State v. Cribbs

IN THE SUPREME COURT OF TENNESSEE
AT JACKSON

FOR PUBLICATION

STATE OF TENNESSEE, ) Filed: April 13, 1998
)
Appellee, ) Shelby County
)
v. ) Hon. W. Fred Axley,
) Judge
PERRY A. CRIBBS, )

Appellant,
)
)
)
Supreme Court FILED
No. 02S01-9703-CR-00014
April 13, 1998

Cecil Crowson, Jr.
FOR APPELLANT: FOR APPELLEE: Appellate C ourt Clerk

A.C. Wharton John Knox Walkup
District Public Defender Attorney General & Reporter
30th Judicial District
Memphis, Tennessee Michael E. Moore
Solicitor General
W. Mark Ward
Assistant Public Defender John P. Cauley
Memphis, Tennessee Assistant Attorney General
Nashville, Tennessee
Ron Johnson and
Betty Thomas John W. Pierotti
Assistant Public Defenders District Attorney General
Memphis, Tennessee 30th Judicial District
Memphis, Tennessee

James Wax and
David Shapiro
Assistant District Attorneys General
Memphis, Tennessee

OPINION

TRIAL COURT AND
COURT OF CRIMINAL APPEALS AFFIRMED. DROWOTA, J.
 In this capital case, the defendant, Perry Cribbs, was charged with

premeditated first degree murder, first degree murder during the perpetration of an

aggravated burglary, and first degree murder during the perpetration of aggravated

robbery for killing the victim, Linda Harris, in her home on January 2, 1994. The jury

found the defendant guilty on all three counts.1 In the sentencing hearing, the jury

found two aggravating circumstances: (1) “[t]he defendant was previously convicted

of one or more felonies, other than the present charge, whose statutory elements

involve the use of violence to the person;” and (2) “[t]he 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) and (7) (1991 Repl.). Finding that the two

aggravating circumstances outweighed mitigating circumstances beyond a

reasonable doubt, the jury sentenced the defendant to death by electrocution.

At the hearing on the motion for a new trial, conducted some weeks after the

jury rendered its verdicts, the trial court set aside the jury’s verdicts of guilt on the

charges of premeditated first degree murder and first degree murder during the

perpetration of aggravated robbery. The trial court entered a judgment upholding the

jury’s verdict of guilt on the charge of first degree murder during the perpetration of

an aggravated burglary and the sentence of death by electrocution.

On direct appeal to the Court of Criminal Appeals, the defendant challenged

both his conviction and sentence, raising nine claims of error, some with numerous

subparts. After fully considering the defendant’s claims, the Court of Criminal

1
Cribbs was also convicted of aggravated burglary and attempted first degree murder. The
trial court imposed consecutive, Range II sentences of ten and forty years, respectively, on these
convictions.

- 2 -
Appeals affirmed the trial court’s judgment. Thereafter, pursuant to Tenn. Code Ann.

§ 39-13-206(a)(1) (1997 Repl.), 2 the case was docketed in this Court.

The defendant raised numerous issues in this Court, but 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, on

September 2, 1997, entered an Order, limiting review at oral argument to seven

issues and setting the cause for the November, 1997, term of this Court in Jackson.

See Tenn. S. Ct. R. 12.3

After reviewing the record, we have determined that none of the alleged errors

require reversal. Moreover, the evidence supports the jury’s findings as to the

aggravating and mitigating 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 trial court and Court

of Criminal Appeals upholding the defendant’s conviction for first degree murder and

sentence of death by electrocution is affirmed.

FACTUAL BACKGROUND

2
"Whenever 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 Crim inal Appe als. The affirma nce of th e convic tion and the senten ce of de ath
shall be automatically reviewed by the Tennessee Supreme Court. Upon the affirmance by the
Cou rt of C rim inal A ppe als, th e cler k sh all doc ket th e cas e in the Sup rem e Co urt an d the cas e sha ll
procee d in acco rdance with the T ennes see R ules of A ppellate P rocedu re.”

3
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.”

- 3 -
 The proof presented by the State at the guilt phase of the trial established that

sometime between 1:30 a.m. and 1:45 a.m. on the morning of January 2, 1994, the

victims, Sidney Harris, and his wife, Linda Harris, returned from a visit with friends to

their home located at 4378 Cottonwood, in Memphis. As was his habit, Sidney Harris

backed his car onto the carport, and then opened the door for his wife to enter the

house. As she came through the kitchen door, Linda Harris was attacked and

knocked to the floor by an unknown assailant. Sidney Harris struggled with this man,

who was armed with a pistol, for approximately fifteen seconds, and had wrestled him

to the floor when a second assailant, armed with a double barrel sawed-off shotgun,

intervened and ordered Harris to release the first man.

With guns leveled upon him, the two intruders ordered Harris to sit in a chair

located in the den of his home, which was just off the kitchen, about five feet from

where his wife was located. At some point, the intruders asked Harris, “where is the

dope?” and they told Harris they intended to shoot him. Though the lights were not

on in the house during this time, Harris said the carport light shone through the open

kitchen door and provided sufficient illumination for him to observe the facial features

of the intruders. Harris observed the assailants for twenty to thirty seconds before

the second assailant fired the shotgun, striking Harris in the left shoulder and hand.

Harris lost consciousness for a time after he was shot. When he regained

consciousness, the assailants were gone. Harris observed his wife’s body lying in a

pool of blood on the floor of the kitchen where she had been initially assaulted.

Based upon the discovery of wadding material on the left side of her neck and

powder burns on her body, the medical examiner testified that Linda Harris had

sustained a contact shotgun wound to the left side of her head which would have

- 4 -
resulted in instantaneous death. Harris made his way to a neighbor’s house, where

he was able to summon assistance before again losing consciousness.

When the police arrived at the scene they found the house in disarray. The

intruders apparently had gained entry to the house through an open bedroom

window. Toys belonging to the victim’s daughter were in that bedroom and visible on

the videotape of the scene made by police.4 The videotape also showed the body

of Linda Harris in the kitchen, shotgun shells on the den floor, and bloodstains on the

chair in which Sidney Harris had been sitting when he had been shot. There were

several bullet holes in the wall to the left of the chair in the den.

Officer Donald Crow, a Memphis policeman, rode with Harris as he was

transported to the hospital shortly after the shooting. Officer Crow testified that Harris

described the first assailant in some detail, but stated that the man had been wearing

a black ski mask. With respect to the second assailant, Harris, according to Officer

Crow, said only that he was tall, thin, and wore a black ski mask. Sergeant Ronnie

McWilliams of the Memphis police directed the investigation and interviewed Harris

the day after the shooting. At that time, Harris said that he could not identify either

of the two suspects because they had been wearing black ski masks. About a week

later, Harris told a police officer that he could not get the “complexion” of the man with

the shotgun. Sergeant McWilliams described Harris as being heavily sedated on the

day after the murder and said that he had been in serious condition when the second

statement had been taken. Harris could not remember speaking to police on the

4
The victims’ daughter was not at home when the crime occurred. She had spent the night
with her aunt, the victim’s sister.

- 5 -
night of the murder and recalled being sedated when he spoke with police the next

day. Thereafter, and at trial, Harris described the first assailant as a black man,

wearing a light-colored sheer stocking mask, a denim jumpsuit, and gloves,

approximately 6'1" in height, 240 pounds in weight, with a moustache, large round

nose, thick eyebrows, and hair about one inch in length.5 Harris said the second

assailant, who had shot him, also had been a black man, wearing a light-colored

sheer stocking mask, a dirty light green or gold mechanic’s jumpsuit and gloves.

Harris said this man was taller and thinner than the first assailant, approximately 6'3"

or 6'4" in height, and about 220 pounds in weight

At the time of this murder, the defendant was residing with Jacqueline Cannon,

the mother of his daughter. Cannon stated that on the night of the murder, the

defendant, wearing blue jeans and a blue denim shirt, left their residence at

approximately 9:00 or 10:00 p.m. When he returned sometime around 1:00 a.m.,

Cannon said he was covered in blood from a “hit.” Cribbs told her that he had shot

a man and a woman. Cribbs explained that he had been hired to kill the man by

another man who had been having an affair with the female victim. Cribbs said that

he had killed both victims and claimed that he would be paid for the “hit” soon. The

next day, Cannon discovered at her residence a gold-faced Mickey Mouse watch with

a leather wrist band with the words “genuine leather” imprinted on the back. When

she asked Cribbs about the watch, he explained that he had taken it from the home

of the couple he had killed.

5
This man was never identified nor apprehended by police.

- 6 -
 Shortly thereafter, Cannon learned from news reports that a man and woman

had been shot, as Cribbs claimed, on the night of January 2, 1994. The woman had

been killed but the man survived the shooting. Because she feared Cribbs, Cannon

did not relay her knowledge about the murder to the police at that time. Some four

to six weeks later, however, Cribbs became angry with Cannon because he

suspected she had told a neighbor about his role in the murder. Cribbs assaulted

and beat Cannon, and she was hospitalized for three days, suffering, among other

things, a punctured lung. Fearing for her life, Cannon related to her brother what

Cribbs had told her about the murder. Her brother notified Crime Stoppers, and as

a result, the police located and interviewed Cannon. Cannon eventually received

$900 from Crime Stoppers, and her brother received $100.

