State v. Carter

IN THE SUPREME COURT OF TENNESSEE
AT JACKSON
(HEARD AT MEMPHIS)

FOR PUBLICATION

Filed: February 1, 1999

STATE OF TENNESSEE, )
)
APPELLEE, ) SHELBY CRIMINAL
)
v. ) Hon. Jon Kerry Blackwood
)
PRESTON CARTER, ) No. 02S01-9705-CR-00045
)
APPELLANT. )

FOR APPELLANT: FOR APPELLEE:

Glenn I. Wright John Knox Walkup
Memphis Attorney General and Reporter

Thomas F. Bloom Michael E. Moore
Nashville Solicitor General

Amy L. Tarkington
FOR AMICUS CURIAE TENNESSEE Assistant Attorney General
ASSOCIATION OF CRIMINAL Nashville
DEFENSE LAWYERS:

W. Mark Ward
Memphis

OPINION

AFFIRMED IN PART;
REVERSED IN PART AND REMANDED HOLDER, J.
 OPINION

In this capital case, the defendant, Preston Carter, pled guilty and was

convicted on two counts of felony murder. A jury sentenced him to death on

both counts, finding that the murders of Thomas and Tensia Jackson were

especially heinous, atrocious, and cruel. Tenn. Code Ann. § 39-2-203(i)(5). The

jury imposed sentences of death based upon the presence of this sole

aggravating circumstance.

On direct appeal to the Tennessee Court of Criminal Appeals, the

defendant raised numerous issues. The appellate court affirmed both his

convictions and sentences. The defendant has appealed to this Court. On

December 29, 1997, we entered an order limiting oral argument to seven issues

and set oral argument at the May term of Court in Memphis. 1 See Tenn. S. Ct.

R. 12.2

We have thoroughly reviewed the issues addressed by the parties' briefs

and carefully examined the law, the record, and the opinion of the Court of

Criminal Appeals. We have found that the defendant's contentions as to the

validity of the indictments are devoid of merit. We, therefore, affirm the

convictions of first degree felony murder.

The defendant has raised several issues involving his sentencing trial.

Among the errors was a challenge to the trial judge’s use of outdated verdict

1
Ora l argu me nt wa s hea rd in th is cas e on M ay 12, 1998 , in Me mp his, S helby C oun ty,
Coun ty, Tenne ssee, a s part of th is Court’s S.C.A.L .E.S. (Supreme Court Advancing Legal
Education for Students ) project.

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
ass igned . The Cou rt m ay ent er an orde r des ignat ing th ose issue s it wis hes addr ess ed at oral
argum ent.”

2
forms. Because we find the use of the outdated verdict forms to be such

fundamental error, we must reverse the defendant’s sentences and remand for a

new sentencing hearing. We shall address alleged errors in the sentencing

phase which may be relevant on remand.

FACTUAL BACKGROUND

The defendant pled guilty to two counts of first degree felony murder. The

scant record before us, therefore, consists only of testimony and evidence

presented during the sentencing phase of the defendant’s trial.

The defendant, Preston Carter, along with two other men, Curly D. Ivery

and Lewis Anderson, went to a Memphis apartment complex during the early

morning hours of May 28, 1993, intending to rob a drug dealer. The defendant

and Anderson, however, went to the wrong apartment and knocked on the door

of the apartment where Thomas and Tensia Jackson resided with their three-

year-old daughter. Co-defendant Ivery waited in the car.

Mr. Jackson went to the door but did not open it. The defendant and co-

defendant Anderson asked Mr. Jackson “if he [had] anything.” Mr. Jackson,

refusing to open the door, asked Anderson what he was talking about. The

defendant realized they had gone to the wrong apartment and began to back

away when Anderson said, "Preston, fuck it, if he ain't got no drugs, he must

have money."

The defendant handed his sawed-off shotgun to Anderson and kicked in

the apartment door. Apparently, Mrs. Jackson hid in the bathroom. At gunpoint,

the men ordered Mr. Jackson to instruct his wife to exit the bathroom. The men

3
then forced Mr. Jackson to lie on the floor. The defendants demanded money.

