State v. Hall

IN THE SUPREME COURT OF TENNESSEE
AT KNOXVILLE
FILED
December 15, 1997

FOR PUBLICATION
Cecil Crowson, Jr.
Appellate C ourt Clerk
STATE OF TENNESSEE, ) Filed: December 15, 1997
)
Appellee, ) Hamilton County
)
v. ) Hon. Stephen M. Bevil,
) Judge
LEROY HALL, JR., )
)
Appellant, ) Supreme Court
) No. 03-S01-9701-CR-00010

FOR APPELLANT: FOR APPELLEE:

Brock Mehler John Knox Walkup
Nashville, Tennessee Attorney General & Reporter
(Appeal Only)
Michael E. Moore
William R. Heck Solicitor General
212 James Building
Chattanooga, Tennessee
(Trial and Appeal) Amy L. Tarkington
Assistant Attorney General
Karla G. Gothard Nashville, Tennessee
701 Cherry Street
Chattanooga, Tennessee William H. Cox, III
(Trial Only) District Attorney General
Eleventh Judicial District

and

Thomas J. Evans
Assistant District Attorney General
Chattanooga, Tennessee

OPINION

TRIAL COURT AND
COURT OF CRIMINAL APPEALS AFFIRMED. DROWOTA, J.
 In this capital case, the defendant, LeRoy Hall, Jr., was convicted of

premeditated first degree murder and aggravated arson.1 In the sentencing hearing,

the jury found two aggravating circumstances: (1) “[t]he murder was especially

heinous, atrocious or cruel in that it involved torture or serious physical abuse beyond

that necessary to produce death;” and (2) “[t]he murder was committed while the

defendant was engaged in committing or was attempting to commit, arson.” Tenn.

Code Ann. § 39-13-204(i)(5) and (7) (1991). Finding that the two aggravating

circumstances outweighed mitigating circumstances beyond a reasonable doubt, the

jury sentenced the defendant to death by electrocution.

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

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

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

Criminal Appeals affirmed the trial court’s judgment. Thereafter, pursuant to Tenn.

Code Ann. § 39-13-206(a)(1) (1996 Supp.), 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

August, 27, 1997, entered an Order, limiting review at oral argument to four issues

1
Although not raised as an issue in this appeal, the trial judge imposed a twenty-five year
sen tenc e on t he co nvictio n for aggr avate d ars on, c ons ecu tive to the d eath pena lty.

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.”

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and setting the cause for the September, 1997, term of this Court in Knoxville. 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 Court of Criminal

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

of death by electrocution is affirmed.

FACTUAL BACKGROUND

The evidence presented at the guilt phase of the trial demonstrated that

around midnight on April 16, 1991, the defendant threw gasoline on the victim, Traci

Crozier, his ex-girlfriend, as she was lying in the front seat of her car. The victim

received third degree burns to more than ninety percent of her body and died several

hours later in the hospital. When questioned by police, the defendant initially denied

involvement in the offense. Eventually, however, Hall admitted responsibility, but

claimed that he did not intend to kill the victim; he intended to burn her car.

The victim met the defendant in December of 1984. They began living

together in January of 1986, and continuously resided together until, three weeks

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.”

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prior to her murder. On March 26, 1991, the victim left and moved into the house

with her grandmother, Gloria Mathis, and her uncle, Chris Mathis. After the

separation, the defendant would frequently, and often late at night, call the Mathis

home in search of the victim. In the early morning hours of April 6, 1991, the Mathis

household was awakened by a dog barking and looked outside to see the victim’s

car, a two-door Nissan Pulsar, burning. The victim’s uncle saw the defendant running

away from the burning car and fired a gunshot into the air. The fire department was

called to extinguish the fire and investigate the arson. When the defendant called the

Mathis house thereafter, the victim’s uncle threatened Hall in the event he did not

leave the victim alone. The defendant responded: “If I can’t have her, nobody can’t.”

[sic]

On the night of April 16, 1991, shortly before midnight, Viola Wylene Price was

sitting in her car outside her home when she saw “a ball of fire” in the middle of the

street. As she started to get out of her car, a black car, later identified as being

similar to the defendant’s, sped away from the scene. After the car passed, Price ran

into her house and called 911. Her son, Billy Ray Wilson, was inside and when he

heard his mother call for emergency assistance, he ran outside to see what was

happening. When he saw the burning car and heard someone inside it screaming

for help, Wilson ran to the driver’s side of the car. Though the door was open, he

could not see anyone through the flames. Wilson ran around to the passenger side

of the car where he saw the victim attempting to get out through the window. Wilson

pulled the victim from the car, removed her burning shoes and clothes, helped her

extinguish the flames on her body, and assisted her to a safe distance from the

burning car in the event of an explosion.

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 Price returned to the scene after calling for emergency assistance. Though

the victim had been so badly burned that her hair was melted and skin was hanging

from her arms, she remained coherent and alert. The victim expressed concern

about her appearance and the likelihood of permanent scarring from the burns. She

gave Price her name and telephone number. When Price asked the victim for the

identity of the perpetrator, the victim responded, “Lee Hall.” The victim also told Price

that Hall twice previously had set fire to her car. The victim told Wilson that the

defendant “threw gas on me, gas bomb.” She repeated,”it was gas, gas bomb. He

set me on fire.”

Earl Atchley, Commander of the Chattanooga Fire Department, received the

911 call at 12:06 a.m. on April 17, 1991. When he arrived at the scene the victim’s

car was “fully involved” in fire and the victim was badly burned. Though Commander

Atchley did not recognize her, the victim remembered him as the person who had

investigated the burning of her car on April 6, 1991.4 The victim told Commander

Atchley that the same person was responsible for both incidents. Commander

Atchley recovered a melted plastic container next to the driver’s side of the victim’s

car, and a tupperware lid, which was not as badly melted, near the car.

The victim was taken to Erlanger Hospital where she was treated by Dr. Sonya

Merriman, a plastic surgeon and burn specialist. Describing the victim’s condition,

Dr. Merriman stated, “She had a 95 percent, what we call a total body surface area

burn, 95 percent of her body was burned, and all but about two to three percent of

4
In addition to the fire on April 6, 1991, the victim’s car was burned on April 1, 1991. The
defendant was indicted for arson related to these fires, but the trial court severed these counts, and
they were later dism issed.

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that was third degree burns.” The victim’s teeth were charred, and the hair was

burned off her body. Based upon the consistency and uniformity of the burns over

the victim’s entire body, except the soles of her feet, Dr. Merriman opined that the

victim’s body had been doused with gasoline, rather than splattered or splashed.

Although Dr. Merriman had treated nearly one hundred burn cases, she had never

seen a worse or more uniform pattern of burning on an individual.

The victim was treated with intravenous fluids and incisions in her body

designed to allow tissue expansion. Nonetheless, the victim’s condition deteriorated.

Her tongue swelled until it protruded from her mouth, and her eyelids became

inverted from the swelling. Despite the gravity and extent of her injuries, however,

Dr. Merriman testified that the victim remained conscious. She was also in constant

pain. According to Dr. Merriman, the medication administered to the victim would not

have been strong enough to alleviate her pain, and the victim did not sleep for long

periods of time or lose consciousness until just before her death. The victim,

according to Dr. Merriman, sustained an unsurvivable burn from which there was

never any chance of recovery.

Ed Forester, an investigator with the Arson Division of the Chattanooga Police

Department, examined the victim’s car after both the April 6 and April 16 fires. His

investigation of the April 6 fire revealed that an accelerant had been poured around

the exterior edges of the car which melted the fenders and bumpers. A yellow plastic

jug found at the scene tested positive for gasoline. Forester obtained an arrest

warrant for the defendant based, in part, upon the statements of the victim’s uncle.

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 Forester testified that the vehicle burned on April 6 was the same automobile

involved in the fire on April 16, 1991. The most extensive damage resulting from the

fire on April 16 was to the driver’s side of the car. The metal was discolored; the roof

sagged; and the seat springs were weakened. The glass on the passenger side was

fire and carbon stained; however, glass found on the driver’s side had no such

markings. The lack of fire or carbon staining indicated that the glass on the driver’s

side had been broken out before the fire was started. A melted plastic container was

found near the open driver’s door of the victim’s vehicle. The victim’s socks, shoes,

and clothing remains were recovered and later tested positive for the presence of

gasoline. Car keys were found some thirty feet away from the victim’s car.

Mike Donnelly, an arson investigator with the State of Tennessee Fire

Marshall’s Office, also examined the victim’s car. He found evidence of three

separate fires to the car. Based upon the extent of damage, Donnelly opined that the

April 16 fire had been started on the driver’s side of the vehicle. Based upon his

examination of the car and his review of photographs of the victim, Donnelly testified

that gasoline had been poured directly onto the victim.

Testifying for the defense during the guilt phase of the trial were Morris

Forester and Jeffery Scott Green. Forester and Green had been drinking with the

defendant in the early evening of April 16, 1991. The trio consumed about two and

one-half cases of beer and were intoxicated. Forester went to bed around 10:30 p.m.

and did not see the defendant thereafter. Green recalled seeing the defendant

between 10:30 and 11:00 p.m. Because he knew the defendant was intoxicated and

unable to drive, Green tried to persuade the defendant to spend the night at

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Forester’s home. Eventually, however, the defendant left, and neither Green nor

Forester saw him again until after the murder.

The defendant also testified in his own behalf. According to his testimony, he

and the victim began living together in January of 1986, when he was eighteen and

she was sixteen years old. Even though the victim moved out in March of 1991, they

continued to see one another after the separation. The defendant said he was upset

by the separation, and as a result, had been drinking and smoking crack cocaine.

On the day of the murder, Hall and Green went directly to Forester’s house and

began drinking beer. At one point, Hall left and obtained a hammer at a pawn shop.

After attempting to call the victim several times, without success, Hall returned to

Forester’s home about 6:30 p.m. or 7:00 p.m. and continued drinking.

Hall consumed approximately one case of beer, then left Forester’s home,

taking with him five more cans of beer. After purchasing another six cans of beer,

Hall drove to the mobile home he had shared with the victim and destroyed some of

her possessions because he was angry with her for not coming home. Hall left the

trailer after a short time and took with him a two-quart tea jug which he intended to

use to burn the victim’s car. Searching for the victim and her car, Hall drove by her

work place, her grandmother’s house, and several bars, but he did not find her. Hall

was threatened by the victim’s uncle and a second man whom he did not know when

he drove by the victim’s grandmother’s house. Thereafter, Hall stopped at a service

station, filled the tea jug with gasoline, and purchased a cigarette lighter. Hall

removed paper towels from a dispenser near the gas pumps, placed them in the

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opening of the tea jug, put the container in his car, and returned to the area near the

victim’s grandmother’s house.

As Hall was preparing to leave the neighborhood, he encountered the victim

as she drove up in her car. According to Hall, he left his car and entered the victim’s

car on the driver’s side to talk. Hall asked her to move back in with him and told her

that he was drunk and needed her. He asked the victim if she was pregnant and told

her that she could not have another abortion. Finally, Hall questioned why he had

been blamed for the earlier burnings of her car. An argument ensued. The victim

called the defendant a “crazy S.O.B.,” and told him to turn himself into the authorities.

At that point, Hall got out of her car and told the victim to do likewise because

he was going to burn it. When the victim tried to lock the door, Hall reached inside

the car, grabbed the keys, threw them towards his car, and ordered the victim to get

out of her car. Hall then ran to his car and grabbed the jug of gasoline. He ignited

the paper towels and threw the jug into the driver’s side of the victim’s car. The

defendant knew the victim was lying in the front seat crying when he threw the gas

bomb into the car.

According to the defendant, after he threw the gasoline jug, the victim came

running toward him, out of the burning car, and caught him on fire. The defendant

extinguished the flame on himself and then just looked at the victim, who according

to the defendant, ran to the passenger’s side of the car, and rolled on the ground.

Unsure of what to do and believing that the fire on the victim was almost

extinguished, the defendant drove away from the scene. Although he claimed to

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have returned two or three minutes later, he did not see the victim, and he fled again

when a black shadowy figure ran toward him.

On cross-examination, the defendant denied pouring gasoline onto the victim,

claiming that it splattered on her when he threw the jug into the car. He also denied

breaking the glass on the driver’s window, insisting that the door was open. He

proclaimed that he loved the victim and intended only to burn her car. The defendant

admitted that he initially denied the offense when questioned by police. He also

claimed to the police that he never meant to hurt the victim and had the gas bomb for

protection from the victim’s uncle, but he threw it at the victim after she laughed at

him.

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

of first degree premeditated murder and aggravated arson.5

The trial proceeded to the sentencing phase on the conviction for first degree

murder. The State presented only one witness, Detective Ed Forester who had

investigated and obtained warrants for Hall’s arrest for the burning of the victim’s car

on April 1 and 6, 1991.6 According to Forester, at the time of the victim’s murder, the

5
The defe nda nt we nt to tr ial on th ree c harg es: (1 ) first d egre e m urde r by an unlaw ful,
intentional, premeditated and deliberate killing, (2) first degree murder by a reckless killing
committed during the perpetration of arson (felony murder), and (3) aggravated arson. He entered
guilty pleas before the jury to arson and felony murder. After the trial court refused to accept the
guilty pleas, the defendant persisted in admitting guilt to those crimes before the jury, contesting
only the charge that the killing was premeditated and deliberated. At the conclusion of the proof,
the trial court instructed the jury that it could return a guilty verdict for either felony murder or
premeditated murder, but not for both. Acting in accordance with the instructions, the jury found the
defendant guilty of aggravated assault and premeditated first degree murder. The jury did not
report a ve rdict on the charge of felony m urder.

6
See Footno te 4, supra.

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defendant was aware that he was a suspect in the April 1 and 6 incidents. Forester

also testified that the victim had given a statement following the April 6 fire in which

she said that Hall previously had threatened to kill her and to “total” her car, and, on

one prior occasion, actually had tried to force her off the road.7

The proof for the defense at sentencing included the testimony of Dr. Roger

Meyer, a clinical psychologist, who evaluated the defendant after his arrest for this

murder. Dr. Meyer interviewed Hall for three hours and reviewed the results of tests

administered to Hall by one of Dr Meyer’s associates.

Dr. Meyer testified that a mental status examination revealed that the

defendant was not insane or psychotic. A Slosson Intelligence test indicated that the

defendant’s IQ was eighty-seven, and that his mental age was thirteen years, eleven

months. The defendant’s basic skills, as measured by a Wide Range Achievement

test, showed a grade level 6 to 9 education in the general areas of reading, spelling,

and arithmetic. A neuropsychological examination did not reveal any evidence of

significant neurological trauma to Hall’s brain. A sixteen-factor personality test

revealed that Hall is introverted, emotionally unstable, easily influenced, and has low

self-esteem. According to Dr. Meyer, the test reflects that the defendant has little

self-control and is not rule abiding or moralistic. Though the defendant is not a

psychopath or sociopath, Dr. Meyer opined that Hall has problems controlling rage

and anger.