Upon learning of the gold-faced Mickey Mouse watch from Cannon, police

asked Sidney Harris if his wife had owned such a watch. Harris had been

hospitalized for twenty-two days following the shooting and had not discovered the

watch missing. When questioned by police, Harris confirmed that his wife had owned

such a watch and that it had been among the items missing from the house after the

murder. At this point, having reason to believe that the defendant may have been

involved in the murder of Linda Harris, police compiled a photographic lineup of eight

men, including the defendant, who matched the description given by Harris. Visibly

shaken and emotional, Harris identified the photograph of Cribbs as “the mother -----

that shot me!” Harris previously had viewed two other photographic lineups, but had

not identified anyone as the person who shot him and killed his wife. At trial, Harris

also positively identified Cribbs as the man who shot him.

- 7 -
 Based upon the proof summarized above, the jury found the defendant guilty

of premeditated first degree; first degree murder during the perpetration of an

aggravated burglary; and first degree murder during the perpetration of aggravated

robbery. The defendant was also found guilty of aggravated burglary and attempted

first degree murder.

The trial proceeded to the sentencing phase. The State relied upon the

evidence presented during the guilt phase of the trial, and in addition, introduced

proof to show that the defendant, twenty-three-years-old at the time of trial, previously

had been convicted of two counts of attempted second degree murder and one count

of aggravated robbery in 1990. Also introduced was testimony that the defendant

had been convicted of attempted second degree burglary in 1989.

Testifying on his own behalf, Cribbs said that he had been born in Alabama,

but had lived in Shelby County for about nine years. The defendant’s mother,

grandfather, and two brothers, twenty-six and seventeen, resided in Armory,

Mississippi at the time of the trial. Because of his grandfather’s illness and

obligations at work or school, none of his family were able to attend his trial. Cribbs

said that his family had visited him on the Sunday prior to trial, and that visit had been

the first time he had seen his mother in four years. Cribbs had a cousin in Memphis

and previously had been employed by his uncle’s construction company, but none

of his family members attended the trial or testified on his behalf. Cribbs said that he

had told his aunt that the trial was a matter of life or death, but he had not pressed

his mother to attend the trial because she had been ill, and he did not want to worry

her. Cribbs said that he had attended school through the seventh grade but had

- 8 -
dropped out when he was expelled for truancy. Of the twelve-year sentence he

received on the convictions for attempted second degree murder and robbery, Cribbs

had been incarcerated for three and one-half years in prison and had not violated

prison rules during that time. Cribbs said that he had visited with his only child, a

daughter, seven or eight times since being arrested for the murder of Linda Harris.

Cribbs denied committing the crime for which the jury had convicted him, and he said

that he had refused to plead guilty in exchange for a life sentence because he had

not committed the crime. Cribbs explained that Cannon had falsely implicated him

in the murder because she was angry. Cribbs said that he had argued with Cannon

because “she stole some money from me. I had whooped her real bad and told her

I wasn’t going to come around no more.... So she came in and said this on me.”

Cribbs denied having any knowledge of a gold-faced Mickey Mouse watch. Lastly,

Cribbs asked the jury to spare his life, saying that he would conduct himself as a

decent individual in prison if given a sentence of life imprisonment without the

possibility of parole.

Based upon the proof, the jury found that the State had proven the existence

of two aggravating circumstances beyond a reasonable doubt: (1) “[t]he defendant

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

whose statutory elements involve the use of violence to the person;” and (2) “[t]he

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) and (7) (1991

Repl.). Finding that the two aggravating circumstances outweighed mitigating

circumstances beyond a reasonable doubt, the jury sentenced the defendant to death

by electrocution.

- 9 -
 Following the hearing on the motion for new trial, the trial court set aside the

jury’s findings of guilt and sentences of death on the charges of premeditated first

degree murder and first degree murder during the perpetration of aggravated

robbery. The trial court entered a judgment of conviction upon the jury’s verdict of

guilt on the charge of first degree murder during the perpetration of an aggravated

burglary and the sentence of death by electrocution. The Court of Criminal Appeals

affirmed the judgment of the trial court. For the reasons that follow, after carefully

reviewing the record and considering the errors assigned by the defendant, we affirm

the judgment of the trial court and Court of Criminal Appeals upholding the

defendant’s conviction of first degree murder and sentence of death by electrocution.

I. JURY INSTRUCTION - EYEWITNESS IDENTIFICATION

The defendant asserts that the instruction given the jury in this case regarding

eyewitness identification was inadequate. In support of his claim, he relies upon this

Court's decision in State v. Dyle, 899 S.W.2d 607 (Tenn. 1995), rendered after the

trial of this case. In Dyle, this Court adopted a new jury instruction, which must be

given whenever identification is a material issue.6 Id. at 612. The instruction, which

requires the jury to evaluate the evidence in light of several explicit factors, is set out

below.

One of the issues in this case is the identification of the defendant as
the person who committed the crime. The state has the burden of
proving identity beyond a reasonable doubt. Identification testimony is
an expression of belief or impression by the witness, and its value may

6
In Dyle , we stated that “[i]dentity will be a material issue when the defendant puts it at issue
or the eyewitness testimony is uncorroborated by circum stantial evidence.” Id. at 612.

- 1 0 -
 depend upon your consideration of several factors. Some of the
factors which you may consider are:

(1) The witness' capacity and opportunity to observe the
offender. This includes, among other things, the length
of time available for observation, the distance from which
the witness observed, the lighting, and whether the
person who committed the crime was a prior
acquaintance of the witness;

(2) The degree of certainty expressed by the witness
regarding the identification and the circumstances under
which it was made, including whether it is the product of
the witness' own recollection;

(3) The occasions, if any, on which the witness failed to
make an identification of the defendant, or made an
identification that was inconsistent with the identification
at trial; and

(4) The occasions, if any, on which the witness made an
identification that was consistent with the identification at
trial, and the circumstances surrounding such
identifications.

Again, the state has the burden of proving every element
of the crime charged, and this burden specifically
includes the identity of the defendant as the person who
committed the crime for which he or she is on trial. If
after considering the identification testimony in light of all
the proof you have a reasonable doubt that the
defendant is the person who committed the crime, you
must find the defendant not guilty.

Dyle, 899 S.W.2d at 612. With respect to the applicability of the rule adopted in Dyle,

we stated as follows:

this instruction must be given when identification is a material issue and
it is requested by defendant's counsel. Failure to give this instruction
under these circumstances will be plain error. If identification is a
material issue and the defendant does not request the instruction,
failure to give it will be reviewable under a Rule 52 harmless error
standard. This ruling is applicable to cases now on appeal and to
those cases tried after the release of this opinion.

- 1 1 -
Id. This case was tried before the issuance of the decision in Dyle, but was pending

on appeal at the time of its release. Accordingly, the rule announced in Dyle applies

to this case, and we must determine whether the trial court's failure to give the Dyle

instruction is harmless or prejudicial error. Tenn. R. Crim. P. 52(a) ("No judgment

of conviction shall be reversed on appeal except for errors which affirmatively appear

to have affected the result of the trial on the merits.")

The defendant contends that the error is prejudicial because the instruction

actually given, unlike the Dyle instruction, did not inform jurors that identification

testimony is an expression of belief or impression by the witness, and did not instruct

the jurors to consider occasions on which the eyewitness failed to make an

identification. Id. at 612. The defendant argues that the failure to give the Dyle

instruction may have affected the verdict in this case since the eyewitness, Harris,

initially had stated that he could not identify anyone nor provide a description

because the assailants had been wearing ski masks. The State concedes that the

failure to give the instruction was error, but argues the Court of Criminal Appeals

correctly held the error harmless since the failure to give the Dyle instruction does not

affirmatively appear to have affected the outcome of this trial.

With respect to identity, the trial court in this case charged the jury as follows:

The Court charges you that the identity of the
defendant, Perry A. Cribbs, must be proven in the case
on the part of the State to your satisfaction beyond a
reasonable doubt. In other words, the burden of proof is
on the State to show that the defendant now on trial
before you is the identical person who committed the
alleged crime with which he is charged. In considering
the question of the identity of a person, the Jury may take
into consideration the means and opportunity of

- 1 2 -
 identification, if any; whether it was light or dark; the
distance intervening; the dress or clothing worn; the
character and color of same; the size, height, and color
of the individual; whether known to him, and if so, how
long, and if seen before, under what circumstances;
whether running or moving rapidly, standing still, walking
fast or slow at the time claimed to the person testifying;
the color of the hair; hat worn; facial expression or
features and appearance; whether with or without
moustache and beard; whether person said to be
identified was white, black, dark, yellow, or light color;
masked or not; the voice and speech.

All these things when shown in the proof may be
considered by the Jury in determining the question of
identity. The word identity means the state or quality of
being identical, or the same; it means sameness.
Identification means the act of identifying or proving to be
the same. The word "Identify" means to establish the
identity or to prove to be the same as something
described, claimed or asserted.

The Court charges you that if you are satisfied
from the whole proof in this case, beyond a reasonable
doubt, that the defendant Perry A. Cribbs, committed the
crime charged against him, and you are satisfied, beyond
a reasonable doubt, that he has been identified as the
person who committed the crime charged, then it would
be your duty to convict him. On the other hand, if you are
not satisfied with the identity from the proof, or you have
a reasonable doubt as to whether he has been identified
from the whole body of the proof in the case, then you
should return a verdict of not guilty.