When Mrs. Jackson exited the bathroom, Anderson attacked and raped her.

The defendant retrieved his sawed-off shotgun from the bed and continued

searching for anything of value. The record is unclear as to where the Jacksons'

three-year-old daughter, Tierney, was during this time.

The defendant’s account of the story was that, while he was bent over

searching under the couch, Mr. Jackson came at him with a butcher knife. The

defendant then turned and pointed the shotgun at Mr. Jackson. The defendant

claimed Mr. Jackson then ran into a closet in his daughter's bedroom.

The defendant shot Mr. Jackson at close range while Mr. Jackson sat

huddled in his daughter's bedroom closet. The shotgun pellets entered the right

side of his forehead and moved through his skull to the back left side of his

head. The multiple pellets shattered the skull and exploded the brain. The

explosive effect of the shotgun tore open the right side of his head. As a result,

the medical examiner had to reconstruct the skull in order to determine the

location of the entrance wound. After shooting Mr. Jackson, the defendant

returned to the master bedroom and found Mrs. Jackson in the bathroom.

Anderson was getting dressed.

Mrs. Jackson asked about her husband, and Anderson responded by

demanding money. Mrs. Jackson began to scream, and Anderson threw a

jewelry box at her. The defendant’s account of the last moments of Mrs.

Jackson’s life was as follows: "She had backed up all the way in there and

before I shot her she was begging and pleading me, 'Please don't shoot me, I'll

do anything, please don't shoot.'"

4
 The defendant shot Mrs. Jackson at close range in the head. The

shotgun pellets entered near her left eye and moved to the back of the head.

The county medical examiner said Tensia Jackson tried to shield her face with

her hands. The shotgun pellets created an opening measuring three inches by

six inches and exploded her brain. No drugs or alcohol were found in either of

the victims' bodies.

The bodies were discovered about 3:45 a.m. after Kenny Jackson, Mr.

Jackson's brother, stopped at the apartment to take Mr. Jackson to the bakery

where they worked. The apartment had been ransacked; drawers were pulled

from dressers and their contents strewn; the Jacksons' bed was torn apart.

When Kenny Jackson found the apartment ransacked, he notified Mrs.

Jackson's brother, Derrick Lot. Mr. Lot searched the apartment and looked into

a closet where he found three-year-old Tierney. Tierney's white nightgown was

splattered with blood. Tierney was lying next to her father. She was unharmed.

Mr. Lot told jurors, "[There] was blood all over the wall. There was blood on the

floor, blood on her, blood -- it was blood everywhere." When Tierney saw her

uncle, she raised her head up and began to cry.

The defendant pled guilty to two counts of felony murder committed in the

perpetration of aggravated burglary. A sentencing hearing was held to

determine whether he would receive life in prison or death.

The defendant testified at the hearing. He stated that, at the time of the

shooting, he was under the influence of alcohol and not in his "right state of

mind." He testified he was sorry for what happened but blamed Anderson for

setting the whole series of events in motion.

5
 The defendant acknowledged his previous convictions of burglary in 1991

and theft in 1993. In March 1993, he was charged with aggravated robbery and

convicted in September 1994. The defendant was on probation when he killed

the victims. He admitted to drinking alcohol, smoking marijuana, using cocaine,

and using weapons, all in violation of his probation.

SUFFICIENCY OF THE INDICTMENT

The defendant challenges the sufficiency of the felony murder indictments

for failing to allege the appropriate mental state of recklessness. The State

argues the defendant has waived this issue by virtue of pleading guilty to the

charges. In the alternative, the State asserts that the indictment correctly

charges the offenses.

