State v. Smith

IN THE SUPREME COURT OF TENNESSEE
AT KNOXVILLE
(HEARD AT NASHVILLE)

FILED
FOR PUBLICATION
May 17, 1999
STATE OF TENNESSEE, ) Filed: May 17, 1999
) Cecil Crowson, Jr.
Appellee, ) Hamblen County Appellate Court Clerk
)
v. ) Hon. Lynn W. Brown,
) Judge
LEONARD EDWARD SMITH, )
)
Appellant, ) Supreme Court
) No. 03S01-9710-CC-00129

FOR APPELLANT: FOR APPELLEE:

J. Robert Boatright John Knox Walkup
Kingsport, Tennessee Attorney General & Reporter

Larry S. Weddington Michael E. Moore
Bristol, Tennessee Solicitor General

Amy L. Tarkington
Senior Assistant Attorney General
Nashville, Tennessee

H. Greely Wells, Jr.
District Attorney General
Second Judicial District
Blountville, Tennessee

OPINION

TRIAL COURT AND
COURT OF CRIMINAL APPEALS AFFIRMED. DROWOTA, J.
 In this automatic appeal, 1 the defendant, Leonard Edward Smith, raises

numerous challenges to the decision of the Court of Criminal Appeals which affirmed

his sentence of death for the 1984 murder of Novella Webb. After carefully

examining the entire record and the law, including the thorough opinion of the Court

of Criminal Appeals and the briefs of the defendant and the State, this Court entered

an Order limiting review at oral argument to the following three issues:2

(1) Whether the trial court was correct in allowing the defendant to
control the presentation of mitigating evidence and to waive closing
argument against counsel’s advice;

(2) Whether the admittance of victim impact testimony and argument
at the sentencing hearing constituted reversible error;

(3) Whether the sentence of death is arbitrary or disproportionate in
violation of Tenn. Code Ann. § 39-13-206(c)(1)(A)-(D) (1997 Repl.).

After fully considering the record and the defendant’s claims, we conclude that

none of the alleged errors have merit. Contrary to Smith’s assertions, the trial court

had no authority to override the will of a competent and informed defendant and force

Smith to present mitigation evidence and closing argument in his capital sentencing

hearing. Moreover, the trial court did not err in allowing the State to present victim

impact evidence and argument during the capital sentencing hearing. Finally, the

evidence supports the jury’s findings as to the aggravating and mitigating

1
Tenn. Code Ann. § 39-13-206(a)(1) (1997 Repl.) provides as follows: “[w]henever the
death penalty is imposed for first degree murder and when the judgment has become final in the
trial court, the defendant shall have the right of direct appeal from the trial court to the Court of
Criminal Appeals. The affirmance of the conviction and the sentence of death shall be
automatically reviewed by the Tennessee Supreme Court. Upon the affirmance by the Court of
Criminal Appeals, the clerk shall docket the case in the Supreme Court and the case shall proceed
in accor dance with the T ennes see R ules of A ppellate P rocedu re.”

2
Tennessee Supreme Court Rule 12 provides in pertinent part as follows: “Prior to the
setting of oral argument, the Court shall review the record and briefs and c onsider all errors
assigned. The Court may enter an order designating those issues it wishes addressed at oral
argumen t.”

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circumstances, and the sentence of death is not arbitrary or disproportionate to the

sentence imposed in similar cases, considering the nature of the crime and the

defendant. Accordingly, the judgment of the Court of Criminal Appeals upholding the

defendant’s sentence of death is affirmed.

BACKGROUND

In 1984 the defendant, Leonard Edward Smith, his friend, David Hartsock, and

his girlfriend, Angela O’Quinn, robbed two small grocery stores in rural Sullivan

County. Armed with a .32 caliber pistol, Hartsock entered Malone’s Grocery alone,

while Smith and O’Quinn waited for him outside the store in Smith’s car. During the

course of the robbery, Hartsock shot and killed John Pierce. The trio left Malone’s

Grocery and proceeded to Webb’s store near the Carter-Sullivan County line. Both

Smith and Hartsock entered Webb’s store.3 Smith was carrying the gun, and during

the robbery, he shot and killed Novella Webb. The victim and her husband owned

and operated the store.

The defendant was charged with two counts of first degree murder for the

killings of Pierce and Webb. The offenses were joined for trial, and, at Smith’s

request, venue for the trial was changed from Sullivan to Hamblen County. Smith

was convicted on both counts of first degree felony murder. At the conclusion of the

proof, the State withdrew its notice of intent to seek the death penalty with respect

to the Pierce murder, and the trial court imposed a life sentence. However, the jury

3
Smith had left Angela O’Quinn alongside the road a short distance from Webb’s store.

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imposed a sentence of death for the Webb murder. On his first direct appeal, this

Court affirmed Smith’s conviction and life sentence for the killing of Pierce, but

reversed Smith’s conviction of first degree murder and sentence of death for the

Webb murder. Concluding that the offenses should not have been joined for trial and

also finding prosecutorial misconduct during final argument, this Court reversed and

remanded the case for a new trial. State v. Smith, 755 S.W.2d 757 (Tenn. 1988)

(“Smith I”).

Smith was re-tried and again convicted of first degree felony murder and

sentenced to death for the Webb killing. On the second direct appeal, this Court

affirmed the conviction, but again vacated the death sentence, finding that the jury

had been improperly allowed to consider the life sentence imposed for the Pierce

murder in considering whether or not Smith should be sentenced to death for the

Webb murder, and that the felony supporting the conviction of first degree murder

had been improperly used to establish the felony murder aggravating circumstance

in violation of State v. Middlebrooks, 840 S.W.2d 317 (Tenn. 1992). The case was

remanded to the trial court for a third sentencing hearing. See State v. Smith, 857

S.W.2d 1 (Tenn. 1993) (“Smith II”).

This case is Smith’s appeal from the third sentencing hearing which was held

in Hamblen County. 4 The State again sought and obtained the death penalty for the

murder of Novella Webb. The State introduced very little proof regarding the

4
Prior to the third resentencing hearing, the trial judge denied a motion for recusal and sua
sponte chan ged the ve nue from Ham blen t o Joh nso n Co unty. T he C ourt o f Crim inal A ppe als
granted an extraordinary appeal, found that the trial court had erred by changing venue without the
defendant’s consent, but concluded that the refusal of the trial judge to recuse himself was not
error. State v. Sm ith, 906 S.W .2d 6 (Tenn. Crim. Ap p. 1995).