Considering the totality of the instruction actually given, and the proof in light

of the factors delineated in Dyle, we conclude that the failure to give the Dyle

instruction does not affirmatively appear to have affected the outcome of this case.

The jury was instructed to consider the means and opportunity of identification,

including the distance, lighting, and whether the perpetrator was known to the

eyewitness. Though not verbatim, this sufficiently encompassed the instruction with

respect to the first Dyle factor so that prejudicial error does not result. Moreover, the

- 1 3 -
proof clearly established that Harris observed the perpetrator for approximately thirty

seconds, from a distance of less than five feet, with a light from the carport

illuminating the perpetrator's features. The perpetrator wore a stocking mask, and

was a stranger to Mr. Harris.

With respect to the second Dyle factor, the proof is clear that Harris expressed

certainty of his identification of Cribbs during a photographic lineup which occurred

within six weeks of the crime. Officer McWilliams said that Harris was visibly shaken

and emotional when he first observed the photograph of the defendant. Moreover,

the photographic lineup does not appear to have been suggestive.

With respect to the third Dyle factor, the proof shows that Harris selected only

the photograph of the defendant even though he previously had been presented with

two other photographic lineups. However, Harris had been unable to give the police

any description of the assailant immediately after the shooting, and police reports

reflected that Harris had said the perpetrators had been wearing black ski masks.

However, later descriptions given to police by Harris of the perpetrator's facial

features, height, and weight matched the defendant. At trial, Harris explained that

he had been seriously injured and receiving treatment and sedatives, either in the

ambulance or at the hospital, when he had given the initial descriptions. The jury

obviously accepted this explanation of the discrepancies.

With respect to the fourth factor, the proof shows that Harris positively

identified the defendant from a valid photographic lineup. Harris also positively

identified the defendant later at trial.

- 1 4 -
 Because the instructions given the jury in this case closely resembled the

instructions required by Dyle, and because the proof with regard to each of the

factors delineated by Dyle was plainly established, we agree with the Court of

Criminal Appeals conclusion that the error was harmless. Failure to give the Dyle

instruction does not affirmatively appear to have affected the verdict.

II. AGGRAVATING CIRCUMSTANCE (i)(2)

One of the two aggravating circumstances found by the jury in this case to

support imposition of the death penalty is that the defendant had previously been

convicted of a felony offense "whose statutory elements involve the use of

violence to the person." Tenn. Code Ann. § 39-13-204(i)(2)(1991). To establish

this aggravating circumstance, the State offered the testimony of the Principal

Clerk of the Criminal Court Clerk's office in Shelby County during the penalty

phase of this trial. She stated, that according to her records, the defendant had

four prior felony convictions: two convictions of attempted second degree murder,

one conviction for aggravated robbery, and a conviction for second degree

burglary. The defendant challenges admission of this proof in two respects.

A. Second Degree Burglary

First, the defendant claims that the trial court erred in admitting evidence

about his previous conviction for second degree burglary because the statutory

elements of that offense do not involve the use of violence to the person, and it is

- 1 5 -
therefore not admissible to prove the statutory aggravating circumstance. Tenn.

Code Ann. § 39-13-204(i)(2) (1991 Repl.).

The State concedes that evidence about the defendant's 1989 conviction

for second degree burglary should not have been admitted because it was

immaterial and ineffective to prove the aggravating circumstance -- that Cribbs

previously had been convicted of one or more felonies whose statutory elements

involve the use of violence to the person. However, in this case, the State asserts

the error was harmless. We agree.

The State did not rely upon the conviction for second degree burglary to

prove the aggravating circumstance. Apparently, admission of the evidence about

the conviction through the testimony of the Criminal Court Clerk was inadvertent.

Indeed, the conviction was never asserted by the State as a valid basis to support

the aggravating circumstance.7 Following the Clerk's testimony, the conviction

was not mentioned again in the presence of the jury. It was neither argued by the

State, nor submitted to the jury as part of the trial court's instructions. Moreover,

the jury's finding of the aggravating circumstance was supported by three other

violent felony convictions. Accordingly, the erroneous admission of the testimony

regarding the defendant’s prior conviction of second degree burglary does not

affirmatively appear to have affected the verdict and is harmless.

7
Comp are State v. Adkins, 653 S.W .2d 708, 7 16 (Te nn. 1983 ); State v. Johnson, 661
S.W.2d 854 (Tenn. 1983) (Finding prejudicial error where the State relied upon evidence of
nonviolent felonies to establish the aggravating circumstance).

- 1 6 -
 B. Attempted Second Degree Murder

The defendant next insists that his two prior convictions for attempted

second degree murder do not qualify as felonies "whose statutory elements

involve the use of violence to the person." He bases his argument on the

statutory definition of the offense of criminal attempt, which is set out, in pertinent

part, hereafter.

(a) A person commits criminal attempt who, acting with the kind of
culpability otherwise required for the offense:

(1) Intentionally engages in action or causes a result
that would constitute an offense if the circumstances
surrounding the conduct were as the person believes
them to be;

(2) Acts with intent to cause a result that is an element
of the offense, and believes the conduct will cause the
result without further conduct on the person's part; or

(3) Acts with intent to complete a course of action or
cause a result that would constitute the offense, under
the circumstances surrounding the conduct as the
person believes them to be, and the conduct
constitutes a substantial step toward the commission of
the offense.

Tenn. Code Ann. § 39-12-101(a) (1997 Repl.). The defendant points out that

criminal attempt is a separate offense from the principal offense attempted, and

he argues that the statutory elements of criminal attempt do not involve the use of

violence to the person. The State responds that because second degree murder

involves the use of violence to the person, evidence of the defendant's prior

convictions for attempted second degree murder was properly admitted to

establish the existence of the aggravating circumstance.

- 1 7 -
 As the Court of Criminal Appeals noted, the attempt statute requires the

perpetrator to act "with the kind of culpability otherwise required for the [principal

offense]." Tenn. Code Ann. § 39-12-101(a) (1997 Repl.) Second degree murder,

the principal offense underlying the defendant's convictions for criminal attempt, is

defined as

(1) [a] knowing killing of another; or

(2) [a] killing of another which results from the unlawful
distribution of any Schedule I or Schedule II drug when
such drug is the proximate cause of the death of the
user.

Tenn. Code Ann. § 39-13-210(a) (1997 Repl.). We agree with the Court of

Criminal Appeals that this language supports the classification of the crime of

attempted second degree murder as one whose statutory elements involve the

use of violence to the person. This issue has no merit.

III. PROSECUTORIAL MISCONDUCT

The defendant next contends that prosecutorial argument during the

penalty phase resulted in an arbitrary and unreliable sentence and violated his

state and federal constitutional rights. In particular, the defendant says that his

sentence should be reversed because of prosecutorial argument: 1) justifying

imposition of the death penalty by reference to religious law; 2) implying that the

defendant would be eligible for parole unless the death penalty was imposed; and

3) referring to the impact of the murder on the victim's family.

- 1 8 -
 This Court previously has recognized that closing argument is a valuable

privilege for both the State and the defense and has afforded wide latitude to

counsel in presenting final argument to the jury. State v. Bigbee, 885 S.W.2d 797,

809 (Tenn. 1994); State v. Cone, 665 S.W.2d 87, 94 (Tenn. 1984). However,

when a prosecutor's argument veers beyond the wide latitude afforded, the test for

determining if reversal is required is whether the impropriety "affected the verdict

to the prejudice of the defendant." Harrington v. State, 215 Tenn. 338, 385

S.W.2d 758, 759 (1965). Factors relevant to that determination include:

(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 error
in the record; and

(5) the relative strength and weakness of the case.

Bigbee, 885 S.W.2d at 809; State v. Buck, 670 S.W.2d 600, 609 (Tenn. 1984);

Judge v. State, 539 S.W.2d 340, 344 (Tenn. Crim. App. 1976). In evaluating the

defendant's claims, we apply these guiding principles.

A. Biblical Reference

The defendant argues that the State's use of a biblical reference to justify

imposition of the death penalty violated his rights to due process, a fair trial,

separation of church and state, and freedom from cruel and unusual punishment

as guaranteed by the First, Fifth, Sixth, Eighth and Fourteenth Amendments of the

U.S. Constitution, and Article I, Sections 3, 4, 6, 8, 9 and 16 of the Tennessee

- 1 9 -
Constitution. The State concedes that quoting from the Bible is impermissible, but

contends that the prosecutor's argument in this case, "whatever a man sows, so

shall he reap" was merely a metaphor for individual accountability, rather than a

justification for imposition of the death penalty. Considered in context and as a

whole, the State contends that the prosecutor's argument was not erroneous.

Assuming, in the alternative, that the argument was erroneous, the State contends

that the error is harmless.