7
This evide nce was adm itted d uring the s ente ncin g pha se as part o f the p rose cutio n’s
attempt to establish the aggravating circumstance in Tenn. Code Ann. § 39-13-204(i)(6), which
provides that “[t]he murder was committed for the purpose of avoiding, interfering with, or
preventing a lawful arrest or prosecution of the defendant or another.” The jury, however, rejected
this factor .

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 A Rorschach “Ink Blot” test showed that Hall has a great deal of difficulty

reacting appropriately to stressful situations. Dr. Meyer described Hall and the

victim’s relationship as an “emotional tug of war,” and said that it would have created

a great deal of tension and frustration in a person with the defendant’s psychological

makeup. Though some of the test results indicated that the defendant was “faking

bad” or malingering, Dr. Meyer explained that such results do not necessarily mean

that a patient is faking, but can also reflect that a patient is simply overemphasizing

the stress and emotional problems he or she is experiencing.

Dr. Meyer diagnosed the defendant as suffering from borderline personality

disorder. Dr. Meyer testified that persons with this disorder characteristically have

severe emotional problems and problems with thinking and judgment. Dr. Meyer also

concluded that the defendant suffered from post-traumatic stress disorder, but

admitted that it may have resulted from the circumstances of the victim’s death.

On cross-examination, Dr. Meyer testified that the defendant is not mentally

retarded. He also conceded that his conclusions about the defendant‘s mental

condition were based, at least in part, upon a typographical error indicating that the

defendant’s IQ was seventy-eight (78), rather than eighty-seven (87). Despite his

reliance upon this erroneous information, Dr. Meyer did not revise his conclusions

about the defendant. He restated his diagnosis that the defendant exhibited signs

often associated with borderline personality disorder and post-traumatic stress

disorder and said that the defendant was under extreme emotional distress when he

committed the murder in this case.

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 Dr. Meyer admitted, however, that he did not discuss the facts of the murder

with the defendant, but considered only the events which occurred before and after

the killing in making his diagnosis. Dr. Meyer also did not reconsider his diagnosis

after receiving an investigator’s report which chronicled the defendant’s behavior

since childhood. Dr. Meyer admitted that the behavior described in the report would

support a diagnosis of antisocial personality disorder. The behavior included the

defendant’s burning of his own bed in 1972, setting fire to his mother’s boyfriend’s car

seat in 1973, setting fire to a wooded area in 1975, driving under the influence of an

intoxicant, fighting, sneaking up on his mother’s boyfriend with a knife, and truancy.

In addition to Dr. Meyer’s testimony, the defense also presented proof about

the relationship between Hall and the victim and about the defendant’s abuse of

drugs and alcohol. For example, Green testified that the victim and the defendant

had a “rocky” relationship and that the defendant abused alcohol, marijuana, and

crack cocaine. The defendant’s cousin testified that Hall came to live with him in

Oklahoma in December of 1990 seeking employment and recovery from drug abuse,

but the victim telephoned, and shortly thereafter, Hall returned to Tennessee.

Christie Griffin, the defendant’s step-sister, testified that Hall was very sad

when he and the victim were at odds, but always believed they could work through

their problems. According to Griffin, Hall and the victim had been out together

several times following their separation in the weeks prior to the murder. Griffin

stated on cross-examination that she observed the defendant hiding his shirt when

he returned to his mother’s home on the night of the victim’s murder. In fact, Griffin

had told the police where the shirt had been hidden.

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 The defendant’s brother, David Hall, said that the defendant and the victim

argued once a week, and the victim would address the defendant in abusive and

vulgar language. According to his brother, the defendant was abusing crack cocaine

during the time period of the murder, and had been for sometime prior to the murder.

To support that drug habit, Hall would borrow money and pawn property.

The defendant’s mother, Sarah Griffin, testified that her family had moved

several times when Hall was young. When Hall’s family moved to Alabama, he was

only fourteen years old, but he remained in the Chattanooga area, residing with

another family for three years until his own family returned. According to Hall’s

mother, the victim and her son began having problems two years before the murder.

The couple had separated and reconciled on several occasions. She recalled that

in December of 1990, the defendant moved to Oklahoma, where he planned to find

employment and help for his drug problem, but returned in early January of 1991 to

reconcile with the victim. During the separation preceding the murder, Griffin testified

that Hall was very upset and would often cry and drink alcohol in excess. Although

the victim and the defendant were separated, they had been out together several

times in the weeks before the murder. According to Griffin, Hall was a “basket case”

when he was unable to see the victim.

Finally, the defense introduced medical records and insurance forms to

establish that the victim had undergone two abortions in 1985 and one abortion in

1990. The prosecution, in rebuttal, presented the testimony of a friend of the victim

who related that Hall was aware of one of the abortions in 1985 and had encouraged

the victim to undergo the procedure.

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 Based upon the proof, the jury determined that the State had proven the

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

murder was especially heinous, atrocious or cruel in that it involved torture or serious

physical abuse beyond that necessary to produce death;” and (2) “[t]he murder was

committed while the defendant was engaged in committing or was attempting to

commit, arson.” Tenn. Code Ann. § 39-13-204(i)(5) and (7) (1991). In addition, the

jury found that the aggravating circumstances outweighed the mitigating

circumstances beyond a reasonable doubt, and as a result, sentenced the defendant

to death by electrocution. The trial court entered a judgment in accordance with the

jury’s verdict and the Court of Criminal Appeals affirmed. After reviewing the record

and considering the errors assigned by the defendant, we affirm the judgment of the

trial court and Court of Criminal Appeals.

EXPERT TESTIMONY

In this Court, the defendant first contends that he is entitled to a new trial

because during the guilt phase of the trial, the trial court refused to admit the expert

proof regarding his mental state at the time the offense was committed. The

defendant asserts that the testimony of Dr. Roger Meyer was relevant to negate

intent, an essential element of premeditated first degree murder, 8 the offense for

which the defendant was convicted. Exclusion of the relevant evidence constitutes

prejudicial error, the defendant argues, and entitles him to a new trial. The State

responds that the trial court properly excluded Dr. Meyer’s testimony at the guilt

8
At the time this offense was committed, Tenn. Code Ann. § 39-13-202(a)(1) (1991)
provided that the “intentional, premeditated and deliberate killing of another” constitutes first degree
murder. The definition was amended in 1995 and first degree murder is now defined as “the
intentional and premeditated killing of another.” Tenn. Code Ann. § 39-13-202(a)(1) (1991 & Supp.
1996).

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phase because the defendant’s proffer failed to inform the trial court that the

testimony was being offered to negate intent. The State also asserts that the

substance of Dr. Meyer’s testimony was not relevant to show that the defendant

lacked the capacity to form the requisite intent to commit premeditated first degree

murder.

In resolving this issue we must revisit a principle recently endorsed by this

Court in State v. Abrams, 935 S.W.2d 399 (Tenn. 1996). In that case, we approved

the “general holding” of State v. Phipps, 883 S.W.2d 138, 149 (Tenn. Crim. App.

1994), that “evidence of a defendant’s mental condition can be relevant and

admissible in certain cases to rebut the mens rea element of an offense.” Abrams,

935 S.W.2d at 402. We deferred until “another day” further development of the rule

of “‘diminished capacity.”’ Id. Another day has arrived.

We begin with a brief historical review. The rule of diminished capacity

originated in Scotland more than a century ago and was designed “to reduce the

punishment of the ‘partially insane’ from murder to culpable homicide, a non-capital

offense.” State v. Wilcox, 436 N.E.2d 523, 525 (Ohio 1982). The doctrine was

widely accepted in other countries before it gained acceptance in American

jurisdictions. Id. In modern application, diminished capacity is not considered a

justification or excuse for a crime, but rather an attempt to prove that the defendant,

incapable of the requisite intent of the crime charged, is innocent of that crime but

most likely guilty of a lesser included offense. United States v. Cameron, 907 F.2d

1051, 1067 (11th Cir. 1990). Thus, a defendant claiming diminished capacity

contemplates full responsibility, but only for the crime actually committed. State v.

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Padilla, 347 P.2 312 (N.M. 1959). In other words, “diminished capacity” is actually

a defendant’s presentation of expert, psychiatric evidence aimed at negating the

requisite culpable mental state. “Properly understood, it is . . . not a defense at all but

merely a rule of evidence.” United States v. Pohlot, 827 F.2d 889, 897 (3rd Cir.

1987).

It was that proper description of “diminished capacity” that was adopted by the

Court of Criminal Appeals in Phipps. Indeed, while recognizing that diminished

capacity is not an enumerated defense under the 1989 revision of the criminal code.

See Tenn. Code Ann. §§ 39-11-501--621 (1991 Repl. & Supp. 1996), the Court of

Criminal Appeals in Phipps concluded that a defendant’s capacity to form the

requisite mental state to commit an offense is an issue in criminal prosecutions

because the general criminal law in Tennessee provides that “[n]o person may be

convicted of an offense unless . . . [t]he culpable mental state required is proven

beyond a reasonable doubt,” Tenn. Code Ann. § 39-11-201(a)(2) (1991 Repl.). We

agree with that conclusion, and in addition observe that the negation of an element

of a criminal offense is recognized as a defense in Tennessee. Tenn. Code Ann. §

39-11-203(e)(2) (1991 Repl & Supp. 1996) (“A ground of defense, other than one (1)

negating an element of the offense. . . ”) (emphasis added).

Under Tennessee law, evidence is deemed relevant if it tends to “make the

existence of any fact that is of consequence to the determination of the action more

probable or less probable than it would be without the evidence.” Tenn. R. Evid. 401

Moreover, relevant evidence is generally admissible in Tennessee, unless its

probative value is substantially outweighed by its prejudicial effect. Tenn. R. Evid.

- 1 7 -
402 and 403. Since the general criminal law requires that mental state be proven by

the State beyond a reasonable doubt, it is certainly a “fact of consequence” to the

outcome of a criminal prosecution. Therefore, evidence which tends to prove or

disprove the required mental state is relevant and generally admissible under

Tennessee law.

In addition to the general relevance rules, expert testimony in Tennessee is

governed by Rule 702, Tenn. R. Evid. which provides:

If scientific, technical, or other specialized knowledge will substantially
assist the trier of fact to understand the evidence or to determine a fact
in issue, a witness qualified as an expert by knowledge, skill,
experience, training, or education may testify in the form of an opinion
or otherwise.

Under this evidentiary rule, expert testimony regarding the defendant’s incapacity to

form the required mental state must “substantially assist the trier of fact to understand

the evidence or to determine a fact in issue.” See State v. Shuck, __ S.W.2d __

(Tenn. 1997). Though the facts or data upon which the expert testimony is based

need not be admissible in evidence, they must be made known to the expert at or

before the hearing and must be of a type reasonably relied upon by experts in the

particular field. Rule 703, Tenn. R. Evid. In fact, under Tennessee law, “[t]he court

shall disallow testimony in the form of an opinion or inference if the underlying facts

or data indicate lack of trustworthiness.” Rule 703, Tenn. R. Evid. Of course, as with

most other evidentiary questions, the admissibility of expert opinion testimony is a

matter which largely rests within the sound discretion of the trial court. State v.

Ballard, 855 S.W.2d 557, 562 (Tenn. 1993).

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 Therefore, to gain admissibility, expert testimony regarding a defendant’s

incapacity to form the required mental state must satisfy the general relevancy

standards as well as the evidentiary rules which specifically govern expert testimony.

Assuming that those standards are satisfied, psychiatric evidence that the defendant

lacks the capacity, because of mental disease or defect, to form the requisite

culpable mental state to commit the offense charged is admissible under Tennessee

law. As the intermediate court recognized

[t]o find otherwise would deprive a criminal defendant of the right
to defend against one of the essential elements of every criminal case.
In effect, then, such a finding would deprive the defendant of the
means to challenge an aspect of the prosecution’s case and remove
the burden of proof on that element in contravention of constitutional
and statutory law. While the law presumes sanity it does not presume
mens rea. Due process requires that the government prove every
element of an offense beyond a reasonable doubt.

Phipps, 883 S.W.2d at 149. To avoid confusion, however, we caution that such

evidence should not be proffered as proof of “diminished capacity.” Instead, such

evidence should be presented to the trial court as relevant to negate the existence

of the culpable mental state required to establish the criminal offense for which the

defendant is being tried.9

As did the Court of Criminal Appeals in this case, we emphasize that the

psychiatric testimony must demonstrate that the defendant’s inability to form the

requisite culpable mental state was the product of a mental disease or defect, not just

9
Our holding closely resembles the American Law Institute’s Model Penal Code which does
not mention the term “diminished capacity,” but nevertheless provides that “[e]vidence that the
defend ant suffe red from a me ntal diseas e or defe ct shall be a dmis sible whe never it is relev ant to
prove that the defendant did or did not have the state of mind w hich is an element of the offense.”
A.L.I. Mo del Pena l Code § 4.02 (1) (O fficial Draft 1 962). T he Co mm ent to that S ection ex plains: “[i]f
state s of m ind su ch as delibe ration or pre me ditatio n are acc orde d lega l signif ican ce, p sych iatric
evidence should be admissible when relevant to prove or disprove their existence to the same
extent as any other re levant evide nce.”

- 1 9 -
a particular emotional state or mental condition. It is the showing of a lack of capacity

to form the requisite culpable mental intent that is central to evaluating the

admissibility of expert psychiatric testimony on the issue. State v. Shelton, 854

S.W.2d 116, 122 (Tenn. Crim. App. 1992), perm. app. denied (Tenn. 1993).

Applying the above stated principles to the facts of this case, we conclude that the

trial court did not err in excluding the testimony of Dr. Meyer.

After the State rested its case-in-chief in the guilt phase of the trial, defense

counsel requested the trial court to rule on whether or not Dr. Meyer’s testimony

could be admitted. The trial court inquired about the nature of the testimony and the

purpose for which it was being offered. The following discussion ensued.

[DEFENSE COUNSEL]: Talking about the type of individual that -- what
his testing revealed about the defendant in this case, and then take him
to the situation where -- I mean there’s going to be proof -- there’s
already been proof put on about alcohol consumption, and what that
consumption -- what effect that consumption would have had on him
with his type of personality, in addition to exploring his state of mind,
given his personality makeup, posing facts that have been presented
here in court about the incident and how it occurred, what his expert
opinion would be about how he would react under those
circumstances.

[THE COURT]: I don’t understand -- of course, state of mind is
important if it goes to a defense. If it goes to negating key elements in
the case --

[DEFENSE COUNSEL]: Intent, Your Honor.