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circumstances of the offense at this third sentencing hearing. 5 After waiving opening

statement, the State introduced proof to establish the single aggravating

circumstance upon which it relied to support imposition of the death penalty -- “[t]he

defendant was previously convicted of one (1) or more felonies, other than the

present charge, which involve the use or threat of violence to the person.” Tenn.

Code Ann. § 39-2-203(i)(2) (1982 Repl.) [currently Tenn. Code Ann. § 39-13-204(i)(2)

(Supp. 1998)]6

The State’s proof consisted of copies of indictments and judgments reflecting

that the defendant had been convicted of robbery in Carter County on October 13,

1980, and on February 21, 1985, and that the defendant had been convicted of first

degree murder for the killing of John Pierce on March 20, 1985. The reference to the

life sentence imposed for the Pierce murder conviction had been redacted from the

copy of the judgment passed to the jury. The State also introduced the judgment

which established that the defendant had been convicted of the first degree murder

of the victim in this case on August 23, 1989. With respect to each of these

convictions, the State offered identification testimony to establish that Leonard

5
While trial strategy is a matter within the discretion of the district attorney, we note that the
State should offer some proof regarding the circumstances of the offense in its case-in-chief when
seeking the death penalty at a resentencing hearing. The proof need not be as detailed as that
offered at the guilt-inno cence phase of the trial; how ever, some proof is es sential to en sure bo th
individualized sentencing by the jury and effective comparative proportionality review by the
appellate c ourts. See State v. Nic hols , 877 S.W .2d 7 22, 7 31 (T enn . 199 4)(re jectin g a de fend ant’s
claim that proof regarding the circumstances of the offense is not admissible at resentencing
hea rings and h olding that s uch proo f is ne ces sary to prov ide ind ividua lized s ente ncin g). In th is
case, the defendant offered his statement which included a description of the circumstances of the
offens e.

6
The aggravating circumstance now provides:”[t]he 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 pers on.”

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Edward Smith is the same person who was previously convicted of the robbery and

murder offenses.

As its final witness, the State called Katy Mahoney, the daughter of the victim

in this case. Mahoney testified that her father and mother had operated the country

store Smith robbed for many years and that her mother had been fifty-nine-years-old

when she was murdered. Mahoney testified that her father was seventy-eight-years-

old at the time of the robbery and murder and that his ribs had been broken during

the episode when he was pushed into a trash can. According to Mahoney, her

father’s health had declined “drastically” after the robbery and murder. He was never

able to work again and eventually sold the store. He died the next year from a brain

tumor. When asked how the family had been affected by her mother’s murder,

Mahoney testified that the murder “won’t go away,” that “we live with it all the time”

and that “it’s caused problems now for eleven years.” The State rested its case-in-

chief at the conclusion of Mahoney’s testimony.

In mitigation the defense called Sullivan County Sheriff Keith Carr, who in

1984 had been the detective in charge of investigating the Webb murder. Shortly

after his arrest, Smith had given Sheriff Carr a statement recounting his involvement

in the murders of both John Pierce and Novella Webb. The entire statement, which

the detective read to the resentencing jury at the request of defense counsel, is set

forth below.

I, Leonard Edward Smith, am giving this statement of my own free will
and without any threats or promises being made to me. On Monday,
May 21, 1984, I was with my girlfriend Angie O’Quinn and David

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Hartsock, and, we went and got some liquor and went to a road near
the Sullivan-Carter County line. We parked and were just drinking and
talking and smoked some joints. While we were on that road in my
black Ford Pinto which I had painted black because it used to be
orange, David said “Get out, I want to talk to you.” He and I got out and
walked a ways from the car where Angie couldn’t hear us talking and
David said, “I can get us a little bit of money here at this store.” He
said, “It’s the store down at the county line.” I asked him if it was
Shorty Malone’s and he said, “Yes.” Angie and I drove David down
there, and let him off a little ways from the store. I parked on a little
paved road beside the store. David had a .32 caliber chrome-plated
pistol with him. The pistol was his pistol. I heard several shots fired
and just a few seconds later David came running around the store.
David jumped into the car and said, “Get the hell out of here, I had to
shoot him.” I figured it was Shorty because he ran the store. We drove
out the road that goes beside of Malone’s Grocery and it dead ends
and you can turn left to the Wautauga area, or right back to Sullivan
County. We turned onto the Wautauga Highway and drove to what is
known as Mountain Road. I asked David if he shot the man, and he
said, he shot him one time and the man pulled a gun and started
shooting at him. I don’t remember if he said what money he got. I
drunk some more liquor, and made Angie get out of the car. I started
drinking and was just going to drive us out of the mountain. We came
out at some store, and I turned left and, drove until I realized I was
going to [sic] wrong way, and I pulled it in at Webb’s Store to turn. I
stopped the car at Webb’s and David jumped out, and I ran in the store
behind him. David ran and jumped on the counter, and knocked the
old man over and yelled to me to, “get that bitch” referring to an old
woman at the end of the counter. I started towards her, and she
started throwing things at me and started spraying paint on me. I fired
one shot just to scare people, but, the old woman just kept spraying
orange paint and came towards me. I couldn’t see because of the
paint and I held the gun up and apparently the old lady was trying to get
the gun away from me and it went off. We ran from the store when I
fired the second shot. I didn’t really know that I had shot her until we
heard it later on the news. When we were in Webb’s Store the old man
was hollering, “help me, help me,” and hollering for his wife. The old
woman never did say anything that I remember. I know that before we
left the store, some man came up to the door, and I told him to get out
of there. I didn’t get any money from either store, and David didn’t say
if he did or not. David and I left Webb’s and went back up towards
Mountain Road, and picked Angie up. I told her we had to get out of
there, and we drove down towards Underwood Park, and set the car on
fire. David cut a hose next to the carburetor and set the car on fire.
David, Angie and me took off on the trails, and really didn’t know which
way to go. We came out at a house on Indian Creek. It was the
Johnson residence because my dad had sold them the house. We
didn’t go to the house until late last night, and Angie got Gladys Sheets
to take us to the home where we were arrested this morning. I had

