants
who presented evidence of their family backgrounds or poor childhood environments. Davis, 141
S.W.3d at 621; State v. Middlebrooks, 995 S.W.2d 550, 552 (Tenn. 1999); Hines, 919 S.W.2d at
573. Similarly, several similar cases have involved defendants with mental illness. Middlebrooks,
995 S.W.2d at 552 (defendant with borderline personality disorder and brain impairment); Hines,
919 S.W.2d at 573 (defendant with paranoid personality disorder, dysthymia, and chronic
depression); Cazes, 875 S.W.2d at 259 (defendant with possible neurological damage); Smith, 868
S.W.2d at 561 (defendant with chronic depression, paranoid personality disorder, chronic depressive
neurosis, and paranoid delusional disorder); Howell, 868 S.W.2d at 262 (defendant with brain
damage).

We need not find that this case is exactly like a prior case in every respect, nor must we
determine that this case is “more or less” like other similar death penalty cases. Instead, we must
identify aberrant death sentences by analyzing whether a capital case plainly lacks circumstances
similar to those cases in the pool of cases in which a death sentence has been upheld. Accordingly,

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for the foregoing reasons, the death sentences imposed on the defendant for the first degree murder
offenses in this case are not disproportionate.

Weighing of Aggravating and Mitigating Circumstances

As explained above, the evidence overwhelmingly supported three aggravating circumstances
applied by the jury: that the defendant had previous convictions for felonies whose elements
involved violence to the person; that the murders were especially heinous, atrocious or cruel in that
they involved torture or physical abuse beyond that necessary to produce death; and the murders
were committed by the defendant to avoid arrest or prosecution. The mitigating circumstances
included testimony about the defendant’s background, head injuries, brain damage, mental illness,
and belief that he was under government surveillance.

After reviewing the record and considering the evidence discussed above with regard to
proportionality, we conclude that the evidence supported the jury’s finding that the aggravating
circumstances outweighed mitigating circumstances beyond a reasonable doubt. Tenn. Code Ann.
§ 39-13-206(c)(1)(C) (2003).

Capital Sentencing – Rights to Due Process and Confrontation

The defendant argues that Tennessee’s capital sentencing scheme violates his rights to due
process and confrontation under the United States Constitution because the rules of evidence do not
apply and the jury is permitted to hear evidence that is not reliable and trustworthy. See Tenn. Code
Ann. § 39-13-204(c) (rules of evidence not applicable during penalty phase). The State responds that
the defendant’s argument is without merit.

We have recently rejected the argument raised by the defendant. In Berry, we observed that
under Tennessee Code Annotated section 39-13-204(c), evidence that is 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. Berry, 141 S.W.3d at 563-64. Although the statute gives wider discretion to the trial
court than normally permitted under the Tennessee Rules of Evidence, we explained:

[T]he discretion allowed judges and attorneys during sentencing in
first degree murder cases is not unfettered. 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. The rules of evidence can in some instances be helpful guides
in reaching these determinations of admissibility. Trial judges are
not, however, required to adhere strictly to the rules of evidence.
These rules are too restrictive and unwieldy in the arena of capital
sentencing.

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Id. (quoting State v. Sims, 45 S.W.3d 1, 14 (Tenn. 2001)).

Accordingly, the standards set forth in Tennessee Code Annotated section 39-13-204(c) allow
trial courts to exclude evidence that may violate the constitutional guarantees of due process or
confrontation. The defendant’s argument, therefore, is without merit.

Admissibility of Photographs

The defendant argues that the trial court erred in admitting photographs of the victims during
the penalty phase of the trial. The defendant contends that the photographs of the victims taken at
the crime scene were gruesome and intended to inflame the passions of the jury. The State maintains
that the trial court properly admitted the photographs in support of an aggravating circumstance.

A trial court is afforded broad discretion in determining whether to admit photographs of the
deceased in a murder prosecution. State v. Odom, 137 S.W.3d 572, 588 (Tenn. 2004); State v.
Morris, 24 S.W.3d 788, 810-11 (Tenn. 2000). The decision to admit photographs will be reversed
only if the trial court has abused its discretion. Odom, 137 S.W.3d at 588.