[THE COURT]: But just general state of mind, what his feelings are,
what his attitude was toward the victim in general, I don’t see how that
particular state of mind contributes toward a defense. I assume at this
time, based on what I’ve heard up to this point, his defense is
intoxication, and he could not form the requisite intent to premeditate
and deliberate and commit an intentional murder. Is that correct?

[DEFENSE COUNSEL]: Well, it’s not only with reference to
intoxication, but it’s also with reference to emotional distress and stress
that was produced by the relationship between the parties.

- 2 0 -
(Emphasis added.)

After further discussions, the trial court ruled as follows:

Anything going towards state of mind that would create a defense or an
excuse for this killing, the Court will allow. But just a general state of
mind of the defendant about attitudes toward the deceased, I don’t
think it’s relevant at this time. I don’t think it’s admissible. I’m not going
to allow that testimony about drugs and whatever between the two
people just to show generally what the defendant was thinking, unless
it goes specifically toward a defense. And, as I understand what you
said, it does not.

Also, the law of the State of Tennessee does not recognize
diminished capacity in this state. And the only relevancy I see as far
as the doctor’s testimony would be going toward insanity as a defense
in this case and not as to diminished capacity.

Now, as far as the defense of intoxication, if there is credible
testimony from the doctor and he can give an opinion as to the extent
of the state of intoxication of Mr. Hall at the time of commission of the
offense, then that would be relevant, but just general stress or general
attitude toward life would not be a defense in this case. Any testimony
going toward the defense of intoxication, I will allow. . . .

(Emphasis added.)

Following this ruling, the defense did not attempt to present Dr. Meyer’s

testimony as an offer of proof, nor did the defense make any further statement about

the nature and purpose of the testimony.10 It is clear from this ruling that the trial

court did not bar Dr. Meyer from testifying, but actually stated that he would allow

testimony probative either to negate intent or to establish intoxication. In fact, the trial

10
It is not clear from the record why defense counsel chose not to make a testimonial offer
of proof. Whenever counsel sought to do so during this trial, the trial court appropriately granted the
request. W e have repeatedly stressed the impo rtance of an offer of proof. Not only does it ensure
effective and meaningful appellate review, it provides the trial court with the necessary information
befo re an evide ntiary r uling is ma de. In dee d, ge nera lly, if an o ffer o f pro of is n ot m ade , the is sue is
deem ed waive d and ap pellate review is preclud ed. State v. Coker, 746 S.W.2d 167, 171 (Tenn.
1987); State v. Goad, 707 S.W.2d 846, 853 (Tenn. 1986). However, in this case, we can review the
issue based upon the substance of Dr. Meyer’s testimony at the sentencing hearing.

- 2 1 -
court recognized, without the benefit of appellate court decisions, that expert

testimony relevant to negating intent is admissible in Tennessee even though

diminished capacity is not a defense.11 Moreover, the trial court correctly applied that

legal principle to the testimony in this case. From the description of the expert

testimony offered by the defense, as well as a review of the testimony of Dr. Meyer

at the penalty phase, it is clear that Dr. Meyer’s testimony was not relevant to show

that the defendant lacked the capacity to form the requisite intent because of mental

disease or defect or intoxication.

Instead, Dr. Meyer testified generally about the defendant’s personality type

and character traits which he gleaned from tests results and a single three hour

interview. At no point in his testimony did Dr. Meyer state that the defendant lacked

the capacity to premeditate and deliberate the killing because of a mental disease or

defect. Though Dr. Meyer testified at the penalty phase that he believed the

defendant to have a borderline personality disorder and that such people could have

brief episodes of rage during “temporary states of mental illness,” he did not state

that the defendant was experiencing such an episode when he committed the murder

for which he was on trial. In fact, had Dr. Meyer made such a statement it would

have been suspect since he acknowledged that he never discussed the facts of the

murder with the defendant.12 While evidence that a particular defendant, because

of a mental disease or defect, lacks the capacity to form the requisite intent is

11
The trial court in this case did not have the benefit of Shelton, Phipps, or A br am s, when
this ruling was made.

12
Tho ugh not p ertine nt to a dm issib ility, we n ote th at Dr . Meye r’s tes timo ny wa s gre atly
weakened by his admission that his conclusions were partially based upon inaccurate and
incomplete information, and his refusal, despite that fact, to revise his conclusions.

- 2 2 -
admissible in Tennessee, expert opinion testimony about the typical reactions of

certain personality types is not relevant to the capacity of the particular defendant on

trial. Compare Ballard, 855 S.W.2d at 561 (expert testimony describing the typical

behavior of a sexually abused child does not substantially assist a jury in an inquiry

of whether the specific crime charged has actually taken place). Moreover, proof of

personality type is not relevant to a defendant’s capacity to form the mental intent.

As Judge Tipton correctly stated in the decision of the Court of Criminal Appeals in

this case:

Society is comprised of myriad individuals with diverse
personalities and temperaments who are jointly and severally bound by
society’s common codes of conduct and responsibility. The mere fact
that one is more apt, by personality type, to become emotional in
response to a particular stimulus does not provide a means for that
person to be absolved from the same responsibility to which the law
holds another who might be less apt to respond as passionately to the
same stimulus. If it did, then each person would be the law unto him
or herself based solely upon his or her particular personality makeup.

Though expert testimony is admissible to show that because of a mental disease or

defect, a defendant lacked the capacity to form the mental state required to constitute

the offense for which he or she is being tried, the testimony in this case did not meet

that standard. The trial court appropriately excluded the evidence.

AGGRAVATING CIRCUMSTANCES

The defendant next challenges the validity of the aggravating circumstances

found by the jury. First, he argues that unconstitutional double counting exists in this

case because the separate aggravating circumstances were proven by the same

underlying facts, the burning of the victim’s car. Secondly, he asserts that the jury’s

- 2 3 -
finding that the murder occurred in the perpetration of a felony is inconsistent with its

verdict of premeditated first degree murder, and he urges that there was not a

sufficient nexus between the felony and the homicide.

In State v. Middlebrooks, 840 S.W.2d 317, 346 (Tenn. 1992) (Drowota and

O’Brien, JJ., dissenting), a majority of this Court concluded that when a defendant is

“convicted of first-degree murder solely on the basis of felony murder, the

aggravating circumstance set out in Tenn. Code Ann. §§ 39-2-203(i)(7) (1982) and

39-13-204(i)(7) (1991) does not narrow the class of death-eligible murderers

sufficiently under the Eighth Amendment to the United States Constitution, and

Article I, § 16 of the Tennessee Constitution because it duplicates the elements of

the offense.” The decision in Middlebrooks was based upon the narrow principle that

an aggravating circumstance may not duplicate the elements of the underlying death-

eligible offense. Contrary to the defendant’s assertion, Middlebrooks did not

embrace the broad principle of double counting, which has been adopted by the

Florida courts,13 and which precludes the use of the same evidence to establish more

than one aggravating circumstance. See State v. Bush, 942 S.W.2d 489, 505 (Tenn.

1997) (holding that use of murder to prevent arrest aggravating circumstance was

appropriate because it did not duplicate the statutory elements of the underlying

offense); State v. Stephenson, 878 S.W.2d 530, 556-57 (Tenn. 1994) (holding that

use of the murder for renumeration aggravating circumstance was appropriate

because it did not duplicate the statutory elements of the underlying offense). In any

event, we observe that the jury’s finding of the two aggravating circumstances, (1)

13
See e.g. Proven ce v. State , 337 So.2d 783 (Fla. 1976).

- 2 4 -
“[t]he murder was especially heinous, atrocious or cruel in that it involved torture or

serious physical abuse beyond that necessary to produce death;” and (2) “[t]he

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

attempting to commit, arson,” Tenn. Code Ann. § 39-13-204(i)(5) and (7) (1991),

were not based upon the same evidence. The jury’s finding of the (i)(5) circumstance

was based upon the torturous means by which the defendant chose to kill the victim,

and the suffering she endured prior to her death. The jury’s finding of the (i)(7)

circumstance was based upon the defendant’s commission of the murder during the

perpetration of a separate felony, the destruction of the victim’s car by arson.

As to the defendant’s contention that the finding of the felony murder

aggravating circumstance is inconsistent with its verdict of premeditated murder, we

disagree. As previously explained, in Middlebrooks a majority of this Court held that

application of the felony murder aggravating circumstance is inappropriate only if the

defendant is convicted solely on the basis of felony murder. Implicit in that statement

is the recognition that the circumstance properly may be applied if a defendant is

convicted of premeditated first degree murder. In fact, we recognized in State v.

Hurley, 876 S.W.2d 57, 70 (Tenn. 1993), that premeditated and felony murder are

simply alternative means by which the offense of first degree murder may be

committed. While a defendant who murders one victim may only be convicted of one

offense of first degree murder, the circumstances of a particular case may support

a jury finding that the offense of first degree murder was committed both with

premeditation and during the course of perpetrating another felony. Tenn. Code Ann.

- 2 5 -
§ 40-18-112 (1990 Repl.). 14 Indeed, that was the situation in Hurley where we

affirmed the defendant’s conviction of premeditated first degree murder and his death

sentence based upon the felony murder aggravating circumstance.

In this case, the defendant admitted that he intended to burn the victim’s car,

while at the same time denying that he intentionally, with premeditation and

deliberation, killed the victim. The jury convicted the defendant of both aggravated

arson and premeditated first degree murder, obviously disbelieving his assertions that

he did not intend to kill the victim. The fact that the victim’s murder was

accomplished by pouring gasoline onto her body at the same time as gasoline was

applied to the car to accomplish the underlying felony does not vitiate the applicability

of the aggravating circumstance. In fact, application of the felony murder aggravating

circumstance is particularly appropriate in this case. The defendant relentlessly

searched for the victim’s car intending to burn it. When he found the object of his

search with the victim inside, the defendant achieved his original purpose, arson of

the victim’s car. When the victim would not heed his warning to leave the car, the

defendant refused to be deterred from his original purpose and then proceeded, with

premeditation and deliberation, to murder the victim by pouring gasoline directly onto

her body and igniting the accelerant. The defendant’s relentless determination to

commit the arson of the victim’s car ultimately culminated in his decision to kill her.

Accordingly, the evidence is sufficient to support the jury’s finding that the

14
"Wh ere the intent with which, the mode in, or the means by which, an act is done, are
essential to the commission of the offense, and such offense may be committed with different
intents, in different modes, or by different means, if the jury is satisfied that the act was committed
with o ne (1 ) of th e inte nts, in one ( 1) of the m ode s, or b y eithe r of th e m ean s ch arge d, it sh all
convict, although uncertain as to which of the intents charged existed, or which mode, or by which
of the means charged, such act was comm itted.”

- 2 6 -
premeditated murder in this case was committed while the defendant was also

engaged in committing arson.

The defendant’s claim that there is an insufficient nexus between the arson

and the murder is without merit. In State v. Terry, 813 S.W.2d 420 (Tenn. 1991), the

defendant, a church pastor, embezzled substantial sums of money from his

congregation over a period of time. He began taking the money in March of 1987,

In June of 1987, he killed the church handyman, placed the body inside the church

building, and torched the building. At the sentencing hearing, the jury found the

felony murder aggravating circumstance on the basis of the underlying larceny. The

trial judge granted the defendant’s motion for a new trial, finding that the State had

failed to prove that the murder was committed while the defendant was engaged in

the perpetration of larceny. This Court agreed with the trial judge that there was an

insufficient nexus between the murder and the larceny. In so holding, we stated that

application of the felony murder aggravating circumstance depends upon the

temporal, spatial and motivational relationships between the capital murder and the

collateral felony. Id. at 423.

Applying those factors to the circumstances of this case, it is clear that the

defendant’s argument is without merit. Here, the capital murder and collateral felony

occurred at the same time and in the same place. The defendant’s motivation for

killing the victim in this case and burning her car were likewise the same, anger over

her decision to discontinue their relationship.

- 2 7 -
 We conclude that the evidence is sufficient to support the jury’s findings as to

aggravating circumstances. We also conclude that the aggravating circumstances

were constitutionally applied in this case.

NONSTATUTORY MITIGATING CIRCUMSTANCES

In 1989, the General Assembly amended the capital sentencing statute to

provide, with respect to nonstatutory mitigating circumstances, as follows:

After closing arguments in the sentencing hearing, the trial judge shall
include in the instructions for the jury to weigh and consider any of the
statutory aggravating circumstances set forth in subsection (i) which
may be raised by the evidence at either the guilt or sentencing hearing,
or both. The trial judge shall also include in the instructions for the jury
to weigh and consider any mitigating circumstances raised by the
evidence at either the guilt or sentencing hearing or both which shall
include, but not be limited to, those circumstances set forth in
subsection (j). No distinction shall be made between mitigating
circumstances as set forth in subsection (j) and those otherwise raised
by the evidence which are specifically requested by either the state or
the defense to be instructed to the jury. These instructions and the
manner of arriving at a sentence shall be given in the oral charge and
in writing to the jury for its deliberations.

Tenn. Code Ann. § 39-13-204(e)(1) (1991 Repl. & 1996 Supp.).

In this Court, the defendant argues that the trial court violated that statute by

refusing to instruct the jury with respect to nonstatutory mitigating circumstances.

The offense for which the defendant was tried and convicted was committed after

November 1, 1989, so the above statute is without question applicable to his case.

However, the case was tried before this Court’s decision in State v. Odom, 928

S.W.2d 18 (Tenn. 1996), in which we first interpreted the amended statute to require

jury instructions on nonstatutory mitigating circumstances raised by the evidence and

proffered by a defendant as having mitigating value. There, we stated that

- 2 8 -
instructions on nonstatutory mitigating circumstances must not be fact specific and

imply to the jury that the judge has made a finding of fact. Instead, such instructions

must be drafted so that they are indistinguishable from the statutory mitigating

circumstances when considered by a jury. Id. at 32. Finally, we interpreted the “no

distinction” portion of the statute to preclude the trial judge from revealing to the jury

that a request for instruction on nonstatutory mitigating circumstances has been

made, and from revealing the identity of the party making the request. Id. More

recently, in State v. Hodges, 944 S.W.2d 346 (Tenn. 1997), we stated that

nonstatutory mitigating circumstances must be phrased in general categories similar

to the statutory mitigating circumstances, and we emphasized that a trial judge has

no duty to give such instructions absent a timely and proper request from the

defense. If the defense proffers a timely, but overly specific requested instruction,

the trial court must revise and generalize the instruction to conform to the evidence

and the law. Id at 356.