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 never been to the house before but had been in the area. When
Gladys drove us to Dennis Cove, she said she thought we did it. I had
taken my shirt and wrapped my feet so I could walk and I think I left it
in Gladys’ car or at the house. Gladys had told us that Mrs. Webb, and
the man at Malone’s were both dead. We told Gladys that we didn’t do
it and she said, “If you didn’t, you better keep the gun because the
news said it was a .38,” and she knew we had a .32 caliber. I told
David to throw the gun out anyway because I knew we had done it. He
threw it out as we went over a bridge, and we drove on up to the house.
We stopped at a grocery store, and Angie and Gladys went in and got
some food for us to take to the house. We fixed something to eat, and
went to sleep, but, I felt like they knew where we were at. I had cut
mine and David’s hair with a pair of scissors Angie had in her
pocketbook because I knew they would be looking for somebody with
longer hair. This morning I heard a loud noise, and I knew we were
caught then. I told Angie, “I’m going out, and you come out too, so we
won’t get hurt.” Somebody had yelled for us to come out, and David
went out first. All I know is that everything didn’t turn out the way it was
supposed to, and it shouldn’t have happened. I am sorry for what
happened, because I know I am a thief, but, I don’t think of myself as
a murderer. This is all I know to tell you about what happened.

On cross-examination, Sheriff Carr said that Webb has been killed

approximately forty-five minutes after John Pierce, and he estimated that the driving

time from Malone’s Store to Webb’s Store is about thirty minutes. Sheriff Carr had

examined the murder scene at Webb’s store and had searched for a bullet in a pool

of blood about an inch deep by using a vegetable strainer. In his search, Sheriff Carr

discovered a mark on the wall behind the counter at Webb’s store which had been

caused by a bullet striking the wall. He also had observed the victim’s body and said

that the bullet which caused death entered at the victim’s right nasal passage. The

.32 caliber gun used in the Webb murder was found underneath a railroad bridge.

Orange paint spots were visible on the gun when it was recovered, and it had six live

rounds in the chamber. According to Sheriff Carr, the route Smith claimed to have

driven after leaving Webb’s store was along a curvy, mountainous, dirt road which

was very treacherous. A day or so after the murder, Sheriff Carr found the

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defendant’s badly burned car near an area where Smith had been camping with

Hartsock and O’Guinn prior to the murder. Also found at that site were partially

burned articles of Smith’s clothing and strands of Smith’s and Hartsock’s hair which

had been cut to disguise their appearance. Sheriff Carr testified that Smith,

Hartsock, and O’Guinn were arrested on May 23, 1984, while hiding in a home in an

isolated area of Dennis Cove. Gladys Sheets, one of Hartsock’s relatives, had driven

the trio to this location and had stopped along the way to allow O’Quinn to purchase

food and camping supplies. A live .32 caliber round was found in Smith’s pocket

when he was arrested. Smith’s and Hartsock’s hair had been cut very short. At the

time of the Webb murder, Smith was twenty-three-years old. Hartsock and O’Quinn

were eighteen or nineteen years of age. Though Smith said he felt remorse, Sheriff

Carr testified there was nothing indicative of remorse in Smith’s demeanor when he

gave the statement.

During the cross-examination of Sheriff Carr, a jury-out hearing was held to

determine the permissibility of certain questions. During this hearing Smith ordered

his attorneys to present no further proof in mitigation and to waive final argument.

After a lengthy discussion with counsel, the trial court determined that the defendant

was competent to make the decision as to whether to offer additional proof and

argument. After further consultation with Smith, defense counsel honored his request

and presented no further mitigating evidence.

In rebuttal, the State recalled Mahoney who testified that during the eleven

years since the murder, she had never seen evidence to indicate the defendant felt

remorse. Following this testimony, the State made a closing argument, but in

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accordance with the defendant’s instructions, defense counsel waived closing

argument.

Based on the proof submitted at the sentencing hearing, the jury found that the

State had proven the aggravating circumstance beyond a reasonable doubt, and in

addition, the jury found that the State had proven that the aggravating circumstance

outweighed any mitigating circumstances beyond a reasonable doubt.7 As a result,

the jury imposed a sentence of death by electrocution. The trial court entered a

judgment in accordance with the jury’s verdict, and the Court of Criminal Appeals

affirmed. The case was then docketed in this Court. For the reasons explained

below, we affirm the judgment of the Court of Criminal Appeals.

I.

WAIVER OF MITIGATION

In this Court, Smith argues that once a defendant has chosen to be

represented by counsel, the decision to present mitigating proof and argument is a

strategic and tactical decision for counsel, and not a personal right of the defendant.

Smith also argues that allowing a defendant to waive his or her right to present

mitigating proof conflicts with the heightened reliability required in death penalty

cases and impedes meaningful appellate review. Finally, Smith argues that even if

a defendant represented by counsel retains the authority to waive his or her right to

present mitigating proof and closing argument, such a waiver is valid only if the

7
Though Sm ith was not entitled to the “beyond a reasonable doubt” weighing standard
since this offense was com mitted before the statute was am ended in 1989, any error in this regard
inured to th e defen dant’s be nefit. State v. Bush, 942 S.W .2d 489, 506 n.10 (Tenn. 199 7).

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defendant is competent to understand the rights being waived and the potential

consequences of the waiver. Smith argues that the waiver in this case is invalid

because the record does not establish competency.

The State responds that the right to present a defense belongs to the

defendant, and a trial court may not force a competent defendant to follow the advice

of counsel and present a defense. The State argues that the trial court did not err

because the record in this case establishes both that Smith was competent and that

he voluntarily and knowingly chose to waive mitigation and closing argument. We

agree.

The arguments advanced by Smith in this appeal were recently considered by

this Court in a post conviction capital case, Zagorski v. State, 983 S.W.2d 654 (Tenn.