The record shows that the trial court admitted one photograph of each victim at the crime
scene. The color photographs showed the deep stab wounds inflicted on the victims’ necks. The
trial court concluded that the photographs were probative in establishing an aggravating
circumstance, i.e., the murders were heinous, atrocious or cruel in that they involved torture or
physical abuse beyond that necessary to produce death, and that the probative value of the
photographs outweighed the risk of unfair prejudice.

In our view, the trial court did not abuse its discretion. The photographs were relevant to
establish an aggravating circumstance and were not introduced for the purpose of inflaming the jury.
Though graphic, the photographs were not unduly gruesome or unfairly prejudicial. Morever, the
trial court allowed the admission of only one photograph of each victim to depict the nature and
extent of the injuries inflicted by the defendant. Accordingly, the trial court did not abuse its
discretion in admitting the crime scene photographs of the victims.

Failure to Instruct Jury on “Catch-all” Mitigating Provision

The defendant argues that the trial court erred in failing to instruct the jury on the “catch-all”
mitigating circumstance set out in Tennessee Code Annotated section 39-13-204(j)(9). This statute
allows the jury to consider “[a]ny other mitigating factor which is raised by the evidence produced
by either the prosecution or defense at either the guilt or sentencing hearing.” Id. The State responds
that the trial court and the Court of Criminal Appeals properly held that the issue was waived
because the defendant did not object or include the issue in the motion for new trial.

The record shows that the trial court instructed the jury on numerous statutory and non-
statutory mitigating circumstances. Tenn. Code Ann. § 39-13-204(j). The non-statutory mitigating

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circumstances charged to the jury included the defendant’s “history of childhood,” “mental illness
or emotional disturbance,” and “brain injury or damage.” Although the defendant correctly asserts
that the trial court failed to instruct the jury on the “catch-all” provision noted above, the transcript
shows that the trial court gave the following instruction:

Tennessee law provides that in arriving at the punishment, the jury
shall consider as previously indicated, any mitigating circumstances
raised by the evidence in the guilt-finding phase, the sentencing
phase, or both, which shall include, but are not limited to, the
following: [specific statutory and non-statutory mitigating
circumstances]. No distinction shall be made between the mitigating
circumstances listed and those otherwise raised by the evidence.

The defendant did not object to the instructions, nor did the defendant include this issue in his
motion for a new trial.

Although a trial court must instruct the jury on the statutory mitigating “catch-all” provision,
the omission in this case was not plain error. The trial court instructed the jury on statutory and non-
statutory mitigating circumstances that could be considered. The trial court also instructed the jury
that mitigating circumstances were “not limited to” the specific statutory and non-statutory factors.
In sum, the trial court’s instructions as a whole encompassed the statutory “catch-all” provision and
informed the jury that it could consider any mitigating circumstances raised by the evidence in the
guilt and penalty phases of the trial. Accordingly, the trial court’s failure to instruct on the statutory
mitigating “catch-all” provision did not affect the substantial rights of the defendant and was not
plain error. Tenn. R. Crim. P. 52(b).

Prosecutorial Misconduct in Penalty Phase

The defendant next contends that the trial court erred in failing to grant a new sentencing
hearing due to prosecutorial misconduct during closing argument. The defendant argues that the
prosecutor’s misconduct included referring to a victim’s thoughts, appealing to the jury’s passion,
using crime-scene photos of the victims on a projector, and telling the jury that the defendant had
murdered four people in “cold blood.” The State responds that there was no prosecutorial
misconduct and that the defendant failed to object to many of the prosecutor’s statements.

This Court has often observed that “closing argument is a valuable privilege that should not
be unduly restricted.” Bane, 57 S.W.3d at 425. We have likewise recognized that the prosecutor
may not engage in derogatory remarks, appeal to the prejudice of the jury, misstate the evidence, or
make arguments not reasonably based on the evidence. State v. Bates, 804 S.W.2d 868, 881 (Tenn.
1991) (referring to defendant as a “rabid dog”). The trial court has discretion in controlling the
course of arguments and will not be reversed absent an abuse of that discretion. Bane, 57 S.W.3d
at 424.