Of course, the trial court in this case ruled without the benefit of our decisions

in Odom and Hodges. In denying the defendant’s requests, the trial court relied upon

decisions of this Court interpreting pre-1989 law which found no constitutional or

statutory provision mandating instruction on nonstatutory mitigating circumstances.

State v. Thompson, 768 S.W.2d 239 (Tenn. 1989); State v. Wright, 756 S.W.2d 669

(Tenn. 1988). The defendant argues that he is entitled to a new sentencing hearing

because the trial court’s denial of his request constitutes prejudicial error.

The State argues that the trial court’s refusal to charge the jury on nonstatutory

mitigating circumstances does not require reversal. The State first points to a statute

- 2 9 -
enacted while this case has been pending on appeal and effective April 29, 1997,

which amends Tenn. Code Ann. § 39-13-204(e)(1), quoted above, by deleting the

sentence “No distinction shall be made between mitigating circumstances as set forth

in subsection (j) and those otherwise raised by the evidence which are specifically

requested by either the state or the defense to be instructed to the jury” and

substituting instead the following language at the end of subsection (e)(1): “However,

a reviewing court shall not set aside a sentence of death or of imprisonment for life

without the possibility of parole on the ground that the trial court did not specifically

instruct the jury as to a requested mitigating factor that is not enumerated in

subsection (j).” 1997 Tenn. Pub. Acts, Chapter 139. While conceding that the

statute was not applicable at the trial of this cause, the State nonetheless argues that

the provision precluding a reviewing court from setting aside a sentence of death on

the ground that the trial court did not instruct the jury on nonstatutory mitigating

circumstances is binding in this appeal and prevents this Court from granting relief

to the defendant, even if it concludes that the failure to charge nonstatutory mitigating

circumstances constitutes error which affirmatively appears to have affected the

verdict. Hodges, 944 S.W.2d at 352; Tenn. R. Crim. P. 52(a). Even if this Court

determines that Public Chapter 139 does not apply to the appeal of this case, the

State argues that the defendant is not entitled to relief because the trial court’s

refusal to give instructions on nonstatutory mitigating circumstances was harmless

error. For the reasons that follow, we conclude that the error was harmless and does

not require reversal.15

15
Because of our conclusion that the error was harmless in this case, we do not address the
separation of powers question which arises from the State’s assertion that Public Chapter 139
divests reviewing courts of authority to grant relief in a case regardless of a conclusion that
prejudicial error has resulted from the failure to give instructions on nonstatutory mitigating
circumstances . In reserving this issue for another day, we are mindful of our duty to resolve

- 3 0 -
 In this case, the defendant submitted seventy-one special requests for jury

instructions at trial, many of which purported to explain the role and purpose of

mitigating circumstances to the jury. Though the trial court refused to grant any of the

defendant’s requested instructions on nonstatutory mitigating circumstances, he

granted five 16 of the other requested instructions, one which stressed that the

sentencing decision was to be made by each individual juror; one which emphasized

that the defendant was entering the penalty phase of the trial with the presumption

that there were no aggravating circumstances warranting a sentence of death; and

three other instructions which broadly defined and explained the nature and function

of mitigating circumstances. With respect to the remaining sixty-six special requests

the trial court stated, “I found that many of them are already included in the charge

that the Court is giving . . . or some of them are what I felt like are . . . repetitious . .

. . And I’ve also found that many of them are not appropriate as far as accurate

statements of the law.”

Implicitly conceding the accuracy of the trial court’s finding with respect to

duplicity, in this Court the defendant points to only seven requested instructions on

nonstatutory mitigating circumstances which he says the trial court erroneously

refused to charge. They are as follows:

Special Request No. 20. In determining the sentence for Leroy Hall, Jr.
you shall consider as a mitigating circumstance the fact that Leroy Hall,
Jr., was immature for his age, and lacked the normal emotional

constitutional conflicts only when absolutely necessary for a determination of the case and the
rights of the parties. Owen s v. State , 908 S.W .2d 923 (Tenn. 1995).

16
The trial judge granted Special Request No. 4, Decision To Be Made By Individual Jurors;
Special Request No. 12, Presumption Regarding Aggravating Circumstances; Special Request No.
57, Mitigation-Definition, Weight, Unanimity; Special Request No. 58, Mitigation-Definition; Special
Requ est No. 5 9, Mitigation- Definition.

- 3 1 -
 development at the time of the commission of the crime. This may be
sufficient by itself to impose the punishment of life imprisonment and
reject death by electrocution.

Special Request No. 21. In determining the sentence for Leroy Hall, Jr.
you shall consider as a mitigating circumstance the fact that Leroy Hall,
Jr.’s criminal activity was caused by various psychological factors and
alcohol-related problems that can be treated and will diminish with age.
This may be sufficient by itself to impose the punishment of life
imprisonment and reject death by electrocution.

Special Request No. 26. In determining the sentence for Leroy Hall, Jr.
you shall consider as a mitigating circumstance the fact that Leroy Hall,
Jr. suffers from post-traumatic stress disorder even though it did not
cause the crime. This may be sufficient by itself to impose the
punishment of life imprisonment and reject death by electrocution.

Special Request No. 27. In determining the sentence for Leroy Hall, Jr.
you shall consider as a mitigating circumstance the fact that Leroy Hall,
Jr. at a very early age, exhibited signs of mental or emotional
disturbance that went untreated. This may be sufficient by itself to
impose the punishment of life imprisonment and reject death by
electrocution.

Special Request No. 30. In determining the sentence for Leroy Hall, Jr.
you shall consider as a mitigating circumstance the fact that . . Leroy
Hall, Jr. never developed the ability to cope with daily tensions or to
become self-dependent. This may be sufficient by itself to impose the
punishment of life imprisonment and reject death by electrocution.

Special Request No. 37. In determining the sentence for Leroy Hall, Jr.
you shall consider as a mitigating circumstance the fact that . . Leroy
Hall, Jr. has for a long time had serious personality disorders that are,
to a large extent, caused by the problems that developed in his
childhood with his family. This may be sufficient by itself to impose the
punishment of life imprisonment and reject death by electrocution.

Special Request No. 45. In determining the sentence for Leroy Hall, Jr.
you shall consider as a mitigating circumstance the fact that Leroy Hall,
Jr. has a history of family instability.

Assuming the refusal to give these instructions, in some form, was error

pursuant to our pronouncements in Odom and Hodges, we must determine whether

the error affirmatively appears to have affected the verdict. A charge should be

considered prejudicially erroneous if it fails to fairly submit the legal issues or if it

- 3 2 -
misleads the jury as to the applicable law. Hodges, 944 S.W.2d at 352. In evaluating

claims of error in jury instructions, the United States Supreme Court has cautioned

reviewing courts to remember that

[j]urors do not sit in solitary isolation booths parsing instructions for
subtle shades of meaning in the same way that lawyers might.
Differences among them in interpretation of instructions may be
thrashed out in the deliberative process, with commonsense
understanding of the instructions in the light of all that has taken place
at the trial likely to prevail over technical hairsplitting.

Boyde v. California, 494 U.S. 370, 380-81, 110 S.Ct. 1190, 1198, 108 L.Ed.2d 316

(1990); see also State v. Van Tran, 864 S.W.2d 465, 479 (Tenn. 1993). We review

the following jury charge regarding mitigating circumstances to determine if it fairly

submitted the legal issues to the jury in this case.

Mitigating Circumstances
Tennessee law provides that in arriving at the punishment, the
jury shall consider as heretofore indicated, any mitigating
circumstances which shall include, but are not limited to, the following:

(1) The murder was committed while the defendant was under
the influence of extreme mental or emotional disturbance.

(2) The youth or advanced age of the defendant at the time of
the crime.

(3) The capacity of the defendant to appreciate the wrongfulness
of his conduct or to conform his conduct to the requirements of the law
was substantially impaired as a result of mental disease or defect or
intoxication which was insufficient to establish a defense to the crime
but which substantially affected his judgment.

(4) any other mitigating factor which is raised by the evidence
produced by either the prosecution or defense at either the guilt or
sentencing hearing; that is, you shall consider any aspect of the
defendant’s character or record, or any aspect of the circumstances of
the offense favorable to the defendant which is supported by the
evidence.

- 3 3 -
 No distinction shall be made between mitigating circumstances
one (1) through four (4) and those otherwise raised by the evidence.

The defendant does not have a burden of proving a mitigating
circumstance. If there is some evidence that a mitigating circumstance
exists, then the burden of proof is upon the state to prove, beyond a
reasonable doubt, that mitigating circumstance does not exist.

There is no requirement of jury unanimity as to any particular
mitigating circumstance, or that you agree on the same mitigating
circumstance.

Special Request No. 4: Decision to be Made by Individual
Jurors:
Both the prosecution and Leroy Hall, Jr., are entitled to the
individual opinion of each juror. Each of you must consider the
evidence for the purpose of reaching a verdict if you can do so. Each
of you must decide the case for yourself, but should do so only after
discussing the evidence and instructions with the other jurors. Do not
decide any question in a particular way simply because a majority of
the jurors, or any one of them, favors such a decision. Do not decide
any issues in this case by chance, such as the drawing of lots or by any
other chance determination.

Special Request No. 12: Presumption Regarding Aggravating
Circumstances:
The defendant enters this phase of the trial with the presumption
that there are no aggravating circumstances that would warrant a
sentence of death. This presumption may be overcome only if the
prosecution convinces you beyond a reasonable doubt that one or
more of the specified aggravating circumstances exists and that the
aggravating circumstance or circumstances outweigh any mitigating
factors.

Special Request No. 57: Mitigation-Definition, Weight, Unanimity:
When you deliberate on the punishment for Leroy Hall, Jr., life
imprisonment or death by electrocution, you must consider any
mitigating circumstance supported by any evidence presented by either
party at either the guilt-innocence or sentencing phase, or both, of the
trial. A mitigating circumstance is any aspect of Leroy Hall, Jr’s.,
character, background history, or physical condition or the nature and
circumstances of the crime which in fairness or mercy, calls for a
sentence less than death. If you find that there are any mitigating
circumstances, you must decide how much weight they deserve. The
law does not identify or limit what you can consider concerning Leroy
Hall, Jr’s., character, background history, and physical condition or the
nature and circumstances of the crime that are mitigating. The law
does not impose a formula for determining how much weight a
mitigating circumstance deserves. Each of you is the sole judge of

- 3 4 -
 whether mitigating circumstances exist and if so, how much weight they
deserve.

You may deliberate as a body about mitigating circumstances,
but you are not required to reach a unanimous verdict as to their
existence or weight. When you vote on whether any aggravating
circumstances have been proven beyond a reasonable doubt to
outweigh mitigating, each of you must decide for yourself whether any
mitigating circumstances exist and, if so, how much weight they
deserve.

Special Request No. 58: Mitigation-Definition:
Mitigating circumstances are factors put forth to show that the
appropriate sentence is life imprisonment. Mitigating circumstances
are not a justification or excuse for the offense, but are factors that, in
fairness and mercy, may extenuate or mitigate the degree of moral
culpability as far as punishment is concerned. Mitigating circumstances
are not limited by the law; they may be unlimited in number, as long as
they are based upon the evidence introduced by either the prosecution
or the defense at the trial or sentencing.

Special Request No. 59: Mitigation-Definition:
A mitigating circumstance is not a justification or excuse for the
offense. A mitigating circumstance is a fact about the offense, or about
Leroy Hall, Jr., which in fairness, sympathy, compassion, or mercy may
be considered in extenuating or reducing the degree of moral
culpability, or which justifies a sentence of less than death, although it
does not justify or excuse the offense.

Clearly, the instructions on statutory mitigating circumstances given the jury

in this case directly relate, and encompass generally the specific subject matter that

is contained within the defendant’s special requests. For example, circumstance

(j)(7),17 the youth of the defendant at the time of the crime directly relates to special

requests twenty-one and twenty-two. Circumstance (j)(2),18 and circumstance (j)(8),19

17
"The you th or adva nced a ge of the defend ant at the tim e of the c rime.”

18
“The murder was committed while the defendant was under the influence of extreme
men tal or em otional distur bance .”

19
“The capacity of the defendant to appreciate the wrongfulness of the defendant’s conduct
or to conform the defendant’s conduct to the requirements of the law was substantially impaired as
a result of m ental disea se or de fect or intox ication wh ich was insufficien t to establish a defen se to
the crime but which subs tantially affected the defendant’s judgm ent.”

- 3 5 -
relate to all of the requested instructions. Finally, the general instructions given by

the trial court broadly informed the jury of its unlimited ability to consider all types of

factors by defining mitigating circumstance as

any aspect of Leroy Hall, Jr.’s, character, background history, or
physical condition or the nature and circumstances of the crime which
in fairness or mercy, calls for a sentence less than death. . . . The law
does not identify or limit what you can consider concerning Leroy Hall,
Jr.’s character, background history, and physical condition or the nature
and circumstances of the crime [as] mitigating.”

Though neither the statutory mitigating factors charged, nor the general

instruction on mitigating circumstances were as specific as the defendant’s special

requests, the instructions generally encompassed the subjects contained within the

special requests and fairly conveyed to the jury its ability to consider a wide range of

proof as mitigating circumstances. In addition, the trial court permitted the defendant

to introduce substantial proof of nonstatutory mitigating circumstances. Moreover,

during closing argument at the sentencing phase, the trial court allowed defense

counsel broad latitude to argue nonstatutory mitigating circumstances to the jury. In

fact, counsel made detailed arguments regarding virtually every point of the mitigation

on which he sought to have instructions given to the jury.20 Therefore, considering

the instructions actually given the jury on mitigating circumstances, in conjunction

with the broad latitude appropriately afforded the defendant to introduce evidence

20
Def ens e cou nse l argu ed th e follo wing facto rs sh ould b e con side red a s m itigatio n. Ha ll
expressed remorse; Hall was young when the offense was committed; Hall had a mental or
emotional disturbance because of the failed relationship with the victim; Hall had a mental disease
or defect; Hall was intoxicated; Hall was unusually immature for his age; Hall lacked normal
emotional development; Hall is a follower and not a leader; Hall, at an early age, exhibited signs of
mental or emotional disturbance that went untreated; At the time of the murder Hall’s mental or
emotional development was significantly below that of persons of his chronological age; Hall is an
insecur e ma n with low inte lligence; H all has low s elf-estee m an d self-wo rth; Hall’s bas ic perso nality
inadequacy created stress and erosion of his self-confidence; Hall has a history of alcohol, drug
and/or narcotic abuse and addiction; Hall expressed sorrow for the murder and was willing to plead
guilty; Hall’s capacity to appreciate the wrongfulness of his conduct was impaired.

- 3 6 -
and present argument about nonstatutory mitigating circumstances, we conclude that

the trial court’s refusal to charge the jury on nonstatutory mitigating circumstances

does not constitute prejudicial error requiring a reversal. See Tenn. R. Crim. P. 52(a).