1998). There, Zagorski, the petitioner, had alleged that defense counsel were

ineffective at the sentencing phase of his capital trial because they had followed his

explicit instructions and had not investigated or presented mitigating evidence. The

proof introduced at the evidentiary hearing on the petition established that prior to trial

Zagorski had asked his attorneys not to investigate or present mitigating proof in the

event of a conviction because he preferred a death sentence to a sentence of life

imprisonment. Though Zagorski’s attorneys advised him of the importance and need

to investigate and introduce proof in mitigation regarding his family background at the

sentencing phase of his capital trial, he prohibited his lawyers from contacting his

family or investigating his past.

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 When the jury found Zagorski guilty of first degree murder, he adhered to his

decision and refused to allow his lawyers to present mitigating evidence at the

sentencing phase of his trial. Though counsel repeatedly advised Zagorski of his

right to present mitigation proof and of the potential consequences of his decision to

forego investigation and proof, Zagorski remained steadfastly committed to his

chosen course of action with full awareness that it very well might result in a death

penalty. Id. at 658-59.

In rejecting Zagorski’s claim of ineffective assistance of counsel, this Court

recognized that “[c]ounsel’s role in a criminal case is to assist the defendant in

making a defense and to represent the defendant before the court.” Zagorski, 983

S.W.2d at 658 (citing State v. Franklin, 714 S.W.2d 252, 262 (Tenn. 1986)).

However, we emphasized that “[u]ltimately . . . the right to a defense belongs to a

defendant.” Id. We cautioned that decisions such as “whether to forego a legally

available objective because of non-legal factors are for the client and not the lawyer.”

Id. “[A]lthough [a defendant] may conduct his own defense ultimately to his own

detriment, his choice must be honored out of ‘that respect for the individual which is

the lifeblood of the law.’” Id. at 658 (quoting Illinois v Allen, 397 U.S. 337, 350-51, 90

S.Ct. 1057, 1064, 25 L.Ed.2d 353 (1970) (Brennan, J. concurring)). Accordingly, we

concluded that counsel will not be adjudged ineffective for following the decision of

a competent and fully informed defendant who chooses to forego investigation and

presentation of mitigating evidence at the sentencing phase of a capital trial. Id. at

958. In so holding, we acknowledged the importance and constitutional significance

of mitigating proof in a capital sentencing proceeding. We distinguished Zagorski’s

situation from cases in which attorneys simply fail to investigate and present

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mitigating proof. Id. We emphasized that a defense attorney’s failure to investigate

and present mitigation proof generally is considered below the range of competence,

but an attorney is not incompetent if the failure to investigate is “solely and alone” the

result of the defendant’s instructions. Id.

Accordingly, in Zagorski, we rejected the arguments advanced here by Smith

-- that a defendant who is represented by counsel may not waive the right to present

mitigating proof and that such a waiver violates the heightened reliability required in

death penalty cases. Instead we held that a defendant may waive the right to present

mitigation proof so long as the defendant is competent. To aid trial courts in

determining whether defendants are competent and fully informed at the time a

waiver is given, we set forth the following procedure for use in prospective cases:

[C]ounsel must inform the trial court of these circumstances on the
record, outside the presence of the jury. The trial court must then take
the following steps to protect the defendant’s interests and to preserve
a complete record:

1. Inform the defendant of his right to present mitigating
evidence and make a determination on the record
whether the defendant understands this right and the
importance of presenting mitigating evidence in both the
guilt phase and sentencing phase of trial;

2. Inquire of both the defendant and counsel whether
they have discussed the importance of mitigating
evidence, the risks of foregoing the use of such
evidence, and the possibility that such evidence could be
used to offset aggravating circumstances; and

3. After being assured the defendant understands the
importance of mitigation, inquire of the defendant
whether he or she desires to forego the presentation of
mitigating evidence.

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Zagorski, 983 S.W.2d at 660-61.

Considering the record in this case in light of the procedure adopted in

Zagorski, Smith’s contention that he was not competent to waive his right to present

mitigating proof and closing argument is clearly without merit. Although the trial court

in this case did not have the benefit of our decision in Zagorski, the procedure utilized

in this case to determine Smith’s competence and to advise him of the potential

consequences of his decision were substantially similar to those adopted in Zagorski.

After Smith stated, “I’m ready to rest,” during a jury-out hearing, one of Smith’s

attorneys advised the trial court that Smith had instructed him earlier that morning to

waive mitigation. Defense counsel advised Smith against waiving mitigation, but

Smith continued to insist upon that course of action. When the trial court asked if any

expert psychological proof raised question about Smith’s competency, defense

counsel responded, “not anything that would justify any claim that he was

incompetent I don’t feel like. If I’d felt like that before today obviously I would have

made it known to the court.” At that point the trial court accurately stated the law as

follows:

Well, this is a bit of a difficult situation. In general, an attorney must
represent a client, and the rule is that the client determines what is in
his interest and what he wants done, and then the lawyer has an
obligation to, first of all, advise the client regarding alternatives; but,
after giving proper and thorough advice, to follow the wishes of the
client. Is that not correct, Gentlemen?

To the trial court’s inquiry, Smith’s attorneys responded, “Yes, sir” and “Yes, Your

Honor.” Before making a final decision on this issue, the trial court allowed defense

counsel a twenty minute recess to confer privately with Smith regarding his desire to

waive mitigation. When the hearing reconvened, defense counsel reported that they

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had informed Smith that they were prepared to present mitigation proof, had advised

him of the benefits of presenting the proof, and had warned him of the harm which

could result if the proof was not presented. Despite this advice, Smith had remained

insistent that they “rest the case and waive argument.”

At this point, the trial court attempted to question Smith to ensure that he

understood his rights and the potential consequences of his decision. Because the

trial court had admonished Smith earlier in the trial to speak only through his

attorneys and to refrain from speaking aloud during the testimony of other witnesses,

Smith refused to be sworn and would not respond to the trial court’s inquiries except

through his attorneys. Smith advised his attorney to inform the trial court that he

wanted to rest his case and waive argument. At that point, the trial court advised

Smith as follows:

if you cease putting on mitigating evidence and you instruct your
counsel to not argue and they do both, they don’t put on any other
proof, and they do not argue in your benefit, in the court’s opinion this
jury will almost certainly return with a verdict of death by electrocution.
And, I guess I’ve only seen perhaps twelve or thirteen death penalty
cases tried and most of them did not result in a death penalty verdict.
But, from those that I have seen in five or six death penalty verdicts,
actually about half; but if your attorneys follow your instructions that will
be the very likely result. Do you understand that, sir?