By his guilty pleas, the defendant admitted to every essential element of

the offense pleaded in the indictment. Nonetheless, on appeal the defendant

can challenge the jurisdiction of the court to render judgment, raising the issue of

the sufficiency of the indictment. Tennessee Rule of Criminal Procedure

12(b)(2) states that waiver provisions do not apply to defects indicating a court

lacked jurisdiction or the indictment failed to state an offense. Those defects

may be "noticed by the court at any time during the pendency of the

proceedings." Tenn. R. Crim. P. 12(b)(2). Pursuant to Tennessee Rule of

Appellate Procedure 13(b), "[t]he appellate court shall also consider whether the

trial and appellate court have jurisdiction over the subject matter, whether or not

presented for review." Furthermore, a no contest plea or plea of guilty does not

waive a challenge to the court's jurisdiction. See United States v. Heller, 579

F.2d 990, 998 (6th Cir. 1978).

6
 Thus, this issue was not waived by the failure to object before the guilty

pleas or the failure to raise the issue.

We now turn to the specific challenges to the indictments which read:

Preston Carter . . . during the period of time between May 27, 1993
and May 29, 1993, in Shelby County, Tennessee, and before the
finding of this indictment, . . . did unlawfully kill [Tensia and
Thomas Jackson] during the perpetration of Aggravated Robbery,
in violation of T.C.A. 39-13-202 against the peace and dignity of the
State of Tennessee.

(Emphasis added). At the time of the offenses, felony murder was defined as "a

reckless killing of another committed in the perpetration of, or attempt to

perpetrate any first degree murder, arson, rape, robbery, burglary, theft,

kidnapping or aircraft piracy." Tenn. Code Ann. § 39-13-202(a)(2) (1991)

(emphasis added). 3 The defendant contends that the indictments do not allege

all essential elements of the offense because the indictments fail to include the

mens rea of recklessness. The defendant, therefore, argues that the court was

without jurisdiction.

In State v. Hill, this Court held:

that for offenses which neither expressly require nor plainly
dispense with the requirement for a culpable mental state, an
indictment which fails to allege such mental state will be sufficient
to support prosecution and conviction for that offense so long as

(1) the language of the indictment is sufficient to
meet the constitutional requirements of notice to the
accused of the charge against which the accused
must defend, adequate basis for entry of a proper
judgment, and protection from double jeopardy;

(2) the form of the indictments meets the
requirements of Tenn. Code Ann. § 40-13-202; and

3
In 1995 th e legislature ame nded the statute to o mit the w ord "reck less."

7
 (3) the mental state can be logically inferred from
the conduct alleged.

Hill, 954 S.W.2d 725, 726-27 (Tenn. 1997). Alleging the mental state was a

requirement of every indictment at common law. Id. at 729. In Hill, we noted

that it is necessary to charge the mens rea if the statutory definition of the

offense includes a mens rea. Id. This Court has relaxed the strict pleading

requirements of common law as noted in State v. Ruff, 978 S.W.2d 95, 100

(Tenn. 1998), by holding that an indictment which includes a reference to the

criminal statute that sets forth the mens rea is sufficient to give a defendant

notice of the applicable mental state. "Thus, where the constitutional and

statutory requirements outlined in Hill are met, an indictment that cites the

pertinent statute and uses its language will be sufficient to support a conviction."

Id. at 100.

In this case, both felony murder indictments referenced the appropriate

statute. This reference provided notice to the defendant of the applicable mens

rea, notice of the offense upon which to enter the judgment, and protection from

subsequent prosecution on the same offense. Id. at 99; Hill, 954 S.W.2d at 726-

27. The indictment also meets the requirements of Tenn. Code Ann.

§ 40-13-202. See State v. Marshall, 870 S.W.2d 532, 539 (Tenn. Crim. App.

1993); see also Hagner v. United States, 285 U.S. 427, 52 S.Ct. 417, 76 L.Ed.

861 (1932). The language of the felony murder counts was legally sufficient

under Ruff.

8
 DEFENDANT'S STATEMENT

The defendant next contends the trial court erred in refusing to suppress

his statements to authorities. He claims that he could not have voluntarily

waived his constitutional rights because he was under the influence of alcohol

and drugs; thus, his statement was involuntary.