COMPARATIVE PROPORTIONALITY REVIEW

The defendant next claims that his sentence is disproportionate to the penalty

imposed in similar cases, considering both the nature of the crime and the defendant.

The defendant is asserting that his sentence is comparatively disproportionate

because “[c]urrently there is no one under a death sentence in Tennessee who him-

or herself murdered a girlfriend or spouse.” The State responds that Hall is not the

only person in Tennessee under a death sentence for the killing of a spouse or a

girlfriend. We agree. See State v. Johnson, 743 S.W.2d 154 (Tenn. 1987); State v.

Miller, 674 S.W.2d 279 (Tenn. 1984) and 771 S.W.2d 401 (Tenn. 1989); State v.

Smith, 868 S.W.2d 561 (Tenn. 1993).

Our comparative proportionality review does not end with that finding,

however. Recently, in State v. Bland, ___ S.W .2d ___ (Tenn. 1997), we analyzed

in detail the precedent-seeking method this Court has employed over the past

eighteen years in determining 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 the sentence

of death is proportional to the crime of first degree murder. However, if a capital

case, taken as a whole, is plainly lacking in circumstances consistent with those in

similar cases in which the death penalty has been imposed, the sentence of death

- 3 7 -
in the case being reviewed is disproportionate. State v. Ramsey, 864 S.W.2d 320,

328 (Mo. banc 1993). Even if a defendant receives a death sentence when the

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

defendant has received a life sentence, the death sentence is not disproportionate

if this Court can discern some basis for the lesser sentence given in the similar case.

See State v. Carter, 714 S.W.2d 241, 251 (Tenn. 1986). Moreover, where there is

no discernable basis for the difference in sentencing, the death sentence is not

necessarily disproportionate. This Court is not required to determine that a sentence

less than death has never been imposed in a case with similar characteristics. To the

contrary, our duty under the similarity standard is to assure that no aberrant death

sentence is affirmed. Webb, 680 A.2d at 203. “Since the proportionality requirement

on review is intended to prevent caprice in the decision to inflict the [death] penalty,

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

sentences imposed on defendants who were sentenced under a system that does

not create a substantial risk of arbitrariness or caprice.” Cf. Gregg v. Georgia, 428

U.S. 153, 203, 96 S.Ct. 2909, 2939, 49 L.Ed.2d 859 (1976).

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

proportionality review is not a rigid, objective test. Id., __ S.W.2d at __; State v.

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 the Court. Bland, __

- 3 8 -
S.W.2d at ___. With respect to the circumstances of the offenses 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; (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.

Considering the nature of the crime and the defendant, we conclude that

imposition of the death penalty for the torturous and cruel premeditated killing of this

young woman is not disproportionate to the penalty imposed in similar cases. Not

only did Hall show a total disregard for human life, he exhibited complete indifference

to human suffering. The twenty-two-year-old victim had cohabitated with the

defendant since she was sixteen years old. In fact, it was her decision to end the

relationship which proved fatal. For the three weeks following the separation and

prior to her murder, the victim was consistently pursued by the defendant. He

telephoned her residence at all hours of the day and night. He threatened her,

stating at one point, “[i]f I can’t have her, nobody can’t.” [sic] His mother described

- 3 9 -
him as a “basket case” when he was unable to see her. Attempting to gain control

over her, the defendant decided to destroy her means of transportation. While in the

process of accomplishing that objective, Hall decided that destroying her life would

more effectively and efficiently accomplish his purpose of preventing her from

seeking a life apart from him. He demonstrated uncommon cruelty by choosing to

murder his ex-girlfriend by igniting her gasoline soaked body. Hall by his own

admission never offered assistance to the victim. The pain and suffering which the

victim endured in the hours preceding her death is unimaginable. She was alive,

conscious, coherent, and alert as her tongue swelled to the extent that it protruded

from her mouth and her eyelids became inverted. She experienced not only the initial

pain of the burn injuries, but also the pain from the incisions that were part of the

medical treatment for the burns. The only provocation or motive for this horrendous

killing was the defendant’s anger with the victim for leaving him and refusing to return.

Following the murder, Hall did not turn himself into the authorities and report the

crime. Instead, he went to his mother’s house and attempted to hide the shirt he had

been wearing. Fortunately, his step-sister witnessed his attempt and later reported

the location of the shirt to the police. When Hall initially spoke with the police, he

denied involvement in the murder. Later, he admitted his involvement, but denied

that he killed the victim with premeditation and deliberation. In fact he attempted to

plead guilty to felony murder in front of the jury. The jury disbelieved his testimony

and found the existence of premeditation and deliberation. There is no evidence in

this record to indicate that Hall had a prior criminal record; however, he admitted to

abusing alcohol and drugs, and warrants had been issued for the defendant’s arrest

for the prior arson of the victim’s car. With respect to his mental state, the evidence

shows that he is a person prone to rage who has little self control. Though the

- 4 0 -
precise psychological diagnosis may vary, the defendant clearly displayed symptoms

of both borderline personality disorder and antisocial personality disorder. He was

not insane at the time this crime was committed. Though Hall was young at the time

of the killing, only twenty-four years old, he is not, by any means, the youngest

person on death row.21 Moreover, contrary to his assertion, he is not the only person

in Tennessee to receive a death penalty for the killing of a spouse or a girlfriend.

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

places Hall 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. Johnson, 743 S.W.2d 154 (Tenn. 1987), the thirty-three year old

defendant murdered his wife by forcing a large plastic garbage bag into her mouth

which resulted in strangulation and asphyxiation. She bled from the nose and ears

and traces of blood were found on a couch in the office where her death occurred.

There was testimony that she would have been conscious during the terrifying ordeal

and that from one to four minutes would have elapsed before she died. This Court

stated that she suffered “a most terrible death,” and declined to state all the “horrible

details” of it. As in this case, the jury in Johnson found that the murder was

“especially heinous, atrocious or cruel in that it involved torture or depravity of mind.”

Tenn. Code Ann. § 39-2-203(i)(5)(1982). As in this case, the jury also found a

second, but different, aggravating circumstance, that the defendant had been

previously convicted of violent felony offenses, armed robbery and aggravated

21
At least 44 of the persons sentenced to death in Tennessee since 1977 were between the
ages of 19 and 25 when they committed the murder and at least ten were 18 or 19 when the
offens e was c omm itted.

- 4 1 -
assault. Tenn. Code Ann. § 39-2-203(i)(2)(1982). The only possible motive for the

unprovoked killing was the defendant’s desire to prevent his wife, who had previously

threatened to leave him, from learning that he had been found in a compromising

position with a woman a few weeks before the murder. As did the relationship of the

victim and Hall in this case, the relationship between Johnson and his wife had a

history of difficulties. Though Johnson denied the murder and attempted to place

blame for the killing upon a prisoner who was on work release, the jury disbelieved

Johnson and sentenced him to death by electrocution.

In State v. Miller, 674 S.W.2d 279 (Tenn. 1984) and 771 S.W.2d 401 (Tenn.

1989), the twenty-four-year-old defendant was sentenced to death for murdering the

twenty-three-year-old victim he had been dating. The victim had been born with brain

damage and was mildly retarded. The defendant killed the victim by beating and

repeatedly stabbing her. Some of the wounds were inflicted before death and some

after death. Some of the stab wounds extended so deep into the bone that the

forensics testimony indicated that a hammer had been used to drive the knife as if

it were a nail. The victim had also been raped. As in this case, the issue of

intoxication from drugs and alcohol and whether its degree was sufficient to negate

premeditation was a contested issue in the trial. The jury rejected Miller’s proof and

found him guilty of premeditated murder. The jury imposed the death penalty upon

finding that the murder “was especially heinous, atrocious, or cruel in that it involved

torture or depravity of mind.” Tenn. Code Ann. 39-2-203(i)(5) (1982)(repealed). The

sentence was reversed on direct appeal by this Court because irrelevant and

prejudicial evidence was admitted at the sentencing phase. However, at the

- 4 2 -
resentencing hearing the jury again imposed the death penalty upon the basis of the

(i)(5) aggravating circumstance and the sentence was affirmed upon appeal.

In State v. Smith, 868 S.W.2d 561 (Tenn. 1993), the forty-year-old defendant

was found guilty of the triple premeditated murders of his estranged wife, age thirty-

five and her two sons by a previous marriage, age sixteen and thirteen. The jury

sentenced the defendant to death on the murder counts as to all three victims. With

respect to the killing of his estranged wife, the jury found two aggravating

circumstances: (1) that the murder was especially heinous, atrocious or cruel in that

it involved torture or depravity of mind, Tenn. Code Ann. § 39-2-203(i)(5) (1982), and

(2) the defendant committed “mass murder” which is defined as the murder of three

or more persons within the state of Tennessee within a period of forty-eight (48)

months, and perpetrated in a similar fashion in a common scheme or plan, Tenn.

Code Ann. § 39-2-203(i)(12) (1982). Like the defendant in this case, Smith harassed

his estranged wife in the weeks prior to the murder. In fact, at the time of the killing,

warrants had been issued charging the defendant with aggravated assault of the

victim. Smith killed his wife by shooting her in the left arm and the neck. The

gunshot to her neck had severed her spinal cord, producing paralysis and death

within two to six minutes. Though she would have been able to hear during some

portion of this time, Smith’s victim would have been unable to move. Therefore, she

may have been able to hear the sounds of her children being murdered. After her

death, the defendant slashed her neck and stabbed her with a knife and an awl. In

mitigation, the defendant offered proof to show that he had been a good prisoner,

and in addition, several of his co-workers testified that he was a good employee. His

mother and daughter said that he had a severely retarded teenage son who

- 4 3 -
depended upon the defendant emotionally. As in this case, the defendant presented

expert psychological proof that he had personality disorders.

In State v. O’Guinn, 709 S.W.2d 561 (Tenn. 1986), the thirty-two-year-old

defendant was convicted of the rape and strangulation death of a seventeen-year-old

woman. The defendant and the victim met at a nightclub in Jackson, Tennessee.

Both were intoxicated from alcohol and drugs. They left the bar together and rode

around in the defendant’s car. At some point, the defendant became angry with the

victim and assaulted and murdered her. The victim suffered a horrible ordeal. She

had offensive and defensive wounds to her chest, arms, and head, indicating that she

had been severely and brutally beaten. The cause of her death was ligature

strangulation. She was choked to death with her halter top. A contusion with parallel

bruises on either side of the nipple of her left breast might have been made by pliers

or a similar object. A metal tire tool had been forcefully inserted into her vagina.

Semen was also found in her vagina. Abrasions on her buttocks indicated that her

body had been dragged across the ground. The injuries to her head, neck, breast,

and vagina had occurred prior to her death. The jury convicted the defendant of first

degree murder. At the sentencing hearing, the State introduced the photographs of

the victim. The defendant’s mother testified on her son’s behalf and told how his

father, from whom she had been divorced, had run the defendant from home when

he was thirteen or fourteen years old. The defendant was divorced and had three

children, and his former wife had engaged in an affair with his father. Upon finding

one aggravating circumstance, that the murder was especially heinous, atrocious or

cruel in that it involved torture or depravity of mind, Tenn. Code Ann. § 39-2-203(i)(5)

(1982), the jury sentenced the defendant to death by electrocution.

- 4 4 -
 In State v. Henley, 774 S.W.2d 908 (Tenn. 1989), the jury imposed the death

penalty after finding, as in this case, that the murder was especially heinous,

atrocious, or cruel in that it involved torture or depravity of mind. Tenn. Code Ann.

§ 39-2-203(i)(5) (1982). Thirty-one-year-old Henley had been drinking and taking

drugs on the day of the murder. He forced the victims, a married couple with whom

he was acquainted, from the road to their house at gunpoint, demanding money.

When the victims attempted to comply, Henley refused to take the money, and

without provocation, shot the husband and then the wife. W hen the helpless,

unresisting wife began moaning, Henley shot her two more times, poured gasoline

on her body, and set the house on fire. Though the husband died from the gunshot

wound, the wife died from burns and smoke inhalation.

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

cases have many similarities with Hall. In all five cases, the victims suffered

particularly cruel and painful deaths. Though all murders are totally reprehensible,

the means of death in this case was extremely heartless. In fact, it is difficult to

conceive of a death more painful or torturous than that suffered by the victim in this

case. In all of the cases, the defendants were acquainted with the victims, and in

three of the five cases, like this case, the defendants received the death penalty for

murdering their girlfriend or spouse. Like this case, in all of the five cases the victims

remained conscious for some time after they were assaulted and experienced the

pain from the injuries inflicted by the defendants. A motive for the murder in at least

two of the cases was the defendant’s desire to control his estranged wife. Likewise,

one motive for the murder in this case was the defendant’s desire to control the

victim’s life. In all five of the cases, the jury found that the murder was especially

- 4 5 -
heinous, atrocious, or cruel in that it involved torture or depravity of mind. Similarly,

in this case, the jury found that the murder was especially heinous, atrocious, or cruel

in that it involved torture or serious physical abuse beyond that necessary to produce

death. Like Hall, many of the defendants relied upon their youth and mental

disabilities as mitigation of the punishment. In at least one other case, the issue of

premeditation and deliberation was strongly disputed, and in three of the five cases,

the defendants claimed to have been intoxicated at the time of the murders. After

reviewing the 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) (1991

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 any arbitrary fashion, that the evidence supports, as previously discussed, the

jury’s finding of the statutory aggravating circumstances, and the jury’s finding that

the aggravating circumstances outweighed mitigating circumstances beyond a

reasonable doubt. Tenn. Code Ann. § 39-13-206(c)(1)(A) - (C) (1991 Repl. & 1996

Supp.). 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 Joseph

M. Tipton, and joined in by Judge Gary R. Wade and Judge John H. Peay. 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

- 4 6 -
provided by law on the 22nd day of April, 1998, unless otherwise ordered by this

Court or other proper authorities.

_____________________________________
Frank F. Drowota, III,
Justice

Concur:
Anderson, C.J.,
Birch, Holder, JJ.

Reid, J. - separate concurring opinion
 Appendix
(Excerpts from the Court of Criminal Appeals’ Decision)

-48-
 IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

DECEMBER SESSION, 1993

STATE OF TENNESSEE, ) No. 03C01-9303-CR-00065
)
Appellee, ) Hamilton County
)
v. ) Hon. Stephen M. Bevil, Judge
)
LEROY HALL, JR., ) (First degree murder and aggravated arson)
)
Appellant. )

For the appellant: For the appellee:

Karla G. Gothard Charles W. Burson
701 Cherry Street Attorney General of Tennessee
Suite 300 and
Chattanooga, TN 37402 Joel W. Perry
(At trial only) Assistant Attorney General of Tennessee
450 James Robertson Parkway
William R. Heck Nashville, TN 37243-0493
212 James Building
Chattanooga, TN 37402 William H. Cox
(At trial and on appeal) District Attorney General
and
Brock Mehler Thomas J. Evans
Capital Case Resource Center Assistant District Attorney General
704 18th Avenue South 600 Market Street, Suite 310
Nashville, TN 37920 Chattanooga, TN 37402
(On appeal only)

OPINION FILED: Dec 30 1996

AFFIRMED

Joseph M. Tipton
Judge
 OPINION

GUILT PHASE ISSUES

I.