Smith, through his attorney, answered “Yes” to the trial court’s question.

The trial court further questioned defense counsel about the defendant’s

competence. On the first occasion, counsel stated, “Of course, I’ve known Leonard

now for ten or eleven years. He’s always been competent, at least, in my opinion.”

After commenting that the defendant’s attorneys had each practiced law for twenty

years, the trial court inquired once again, “And, you have no personal doubts as to

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his competency and legal ability to make such a decision I take it?” Neither attorney

expressed any doubt about Smith’s competence to waive mitigation. Before recalling

the jury, the trial court commented that he had observed Smith confer with counsel

and actively participate in the case and once again advised Smith of his right to

present mitigation and of the likely consequences of the waiver. Smith adhered to

his decision to waive mitigation and argument. When the jury was recalled, the

defense rested.

Clearly, the record in this case indicates that the trial court fulfilled its

obligation to ensure that Smith was competent and fully advised of his rights and of

the likely detrimental consequences of waiving those rights before he accepted

Smith’s decision. The trial court repeatedly inquired about Smith’s competence and

actively invited counsel to present evidence that Smith was not competent. No such

evidence was presented by defense counsel, because, according to their responses

to the trial court, no such evidence existed. Had such evidence existed, we have no

doubt that these experienced attorneys would have presented it to the trial court at

the jury-out hearing, particularly in light of the trial court’s specific questions regarding

its existence. As we stated in Zagorski, supra, a competent defendant who knowingly

and voluntarily chooses a defense strategy will not later be able to complain about

the detrimental consequences which result from the decision. The record in this case

reflects that Smith was competent and fully informed when he decided to waive his

rights. Smith may not now complain about the consequences of his decision.

Accordingly, we conclude that Smith’s claim that the trial court erred by allowing him

to waive mitigation and argument is without merit.

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 II.

VICTIM IMPACT EVIDENCE

The defendant next argues that the trial court erred by allowing the victim’s

daughter to testify about the effect of her mother’s death on her family and by

allowing the prosecutor to mention this testimony in closing argument. Smith asserts

that victim impact testimony is barred by the federal and state constitutions and by

the language of the capital sentencing statute. We disagree.

Recently, in State v. Nesbit, 978 S.W.2d 872 (Tenn. 1998), this Court held that

victim impact evidence is permissible under both the United States and Tennessee

Constitutions. Id. at 889. In addition, we held that such evidence is permissible

under the Tennessee capital sentencing statute because it is “relevant to

punishment.” Id. However, we stated that “[g]enerally, victim impact evidence

should be limited to information designed to show those unique characteristics which

provide a brief glimpse into the life of the individual who has been killed,” such as “the

contemporaneous and prospective circumstances surrounding the individual’s death,

and how those circumstances financially, emotionally, psychologically or physically

impacted upon members of the victim’s immediate family.” Id. at 891. We explained

that trial courts may exclude victim impact evidence which threatens to render the trial

fundamentally unfair or which poses a danger of unfair prejudice, and we opined that

evidence of the emotional impact of a murder on the victim’s family should be most

closely scrutinized. Id. As a result, we held that the State should provide pretrial

notice of its intent to offer victim impact evidence to enable trial courts to carefully

supervise admission of such proof. Upon receiving notification, trial courts must hold

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a hearing outside the presence of the jury to determine the admissibility of the

evidence. We cautioned that victim impact evidence should not be admitted until the

trial court has determined that evidence of one or more aggravating circumstances

is present in the record. Id. We also suggested a jury instruction for use in all

subsequent cases involving victim impact proof. Id. at 892. I n Nesbit , w e also

upheld the constitutional permissibility of victim impact argument by prosecutors, but

we cautioned prosecutors to exercise restraint and admonished that reversal may

result if prosecutors engage in victim impact argument which is little more than an

appeal to emotions and vengeance.8 Id.

In this case, Mahoney’s testimony was brief and is contained in approximately

five pages of transcript. In sum, Mahoney told the jury that her parents were Worley

and Novella Webb; that she had been their only child; that her son, the victim’s only

grandchild, had been eleven years old at the time of the murder; that her parents had

owned and operated the small grocery store in Sullivan County for a number of years;

that her parents had lived in a house near to and visible from the store at the time of

the murder; that her mother had been fifty-nine at the time she was killed; that her

father had been seventy-eight at the time of the murder; that her father had sustained

broken ribs when he was pushed during the murder; that her father’s health had

steadily declined after the murder; that her father had become unable to work and

had sold the store after the murder; and that her father had died the next year from

8
In this case, the dissent advocates the adoption of procedures utilized in New Jersey and
opines that our decision in Nes bit permits victim impact evidence which is “wholly undefined,
amorphous, and unduly prejudicial, a result prohibited by Article I, section 8 of the Tennessee
Constitution.” The dissent’s conclusion is puzzling in light of the fact that the procedures adopted
by this Court in Nes bit closely mirror those utilized in New Jersey, with the only apparent difference
being the New J ersey req uirem ent of a w ritten victim im pact sta teme nt.

- 1 8 -
a brain tumor. When asked if she remembered the day her mother was murdered,

Mahoney said, “I’m afraid I’ll go to my grave with it.” When asked about the effect of

the murder on her family, herself, and her son, Mahoney replied, “W ell, it just won’t

go away. We live with it all the time, and it’s affected us in every way. It affected my

dad. It’s affected me. I mean, it’s caused problems now for eleven years.”

Though the trial court did not have the benefit of our decision in Nesbit in this

case, it is clear that neither the victim impact evidence nor argument violates the

constraints outlined in Nesbit. Mahoney briefly and concisely related the physical,

financial, psychological, and emotional impact of this murder upon her family. The

evidence appropriately was not admitted until the State had first introduced proof of

the aggravating circumstance. Clearly, this testimony did not render the trial

fundamentally unfair nor pose a danger of unfair prejudice. Likewise, the

prosecutor’s argument in this case was restrained and appropriate. In fact, the

prosecutor referred to the testimony only once, stating, “You’ve heard how it affected

the family of the only child of Mr. and Mrs. Webb. Eleven years later it’s still here.