The Court of Criminal Appeals deemed this issue waived because the

defendant pled guilty and failed to preserve the issue for appellate review by

certifying the question under Tenn. R. App. 3(b) and Tenn. R. Crim. P.

37(b)(2)(iv).

In capital cases, this Court has considered challenges to statements

made by defendants even though the defendants pled guilty. The Court has not

required a defendant to preserve or certify the suppression issue before

reviewing it. In State v. Nichols, 877 S.W.2d 722, 732 (Tenn. 1994), this Court

considered a challenge to a trial court's suppression ruling in a situation in which

the defendant pled guilty. See also State v. Keen, 926 S.W.2d 727, 741 (Tenn.

1994) (considering suppression issue after defendant pled guilty to first degree

felony murder). In State v. Bates, 804 S.W.2d 868, 871 (Tenn. 1990), this Court

considered a challenge to a trial court's ruling on suppression. We noted that

the defendant did not waive his objection to the trial court's order.

Addressing the merits of the defendant's claim, the defendant argues that

his confession was involuntary because he was under the influence of alcohol

and drugs. Unless the evidence preponderates against a trial court's findings, a

trial court's determination that a confession was given knowingly and voluntarily

will be binding. State v. Henning, 975 S.W.2d 290 (Tenn. 1998); State v. Odom,

9
928 S.W.2d 18, 23 (Tenn. 1996); Keen, 926 S.W.2d at 741; Nichols, 877

S.W.2d at 732; State v. O'Guinn, 709 S.W.2d 561, 566 (Tenn. 1986). Ample

evidence exists to support the finding that the confession was voluntary and thus

admissible.

At the suppression hearing, the defendant admitted he (1) was given the

Miranda warning three times and (2) understood the nature of the rights read to

him because he had been arrested before. Although he claimed to have

consumed a fifth of gin, fifteen twelve-ounce beers, and three marijuana

cigarettes laced with cocaine between the shooting and the questioning by

police, Sgt. Michael Houston described the defendant as normal and

cooperative. The defendant was described as "pretty truthful" when answering

questions about the shooting. The defendant gave officers consent to search his

house and even initialed an identification tag placed on the murder weapon after

it was found in his apartment. Another officer corroborated the description of the

defendant. Once at the police station, where the defendant was Mirandized

again, he gave a statement, reviewed the written answers, initialed each page,

and signed the statement.

On cross-examination, the defendant admitted the statements were not

the result of coercion or threats. His statements, he acknowledged, were given

freely and voluntarily. The record supports the trial court's finding that the

confession was voluntary and thus admissible.

AGGRAVATING CIRCUMSTANCE (i)(5)

The defendant argues that Tenn. Code Ann. § 39-13-204(i)(5) was not an

appropriate basis for sentencing him to death. His argument is premised on the

10
following: (1) that the trial court erred by failing to instruct the jury that the

defendant must have intended to torture the victims; and (2) the evidence is

insufficient to support the application of (i)(5). We disagree.

Jury instruction

The defendant argues that (i)(5) required the jury to find that the

defendant had the specific intent to torture the victim. The defendant

acknowledges that the jury was instructed on the definition of "torture" pursuant

to State v. Williams, 690 S.W.2d 517, 529 (Tenn. 1985). Circumstance (i)(5)

does not require a mens rea. The aspect of torture focuses on the

circumstances of the killing. State v. Blanton, 975 S.W.2d 269 (Tenn. 1998).

The (i)(5) circumstance states: "The murder was especially heinous, atrocious,

or cruel in that it involved torture or serious physical abuse beyond that

necessary to produce death." The torture prong of (i)(5) only requires a jury

finding that the victim remained conscious and sustained severe physical or

mental pain and suffering between the infliction of the wounds and the time of

death. Whether the defendant intended the victim's suffering is irrelevant under

(i)(5). Blanton, 975 S.W.2d at 281. This issue is without merit.