The defendant challenges the sufficiency of the convicting evidence

relative to first degree murder and argues that there was no evidence that he acted

with premeditation and deliberation. He asserts that the proof shows a crime

committed by an emotionally and mentally disturbed man in the midst of a tumultuous

personal relationship. The state responds that there was sufficient evidence of

premeditation and deliberation.22

When the sufficiency of the evidence is challenged, the standard for

review is whether, after considering the evidence in the light most favorable to the

prosecution, any rational trier of fact could have found the essential elements of the

crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S. Ct. 2781,

2789 (1979); State v. Duncan, 698 S.W.2d 63, 67 (Tenn. 1985). A conviction that is

approved by the trial court accredits the testimony which favors the state and

resolves all conflicts in favor of the state's theory. State v. Williams, 657 S.W.2d 405,

410 (Tenn. 1983).

22
The defe nda nt we nt to tr ial on th ree c harg es: (1 ) first d egre e m urde r by an unlaw ful,
intentional, premeditated and deliberate killing, (2) first degree murder by a reckless killing
comm itted during the perpetration of arson (felony murder), and (3) aggravated arson. Ho wever,
he enter ed guilty pleas before th e jury to arso n and fe lony mu rder. After the trial court re fused to
"accept" the guilty pleas, the defendant persisted in such pleas before the jury, contesting only the
charges that the killing was premeditated and deliberate. At the conclusion of the proof, the trial
court instructed the jury that it could return a guilty verdict for either felony murder or for a
premeditated and deliberated murder, but not for both. Under this instruction, the jury reported that
the defendant was found guilty of aggravated arson and premeditated and deliberate murder. No
finding reg arding a fe lony mu rder wa s reporte d.

-2-
 At the time of the offenses, T.C.A. § 39-13-202(a)(1) (1991) provided

that the "intentional, premeditated and deliberate killing of another" is first degree

murder.23 A premeditated act is "one done after the exercise of reflection and

judgment." T.C.A. § 39-13-201(b)(2) (1991). A deliberate act is "one performed with

a cool purpose." T.C.A. § 39-13-201(b)(1) (1991). As is usually the case, a

determination of culpable mental states, such as premeditation and deliberation,

must be inferentially made from the circumstances surrounding the killing. Bass v.

State, 191 Tenn. 259, 231 S.W.2d 707, 711 (1950); Taylor v. State, 506 S.W.2d 175,

178 (Tenn. Crim. App. 1973).

Our supreme court has discussed the then existing elements of first

degree murder in State v. Brown, 836 S.W.2d 530 (Tenn. 1992) and State v. West,

844 S.W.2d 144 (Tenn. 1992). In Brown, the supreme court acknowledged that the

Tennessee courts had often commingled the elements of premeditation and

deliberation. The court relied upon the following historical definitions:

"Premeditation" is the process simply of thinking about a
proposed killing before engaging in the homicidal
conduct; and "deliberation" is the process of carefully
weighing such matters as the wisdom of going ahead
with the proposed killing, the manner in which the killing
will be accomplished, and the consequences which may
be visited upon the killer if and when apprehended.
"Deliberation" is present if the thinking, i.e., the
"premeditation," is being done in such a cool mental
state, under such circumstances, and for such a period
of time as to permit a "careful weighing" of the proposed
decision.

Brown, 836 S.W.2d at 540-41 (quoting C. Torcia, Wharton's Criminal Law §140

(14th ed. 1979) (emphasis in original)); see also State v. Gentry, 881 S.W.2d 1

(Tenn. Crim. App. 1993).

23
Although not relevant to our inquiry, we note that the definition of first degree murder
containe d in T.C .A. § 39-1 3-202 w as am ended in 1995. See T.C.A . § 39-13 -202 (S upp. 199 6).

-3-
 Accordingly, premeditation requires evidence of a "previously formed

design or intent to kill," and deliberation requires "some period of reflection, during

which the mind is free from the influence of excitement or passion." West, 844

S.W.2d at 147. Moreover, to insure that the elements would be considered

separately, the court in Brown deemed it prudent to abandon a commonly given

instruction that premeditation could be "formed in an instant." Brown, 836 S.W.2d

at 543. In this regard, our court, in Gentry, considered the nature of proof from

which a jury might rationally infer the elements of first degree murder:

(1) facts about how and what the defendant did prior to
the actual killing which show he was engaged in activity
directed toward the killing, that is, planning activity;

(2) facts about the defendant's prior relationship and
conduct with the victim from which motive may be
inferred; and

(3) facts about the nature of the killing from which it may
be inferred that the manner of killing was so particular
and exacting that the defendant must have intentionally
killed according to a preconceived design.

881 S.W.2d at 4-5 (quoting 2 W. LaFave and A. Scott, Substantive Criminal Law,

§ 7.7 (1986) (emphasis in original).

We conclude that, in the light most favorable to the prosecution, the

evidence was sufficient for a rational trier of fact to conclude beyond a reasonable

doubt that the defendant was guilty of a premeditated and deliberated first degree

murder. There was evidence that the defendant and the victim had a troubled

relationship and were in the midst of a separation. The defendant, according to

one witness, had made threats toward the victim, including telling Chris Mathis to

the effect that no one could have her if he could not. The defendant admitted

-4-
that, on the night of the killing, he was angry because he felt that the victim had

lied to him.

The defendant's testimony included his procurement of materials

used to commit the offense. He located a tea jug to fill with gasoline in order to

burn the victim's car and he set out to find the victim. He related how he went to a

gas station, filled the jug with gasoline, purchased a cigarette lighter and put paper

towels in the opening of the jug. Also, the defendant's testimony clearly

recounted his actions in searching for the victim. He went to the victim's place of

employment and to her grandmother's house. He drove through the parking lots

of numerous bars and nightclubs in his effort to find the victim. His testimony

included the names of each establishment, the roads he traveled and his actions.

Notwithstanding the defendant's testimony that he only intended to burn the

victim's car, a rational trier of fact could infer planning activity from such evidence.

When finally locating the victim, he told her that he was going to burn

her car, but he prevented her from leaving the scene or locking herself inside the

car by taking her car keys. According to the defendant's own testimony, an

argument ensued and he returned to his car to retrieve the gasoline jug. The

defendant further admitted that he was aware the victim was lying prone on the

front seat when he lit the gasoline jug and threw it into the car. The defendant fled

the scene and later denied to police that he committed the offense.

We conclude that this evidence was sufficient for a rational trier of

fact to find the elements of premeditation and deliberation beyond a reasonable

doubt. The defendant's contentions that his actions were indicative of anger,

-5-
passion and an intent to burn the victim's car are unavailing. The jury heard the

defendant's testimony in this regard and could rationally conclude that his actions

were consistent with an intent to kill and deliberation. Moreover, although the

defendant testified that he had been drinking on the night in question, he

recounted his actions and whereabouts with clarity and detail.

The defendant attacks certain aspects of the state's proof that

purportedly demonstrate the elements of premeditation and deliberation and

offers other inferences that could have been drawn. For instance, he argues that

the evidence regarding the extent of the victim's injuries did not by itself establish

premeditation. See, e.g., Brown, 836 S.W.2d at 546. He contends that the

opinion testimony relative to the "pouring" of gasoline on the victim was

speculative and inadmissible, and, in any event, not probative of the elements of

the offense. He contends that the inference that he broke the driver's side window

of the victim's car before setting it ablaze conflicted with testimony that the driver's

door was open and that, in any event, such evidence would indicate anger, not

deliberation. The defendant further argues that evidence relative to his prior

threats against the victim must be viewed in contrast to the evidence that he and

the victim continued to have contact with one another after their separation.

Finally, he argues that evidence that he procured the materials with which to make

the bomb was not probative of premeditation, but rather could have been done in

a state of passion. See, e.g., West, 844 S.W.2d at 148.

Essentially, the defendant's contentions require a reweighing of the

evidence, something this court may not do. That is, it is of no consequence that

alternative inferences might exist depending upon what view of the evidence is

-6-
made, because our review is limited to whether or not the jury's guilty verdict is

rationally supported by the evidence when viewed in the light most favorable to

the state. Under such a review, we conclude that the circumstances of the killing

and the inferences that can be rationally drawn from the evidence by the jury are

sufficient to sustain the first degree murder conviction. T.R.A.P. 13(e); Jackson v.

Virginia, 443 U.S. at 318, 99 S. Ct. at 2789.

II.

The defendant contends that the trial court erred in allowing

evidence about the previous fires set to the victim's car on April 1, 1991 and April

6, 1991. He argues that said evidence was not relevant to a material trial issue

and it was improperly used to prove that he committed the offenses on April 17,

1991. The state insists that the trial court's rulings with respect to evidence of the

earlier fires were correct.

Testimony regarding fires to the victim's car on April 1st and April 6th

1991 was elicited through several witnesses. Gloria Mathis, the victim's

grandmother, testified that the defendant had burned the victim's car twice before

the offenses in question. The defendant objected based upon a lack of proof that

the defendant committed either fire. The defendant requested that Ms. Mathis’

statement be stricken from the record and that a curative instruction be issued or

that the trial court grant a mistrial. The prosecution contended that the evidence

of the earlier fires was intended to show the victim's state of mind and to show a

"pattern of conduct by the defendant" through the similarity of the offenses.

-7-
 The trial court ruled that it would allow testimony only about prior

burnings that related to the defendant. The state assured the court that it would

present a witness who would testify that the defendant had set the April 6th fire.

The trial court overruled the defendant’s objection relative to any evidence of prior

fires “on the stipulation that if [the defendant’s involvement is] disproven, [it would]

sustain the motion for a mistrial.” The trial court sustained the defendant’s

objection to Ms. Mathis’ statement and instructed the jury to disregard the witness'

statement that the car had been burned "twice before."

Ms. Mathis was then questioned about the April 6th fire but did not

implicate the defendant as the person who had caused the fire. The trial court

instructed the jury that Ms. Mathis’ testimony relative to the April 6th fire was being

admitted contingent upon it being made relevant at a later time. Her son, Chris

Mathis, was later permitted to relate facts regarding the April 6th incident. In fact,

it was Chris Mathis, an eyewitness, who connected the defendant to the April 6th

fire. The defense, who had earlier noted an "ongoing objection," did not

contemporaneously object to Chris Mathis' testimony.

Before the testimony of Viola Wylene Price, the prosecution advised

the court that Price and Commander Earl Atchley of the Chattanooga Fire

Department would relate statements made by the victim on the scene to the effect

that the defendant had burned her car on two previous occasions. The prosecutor

argued that the evidence was relevant to the victim's state of mind, insofar as she

knew the defendant's prior acts and therefore would not have associated with him

voluntarily. The defense again noted that such evidence of prior acts would lead

-8-
the jury to conclude that the defendant had committed the acts for which he was

being tried.

The trial court ruled that the victim's statements were admissible as "excited

utterances." See Tenn. R. Evid. 803(2). The court further ruled that it would

instruct the jury that the statements were admitted to show the victim's existing

state of mind but not "as to whether there were in fact two prior fires or whether

there weren't two prior fires."

Price was allowed to testify that the victim told her that the

defendant had tried to set fire "to her twice before." Likewise, Atchley testified that

the victim said that the defendant had committed the offense and that he was the

"same guy that set the automobile on fire on the 6th." The trial court, on each

occasion, instructed the jury that the statements were "excited utterances," and

not offered to prove the defendant committed the prior fires.

Ed Forester and Mike Donnelly testified relative to the prior fires in

the course of their testimony about their investigations. Before Forester's

testimony, the prosecution informed the trial court that the witness would relate his

findings with regard to his April 1st and April 6th investigations. The state argued

that the evidence was relevant to show the victim's state of mind with regard to her

relationship with the defendant and to rebut the defendant’s theory that the victim

was with the defendant willingly on the night of her death. The defense objected

on the grounds that Forester’s statement that the victim suspected the defendant

of the April 1st fire had nothing to do with her state of mind and that there had

been no evidence connecting the defendant to the April 1st fire. The trial court

sustained the defendant’s objection relative to evidence of the April 1st fire, stating

-9-
that it was too remote and that the victim’s mere suspicion of the defendant for the

April 1st fire was not enough to allow its introduction. The trial court also ruled

that Forester could testify to the April 6th fire because there had been proof of the

defendant's involvement. The court further noted that evidence of the April 6th fire

had been admitted because "it was relevant and probative to the issue of

premeditation and intent of the defendant when he . . . set the fire on April the

17th, . . . since there was proof that he himself actually set the fire."

Forester then testified that he had met the victim on April 1, 1991,

and that he had investigated a fire to the victim's car on April 6, 1991. He related

the details of the April 6th fire. At one point in this testimony, he refers to "both

previous fires." The defendant later objected out of the presence of the jury but

stated no basis for the objection. The trial court stated that it did not hear the

reference to more than one previous fire and never ruled on the defendant’s

objection. .

Donnelly testified that the investigation of the victim's car revealed

evidence of "three separate and distinct fires." He added that he learned fires had

been set to the car on April 1st and April 6th, in addition to the day of the offenses

being tried. The defense objected to his testimony and moved for a mistrial on the

basis of the cumulative references that had been made to the earlier fires. The

trial court denied the mistrial motion because it did not think that the defendant

had suffered any prejudice. However, the trial court offered a curative instruction

for the jury to disregard the reference to the April 1st fire, but the defendant

declined the instruction.

-10-
 As the defendant correctly notes, evidence that an accused has

committed some other crime or bad act independent of that for which he is

charged is generally inadmissible, even though it may be a crime or act of the

same character as that on trial. Tenn. R. Evid. 404(b); State v. Howell, 868

S.W.2d 238, 254 (Tenn. 1993); Bunch v. State, 605 S.W.2d 227, 229 (Tenn.

1980). However, if evidence that a defendant has committed a crime separate

and apart from the one on trial is relevant to some matter actually in issue in the

case on trial and if its probative value is not outweighed by the danger of its

prejudicial effect, the evidence may be admitted. Tenn. R. Evid. 404(b); Howell,

868 S.W.2d at 254. Issues to which such evidence may be relevant include

identity, motive, common scheme or plan, intent or the rebuttal of accident or

mistake defenses. In State v. Parton, 694 S.W.2d 299, 301 (Tenn. 1985), the

supreme court stated that admissibility was also contingent upon the trial court

finding clear and convincing evidence that the prior crime, wrong or act was

committed by the defendant. See, e.g., State v. Holman, 611 S.W.2d 411, 412-13

(Tenn. 1981).