It won’t go away.” Accordingly, we conclude that Smith’s complaints regarding the

admission of victim impact evidence and argument are completely without merit.9

9
Sinc e the victim imp act e viden ce an d arg um ent in this c ase was so m inim al, the disse nt’s
findin g of p rejud icial er ror is equiv alent to a ho lding t hat vic tim im pac t evide nce and a rgum ent is
inadm issible in all cas es.

- 1 9 -
 III.

PROPORTIONALITY REVIEW

We must next consider whether the defendant’s sentence of death is

disproportionate to the penalty imposed in similar cases, considering the nature of

the crime and the defendant. Tenn. Code Ann. § 39-13-206(c)(1)(A)-(D) (1997

Repl.). In this case, the defendant argues that his sentence of death should be set

aside as disproportionate because he did not unduly torture the victim but instead

accidentally shot her during the course of the robbery. A death sentence will be

considered disproportionate if, taken as a whole, the case is “plainly lacking in

circumstances consistent with those in similar cases in which the death penalty has

previously been imposed.” State v. Bland, 958 S.W.2d 651, 665 (Tenn. 1997).

However, a sentence of death is not disproportionate merely because the

circumstances of the offense are similar to those of another offense for which the

defendant has received a life sentence. Id. at 665. Our role in conducting

proportionality review is not to assure that a sentence “less than death was never

imposed in a case with similar characteristics.” Id. Instead, our duty “is to assure

that no aberrant death sentence is affirmed.” Id.

In choosing and comparing similar cases, we consider many variables, some

of which include: (1) the means of death; (2) the manner of death; (3) the motivation

for the killing; (4) the place of death; (5) the similarity of the victim’s circumstances,

including age, physical and mental conditions, and the victims’ treatment during the

killing; (6) the absence or presence of premeditation; (7) the absence or presence of

provocation; (8) the absence or presence of justification; and (9) the injury to and

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effects on nondecedent victims. Id. at 667. When reviewing the characteristics of

the defendant, we consider: (1) the defendant’s prior record or prior criminal activity;

(2) the defendant’s age, race, and gender; (3) the defendant’s mental, emotional or

physical condition; (4) the defendant’s involvement or role in the murder; (5) the

defendant’s cooperation with authorities; (6) the defendant’s remorse; (7) the

defendant’s knowledge of the helplessness of the victim; and (8) the defendant’s

capacity for rehabilitation. Id. Comparative proportionality review is not a rigid,

objective test. Id. at 668. We do not employ mathematical or scientific techniques.

In evaluating the comparative proportionality of the sentence in light of the factors

delineated above, we rely also upon the experienced judgment and intuition of the

members of this Court. Id.

Applying these factors, we note that the proof in this case reflects that the

victim died from a gunshot wound to her head. She was killed while trying to protect

her husband and her property, the family store which she and her husband had

owned and operated together for many years. The defendant’s claim that the

shooting was accidental obviously was not believed by the jury. The jury’s rejection

of that claim is understandable in light of the fact that Smith shot and killed Novella

Webb within forty-five minutes of the Pierce robbery and murder for which he had

driven the get-away car. There was certainly no proof of provocation or justification

for this killing. While the victim was trying to defend herself, her only weapon was a

can of orange spray paint. The defendant obviously realized that the victim and her

elderly husband were helpless. According to the defendant’s own statement, Mr.

Webb had been pushed into a trash can and had called out to his wife for help during

the course of the crime. Though the defendant stated that he had been drinking

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alcohol and smoking marijuana prior to the crime, there is no evidence to show that

his judgment or abilities were impaired. To the contrary, after the murder Smith

returned to his campsite by way of a treacherous mountain road. Once there, he and

Hartsock burned Smith’s car, cut their hair, and attempted to evade detection by

traveling through the woods to Hartsock’s relative’s home. These attempts to

conceal the crime and destroy the evidence indicate that Smith was in command of

his senses and not impaired by drugs or alcohol. The defendant was twenty-three-

years-old at the time of the murder, four or five years older than both Hartsock and

O’Quinn. Smith had a history of criminal activity including robbery convictions in 1980

and 1985 as well as a conviction for the first degree murder of John Pierce. After he

was apprehended, Smith cooperated with police by giving a statement about the

murders. Although Smith expressed remorse in his statement, the victim’s daughter

testified that she had not received any statement of remorse from the defendant

since the killing. There is no evidence in the record regarding the defendant’s

capacity for rehabilitation. In fact, other than the defendant’s statement describing

the killing as accidental, there is no mitigating proof in the record since the defendant

waived his right to present that proof. Considering the nature of the crime and the

defendant, we conclude that imposition of the death penalty for the senseless murder

of this fifty-nine-year-old woman is not disproportionate to the penalty imposed in

similar cases, and that this murder places Smith into the class of defendants for

whom the death penalty is an appropriate punishment. Based upon our review, we

conclude that the following cases in which the death penalty has been imposed have

many similarities with this case.

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 In State v. Harries, 657 S.W.2d 414 (Tenn. 1983), the defendant, a thirty-one-

year-old man, shot the eighteen-year-old female store clerk in the head during the

course of robbing a convenience store. The defendant argued that the gun had gone

off accidentally and claimed that he had intended only to rob the store. As in this

case, Harries asserted that he had been under the influence of drugs and alcohol at

the time of the shooting. The jury rejected the defendant’s argument, and, as here,

found him guilty of first degree felony murder. The jury imposed the death penalty

upon finding that the defendant was previously convicted of one or more felonies

which involve violence to the person including armed robbery and kidnapping. Tenn.

Code Ann. § 39-2-203(i)(2) (1982 Repl.) [currently Tenn. Code Ann. § 39-13-204(i)(2)

(1998 Supp.)].10 As in this case, Harries’ claim that the shooting was accidental was

not believed by the jury. Also, like this case, Harries’ claim of alcohol or drug

impairment was undermined by his calculated actions after the killing when he

divided the proceeds of the robbery with his friends and family and absconded to

Florida.