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 Moreover, prosecutorial misconduct does not amount to reversible error absent a showing
that it has affected the outcome of the case to the prejudice of the defendant. See State v. Chalmers,
28 S.W.3d 913, 917 (Tenn. 2000). In making this determination, we must consider: (1) the conduct
complained of viewed in light of the facts and circumstances of the case; (2) the curative measures
undertaken by the court and the prosecution; (3) the intent of the prosecutor in making the improper
arguments; (4) the cumulative effect of the improper conduct and any other errors in the record; and
(5) the relative strength and weakness of the case. Id. at 917; State v. Buck, 670 S.W.2d 600, 609
(Tenn. 1984). We will review each of the defendant’s arguments with these standards in mind.

The defendant asserts that the prosecutor improperly referred to the thoughts Angela Holmes
may have had before she died. The record shows that the prosecutor argued that the victim may
have been thinking about her family or her wedding, which had taken place at Dunbar Cave, and that
“we can only speculate as to what she was thinking.” Although counsel are required to confine their
arguments to those supported by the evidence or inferences drawn from the evidence, the defendant
did not object to the prosecutor’s remarks at trial. Thus, we cannot conclude either that the trial
court abused its discretion in allowing the argument or that the prosecutor’s argument affected the
outcome of the trial.

The defendant next argues that the prosecutor engaged in misconduct by using dollar bills
to demonstrate the defendant’s greed. In denying the motion for new trial, the trial court observed
that the prosecutor had asked, “why did this man do this,” and had then placed money on a projector
while stating, “that’s why.” The trial court found that the argument had been made in response to
the argument that the defendant should not be sentenced to death because of his mental illness. The
record shows that the defense did not object to the argument or the prosecutor’s conduct at trial.
After reviewing the trial court’s findings and the record, we cannot conclude that the trial court
abused its discretion or that the prosecutor’s argument affected the result of the trial.

The defendant argues that the prosecutor engaged in misconduct by placing the crime scene
photographs of the victims on a projector. The record shows that the prosecutor stated:

This is not some crazy offense. This is standard greed. He’d rather
kill and rob [than] work. And that’s what he did; he killed and
robbed, and turned two beautiful little children into this. And it
wasn’t because of his mental illness or his mother or his father.
Because he wanted money.

The record does not, however, reveal the prosecutor’s precise actions while making these arguments.
Moreover, the defendant did not object to the prosecutor’s conduct or make an offer of proof to
preserve the record for appellate review. As a result, we cannot conclude that the trial court abused
its discretion in allowing the argument or that any misconduct affected the outcome of the trial.

Finally, the defendant argues that the prosecutor engaged in misconduct by making references
to the underlying facts of the defendant’s prior first degree murder convictions. The record shows

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that the prosecutor stated that the two victims in this case were “the third and fourth persons” the
defendant had killed, that the defendant had now killed “four” people, and that the defendant had
killed four people “in cold blood.” The defendant did not object to the arguments, however, until
the prosecutor stated: “I submit to you the fact that this is the third and fourth person he’s murdered,
that’s powerful enough to blow away any mitigating evidence.” At that point, the trial court
sustained the defendant’s objection and instructed the jury to disregard the argument. The trial court
later instructed the jury as follows:

In its closing argument, the State may have implied that the jury
should impose death because the defendant has been convicted of
killing four people. The defendant has been tried, convicted and
sentenced for his prior convictions. You are to consider those
convictions only for the purpose of determining whether the State has
proven beyond a reasonable doubt the existence of an aggravating
circumstance, and for no other purpose.

At the time of the offenses in this case, this Court had consistently held that it was improper
for the prosecution to introduce evidence or make arguments based on the facts underlying a prior
violent felony conviction being used to establish the aggravating circumstance in Tennessee Code
Annotated section 39-13-204(i)(2) where the prior conviction on its face involved violence to the
person. See State v. Bigbee, 885 S.W.2d 797, 812 (Tenn. 1994); see also Odom, 137 S.W.3d at
585.10

In Bigbee, the prosecution introduced the facts underlying the defendant’s prior conviction
for first degree murder in which the victim had been shot three times, argued that the jury should
consider that the defendant had committed two killings, and suggested that the death penalty was
appropriate because the defendant already had received a life sentence for the prior murder. Bigbee,
885 S.W.2d at 810. This Court remanded for a new sentencing hearing after concluding that the
inadmissible evidence and the prosecutorial argument improperly enhanced the aggravating
circumstance and affected the jury’s determination to the prejudice of the defendant. Id. at 812.