Sufficiency of evidence

The defendant argues that the evidence does not support the "heinous,

atrocious, or cruel" aggravating circumstance for both murders. We find the

proof is sufficient to support the jury's finding of mental torture beyond a

reasonable doubt.

11
 Jurors evaluated the proof and determined the victims suffered severe

mental pain. As to both killings, the jury wrote on the verdict forms: "heinous,"

"atrocious," "cruel," and "torture."

"Torture" is defined as "the infliction of severe physical or mental pain

upon the victim while he or she remains alive and conscious." Williams, 690

S.W.2d at 529. Both Mr. and Mrs. Jackson were shot once and died

instantaneously. Therefore, the issue facing the Court is whether the evidence

supports a finding that the victims suffered mental torture. After reviewing the

evidence in the light most favorable to the State, this Court must determine

whether a rational trier of fact could have found the existence of the aggravating

circumstance of mental torture beyond a reasonable doubt. State v. Nesbit, 978

S.W.2d 872 (Tenn. 1998).

The anticipation of physical harm to oneself is torturous. Nesbit, 978

S.W.2d at 886-87; State v. Hodges, 944 S.W.2d 346, 358 (Tenn. 1997), cert.

denied, ___U.S. ___, 118 S.Ct. 567, 139 L.Ed.2d 407 (1997). This mental

torment is intensified when a victim either watches or hears a spouse, parent, or

child being harmed or killed, or anticipates the harm or killing of that close

relative and is helpless to assist. See State v. Soto-Fong, 928 P.2d 610 (Ariz.

1996), cert. denied, ___ U.S. ___, 117 S.Ct. 1826, 137 L.Ed.2d 1033 (1997)

(killing is especially cruel when a victim suffers mental anguish by watching or

hearing the defendant kill another or while waiting his own fate while parent or

spouse is killed); see also State v. Gillies, 662 P.2d 1007, 1020 (Ariz. 1983)

(uncertainty as to ultimate fate relevant to establish cruelty); Dampier v. State,

268 S.E.2d 349 (Ga. 1980); Hawkins v. State, 891 P.2d 586 (Okla. Crim. App.

1994) (mental suffering includes uncertainty over one's ultimate fate).

12
 The evidence demonstrates that the defendant armed himself with a

sawed-off shotgun and went to the Jacksons' apartment in the middle of the

night. He kicked in the apartment door and, along with Anderson, demanded

money and drugs. They continued to make the demands even though the

couple repeatedly said they did not know what the two men were talking about.

Although the defendant quickly realized he and Anderson had the wrong

apartment, he pursued the senseless attack on the unsuspecting family.

Mr. Jackson certainly endured mental torture. He was forced to lure his

wife out of the safety of the bathroom. He knew the men were violent because

the defendant was armed with a shotgun and had kicked in his door. After luring

his wife out of the bathroom, she was raped. Although Mr. Jackson was not in

the bedroom when the attack on his wife occurred, he surely knew or at least

strongly suspected that his wife was being injured or raped because Anderson

repeatedly told the defendant to close the bedroom door. Mr. Jackson, who was

held at gunpoint, was helpless to assist his wife.

The jury could have reasonably inferred that the child was placed in the

closet or entered the closet prior to the shooting of her father because the child’s

uncle found her beside her dead father. The jury could even infer that her father

tried to protect her in the closet. Her nightgown was covered with blood. Thus, a

jury could find that she was there when the defendant placed the shotgun to Mr.

Jackson's head and pulled the trigger.

Mr. Jackson inevitably feared for his daughter's safety during the time the

two were in the closet before he was shot. Mr. Jackson feared for the safety of

his wife whom he knew was with one of the attackers in another room. Mr.

13
Jackson's anguish over the safety of his family was compounded by fear of what

fate he might suffer.