As our previous recital of the facts indicates, the record does not

provide a pattern of clear cut testimony, objections and rulings regarding the

previous fires. Sometimes the defendant objected without specifying the basis of

the objections, one time he claimed a continuing objection, while other times there

was no specific objection made. The trial court's rulings were, similarly, often not

specific. In this respect, we note that at no time did either of the parties refer to

Rule 404(b) or request a jury-out hearing as provided by Rule 404(b) at which

specific rulings upon each questioned proffer of evidence could be made. See,

e.g., State v. Bigbee, 885 S.W.2d 797, 806 (Tenn. 1994). As the rule indicates,

-11-
the trial court was not obligated to conduct such a hearing absent a request. In

any event, the ultimate result is that there is no record of a trial court analysis and

determination regarding issue relevance and potential prejudice.

Nevertheless, as the state contends, the record indicates that the

evidence of the previous fires is relevant to the defendant's motive and intent

regarding his conduct for which he is now being tried. In this respect, we note that

the trial court stated at one point that the April 6th fire was relevant to intent and

premeditation. We agree. In State v. Smith, 868 S.W.2d 561 (Tenn. 1993), the

defendant objected to the introduction of evidence that he committed previous

assaults against his estranged wife, one of the murder victims. The defendant

claimed that the evidence violated Rule 404(b). The supreme court stated:

In response to the Defendant's assertions that the
evidence of the two episodes was irrelevant and
inadmissible under Tenn. R. Evid. 404(b), the State cites
a line of cases, see, e.g., State v. Turnbill, 640 S.W.2d
40, 46-7 (Tenn. Crim. App. 1982); and State v. Glebock,
616 S.W.2d 897, 905-906 (Tenn. Crim. App. 1981),
which hold that violent acts indicating the relationship
between the victim of a violent crime and the defendant
prior to the commission of the offense are relevant to
show defendant's hostility toward the victim, malice,
intent, and a settled purpose to harm the victim. Also, in
the present case, the victims, despite the Defendant's
threats to kill them if they did so, had filed charges
against the Defendant based on these prior assaults.
The evidence of these violent episodes was admitted not
to prove the Defendant acted in accord with his character
but as part of the proof establishing his motive for the
killings. The probative value of this evidence is not
outweighed by the danger of unfair prejudice.

Smith at 574 (emphasis added) (citations omitted). We believe the facts in the

present case are similar to those in Smith. The defendant committed prior acts of

arson toward the victim and charges were brought. The defendant was aware of

the charges. As in Smith, these facts were highly probative of the defendant's

-12-
motive and intent. We conclude that the probative value of the evidence is not

outweighed by the danger of unfair prejudice and was, therefore, admissible.

III.

The defendant argues that the trial court erred by admitting a

photograph taken of the victim at an autopsy. He argues that the victim's

appearance in the photograph had been altered by medical procedures and that

the prosecution's expert witness, as well as lay witnesses, were able to describe

the victim's condition without the use of photographs. The state contends that the

photograph was relevant to show the nature of the victim's injuries and that the

trial court did not abuse its discretion in this regard.

The record indicates that the prosecution sought to introduce a

series of four photographs, contending that they accurately depicted the

consistency of the burns received by the victim. Dr. Merriman testified that the

photographs would best illustrate her testimony, although she conceded that she

could describe the victim's condition, including her charred, hardened and

discolored skin, without them. Dr. Merriman also admitted that the photographs,

taken at the autopsy, did not reflect the victim's condition at the time of her

admittance to the hospital. In this regard, she acknowledged that incisions had

been made in the victim's skin and that fluids provided to the victim produced a

swelling to her body, eyes, lips and tongue.

Nonetheless, the trial court ruled that one of the photographs, which

depicted the victim's back as she lay on her side, was admissible, stating that it

was representative of all the burns and was relevant to assist the jury in

-13-
understanding the seriousness and degree of the burns. The trial court ruled that

the other photographs, which more graphically depicted the victim's head, torso,

face and extremities, were inadmissible because their probative value was

outweighed by the danger of unfair prejudice.

The leading case regarding the admissibility of photographs of

murder victims is State v. Banks, 564 S.W.2d 947 (Tenn. 1978), in which the

supreme court indicated that the determination of admissibility is within the

discretion of the trial court after considering the relevance, probative value and

potential unfair prejudicial effect of such evidence. The general rule, as stated in

Banks, is that "photographs of the corpse are admissible in murder prosecutions if

they are relevant to the issues on trial, notwithstanding their gruesome and

horrifying character." Id. at 950-951 (citing People v. Jenko, 410 Ill. 478, 102

N.E.2d 783 (1951)). On the other hand, "if they are not relevant to prove some

part of the prosecution's case, they may not be admitted solely to inflame the jury

and prejudice them against the defendant." Banks, 564 S.W.2d at 951 (citing

Milam v. Commonwealth, 275 S.W.2d 921 (Ky. 1955)).

Thus, even relevant evidence should be excluded if its probative

value is substantially outweighed by the danger of unfair prejudice to the

defendant. Banks, 564 S.W.2d at 951; see also Tenn. R. Evid. 403. In Banks,

the court stated that "[t]he more gruesome the photographs, the more difficult it is

to establish that their probative value and relevance outweigh their prejudicial

effect." 564 S.W.2d at 951 (citation omitted). Also, it noted that autopsy

-14-
photographs are often condemned "because they present an even more horrifying

sight and show the body in an altered condition. . . ." Id.24

In the present case, the admitted photograph did depict the victim in

a different condition due to the treatment procedures that had been administered.

This factor weighs against admissibility. Banks, 564 S.W.2d at 951. Likewise, the

testimony of Dr. Merriman and several lay witnesses conveyed the graphic and

extensive nature of the victim's burns and the extent of her injuries, further

weighing against the admission of the photograph. Id. On the other hand, the trial

court found that the photograph was relevant to "the seriousness and the degree

of the burns." The trial court ruled that the photograph showed the nature of the

injury and the consistency of the burns received by the victim. This, in turn, was

relevant to an assessment of how the offense was committed by the defendant.

We note that part of the prosecution's theory, as related by Dr. Merriman and Mike

Donnelly, was that the victim's injuries were consistent with a dousing of

flammable material, and not just a splashing or splattering. In this regard, the

evidence was relevant to the manner in which the offense occurred and to clarify

testimony on the issue. See, e.g., Banks, 564 S.W.2d at 951. See also Smith,

868 S.W.2d at 576 (trial court did not abuse its discretion in allowing autopsy

photograph of victim during guilt phase in part to illustrate testimony); State v.

Caughron, 855 S.W.2d 526, 536 (Tenn. 1993).

24
The defendant relies upon State v. McGall, 698 S.W.2d 643 (Tenn. Crim. App. 198 5),
in which the victim had been shot in the chest and later run ov er and dragged by a car. This court
held that it was error to admit photographs of the victim because, with the exception of the
gunshot wound , all of the harm to the victim wa s caused by the sub sequent passin g of a vehicle .
Conversely, in the present case, the photograph that was admitted, although altered, was limited
in nature and depicted injuries the victim received as a result of the defendant's conduct. Thus,
we do not consider McGall to be dispositive of this issue.

-15-
 The trial court excluded several other photographs that were more

graphic in nature on the ground that their probative value was substantially

outweighed by the risk of prejudice to the defendant. By contrast, the photograph

that was admitted was more limited in nature, revealing the victim's back as she

lay on her side. Given the trial court's full consideration of this issue, as

evidenced by its admission of one photograph and exclusion of several others, we

conclude that the trial court did not abuse its discretion in this regard. Banks, 564

S.W.2d at 951. See also Smith, 868 S.W.2d at 576; State v. Van Tran, 864

S.W.2d 465, 477 (Tenn. 1993); Caughron, 855 S.W.2d at 536; Cazes, 875

S.W.2d 253, 263 (Tenn. 1994). It was not error for the trial court to admit this

photograph.

IV.

The defendant contends that the trial court erred in allowing

"misleading and speculative" opinion testimony about how gasoline was used in

the homicide. In essence, Mike Donnelly, a Tennessee Fire Marshall arson

investigator, gave his opinion that the gasoline had been "poured rather than

thrown" onto the victim. The defendant contends that Donnelly's testimony does

not meet the four-part test for admission of scientific expert testimony provided in

State v. Williams, 657 S.W.2d 405, 412 (Tenn. 1983). In Williams, our supreme

court recognized the following requirements for expert testimony: (1) the witness

must be an expert, (2) the subject matter of the witness' testimony must be proper,

(3) the subject matter must conform to a generally accepted explanatory theory,

and (4) the probative value of the witness' testimony must outweigh its prejudicial

effect. Id. at 412. In fact, the defendant now claims that Donnelly's testimony met

none of these factors.

-16-
 Unfortunately, the defendant's objections at trial were not so plainly

stated. Donnelly testified in detail to substantial training and experience relative to

fire and explosion investigations. Without objection, the trial court accepted him

as an expert witness in the field of arson investigation. Donnelly testified that he

believed that the fire had been started on the driver's side of the car, both front

and rear seat areas. He indicated that these areas had suffered the greatest

amount of damage and were where the greatest amount of combustibles had

been consumed. Donnelly said that gasoline had been applied to the driver's side

of the car as an accelerant. He also testified that based on his examination of the

car and his viewing of the photographs of the victim's burns, he believed that the

gasoline had been poured directly onto the victim. He said that his belief was

based upon the fact that damage was limited to the interior of the car, being

confined to the driver's side of the car, both front and rear. Likewise, he relied

upon the fact that both the front and back of the victim's body was burned, an

indication that accelerant was not just splashed onto her while she was in the car.

During the course of this testimony, the defendant's objection

primarily related to the fact that Donnelly was not a doctor, in terms of his

attempting to interpret how an accelerant was applied to the victim's body. The

trial court concluded that Donnelly was entitled to give his opinion based upon his

expertise, his review of the autopsy photographs, the lab and investigative reports,

and his personal inspection of the materials and car. In this respect, the trial

court's ruling was within its discretion and was appropriate. See State v. Ballard,

855 S.W.2d 557, 562 (Tenn. 1993).

-17-
 The more specific attacks upon Donnelly's testimony that the

defendant now raises under Williams cannot be pursued because they were not

previously raised. Obviously, if any question had been raised in the trial court

about the reliability of the scientific principles involving fire accelerants and paths

of burning, full explanation may have been forthcoming from Donnelly or other

experts. Without proper objection, we will not fault the trial court or the state for

not presenting a greater foundation for the opinions Donnelly gave. Otherwise, we

note that expert testimony regarding the nature of accelerants or the paths that

fires take is not uncommon. See, e.g., Otis v. Cambridge Mutual Fire Insurance

Company, 850 S.W.2d 439, 443-444 (Tenn. 1992). In this respect, given the

record of Donnelly's expertise, the items he reviewed, and the nature of the

conclusions he reached, we are unable to hold that his testimony was improperly

speculative or otherwise inadmissible.

V.

The defendant claims that the trial court gave incorrect instructions

to the jury on the first degree murder elements of premeditation and deliberation.

As we noted, our supreme court has held that an instruction to the jury that

premeditation may be formed "in an instant" should be abandoned. Brown, 836

S.W. 2d at 546. The court concluded that such an instruction improperly blurs the

distinction between premeditation and deliberation and does not properly allow the

jury to consider whether a defendant's actions were done with reflection and a

cool purpose. Id. See also West, 844 S.W.2d at 147.

-18-
 In the present case the trial court properly instructed the jury on the

separate elements of intent, premeditation, and deliberation. However, the

instructions also charged that:

Premeditation means that the intent to kill must have
been formed prior to the act itself. Such intent to kill may
be conceived and deliberately formed in an instant. It is
not necessary that the purpose to kill preexist in the mind
of the accused for any definite period of time. It is
sufficient that it preceded the act, however short the
interval, as long as it was the result of reflection and
judgment.

The instruction contained the language the court in Brown held should be

abandoned. The defendant did not object to the instruction at trial in March of

1992 nor did he raise the erroneous instruction as an issue in his initial motion for

a new trial. Brown was decided in June 1992 and the defendant included the

issue in his amended motion for a new trial filed in August 1992. In denying relief

on this ground during the motion for a new trial hearing, the trial court noted that

Brown was not to be applied retroactively and that, in any event, there was

sufficient evidence of premeditation and deliberation in this case to render any

error harmless. The state on appeal argues these identical grounds and claims

that the issue is without merit. We agree.

In State v. Meadows, 849 S.W.2d 748, 754 (Tenn. 1993), our

supreme court reaffirmed its position regarding retroactivity when it stated that

"newly announced state constitutional rules will be given retroactive application to

cases which are still in the trial or appellate process at the time such rules are

announced, unless some compelling reason exists for not so doing." The first

step in determining whether a case will be given retroactive application is whether

it announces a new constitutional rule. "[A] case announces a new constitutional

rule when it breaks new ground or imposes a new obligation on the States or the

-19-
Federal Government." Teague v. Lane, 489 U.S. 288, 301, 109 S. Ct. 1060, 1970

(1989).

This court has held on numerous occasions that the Brown decision

did not create a new constitutional rule. See, eg., State v. Lofton, 898 S.W.2d 246

(Tenn. Crim. App. 1994), app. denied, (Tenn. Feb. 27, 1995); State v. Jimmy Sills,

No. 03C01-9410-CR-00370, Hamilton Co. (Tenn. Crim. App. May 10, 1995), app.

denied, (Tenn. Sept. 11, 1995); State v. Joe Nathan Person, No. 02C01-9205-

CC-00106, Madison Co. (Tenn. Crim. App. Sept. 29, 1993); State v. Willie Bacon,

Jr., No. 1164, Hamilton Co. (Tenn. Crim. App. Aug. 4, 1992), app. denied. Also,

as stated in Lofton, the supreme court did not hold in Brown that the instruction on

premeditation violated a constitutional right. Lofton, 898 S.W.2d at 249-250. It

only stated that it would be prudent to abandon the instruction because of the

potential for confusion. Id. We conclude that the trial court did not err in its

instructions relative to the elements of premeditated and deliberated first degree

murder.

SENTENCING PHASE

I.

The defendant argues that the trial court erred by requiring the

defense to disclose a report that had been prepared by his court-appointed

investigator, Colin Mitchell, through the testimony of Dr. Meyer. The defendant

argues that the report was attorney work product and was privileged. He argues

that he was prejudiced by the disclosure because the prosecution was then

permitted to cross-examine Dr. Meyer regarding numerous acts committed by the

defendant as a child, and then argue these acts to the jury during summation.