The challenged portion of the prosecutor's closing argument to the jury is

set out below:

And I never liked, quite frankly, I never really feel comfortable
using biblical references.... What I want to do--and the only reason I
mentioned that is because I tell you quite frankly, I don't feel
comfortable even mentioning the biblical references. And the only
reference I do want to make is it is written whether it is Koran, New
Testament or Old Testament there is one consistent thing, that is:
Whatever a man sows, so shall be reaped [sic]. W hat that means is
accountability. It means that there are standards of conduct. It
means accountability what you sow, you reap. And that is the only
religious thing I get in there and I don't want to interject myself. I just
said that. I didn't want anybody to get offended, you know, if I make
a biblical reference but that is a very important part in our law, our
law in the State of Tennessee. Whatever a man sows, so shall he
reap.

Well what did Perry Cribbs say [sic]? Violence and crime.
Pain and suffering. Think what he -- the havoc and the pain that he
has reaped upon the family of Linda Harris.

....
Mr. Cribbs needs to be held accountable for his life. Whatever
a person sows, so shall he reap. Unfortunately a lot of other people
have to bear with paying the consequences of this.

- 2 0 -
 It is well-established in Tennessee law that references to biblical passages or

religious law during the course of a criminal trial are inappropriate. See State v.

Stephenson, 878 S.W.2d 530, 541 (Tenn. 1994)(judge's reference to Bible passage

during voir dire); Kirkendoll v. State, 281 S.W.2d 243, 254 (Tenn. 1955) (prosecutor's

reference to religious law during closing argument). In the face of this clear and

longstanding precedent, the repeated introduction by prosecutors of such references

into trials of serious criminal offenses is inexplicable. In this case, the trial court

overruled the objection to the improper reference. We note that the trial court should

have sustained the objection and given a curative instruction, and we caution trial

judges to guard against the interjection of such inappropriate references. However,

evaluating the inappropriate remarks of the prosecutor in this case in light of the

previously mentioned five factors, we conclude that they did not affect the verdict to

the prejudice of the defendant.

Contrary to the defendant’s contention, in the context of the entire argument,

the prosecutor did not ask the jury to base imposition of the death penalty on religious

law. Instead, the prosecutor urged the jury to hold the defendant individually

accountable for the crime he had committed. We agree with the Court of Criminal

Appeals that, in the context of this case, the prosecutor was using the "reap what you

sow" argument as a metaphor for individual accountability. As a result, we view the

comments by the prosecutor which implied that Tennessee law embraced the

principle of "reap what you sow" as merely an extension of that metaphor. The jury

in this case was correctly instructed prior to beginning deliberations that argument of

counsel is not evidence and that the judge provides the relevant instructions as to the

law. It is well-established that jurors are presumed to follow the instructions given by

- 2 1 -
the trial judge. State v. Laney, 654 S.W.2d 383, 389 (Tenn. 1983); State v.

Blackmon, 701 S.W.2d 228, 233 (Tenn. Crim. App. 1985). In addition, we are

convinced, from our reading of the record, that the prosecutor did not intend to

mislead the jury by employing the metaphor to explain individual accountability.

Indeed, the prosecutor expressed discomfort about using the metaphor, but viewed

it as an effective, understandable device for explaining the concept. Viewed in the

context of the entire proceeding, we agree with the Court of Criminal Appeals that the

error did not affect the verdict to the defendant's prejudice.

B. Parole Eligibility

The defendant next asserts that the prosecutor's argument improperly implied

to the jury that he would be released on parole unless the jury sentenced him to

death. The defendant points to the following excerpt from the prosecutor's argument

in support of his assertion.

There are no winners. This is just a horrible situation. The
defendant goes into custody . . . in 1990 and he is convicted. In 1993
is he [sic] out. He's told us it was a twelve-year sentence. The
penitentiary system doesn't work.

He's been convicted of three violent crimes. . . . [H]e did less
than . . . three and a half or four years. The Penitentiary system
doesn't work.

....
There is no question he's been convicted of these cases. No
question that he got out early. You heard from him. It wasn't the
State's proof. What happened and why it happened is something we
may never know. But it does happen.

In our view, the prosecutor's argument was not a reference to parole

possibility, but was instead a comment upon the failure of prior incarceration to

- 2 2 -
positively effect the defendant's behavior and a valid response to the defendant's

claim that he could conduct himself as a decent individual if sentenced to life

imprisonment without the possibility of parole.

However, even assuming that the prosecutor's argument could be interpreted

as referring to parole possibilities, a review of the record reveals that the error was

harmless. The trial court in this case properly instructed the jury that

A defendant who receives a sentence of imprisonment for life shall not
be eligible for parole consideration until the defendant has served at
least twenty five (25) calendar years of such sentence. A defendant
who receives a sentence of imprisonment for life without possibility of
parole shall never be eligible for release on parole.

Therefore, even assuming the jury misconstrued the prosecutor's comment to mean

that the defendant would be released on parole unless sentenced to death, the

instructions given by the trial court were sufficient to clarify the misconception.

Accordingly, the jury in this case was clearly and accurately apprised of its sentencing

options in accordance with current law. See Tenn. Code Ann. § 39-13-204(e)(2)

(1997 Repl.) This issue is without merit.

C. Victim Impact Argument

The defendant next contends that during closing argument the prosecutor

improperly argued about the impact of the killing on the victim's family, particularly

about the effect on the victim's surviving daughter. The State responds that the

argument in this case was not unduly inflammatory because it only addressed facts

that the jury itself could have inferred from the evidence presented during the guilt

- 2 3 -
stage. The defendant complains about the following portion of the prosecutor's

closing argument.

[The defense] says that [a] life without parole sentence is the
same as death. I respectfully disagree.

I'm sorry if I sound too strong. And I'm sorry if I raise my mouth.
But there is a substantial amount of difference. Because little Michael
Harris who is four years old is never going to be able to visit her
mother. She will never be [sic] hold her mother. She will never be able
to cry to her mother. She will never be able to call her mother on the
phone. She won't get letters from her. And she won't be able to write
letters to her. She won't be able to call her on the phone or get phone
calls for her. She won't be able to tell her about her boyfriends in life.
Tell her about her problems. Tell her about her accomplishments.

No, ladies and gentlemen of the jury, not for one second do you
believe that life is the same as death. There is a difference and the
difference is that whatever happens in our penitentiary system that we
may not know about, what we do know is dead certain is that four year
old little girl . . . is never going to see her mother again.
....
It is hard to be involved in this case. It is not easy for anybody.
It is not pleasant. Let me tell you something that is a whole lot less
pleasant than this. Let me tell you something that is a whole lot harder
than anything we are going to do today or anything we've done in the
last couple of months, and that is having to explain to that little girl
where her mother is. And where her mother is never going to come
back.

The same floor where Linda Harris played with toys with her
three-year-old daughter that is the same floor that she is sitting there
with her brains laid out all over the table. That is the sad reality.

....
When [the defense] told you the role of the prosecutor is to seek
justice, that is what we do. I can't and you can't bring back Linda Harris
for her mother, for her husband, for her daughter. We can't do that.
That is true. We can't give Michael Harris back her mother. But we
can give her justice. And that is what I ask you to do.

....

- 2 4 -
 A life sentence is not the same as death. There is not
visitations. There is no letters. There is no radio. All that little girl is
going to have is very vague memories of being a three year old child.
And all somebody else in her family that's going to have for years and
years is memories of trying to explain that.
....
[W]e cannot give Michael Harris back her mother. We can't give
Sidney Harris back his wife. We [can't] give Mrs. Harris' mother back
her daughter. But we can give them justice. That is what I ask you to
do.

The argument in this case referred to facts that the jury had learned from proof

regarding the circumstances of the crime. Cf. State v. Nichols, 877 S.W.2d 722

(Tenn. 1994). For example, the assailants gained entry to the Harris home through

a bedroom window, and, on the videotape of the crime scene, toys were visible in

that bedroom. From that proof, the jury learned that the victim had a three-year-old

daughter. Much of the prosecutor’s argument was designed to address the

defendant’s request to be sentenced to life without the possibility of parole, and

defense counsel’s subsequent argument that a sentence of life imprisonment without

the possibility of parole is equivalent to the death penalty. The prosecutor pointed

out that, unlike the defendant’s child, if the jury returned a sentence of life without the

possibility of parole, the victim’s daughter would be unable to contact her mother.

This Court previously has cautioned that the State may risk reversal by

engaging in argument which appeals to the emotions and sympathies of the jury.

See, e.g. Bigbee, 885 S.W.2d at 809; Sparks v. State, 563 S.W.2d 564, 569 (Tenn.

Crim. App. 1978); 23A C.J.S. Criminal Law § 1270(c)(1989). Indeed, prosecuting

attorneys should counsel jurors to base their decision upon a reasoned moral

- 2 5 -
response to the evidence. See California v. Brown, 479 U.S. 538, 542-43, 107 S.Ct.

837, 839-40, 93 L.Ed.2d 934 (1987). Taken in context and read as a whole,

however, the argument in this case was not so inflammatory that it more probably

than not affected the verdict to the defendant’s prejudice. As the Court of Criminal

Appeals recognized, the remarks of the prosecutor simply emphasized information

that the jury already knew or could have legitimately inferred from the proof relating

the circumstances of the offense. Much of the argument was a response to defense

proof and argument. Wide latitude is to be afforded counsel to present closing

argument to the jury, but we again caution prosecutors to avoid arguments which

appeal to the emotions of jurors. However, in this case, we agree with the Court of

Criminal Appeals that the prosecutor’s remarks do not constitute prejudicial error

requiring a reversal.