In State v. Cribbs, 967 S.W.2d 773 (Tenn. 1998), the twenty-three-year-old

defendant murdered the victim during the course of a burglary of the victim’s home.

Cribbs also shot and severely injured the victim’s husband during the course of the

crime. As in this case, the defendant struggled with one of the victims for the gun.

The defendant prevailed in the struggle and murdered the victim. The jury imposed

10
The jury also found a second aggravating circumstance in Harries, that the murder was
comm itted during the course of a felony, robbery. However, under State v. Middlebrooks, 840
S.W.2d 317 (Tenn. 1992), the jury should not have been permitted to rely upon that aggravating
circumstance to support imposition of the death penalty. However, the Middlebrooks error in
Harries previously has been held to be harmless beyond a reasonable doub t under State v. Ho well,
868 S.W .2d 238 (Tenn. 1993).

- 2 3 -
the death penalty upon finding two aggravating circumstances: (1) the defendant was

previously convicted of one or more felonies, other than the present charge, whose

statutory elements involve the use or threat of violence to the person; and (2) the

murder was committed while the defendant was engaged in committing or was

attempting to commit a burglary. Tenn. Code Ann. § 39-13-204(i)(2) & (7)11 (1991

Repl.). As in this case, Cribbs had been previously convicted of three serious felony

offenses including two convictions of attempted second degree murder, one

conviction for aggravated robbery, and one conviction for second degree burglary.

In State v. Howell, 868 S.W.2d 238 (Tenn. 1993), the twenty-seven-year-old

defendant murdered a convenience store clerk by shooting him in the head during

the course of a robbery. As in this case, the jury found the defendant guilty of first

degree felony murder and imposed the death penalty upon finding that the defendant

was previously convicted of one or more felonies involving violence to the person,

including murder and aggravated burglary. Tenn. Code Ann. § 39-2-203(i)(2) (1982

Repl.) [currently Tenn. Code Ann. § 39-13-204(i)(2) (1998 Supp.)].12 Howell had

been previously convicted of first degree murder, armed robbery, and attempted first

degree murder.

11
Though the jury in Cribbs should not have been allowed to rely upon the felony murder
aggravating circumstance to support imposition of the death penalty, this Court held the error to be
harm less beyo nd a rea sonab le doubt. Id. at 789.

12
The jury in How ell also found a second aggravating circumstance -- the murder was
com mitted d uring the c ourse o f a felony, rob bery. Ten n. Code Ann. §3 9-2-203 (i)(7)(198 2 Rep l.)
[currently Tenn. Code Ann. § 39-13-20 4(i)(7) (Supp. 1998)]. Under Middlebrooks, supra, the jury
should not have been perm itted to rely upon the felony murder agg ravating circumstance to sup port
imp ositio n of th e dea th pe nalty, b ut this Cou rt held the e rror to be ha rm less beyon d a re aso nab le
doubt. Id. at 270.

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 In State v. Boyd, 797 S.W.2d 589 (Tenn. 1990), the twenty-six-year-old

defendant robbed two men at gunpoint in the parking lot of a motel where the men

had gone with the defendant’s girlfriend and another woman. As in this case, the

victim struggled with the defendant for the gun. Losing the struggle for the gun, the

victim attempted to drive away from the scene and was then shot several times by

the defendant. The jury found the defendant guilty of felony murder and imposed a

death sentence upon finding that the defendant was previously convicted of a felony

involving violence to the person, including second degree murder. Tenn. Code Ann.

§ 39-2-203(i)(2) (1982 Repl.) [currently Tenn. Code Ann. § 39-13-204(i)(2) (Supp.

1998)].13

In State v. Coleman, 619 S.W.2d 112 (Tenn. 1981), the twenty-two-year-old

defendant shot and killed the sixty-nine-year-old victim during the course of a

robbery. As in this case, Coleman confessed to the crime. The jury found the

defendant guilty of first degree felony murder and imposed a death sentence upon

finding that the defendant was previously convicted of one or more felonies which

involved the use or threat of violence to the person. Tenn. Code Ann. § 39-2-

203(i)(2) (1982 Repl.) [currently Tenn. Code Ann. § 39-13-204(i)(2) (1998 Supp.)].14

Coleman had one conviction for assault with intent to commit robbery with a deadly

13
The jury in Boyd also found a second aggravating circumstance, the murder was
com mitted d uring the c ourse o f a felony, rob bery. Ten n. Code Ann. §3 9-2-203 (i)(7)(198 2 Rep l.)
[currently Tenn. Code Ann. § 39-13-20 4(i)(7) (1998 Supp.)]. Again, under Middlebrooks, supra, the
jury should not have been pe rmitted to rely upon the felony m urder ag gravating circum stance to
support imposition of the death penalty; however, this Court recently held the error to be harmless
beyond a reason able dou bt. State v. Boyd , 959 S.W .2d 557 (Tenn. 1998).

14
The jury in Coleman also found a second aggravating circumstance, the murder was
com mitted d uring the c ourse o f a felony, rob bery. Ten n. Code Ann. §3 9-2-203 (i)(7)(197 9 Rep l.)
[curr ently T enn . Cod e An n. § 3 9-13 -204 (i)(7) (Sup p. 19 98)]. [Cite t o CC A op inion b efor e this
decision released depen ding upo n Cou rt’s ruling on th is application at the Ma rch con ferenc e).

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weapon, three convictions for assault with intent to commit murder in the first degree,

kidnapping, and robbery with a deadly weapon.

In State v. Van Tran, 864 S.W.2d 465 (Tenn. 1993), the nineteen-year-old

defendant killed the victim, a seventy-four-year-old woman during the course of a

robbery of a Chinese restaurant. The defendant shot the victim once in the lower jaw

or neck region and once in the back of the head. As in this case, the victim was a

member of the family which owned the Chinese restaurant that the defendant robbed.