Mrs. Jackson certainly endured mental torture. While she was being

raped in the bedroom, she surely wondered what was happening to her husband

and daughter in the other part of the apartment. While she was being attacked,

Mrs. Jackson would certainly have heard the shotgun blast and wondered if her

husband and daughter were both still alive. She would also realize that her own

life was at risk because the robbery had escalated into a murderous attack.

When the defendant entered the bedroom, she asked what had happened to her

husband. She screamed when the men responded only by demanding money.

Anderson threw a jewelry box at Mrs. Jackson, and the defendant backed Mrs.

Jackson into the small bathroom. As she tried to shield herself with her hands,

she certainly thought about her fate and the fate of her husband and daughter.

The defendant admitted that in the last moments of her life she begged and

pleaded with him not to shoot. She offered to "do anything." The defendant shot

Mrs. Jackson at close range.

We find the proof is sufficient to support the jury's finding of mental torture

beyond a reasonable doubt.

VALIDITY OF VERDICT FORM

The defendant committed his offenses in 1993 and was sentenced in

1995. The trial judge, however, submitted to the jury outdated verdict forms that

were used before the sentencing laws changed in 1989. The pre-1989 forms

permitted sentences of death to be imposed on a lower burden of proof than that

required by the 1989 amendment. The defendant argues that submission of the

14
improper forms denied him his fundamental right to be sentenced to death based

upon the appropriate burden of proof.

The State advances two alternatives in rebuttal to the defendant's

assertions. First, the State urges this Court to find that the error is waived

because defense counsel failed to raise an objection when the pre-1989 verdict

forms were submitted to the jury. Alternatively, the State argues that the trial

judge verbally instructed the jury as to the proper standard and that the jury is

presumed to have followed those instructions.

We find the State's waiver position to be devoid of merit. Pursuant to

State v. Stephenson, 878 S.W.2d 530, 553-54 (Tenn. 1994), we hold that the

submission of outdated verdict forms in this case substantially affected the

defendant's fundamental right to be sentenced to death based on the proper

standard of proof. See also Camago v. State, 940 S.W.2d 464, 469 (Ark. 1997)

(holding submission of a verdict form containing improper sentencing standard

not waived because the error concerned a matter “essential to the jury’s

imposition of the death penalty itself” and the error was not cured by subsequent

juror polling). An error that affects a substantial right of a defendant may be

raised at any time where necessary to do substantial justice. Tenn. R. App. P.

36(b); Tenn. R. Crim. P. 52(b); Stephenson, 878 S.W .2d at 553-54. Accordingly,

we shall address the merits of the defendant's claim.

Prior to 1989, a defendant could be sentenced to death provided the jury

found no mitigating circumstances sufficiently substantial to outweigh the

statutory aggravating circumstances. Tenn. Code Ann. § 39-2-203(g) (This

section was transferred to Tenn. Code Ann. § 39-13-204 in 1990). Following the

Sentencing Reform Act of 1989, however, the legislature codified a higher

15
burden of proof for sentencing in capital cases. The post-1989 burden of proof

mandates that any aggravating circumstances not only be proven beyond a

reasonable doubt but that the aggravating circumstances must also outweigh

any mitigating circumstances beyond a reasonable doubt. Tenn. Code Ann.

§ 39-2-204(g).

The jury was properly instructed as to the post-1989 standard. While the

jury was presumed to follow the trial judge's instructions, the jury deliberated with

and signed the pre-1989 sentencing verdict forms which stated in pertinent part:

We, the Jury, unanimously find that there are no mitigating
circumstances sufficiently substantial to outweigh the statutory
aggravating circumstances so listed above.

Following the jury’s deliberations with these forms, the judge read from the

incorrect verdict forms when sentencing the defendant to death. We hold that

the jury’s use of and signing of the improper verdict forms rebut the presumption

that the jury followed the trial judge’s verbal instructions.