IV. AGGRAVATING CIRCUMSTANCE (i)(7)

The defendant next contends that the death penalty in this case violates the

principle announced in State v. Middlebrooks, 840 S.W.2d 317 (Tenn. 1992)(Drowota

and O’Brien, JJ., dissenting), in which a majority of this Court held that “when the

defendant is convicted of first degree murder solely on the basis of felony murder,”

use of the felony murder aggravating circumstance is not permissible because it

“does not narrow the class of death-eligible murderers sufficiently under the Eighth

Amendment to the U.S. Constitution, and Article I, § 16 of the Tennessee

Constitution because it duplicates the elements of the offense.” Id., 840 S.W.2d at

346.

- 2 6 -
 In this case, the defendant was charged in separate counts of the indictment

with premeditated first degree murder, first degree murder during the perpetration of

an aggravated burglary, and first degree murder during the perpetration of an

aggravated robbery. The jury returned verdicts of guilt on all three counts of the

indictment. At the conclusion of the penalty phase of the trial, the jury returned a

sentence of death for each of the three counts of the indictment.

Several weeks later, during the hearing on the motion for new trial, defense

counsel argued that the verdict was erroneous because only one person had been

murdered and therefore, only one sentence of death was appropriate. Defense

counsel also argued that the evidence was insufficient to support the jury’s verdict of

guilt on the charge of premeditated first degree murder. The State responded that

the evidence supported all three convictions. The trial court then made the following

observation:

You are absolutely correct in pointing out that [the defendant] can’t
receive three death penalties. And, only one should stand. The terms
available to the court are that the other verdicts are simply surplusage.
It is discretionary with the court as a finder of fact, thirteenth juror, to
strike the verdicts, and I will do that.

Upon learning of the trial court’s intention to strike two of the verdicts of guilt, the

State requested that the verdicts on counts one and three of the indictment, which,

respectively, charged premeditated first degree murder and first degree murder

during the perpetration of an aggravated robbery, be stricken. The trial court agreed

and entered a judgment of conviction on the jury’s finding of guilt on count two of the

indictment, which charged murder during the perpetration of an aggravated burglary.

- 2 7 -
 Thereafter, in the Court of Criminal Appeals, the defendant argued that when

the trial court set aside the convictions for premeditated murder and felony murder

in the perpetration of aggravated robbery, a "retroactive Middlebrooks error" resulted.

Specifically, the defendant claimed that the jury’s finding of the felony murder

aggravating circumstance -- the murder was committed while the defendant was

engaged in committing burglary -- duplicated the elements of the only remaining valid

conviction, first degree murder during the perpetration of aggravated burglary.

According to the defendant, application of the aggravating circumstance, therefore,

failed to adequately narrow the class of defendants for whom the death penalty is

reserved, and should not have been applied under the authority of Middlebrooks.

The Court of Criminal Appeals agreed with the defendant’s argument, but affirmed

the sentence of death upon finding the “retroactive Middlebrooks error” harmless

beyond a reasonable doubt under this Court’s decision in State v. Howell, 868

S.W.2d 238 (Tenn. 1993).

In this Court, the defendant argues that the error was not harmless under

Howell and requires a remand for resentencing. The State, in contrast, argues that

this case does not present a Middlebrooks error at all, and urges this Court to

reinstate the jury’s verdicts of guilt with respect to the charges of premeditated first

degree murder and murder during the perpetration of aggravated robbery.

We begin our analysis of this issue with the well-settled legal proposition that

no constitutional or statutory provision prohibits a jury from rendering a general

verdict of guilty of first degree murder where both premeditated and felony murder

are charged and submitted to the jury. Schad v. Arizona, 501 U.S. 624, 111 S.Ct.

- 2 8 -
2491, 115 L.Ed.2d 555 (1991); Tenn. Code Ann. § 40-18-111 and -112 (1990 Repl.);

State v. Coe, 655 S.W.2d 903 (Tenn. 1983). Even though it is not constitutionally or

legislatively required, specificity in the verdict is desirable and conducive to accurate

sentencing determinations and effective appellate review. See Schad, 501 U.S. at

645, 111 S.Ct. at 2504. Moreover, as we recently emphasized, verdict specificity is

particularly desirable to ensure effective compliance with Middlebrooks. Carter v.

State, 958 S.W.2d 620 (Tenn. 1997). The concern expressed by a majority of this

Court in Middlebrooks was that the felony murder aggravating circumstance does not

sufficiently narrow the class of death-eligible offenders when a defendant has been

convicted of first degree murder solely on the basis of felony murder because it

duplicates the elements of the underlying offense. When a defendant is convicted

of premeditated murder, and the felony murder aggravating circumstance is

employed to support imposition of the death penalty, Middlebrooks is not implicated.

State v. Hall, 958 S.W.2d 679, 692 (Tenn. 1997); State v. Hurley, 876 S.W.2d 57, 69

(Tenn. 1993) . Likewise, where the felony murder aggravating circumstance is

based upon a felony distinct from the one relied upon to prove the offense of first

degree murder, there is no constitutional prohibition against the use of the felony

murder aggravating circumstance to support imposition of the death penalty. State

v. Hines, 919 S.W.2d 573, 583 (Tenn. 1995). Since application of the principle

announced in Middlebrooks turns upon the findings of the jury in each case, multiple

count indictments which require specific jury findings on premeditated and felony

murder should be utilized. Trial courts should instruct the jury to render a verdict as

to each count of such an indictment. Obviously, when only one person has been

murdered, a jury verdict of guilt on more than one count of an indictment charging

different means of committing first degree murder will support only one judgment of

- 2 9 -
conviction for first degree murder. Carter, 958 S.W.2d at 624, n. 6.; Hurley, 876

S.W.2d at 70. However, findings as to each count will aid the trial court and counsel

in determining whether, in light of Middlebrooks, the felony murder aggravating

circumstance may be relied upon at the penalty phase of the trial to support

imposition of the death penalty.

Applying these principles to the facts in this case it is clear that the trial court

correctly required the jury to return a verdict as to each count of the multiple count

indictment which charged alternative methods of committing the offense of first

degree murder. In addition, the trial court also correctly concluded that the defendant

could receive only one sentence of death. Only one killing had occurred, and while

the jury returned a verdict of guilt on each of the three counts of the indictment, the

three counts merely charged distinct modes of committing the same offense--first

degree murder.8 Since the jury found the defendant guilty of only one criminal

offense, only one sentence was appropriate. At the penalty phase, the responsibility

of the jury was to fix a sentence for the defendant’s conviction of the offense of first

degree murder. Rather than remedying the jury’s error of imposing multiple

sentences for the same offense by entering one judgment of conviction for first

degree murder and striking two of the sentences entered by the jury, the trial court

in this case struck the jury’s verdicts of guilt on two counts of the indictment, stating,

“the other verdicts are simply surplusage. It is discretionary with the court as a finder

of fact, thirteenth juror, to strike the verdicts, and I will do that.” As a result, the

defendant’s conviction of first degree murder is now grounded solely upon the jury’s

8
Tenn . Code A nn. § 39- 13-202 (1997 R epl.); Hurley, 876 S.W.2d at 70.

- 3 0 -
finding that the murder was committed during the perpetration of aggravated burglary.

Since the felony murder aggravating circumstance in this case also is based upon the

jury’s finding that the murder was committed while the defendant was engaged in

committing a burglary, the Court of Criminal Appeals correctly held that the trial

court’s action in striking the verdicts on counts one and three of the indictment

resulted in an error under Middlebrooks.

The State says that this Court need only reinstate the jury’s verdicts on counts

one and three of the indictment to alleviate the Middlebrooks error. We are

constrained to disagree. Had the trial court upheld the jury’s verdicts with respect to

counts one and three of the indictment, reliance upon the felony murder aggravating

circumstance would not be precluded by Middlebrooks. However, we are unable to

reinstate those verdicts, because, as the Court of Criminal Appeals found, once

vacated, the jury’s findings with respect to those two counts were rendered void. See

Black’s Law Dictionary 1548 (6th ed. 1990) (defining “vacate” as “[t]o annul; to set

aside; to cancel or rescind. To render an act void; as to vacate an entry of record,

or a judgment.”); State v. Davis, 613 S.W.2d 218, 221 (Tenn. 1981). Moreover, in

striking the jury’s verdicts on those two counts of the indictment, the trial court relied

upon his authority as the thirteenth juror. It is well-established that when a trial judge

sets aside a verdict, he has not approved it as the thirteenth juror, and unless the trial

court approves a verdict as the thirteenth juror, the verdict is invalid. Id. Accordingly,

we are unable to reinstate the jury’s verdicts with respect to counts one and three of

the indictment. However, we agree with the State and the Court of Criminal Appeals

that the Middlebrooks error is harmless in this case.

- 3 1 -
 A jury’s reliance upon an invalid aggravating circumstance is harmless beyond

a reasonable doubt if an appellate court can conclude that the sentence would have

been the same had the sentencing authority given no weight to the invalid

aggravating circumstance. Nichols, 877 S.W.2d at 738. In Howell, this Court stated

that when conducting harmless error analysis, it is important

to completely examine the record for the presence of factors which
potentially influence the sentence ultimately imposed. These include,
but are not limited to, the number and strength of remaining valid
aggravating circumstances, the prosecutor’s argument at sentencing,
the evidence admitted to establish the invalid aggravator, and the
nature, quality and strength of mitigating evidence.