Similarly, in Odom, the prosecution introduced details of a prior first degree murder
committed by the defendant in support of the aggravating circumstance in Tennessee Code
Annotated section 39-13-204(i)(2). Odom, 137 S.W.3d at 585. The details included testimony from
the investigating officer of the prior crime, as well as photographs of the victim of the prior offense.
After noting that the prosecution relied heavily on the facts underlying the defendant’s prior felony
convictions to enhance the effect of this aggravating circumstance during its closing argument, we
remanded for a new sentencing proceeding.

10
In 1998, the legislature amended statutory provisions to allow the prosecution to introduce the facts
underlying a prior violent felony being used to seek the death penalty. Tenn. Code Ann. § 39-13-204(c). The
amendment is not applicable in this case. See Odom, 137 S.W .3d at 585.

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 We conclude that the prosecutor’s arguments in the present case, although error, do not
warrant a new sentencing proceeding. Unlike Bigbee and Odom, the prosecutor did not introduce
evidence of the facts underlying the defendant’s prior first degree murder convictions. Although the
prosecutor repeatedly mentioned that the defendant had now killed four people, the jury was aware
of the defendant’s prior convictions for two counts of first degree murder and was aware that the
prosecution was relying on these prior convictions to establish an aggravating circumstance. While
the reference to the defendant’s killing four people in “cold blood” could be interpreted to mean that
the prior first degree murder offenses were similar to the present offenses, that reference alone does
not amount to misconduct of the degree and severity described in Bigbee and Odom. In addition,
the trial court properly gave two curative instructions to the jury, which we must presume were
followed by the jury. See State v. Shaw, 37 S.W.3d 900, 904 (Tenn. 2001) (the jury is presumed to
follow curative instructions). Although the prosecutor’s argument was prosecutorial misconduct and
error, the defendant objected, and the trial court sustained the objection and gave curative
instructions. Accordingly, we conclude that the trial court did not abuse its discretion and that the
prosecutorial misconduct did not affect the outcome of the trial.

CONCLUSION

After reviewing the record and applicable authority, we hold as follows: 1) the trial court did
not err in finding that the defendant was competent to stand trial; 2) the trial court did not err in
excluding evidence during the competency hearing; 3) the trial court did not err in refusing to hold
a new competency hearing on the basis that a court-appointed expert was biased; 4) the evidence was
sufficient to support the defendant’s convictions; 5) the trial court did not err in denying the
defendant’s motion to dismiss on the basis that the aggravating circumstances were not stated in the
indictment; 6) the trial court did not err in allowing the prosecution to amend the indictment; 7) the
trial court did not commit reversible error in limiting extrinsic evidence of prior inconsistent
statements; 8) the evidence was sufficient to support the aggravating circumstances found by the
jury; 9) the death sentences were not arbitrary or disproportionate as imposed in this case; 10) the
evidence was sufficient to support the jury’s finding that evidence of aggravating circumstances
outweighed evidence of mitigating circumstances; 11) the capital sentencing statutes are not
unconstitutional on the basis that they allow evidence to be admitted in violation of due process and
confrontation under the United States Constitution; 12) the trial court did not err in admitting crime
scene photographs of the victims during sentencing; 13) the trial court did not commit reversible
error in failing to charge the jury on the “catch-all” statutory provision as to mitigating
circumstances; and 14) the trial court did not err in denying a new trial based on alleged prosecutorial
misconduct during sentencing.

The Court of Criminal Appeals’ judgment is affirmed. The sentence of death shall be carried
out on the 5th day of October, 2005, unless otherwise ordered by this Court or other proper
authority.. It appearing that the defendant is indigent, costs of the appeal are taxed to the State.

___________________________________
E. RILEY ANDERSON, JUSTICE

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