The jury found the defendant guilty of first degree felony murder and imposed a

sentence of death upon finding two aggravating circumstances. Tenn. Code Ann. §

39-13-204(i)(5) & (12) (1989 Repl.) [currently Tenn. Code Ann. § 39-13-204(i)(5) &

(12) (Supp. 1998)].

In State v. Dicks, 615 S.W.2d 126 (Tenn. 1981), the twenty-one-year-old

defendant was convicted of felony murder. Dicks and his nineteen-year-old co-

defendant, Strouth, robbed a store and during the course of the robbery, slit the

throat of the seventy-year-old male store clerk who bled to death. The jury imposed

a death sentence upon finding two aggravating circumstances. Tenn. Code Ann.

§ 39-2-203(i)(5) & (7) (1979 Repl.) [currently Tenn. Code Ann. § 39-13-204(i)(5) & (7)

(Supp. 1998)]. See also State v. Strouth, 620 S.W.2d 467 (Tenn. 1981) (A separate

jury also found Strouth guilty of felony murder and imposed a sentence of death,

finding the same two aggravating circumstances.)

In State v. Sample & McKay, 680 S.W.2d 447 (Tenn. 1985), the twenty-five-

year-old defendants, in separate trials, were convicted of felony murder for shooting

- 2 6 -
two store clerks to death during the course of a robbery. As in this case, there was

a struggle for the gun during the crime. The jury imposed the death sentence in each

case, finding three aggravating circumstances with respect to Sample, and four

aggravating circumstances with respect to McKay. Tenn. Code Ann. § 39-2-

203(i)(3), (6) & (7) (1982 Repl.)(Sample); Tenn. Code Ann. § 39-2-203((i)(2), (3), (6)

& (7) (1982) (McKay) [currently Tenn. Code Ann. § 39-13-204(i)(2), (3), (6) & (7)(1998

Supp.)(both)]. See also State v. Johnson, 762 S.W.2d 110 (Tenn. 1988); State v.

Goad, 707 S.W.2d 846 (Tenn. 1986); State v. King, 694 S.W.2d 941 (Tenn. 1985);

State v. Johnson, 632 S.W.2d 542 (Tenn. 1982).

As we have emphasized many times, no two cases are identical, but the above

cases have many similarities with this appeal. In all nine of the cases, the victims

were murdered by the defendant during the course of a robbery or a burglary. Most

of the victims were convenience store clerks or were working at a place of business

at the time the killing occurred. In three cases, as in this case, there was a struggle

for the gun between the defendant and a victim. In at least one case, the defendant

claimed that the shooting was accidental. Like the present case, the shootings were

completely unprovoked except for the victims’ efforts to gain control of the weapons.

Also similar to this case, in six of the nine cases, the jury found that the defendant

was previously convicted of one or more felonies involving the use or threat of

violence to the person. While it is true, as Smith argues, that this murder was not as

torturous as other cases in which we have affirmed the death penalty, this fact does

not invalidate as disproportionate the penalty imposed in this case. Bland, 958

S.W.2d at 670 (citing cases). Moreover, we acknowledge that there are cases in

which a life sentence has been imposed for similar murders or for murders that were

- 2 7 -
perhaps more atrocious than the murder in this case. Id. Again, however, this does

not invalidate as disproportionate the penalty in this case. Our role in comparative

proportionality review is to identify aberrant death sentences. As we have repeatedly

emphasized, the isolated decision of a jury to afford mercy does not render a death

sentence disproportionate.15 Id. After reviewing the cases discussed above and

many other cases not herein detailed,16 we are of the opinion that the penalty

imposed by the jury in this case is not disproportionate to the penalty imposed for

similar crimes.

IV.

CONCLUSION

In accordance with the mandate of Tenn. Code Ann. § 39-13-206(c)(1)(A)-(D),

and the principles adopted in prior decisions of this Court, we have considered the

entire record in this cause and find that the sentence of death was not imposed in an

arbitrary fashion, that the evidence supports the jury’s finding of the statutory

aggravating circumstance, and the jury’s finding that the aggravating circumstance

15
For example, in examining the Rule 12 reports, we discovered a similar case from
Jeffers on Co unty, State v. Gene Lynch, in which the jury imposed a life sentence and the trial judge
com me nted on th e Ru le 12 r epo rt that the s ente nce shou ld hav e bee n dea th. Lyn ch w aived his
right to app eal. The jury’s decisio n to afford merc y to Lynch do es not inva lidate Sm ith’s death
sentence.

16
We have reviewed several other cases in which the defendants received a sentence of
life imprisonment. The sim ilar cases in which the State sought the death penalty are
distinguishable from this case. For example, in some of these cases, the defendant was a
participan t in the robb ery and no t the perso n who a ctually shot the victim. See e.g. State v. Mona
Lisa Watson, C.C.A. N o. 24 (T enn. Cr im. Ap p., at Jack son, Au gust 14 , 1991); State v. Kev in
Watley, C.C.A. No. 37 (Tenn. Crim. App., at Nashville, July 3, 1985). In another case, the
defend ant was only seven teen-year s-old at the time the murd er was c omm itted. State v. Lemuel
Emerson Holmes , C.C.A. No. 50 (Tenn. Crim. App., at Jackson, March 12, 1981). According to the
Rule 12 report, the defendant in still another case chose to present sub stantial mitigating proof,
unlike the defend ant in this ca se. State v. Lyons, 596 S.W .2d 104 ( Tenn . Crim. A pp. 1979 ).

- 2 8 -
outweighed mitigating circumstances beyond a reasonable doubt. We have

considered the defendant’s assignments of error and determined that none have

merit. With respect to issues not specifically addressed herein, we affirm the

decision of the Court of Criminal Appeals, authored by Judge Joe G. Riley, and joined

in by Judge Jerry L. Smith and Special Judge Chris Craft. Relevant portions of that

opinion are published hereafter as an appendix. The defendant’s sentence of death

by electrocution is affirmed. The sentence shall be carried out as provided by law on

the 11th day of October, 1999, unless otherwise ordered by this Court or other proper

authorities.

_____________________________________
FRANK F. DROWOTA, III,
JUSTICE

Concur:
Anderson, C.J.,
Holder and Barker, JJ.

Birch, J. - See Separate Dissenting Opinion.

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