....
[E] ven more crucial than the sum of the remaining aggravating
circumstances is the qualitative nature of each circumstance, its
substance and persuasiveness, as well as the quantum of proof
supporting it. In that respect, the Tennessee statute assigns no relative
importance to the various statutory aggravating circumstances. By
their very nature, and under the proof in certain cases, however, some
aggravating circumstances may be more qualitatively persuasive and
objectively reliable than others....

Id., 868 S.W.2d at 260-61.

As we have previously recognized, that is particularly true of the aggravating

circumstance remaining in this case, previous convictions of felonies involving the

use of violence to the person. Nichols, 877 S.W.2d at 738. Indeed, the remaining

valid aggravating circumstance in this case was supported by three valid prior violent

felony convictions. The prosecutor did not emphasize the invalid felony murder

aggravating circumstance in his argument. No additional proof of the invalid felony

murder aggravating circumstance was introduced during the penalty phase. Finally,

the nature and quality of the mitigating evidence was weak, consisting of the

- 3 2 -
defendant’s testimony that he had family members with whom he kept in contact; that

he followed prison rules while incarcerated; that he had worked in the past; and that

he had not committed the crime of which he had been convicted. Applying the Howell

analysis to the record in this case, we conclude that the sentence would have been

the same had the sentencing authority given no weight to the invalid aggravating

circumstance. Accordingly the Middlebrooks error resulting from the trial court’s

action is harmless beyond a reasonable doubt.

V. CUMULATIVE ERROR

The defendant’s next contention is that this Court should remand for a new

sentencing hearing because of the cumulative prejudicial effect of errors occurring

in the penalty phase of his trial. The defendant is correct that the combination of

multiple errors may necessitate the reversal of a death penalty even if individual

errors do not require relief. Bigbee, 885 S.W.2d at 812; see also State v. Brewer,

932 S.W.2d 1, 28 (Tenn. Crim. App. 1996). However, we have carefully reviewed the

record in this case and considered the errors assigned by the defendant, both

individually and cumulatively, and have determined that none constitute prejudicial

error requiring a reversal and remand for a new sentencing hearing.

VI. PROPORTIONALITY REVIEW

In the recent case of State v. Bland, 958 S.W.2d 651 (Tenn. 1997), this Court

discussed in detail the precedent-seeking analysis which has been employed over

the past eighteen years to determine whether the death sentence imposed in a

particular case is disproportionate to the sentence imposed in similar cases. In

conducting comparative proportionality review, we begin with the presumption that

- 3 3 -
the sentence of death is proportional to the crime of first degree murder. Therefore,

as we emphasized in Bland, the purpose of comparative proportionality review is to

“eliminate the possibility that a person will be sentenced to death by the action of an

aberrant jury and to guard against the capricious or random imposition of the death

penalty.” Id., __ S.W.2d at ___.

As we had previously explained, and reaffirmed in Bland, comparative

proportionality review is not a rigid, objective test. Id., __ S.W.2d at __, Slip Op. at 23;

Cazes, 875 S.W.2d 253, 270 (Tenn. 1994). We do not employ a mathematical

formula or scientific grid, nor are we bound to consider only those cases in which

exactly the same aggravating circumstances have been found by the jury. State v.

Brimmer, 876 S.W.2d 75, 84 (Tenn. 1994). After identifying a pool of similar cases,

we consider a multitude of variables, some of which were listed in Bland, in light of

the experienced judgment and intuition of the members of this Court. Bland, __

S.W.2d at ___. With respect to the circumstances of the offense, relevant factors

enumerated in Bland include: (1) the means of death; (2) the manner of death (e.g.,

violent, torturous, etc.); (3) the motivation for the killing; (4) the place of death; (5) the

similarity of the victims’ 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 effects on nondecedent victims.

With respect to comparing the character of the defendants, the following factors were

listed in Bland as relevant: (1) the defendant’s prior criminal 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;

- 3 4 -
(5) the defendant’s cooperation with authorities; (6) the defendant’s remorse; (7) the

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

rehabilitation.

Applying that analysis, we conclude that imposition of the death penalty for

the senseless and unprovoked killing of this woman in her own home is not

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

the crime and the defendant. The defendant’s conduct demonstrates a complete

disregard for human life. Cribbs and his partner in crime were interrupted while

burglarizing the Harris home. Rather than leaving the residence after ordering Sidney

Harris to release his partner, Cribbs instead ordered Harris at gunpoint to sit in a

chair. Cribbs told Harris that he was going to shoot him, and then proceeded to

follow through on that statement. From his subsequent statements to Cannon, it

appears that Cribbs intended to kill Sidney Harris. Before leaving the residence,

Cribbs murdered Linda Harris by placing the shotgun against her head and firing.

The victim’s brains were literally blown out of her skull. There is no logical

explanation for the defendant’s actions. Linda Harris apparently had been rendered

unconscious by the initial attack she sustained upon entering the house. Therefore,

she could not have identified Cribbs, a stranger to her, and the unconscious victim

could not have provoked Cribbs in any way. There is no apparent motive for the

murder, though it possibly could have been a case of mistaken identity in light of the

intruder’s question to Sidney Harris asking for the “dope.” The senseless murder of

Linda Harris occurred in her own home, a place where individuals ordinarily enjoy the

most security. Cribbs also seriously injured Sidney Harris, who remained in the

hospital twenty-two days. Cribbs, a twenty-three-year-old male, previously had been

- 3 5 -
convicted of three violent felony offenses. There was little proof about his mental,

emotional, and physical condition. He testified that he had attended school through

the seventh grade, but had dropped out after being expelled for truancy. Cribbs did

not cooperate with the police in this case. In fact, he denied involvement in the

murder, even after the jury had found him guilty. In conjunction with his claims of

innocence, Cribbs said that he regretted that the murder had been committed. There

was little proof with respect to the defendant’s capacity for rehabilitation. However,

Cribbs stated that he could conduct himself as a decent individual in prison, and

claimed that he had followed prison rules during his previous term of incarceration.

Considering the nature of this crime and the character of this defendant, this murder

places Cribbs 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.

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

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

during the course of a robbery. As in this case the killing was unprovoked and

without motive. The defendant did not cooperate with the authorities and did not

express remorse. While no specific evidence was presented on the issue of his

potential for rehabilitation, Howell had a prior criminal record. The jury found the

defendant guilty of first degree felony murder and sentenced him to death upon

finding two aggravating circumstances, that the defendant had been previously

convicted of felonies involving the use of violence to the person, including first degree

murder, armed robbery, and attempted first degree murder, Tenn. Code Ann. § 39-2-

- 3 6 -
203(i)(2) (1982), and that the murder was committed while the defendant was

engaged in committing a felony, Tenn. Code Ann. § 39-2-203(i)(7) (1982). This Court

found that the jury’s reliance upon the felony murder aggravating circumstance

violated the principle announced in Middlebrooks, but upheld the sentence of death,

concluding, as in this case, that the error was harmless beyond a reasonable doubt.

The mitigation proof related to the defendant’s childhood environment and

psychological testing.

In State v. Hurley, 876 S.W.2d 57 (Tenn. 1993), the thirty-four-year-old

defendant shot the victim once in the head, killing him, and then robbed the victim

and burned his body. As in this case, the assault was entirely unprovoked and

unexplained. The defendant did not cooperate with the authorities and expressed no

remorse for the killing. The jury found the defendant guilty of both premeditated and

felony first degree murder, and as in this case, erroneously imposed two sentences

of death. This Court upheld the conviction for premeditated first degree murder and

the sentence of death which was based upon the jury’s finding of the sole

aggravating circumstance, that the murder was committed while the defendant was

engaged in committing a felony, robbery. Tenn. Code Ann. § 39-2-203(i)(7) (1982).

Little or no mitigating proof was presented.

In State v. Bell, 745 S.W.2d 858 (Tenn. 1988), the twenty-eight-year-old

defendant was found guilty of both premeditated and felony first degree murder.

During the burglary of a residence, the defendant shot a sleeping man when a female

resident called out upon seeing the defendant in the dark. At the preliminary hearing,

the female resident identified Bell as the assailant, claiming that she had recognized

- 3 7 -
him at the time of the assault, but because he was a neighbor, had been afraid to

identify him to police. As in this case, the senseless murder occurred during the

course of a burglary of the victim’s home. The jury imposed a sentence of death

upon finding three aggravating circumstances, including the felony murder

aggravating circumstance. Tenn. Code Ann. § 39-2-203(i)(7) (1982).9 Though he

had no prior violent felony convictions, the defendant did have a prior criminal record,

and as in this case, there was little mitigating proof.

In State v. Terry King, 718 S.W.2d 241 (Tenn. 1986), the twenty-one-year-old

defendant was convicted of first degree murder for the killing of a female companion.