Our legislature has mandated that a jury, when sentencing a defendant to

death, must "[s]ignify that the state has proven beyond a reasonable doubt that

the statutory aggravating circumstance or circumstances outweigh any mitigating

circumstances." Tenn. Code Ann. § 39-13-204(g)(2)(A)(ii). A jury must signify

this finding by signing a form that substantially complies with the form set forth in

our statute. Tenn Code Ann. § 39-13-204 (g)(2)(B). The statutory form states:

“We, the jury, unanimously find that the state has proven beyond a reasonable

doubt that the statutory aggravating circumstance or circumstances outweigh any

mitigating circumstances.” Tenn Code Ann. § 39-13-204 (g)(2)(B). By signing

16
the verdict form, jurors signify they have followed the legislative mandate and

employed the correct standard.

In State v. Stephenson, this Court reversed a death sentence because:

(1) the court gave conflicting instructions as to the burden of proof; and (2) the

sentencing verdict form failed to signify the jury used the beyond-a-reasonable-

doubt standard. Stephenson, 878 S.W.2d at 557-58. Under the capital

sentencing statute, the death penalty may be imposed only upon a unanimous

finding that any aggravating circumstances outweigh any mitigating

circumstances beyond a reasonable doubt. Id. at 555. In Stephenson, this

Court found the verdict form failed to conform to the legislative mandate.

The jury's signing of the pre-1989 verdict forms in this case signifies that

the defendant was sentenced to death under a standard that did not comport

with the legislative mandate. Accordingly, the defendant's sentences of death

are premised upon verdict forms that are illegal, void, and of no effect.

This Court is charged with ensuring that a sentence of death is not

imposed in any arbitrary fashion. Tenn. Code Ann. § 39-13-206(c)(1)(A). As we

stated more than 100 years ago:

If the least departure from the mode or extent of punishment
prescribed by the law of the land for the commission of crime is
encouraged or tolerated, how great a departure will be allowed?
Where is a limit to be found? The laws of the land prescribing the
mode and extent of punishment will be practically nullified, and
stand as dead letters upon the statute books; and in lieu thereof,
the mode and extent of punishment which may be inflicted upon
persons convicted of crime will be regulated by, and depend alone
upon, the taste, fancy, whim, caprice, partiality or prejudice of the
particular court or jury trying the offender, and such taste, fancy,
whim, caprice, partiality or prejudice, will be the law of the case.

17
Murphy v. State, 47 Tenn. 516, 523-24 (1870). We cannot find this error

harmless as the verdict forms sentencing the defendant to death are void and of

no effect.4 To uphold two death sentences based upon illegal verdicts would

countenance a degree of arbitrariness and capriciousness in the defendant’s

death sentences that is incompatible with our duty. See State v. Coffey, 389

S.E.2d 48, 65 (N.C. 1990) (holding that the signing of a proper verdict containing

the proper sentencing standard was mandatory to support a sentence of death).

We cannot condone error of such a prejudicial nature. Accordingly, the

defendant's sentences of death are reversed and this case is remanded for

resentencing to be conducted in a manner consistent with this opinion.

CONCLUSION

As to the verdict forms employed in this case, we have determined that

the completed forms which omitted the beyond-a-reasonable-doubt standard did

not comply with the law. The results are facially void verdicts based upon a

lower standard of proof resulting in prejudicial error affecting the verdicts. The

sentences of death are reversed, and the case is remanded for resentencing. All

aspects of the new sentencing hearing should be conducted in conformity with

this opinion.

Because of the remand for resentencing, we will not address the

defendant’s challenge to the removal of a potential juror. We also pretermit

statutory review of the proportionality of the death sentence imposed against the

defendant as otherwise required by Tenn. Code Ann. § 39-13-206(c)(1)(D).

4
This holding does not preclude a harmless error analysis in all cases involving verdict
form errors. A harmless error analysis in this case simply cannot be employed as, for the reasons
set forth above, the verdict forms are void and cannot operate to sentence the defendant to death.

18
 The costs of this appeal are taxed to the State.

JANICE M. HOLDER, JUSTICE

Concurring:

Anderson, C.J.
Drowota, Birch, and Barker, J.J.

19