King and the victim had been taking drugs and engaging in sexual relations

intermittently throughout the day. When the victim accused King of raping her, he

obtained a gun from a friend, ordered her into the trunk of her car, drove to a wooded

area, and ordered her out the trunk. The victim begged for her life and offered King

money to release her, but he told her to turn her back to him and then shot her with

a high-powered rifle in the back of the head. King and an accomplice robbed the

victim, hid her body and stole her car. Eventually, King cooperated with the police,

and gave a statement admitting his involvement in the killing. The jury imposed the

death penalty upon finding four aggravating circumstances, including that the

defendant had been previously convicted of the violent felony offenses of first degree

murder during the perpetration of armed robbery, aggravated kidnapping, and assault

with intent to commit aggravated kidnapping. Tenn. Code Ann. § 39-2-203(i)(2)

9
The jury also found that the defendant knowingly created a great risk of death to two or
more persons other than the victim during the act of the murder, and that the murder was
committed for the purpose of avoiding, interfering with, or preventing a lawful arrest or prosecution
of the de fendan t or anothe r. Tenn . Code A nn. § 39- 2-203(i)(3 ) & (6) (19 82).

- 3 8 -
(1982). The jury also found that the murder was committed while the defendant was

engaged in committing a felony. Tenn. Code Ann. § 39-2-203(i)(7) (1982).

Finally, in State v. Tommy King, 694 S.W.2d 941 (Tenn. 1985), the thirty-three-

year-old defendant was convicted of first degree murder for killing the proprietor of

a tavern during the course of a robbery. The victim was shot in the neck and died a

week later from the wound in the hospital. The jury found three aggravating

circumstances, including that the murder was committed while the defendant was

engaged in committing a felony offense, and that the defendant had been previously

convicted of felony offenses involving the use of violence to the person. Tenn. Code

Ann. § 39-2-203(i)(2) & (7) (1982).10 Little mitigating proof was offered, but the

defendant claimed he was morally justified because the victim had refused to pay him

for merchandise, and because the shooting had been accidental. The defendant’s

claim was contradicted by a great deal of proof which the jury obviously credited.

We have repeatedly emphasized that no two cases are identical, but the

above cases have many similarities with the facts of this case. In all five cases,

death was caused by a gunshot wound to he head or neck of the victim. The

murders were unprovoked and the only apparent motive for each was the defendants’

desire to accomplish another criminal act. Like Cribbs, in four of the cases, the

defendants had been previously convicted of felony offenses involving the use of

violence to the person. Also like Cribbs, many of the defendants offered little proof

in mitigation of the offense, and did not cooperate with the police. After reviewing the

10
The jury also found that the defendant knowingly created a great risk of death to two or
more people other than the victim, during the act of murder. Tenn. Code Ann. § 39-2-203(i)(3)
(1982).

- 3 9 -
cases discussed above and many other cases not herein detailed, 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.

CONCLUSION

In accordance with the mandate of Tenn. Code Ann. § 39-13-206(c)(1) (1997

Repl.), 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

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

§ 39-13-206(c)(1)(A) - (C) (1997 Repl.). We have considered the defendant’s

assignments of error and determined that none require reversal. With respect to

issues not specifically addressed herein, we affirm the decision of the Court of

Criminal Appeals, authored by Judge Gary R. Wade, and joined in by Judge Joe B.

Jones and Judge William M. Barker. 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 17th day of

August, 1998 unless otherwise ordered by this Court or other proper authorities.

_____________________________________
FRANK F. DROWOTA, III,
JUSTICE

Concur:
Anderson, C.J.,

- 4 0 -
Holder, J.

Reid, J. - Separate concurring/dissenting opinion.
Birch, J. - Separate concurring/dissenting opinion.

- 4 1 -
 Appendix
(Excerpts from the Court of Criminal Appeals’ Decision)
 IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
MARCH 1996 SESSION

STATE OF TENNESSEE, * C.C.A. # 02C01-9508-CR-00211
Appellee, * SHELBY COUNTY
VS. * Hon. W. Fred Axley, Judge
PERRY A. CRIBBS, * (Death Penalty)

Appellant. *

For Appellant: For Appellee:

A. C. Wharton Charles W. Burson
District Public Defender Attorney General & Reporter
201 Poplar Avenue
Suite 201 John P. Cauley
Memphis, TN 38103-1947 Assistant Attorney General
450 James Robertson Parkway
W. Mark Ward Nashville, TN 37243-0493
Assistant Public Defender
147 Jefferson, Suite 900 James Wax and David Shapiro
Memphis, TN 38103 Assistant District Attorneys General
201 Poplar Avenue, Third Floor
Memphis, TN 38103

OPINION FILED: February 14, 1997

AFFIRMED

GARY R. WADE, JUDGE

- 4 3 -
 OPINION

I.

Initially, the defendant claims that the identification evidence was

insufficient to support any of the three convictions. On appeal, however, the state is

entitled to the strongest legitimate view of the evidence and all reasonable inferences

which might be drawn therefrom. The credibility of the witnesses, the weight to be

given their testimony, and the reconciliation of conflicts in the evidence are matters

entrusted exclusively to the jury as the triers of fact. Byrge v. State, 575 S.W.2d 292,

295 (Tenn. Crim. App. 1978). A guilty verdict, approved by the trial judge, resolves

conflicting testimony in favor of the theory of the state. State v. Hatchett, 560 S.W.2d

627, 630 (Tenn. 1978). This court may set aside a conviction only when the

"evidence is insufficient to support the finding by the trier of fact of guilt beyond a

reasonable doubt." Tenn. R. App. P. 13(e).

Here, one of the victims, Sidney Harris, made an emotional and positive

identification of the defendant as the person "that shot me" from a photographic

lineup. At trial, he again identified the defendant as the second assailant. There was

corroborative evidence. Jacqueline Cannon observed the defendant covered in

blood on the night of the murder, described a watch that met the description of one

taken from the Harris residence, and overheard the defendant say that he "had shot

the lady and the man."

Here, the jury chose to accredit the testimony of the state's witnesses.

That was their prerogative. There is sufficient evidence of the identity of the

- 4 4 -
defendant, in our view, to support each of the convictions. See Jackson v. Virginia,

443 U.S. 307 (1979).

II.

The defendant next contends that the videotape introduced as evidence

for the state was unfairly prejudicial. The defendant asserts that there was no valid

reason to display the deceased victim lying in a pool of blood other than to inflame

the jury. The trial court did suppress those portions of the tape which were the most

gruesome. For example, the first deleted segment showed a portion of the victim's

brain matter separated from her skull and scattered across the kitchen floor; a

second segment displayed the shattered face and skull of the victim.

Rule 403 of the Tennessee Rules of Evidence permits trial courts the

discretion to exclude relevant evidence if the probative value of that evidence is

substantially outweighed by the dangers of unfair prejudice. See State v. Banks, 564

S.W.2d 947 (Tenn. 1978). The trial court must abuse its discretionary authority

before this court may consider a reversal.

In this instance, the trial court clearly exercised discretion by admitting

only the least gruesome of what is otherwise relevant evidence. As noted in Banks,

"shocking and horrifying the jury emotionally does not assist them in making a

reasoned determination of how serious the crime is...." Id. at 952.

- 4 5 -
 In the context of the trial and the circumstances of the crime, it is our

view that the trial court did not abuse its discretion. The videotape of the crime scene

was probative. While frightening, the videotape was not so inflammatory as to

substantially outweigh its probative value. Similar evidence was admitted in State v.

Van Tran, 864 S.W.2d 465, 477 (Tenn. 1993); while the supreme court ordered that

an accompanying narration by the officer should have been excluded, it held that the

probative value of the evidence outweighed any possible prejudice. Id. We cannot

make a distinction between the facts in this case and those in Van Tran, also a death

penalty case, and thus find no error. Other examples of death penalty cases in which

crime scene videotapes were used are State v. Bates, 804 S.W.2d 868, 878-79

(Tenn. 1991), and State v. Payne, 791 S.W.2d 10, 19-20 (Tenn. 1990), aff'd, 501

U.S. 808 (1991).

III.

The defendant next complains that the photographic lineup was unduly

suggestive. He bases the claim on the fact that police had informed the victim in

advance that they had a suspect and that the photograph of the defendant, from the

total of seven presented, was the only one that had a question mark by the

identification number.

To be admissible as evidence, an identification must not have been

conducted in such an impermissibly suggestive manner as to create a substantial

likelihood of irreparable misidentification. Simmons v. United States, 390 U.S. 377

(1968). In Neil v. Biggers, 409 U.S. 188 (1972), the Supreme Court held that a

reliable identification procedure, even though suggestive, will not negate an

- 4 6 -
identification of the defendant. The factors determining whether the procedure was

too suggestive to accept as reliable were determined to be the following:

(1) the opportunity of the witness to view the criminal
at the time of the offense;

(2) the witness' degree of attention;

(3) the accuracy of the witness' prior description of the
individual;

(4) the level of certainty demonstrated by the witness
at the confrontation; and

(5) the time between the crime and the confrontation.

Id. at 199.

Initially, a physical or a photographic lineup is the preferred means of

identification. Either has been determined to be much less suggestive than a

"showup," where the victim is either presented with the suspect or a single

photograph of the suspect. State v. Terry M. Henderson, slip op. at 5, No. 01C01-

9401-CR-00012 (Tenn. Crim. App., at Nashville, October 6, 1994). Beyond that, the

extent to which an identification procedure may suggest a single suspect, even with

the Neil v. Biggers factors, is largely subjective. If the procedure qualified as being

suggestive, the defendant could have relied on several other facts to support his

argument: that the encounter lasted less than a minute, that there was no direct light

in the Harris residence, that the defendant wore a stocking over his face, and that Mr.

Harris may have suffered diminished capacity due to his injuries. All of that would

favor the suppression of the lineup identification. There exist, however, other more

significant factors favorable to the state. There was proof that Harris did not know

whether or not a photograph of the suspect was in the original array. The victim

- 4 7 -
testified that the photograph of the defendant was among the third or fourth that he

saw and that he immediately recognized the defendant as his assailant. All of the

photographs included profile and frontal views of black males with similar

complexions, moustaches, and hair length. All of the individuals were dressed in t-

shirts and two were wearing jackets. None appear to stand out from the others in any

way. The victim looked at several other lineups which did not include photographs

of the defendant and he was unable, of course, to identify anyone else. The victim

stated that he paid no attention to the numbers underneath the individuals in the

photographs before making the identification. To the objective eye, the question

mark appears to be associated with the number underneath the photograph and not

the individual therein.

In order to determine whether the pretrial photographic lineup was so

unnecessarily suggestive as to violate constitutional due process, this court must

examine the totality of the circumstances existing at the time of the identification.

See Stovall v. Denno, 388 U.S. 293 (1967). Absent a showing by the defendant that

the evidence preponderates against the judgment of the trial court, this court must

defer to the ruling of the trial court. State v. Davis, 872 S.W.2d 950, 955 (Tenn. Crim.

App. 1993). By the use of these guidelines, our assessment is that the process was

not suggestive. Even if it had been, the photographic identification was still properly

admitted into evidence by the use of the Neil v. Biggers criteria. The victim saw the

defendant at a distance of less than five feet for over thirty seconds. Despite the

stocking, the victim specifically recalled the facial features of the defendant. The

victim described the defendant as having a moustache, thick eyebrows, and a large

round nose. The height and weight descriptions were consistent with the defendant's

- 4 8 -
actual appearance. The victim testified that a beam of light from the carport allowed

for a clear view of his assailant.

IV.

Having found no reversible error in our analysis of the trial, the

judgments of conviction are affirmed. We now turn to those grounds alleged to have

affected the propriety of the sentence of death.

V.

The defendant claims the trial court undermined the defense by

illustrating to the jury those statutory mitigating circumstances the defense did not

actually raise. The defendant concedes that the supreme court has consistently

recognized this error to be harmless absent a clear showing of prejudice. See State

v. Smith, 893 S.W.2d 908, 921 (Tenn. 1994); State v. Teel, 793 S.W.2d 236, 252

(Tenn. 1990); State v. Carter, 714 S.W.2d 241, 251 (Tenn. 1986). He claims

prejudice because the prosecutor read the list of statutory mitigators submitted by the

defense and argued that the defendant failed to prove any of them. The prosecutor's

actions appear to be little more than an attempt to evaluate the proof; accordingly,

any error could be classified as harmless.

VI.

Next, the defendant claims the trial judge should have instructed the

jury that its sentence would actually be carried out to the extent provided by law.

- 4 9 -
Specifically, the defendant suggests that without the instruction, the jury would

speculate that the death penalty might not be carried out and that he might be

released in a few years even if sentenced to life without parole. The defendant cites

to an instance in the record where a prospective juror, who did not sit on the case,

actually questioned the validity of the sentences. The defendant reasons that the

comments by the prospective juror and those of the court in issuing its charge may

have influenced jurors on the panel.

Our supreme court has consistently found this special request made by

the defendant to be improper. See Van Tran, 864 S.W.2d at 481; State v. Caughron,

855 S.W.2d 526, 543 (Tenn. 1993); State v. Payne, 791 S.W.2d 10, 21 (Tenn. 1990),

aff'd, 501 U.S. 808 (1991); State v. Melson, 638 S.W.2d 342, 367 (Tenn. 1982). So,

without further comment, we reject the contention of the defendant.

The defendant also insists that the trial court committed reversible error

by refusing to instruct the jury that it could consider sympathy when deciding on a

sentence. He argues that the trial court should not have charged the jury to render

its verdict on the law and the facts rather than any sympathetic notions for the

defendant. By rejecting this argument, the trial judge acted in perfect accordance

with established precedent. See State v. Smith, 893 S.W.2d 908, 921 (Tenn. 1994);

State v. Bigbee, 885 S.W.2d 797, 814 (Tenn. 1994); State v. Cazes, 875 S.W.2d

253, 168 (Tenn. 1994); State v. Harris, 839 S.W .2d 54, 75 (Tenn. 1992). Thus, we

hold that this claim is without merit.

VII.

- 5 0 -
 While acknowledging that the supreme court has consistently upheld

the death penalty statute under similar attacks, the defendant insists that our statute

fails to meaningfully narrow the class of death eligible defendants. He contends that

the death sentence is imposed capriciously and arbitrarily; that electrocution is cruel

and unusual punishment; and that the appellate review process is constitutionally

inadequate.

Based upon a long line of authority, we must reject each claim. See

State v. Smith, 893 S.W.2d 908 (Tenn. 1994); State v. Brimmer, 876 S.W.2d 75

(Tenn. 1994); State v. Cazes, 875 S.W.2d 253 (Tenn. 1994); State v. Smith, 857

S.W.2d 1 (Tenn. 1993); State v. Black, 815 S.W.2d 166 (Tenn. 1991); State v. Boyd,

797 S.W.2d 589 (Tenn. 1990); State v. Teel, 793 S.W.2d 236 (Tenn. 1990); State v.

Thompson, 768 S.W.2d 239 (Tenn. 1989).

Specifically, the defendant argues that our statutory scheme fails to

meaningfully narrow the class of death eligible defendants. Our supreme court

reviewed and dismissed this argument in State v. Howell, 868 S.W.2d 238, 258

(Tenn. 1993).

The defendant also contends that the statute is unconstitutional

because district attorneys have unlimited discretion in whether to seek the death

penalty or not. Our supreme court rejected this argument in Brimmer, 876 S.W.2d

at 86. See also Cooper v. State, 847 S.W.2d 521, 536-38 (Tenn Crim. App. 1992).

- 5 1 -
 Next, the defendant insists that the statute is unconstitutional because

it is imposed in a discriminatory fashion. This very argument was rejected by the

supreme court in Brimmer, 876 S.W.2d at 87 n. 5. See also State v. Evans, 838

S.W.2d 185, 196 (Tenn. 1992).

Next, the defendant complains that the denial of individual sequestered

voir dire of prospective jurors in capital cases violates constitutional principles. In

Cazes, 875 S.W.2d at 269, our supreme court rejected this contention. See also

Caughron, 855 S.W.2d at 542.

Next, the defendant submits that the death qualification process for

prospective jurors creates a "prosecution-prone, guilt-prone jury." Noting the

contention has also been rejected by the United States Supreme Court, our supreme

court rejected this contention as meritless in Teel, 793 S.W.2d at 246.

The defendant alleges that he was unlawfully prohibited from

addressing jurors' misconceptions about sentencing. This argument has been

routinely rejected by our supreme court. See Brimmer, 876 S.W.2d at 86-87; Cazes,

875 S.W.2d at 268; Black, 815 S.W.2d at 179.

Next, the defendant asserts the jury should have been informed of the

effect of a non-unanimous verdict; that is, that the penalty shall be a life sentence.

Tenn. Code Ann. § 39-13-204(h). This contention was rejected by our supreme court

in Brimmer, 876 S.W.2d at 87, Cazes, 875 S.W.2d at 268, and Smith, 857 S.W.2d

at 22-23. In a related argument, the defendant asserts that requiring the jury to

- 5 2 -
unanimously agree on a life sentence violates the standards enunciated in McKoy v.

North Carolina, 494 U.S. 433 (1990), and Mills v. Maryland, 486 U.S. 367 (1988).

This claim has consistently been found to be without merit by our supreme court.

See Brimmer, 876 S.W.2d at 87; Thompson, 768 S.W.2d at 250.

The defendant also insists that the statute is unconstitutional because

the jury is not required to make the ultimate determination that death is the

appropriate penalty. Again, our supreme court has rejected this contention. See

Brimmer, 876 S.W.2d at 87; Smith, 857 S.W.2d at 22.

Next, the defendant complains about his being denied the opportunity

to present the final closing argument in the penalty phase of the trial. Our supreme

court has rejected this contention in at least two prior cases. See Brimmer, 876

S.W.2d at 87 n. 5; Caughron, 855 S.W.2d at 542.

The defendant also contends that death by electrocution is cruel and

unusual punishment. Our supreme court has repeatedly rejected this notion. See

Nichols, 877 S.W.2d at 737; Cazes, 875 S.W.2d at 268; Howell, 868 S.W.2d at 258.

The defendant submits that appellate review in death penalty cases is

constitutionally inadequate. Again, our supreme court has found the claim to be

meritless. See Harris, 839 S.W.2d at 77.

Finally, the sentence is neither excessive nor disproportionate to the

- 5 3 -
penalty imposed in similar cases. The sentence does not appear to have been

imposed in an arbitrary fashion. Proof of the valid, remaining aggravating

circumstance outweighs the proof of mitigating circumstances.

Accordingly, the judgment is affirmed.

- 5 4 -