-20-
The state concedes that the report was undiscoverable work product under Rule

16(b)(2), Tenn. R. Crim. P.,25 but argues that because the defendant allowed Dr.

Meyer to review the report before testifying, the report is discoverable as a basis

of his evaluation. They also argue that the specific instances of conduct were

properly admitted as an impeachment of Dr. Meyer's evaluation that the defendant

exhibited various character traits consistent with both a borderline personality

disorder and a post-traumatic stress disorder by showing, instead, that the

defendant also exhibited several character traits of an antisocial personality

disorder. We agree.

Rule 703, Tenn. R. Evid., provides that an expert may base his or

her opinion on facts or data "perceived by or made known to the expert at or

before the hearing." Furthermore, Rule 705, Tenn. R. Evid., provides that the

court may require disclosure of the underlying facts or data relied upon by the

expert in formulating his opinion. Dr. Meyer testified that he completed his

evaluation and report of the defendant in December 1991. On cross-examination,

he testified that he relied upon the defendant's statements and the investigator's

report to develop facts surrounding the defendant's background. In a jury-out

hearing, Dr. Meyer testified that he received the investigator's report about one

week prior to trial, used it to verify various aspects of the defendant's childhood

and educational background, and considered it before testifying at trial. When

cross-examination resumed, Dr. Meyer admitted that he altered his opinion of the

defendant's evaluation somewhat after reviewing the investigator's report relative

25
In State v. Nic hols , 877 S.W.2d 722, 730 (Tenn. 1994), the supreme court concluded
that "when a psychologist or psychiatrist does not prepare a summary report, but instead relies on
extensive memoranda to record not only observations and hypotheses but also evaluations, such
records are discoverable under Rule 16(b)(1)(B)." In this case, Dr. Meyer prepared an evaluation
report in advance of trial and therefore, the investigator's report is considered an internal
memorandum and is generally nondiscoverable, as the state concedes, under Tenn. R. Crim. P.
Rule 16(b)(2).

-21-
to the defendant's childhood background and behavior. Thus, information in the

investigator's report helped form a basis for Dr. Meyer's opinions and it was then

subject to disclosure to the state.

Relative to the defendant's claim that he was prejudiced by the

cross-examination of Dr. Meyer about several instances of the defendant's setting

fire to things as a child, the state argues that the specific instances of conduct

were used as a basis to impeach Dr. Meyer's evaluation and to show that the

defendant exhibited character traits associated with an antisocial personality

disorder. As discussed earlier, Rule 404(b), Tenn. R. Evid., deals with the

admission of prior bad acts of the defendant. A jury-out hearing was held in which

the trial court ruled that specific instances of conduct could be discussed relative

to the reliability of Dr. Meyer's diagnosis. We conclude that the prior bad acts

contained in the investigator's report upon which Dr. Meyer, in part, based his

evaluation of the defendant were admissible to impeach the doctor's diagnosis

and that the danger of their prejudicial effect did not outweigh their probative

value.

II.

The defendant contends that the trial court erred with regard to its

instructions to the jury on the mitigating circumstances in T.C.A. § 39-13-204(j)(2)

and (j)(8). The T.C.A. § 39-13-204(j)(2) circumstance is that the “murder was

committed while the defendant was under the influence of extreme mental or

emotional disturbance." The T.C.A. § 39-13-204(j)(8) circumstance is that the

“capacity of the defendant to appreciate the wrongfulness of [his] conduct or to

conform [his] conduct to the requirements of the law was substantially impaired as

a result of mental disease or defect or intoxication which was insufficient to

-22-
establish a defense to the crime but which substantially affected the defendant's

judgment." The defendant contends that the use of "extreme" in the former

provision and "substantially" in the latter, deprived the jury of potential mitigation

evidence that falls short of these standards.

The defendant's argument was rejected by our supreme court in

addressing the identically worded provisions under the previous death penalty

statute. State v. Smith, 857 S.W.2d 1, 16-17 (Tenn. 1993). See also T.C.A. § 39-

2-203(j)(2)and (j)(8). The defendant in Smith argued that "the use of the modifier

in (j)(2) and (j)(8), misled the jury in its consideration of evidence of his mental and

emotional impairments and intoxication at the time of the offense." The supreme

court, however, concluded that there was no likelihood of the jury being misled by

these provisions. Smith, 857 S.W.2d at 17.

Also, the defendant's contention that the jury is not provided a basis

upon which to consider mitigating evidence that falls short of being "extreme" or

"substantial" is unavailing. As the state notes, the jury was instructed on T.C.A. §

39-13-204(j)(9), which provides that the jury may consider "[a]ny other mitigating

factor which is raised by the evidence produced by either the prosecution or

defense at either the guilt or sentencing hearings." (Emphasis added). We note

as well that a considerable portion of the defense argument to the jury related to

the various aspects of the defendant’s mental and emotional states, from his

youth to the time of trial. Thus, the qualifiers in the statutory provisions in question

did not unconstitutionally limit the jury's consideration of mitigating evidence.

-23-
Cazes, 875 S.W.2d at 268. We conclude that the defendant is not entitled to

relief on this issue.26

III.

As a corollary to the preceding issue, the defendant argues that the

trial court erred in refusing to allow certain evidence that the defense claimed was

mitigating in nature. We note, of course, that under the Eighth and Fourteenth

Amendments to the United States Constitution, a capital sentencer must not be

precluded from considering as a mitigating factor any aspect of a defendant's

character or record and any circumstances of the offense offered by the

defendant as a basis for a sentence less than death. Skipper, 476 U.S. at 8, 106

S. Ct. at 1671; Lockett, 438 U.S. at 604, 98 S. Ct. at 2964. In addition, T.C.A. §

39-13-204(c) provides:

In the sentencing proceeding, evidence may be
presented as to any matter that the court deems relevant
to the punishment and may include, but not be limited to,
the nature and circumstances of the crime; the
defendant's character, background history, and physical
condition; and evidence tending to establish or rebut the
aggravating circumstances enumerated in subsection (i);
and any evidence tending to establish or rebut any
mitigating factors. Any such evidence which the court
deems to have probative value on the issue of
punishment may be received regardless of its
admissibility under the rules of evidence; provided, that
the defendant is accorded a fair opportunity to rebut any
hearsay statements so admitted. . . .

26
We note that the defendant also relies on Smith v. McCormick, 914 F.2d 1153, 163-65
(9th Cir. 1990), which we conclude is distinguishable. The Ninth Circuit reversed the denial of
habeas corpus relief in part because Montana's death penalty structure interfered with the
consideration of mitigating evidence. The defendant is correct that Montana statutes contained
similar mitigation factors modified by "extreme" and "substantial." However, Montana statutes
also provided that the death penalty was required if the sentencer found one or more aggravating
circumstance a nd no mitigati ng circumstan ces "sufficien tly substantial" to ca ll for leniency. Id. at
1163. Tennes see provision s do not contain s uch a limitatio n. See T.C.A. § 39-13-204(f) and (g).

-24-
(emphasis added). The trial court therefore maintains its authority to determine

the admissibility of evidence offered in the sentencing phase and to exclude any

evidence not relevant to the above factors. See, e.g., Smith, 857 S.W.2d at 17;

State v. Johnson, 632 S.W.2d 542, 548 (Tenn. 1982); see also Lockett, 438 U.S.

at 604, 98 S. Ct. at 2964, n.12.

In determining the effect of an error excluding relevant mitigating

evidence, we look to the standard set forth in Skipper. There, the United States

Supreme Court held that an error in excluding evidence is not harmless if the

exclusion of the evidence "may have affected the jury's decision to impose the

death sentence." Id. at 8, 106 S. Ct. at 1673. In Skipper, the trial court had

excluded the testimony offered relative to the defendant's good behavior and

adjustments since his incarceration for the offense. The Supreme Court

concluded that the "exclusion by the state trial court of relevant mitigating

evidence impeded the sentencing jury's ability to carry out its task of considering

all relevant facets of the character and record of the individual offender." Id.

In the present case, the defendant sought to elicit testimony from the

defendant's mother relative to the nature of the defendant's relationship with the

victim. The witness related that the couple was very happy for the first few years

of their relationship but started having problems the past two years. The couple

separated and reconciled several times. The trial court sustained an objection as

to what the victim told the witness about the relationship in November 1990;

however, the defendant made no proffer of evidence in this regard. See Tenn. R.

Evid. 103. We, therefore, cannot conclude that the ruling was improper. See

Tenn. R. Evid. 103(a)(2).

-25-
 The defendant further elicited from the defendant's mother

statements made by the defendant regarding his feelings toward the victim. The

prosecution objected because the defense had not specified a time period with

regard to the question. The trial court overruled the objection, but limited the

defense to questions "within the approximate period of time when the murder took

place." The witness was then permitted to testify as to the nature of the

relationship from December 1990 to the time of the offense. Again, the defense

made no proffer of any additional testimony it sought to admit. The nature of the

relationship between the victim and the defendant, insofar as it was a troubled one

and had a potential effect on the defendant's mental state, was clearly conveyed

to the jury through the testimony of this witness and others. We cannot conclude

that the trial court erroneously excluded additional mitigating evidence in this

regard. See, e.g., Smith, 857 S.W.2d at 17-18.

The defendant also claims that the trial court should have allowed

admission of certain photographs as mitigating evidence. The photographs

included one of the defendant at thirteen years of age, and several of the victim.

The defendant argued that the jury should consider the photos because they

depicted how he looked at his mental age of thirteen, and how, according to the

defense, the victim "really did look in reality" and not how the state had

"represented her to be." The trial court ruled that the photographs were not

relevant to any factors in mitigation and excluded them on that basis.

The testimony of Dr. Meyer established clearly his opinion relative to

the defendant's emotional and intellectual levels, as well as his mental age.

Introduction of the defendant's photo in this regard would arguably have been

-26-
cumulative. Thus, exclusion of the defendant's photograph, we conclude, did not

affect the jury's decision to impose the death penalty. See, Skipper, 476 U.S. at

8, 106 S. Ct. at 1669. The defendant's claim with regard to the victim's

photographs are also without merit. First, he failed to show how such evidence,

purporting to show what the victim "really" looked like, would have been relevant in

mitigation. T.C.A. § 39-13-204(c). Second, we cannot, on this record, conclude

that the exclusion of such photographs affected the jury's decision to impose the

death penalty. Accordingly, the trial court did not abuse its discretion in excluding

this evidence. See Smith, 857 S.W.2d at 17-18.

Finally, the defendant argues that the jury should have been allowed

to consider the medical histories of the victim's past abortions as mitigation

evidence. In ruling on this issue, the trial court said:

There's proof before this jury, the defendant testified
about [the victim] having an abortion, that it was weighing
on his mind, and that . . . he was concerned about the
fact that she might be pregnant and have another
abortion. That testimony was introduced without
objection from the state and it is before this jury.
Whether he was or was not suffering under the fact that
she had had abortions . . . is a question the jury will have
to decide . . . . It's something that the jury can consider
as a mitigating factor.

Thus, the trial court allowed evidence that the victim had abortions in the past.

The prosecution objected to admitting the entire records of the procedures and the

trial court sustained the objection:

There are some pages that I don't think are relevant, and
I don't think it's necessary for the jury to . . . know the
exact procedure used. The gross description I don't think
is necessary to prove at this point what the defense is
trying to prove in this case, which is the fact that the
defendant knew that she'd had an abortion.

-27-
On appeal the defendant has advanced no basis upon which to hold that the trial

court's ruling in this regard was an abuse of discretion. The trial court's ruling that

the particulars of the abortion procedures were not relevant mitigating factors is

supported by the record. See T.C.A. § 39-13-204(c). The evidence in the record,

in particular the defendant's testimony in the guilt phase, reveals that the fact of

the victim's abortions may have affected the defendant's mental state, but not the

particulars of such procedures. Accordingly, the defendant is not entitled to relief

on the ground that the trial court unconstitutionally deprived the jury of mitigating

circumstances. See Smith, 857 S.W.2d at 17-18.

IV.

The defendant's final issue consists of numerous constitutional

attacks against the Tennessee Death Penalty statute, T.C.A. §§ 39-13-204 and -

206, under the Fifth, Sixth, Eighth, and Fourteenth Amendments to the United

States Constitution; Article I, Sections 8, 9, 16, and 17 of the Tennessee

Constitution; and Article II, Section 2 of the Tennessee Constitution. His

contentions, generally, are: (A) that the statute fails to narrow in a meaningful

manner the class of death eligible defendants, (B) that the death sentence in

Tennessee is imposed arbitrarily and capriciously, (C) that death by electrocution

is cruel and unusual punishment, and (D) that the manner of conducting a

proportionality review of death sentences in Tennessee is constitutionally

inadequate.

(a)

The defendant argues that the death penalty provisions fail to narrow

in a meaningful manner the class of death eligible defendants in Tennessee. He

asserts three arguments in support of this position. First, he contends that the

-28-
aggravating circumstance in T.C.A. § 39-13-204(i)(6), that the murder was

committed "for the purpose of avoiding, interfering with, or preventing a lawful

arrest or prosecution of the defendant or another," duplicates the felony murder

aggravating factor in T.C.A. § 39-13-204(i)(7) (1991). His claim is without merit.

Although the state attempted to prove factor (6) in this case, and the jury was so

instructed, the jury rejected it. Moreover, the jury's finding of factor (7) has been

held to be proper for a conviction of premeditated first degree murder. See

Middlebrooks, 840 S.W.2d at 346.

Second, the defendant contends that the aggravating circumstance

in T.C.A. § 39-13-204(i)(5), that the murder was "especially heinous, atrocious, or

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

produce death," is unconstitutionally vague and overbroad. Our supreme court

rejected similar contentions, however, in analyzing the former version of this

factor, T.C.A. § 39-2-203(i)(5), which read: "[t]he murder was especially heinous,

atrocious, or cruel in that it involved torture or depravity of mind." See State v.

Black, 815 S.W.2d 166, 181-82 (Tenn. 1991); State v. Barber, 753 S.W.2d 659,

670 (Tenn. 1988); State v. Williams, 690 S.W.2d 517, 526-30 (Tenn. 1985).

Likewise, this court has rejected this contention with respect to its current version.

State v. Richard Odom, a/k/a Otis Smith, No. 02C01-9305-CR-00080, Shelby Co.,

slip op. at 35 (Tenn. Crim. App. Oct. 19, 1994), app. granted on other grounds

(Tenn. Feb. 6, 1995).

Third, the defendant contends that the aggravating factors in T.C.A.

§ 39-13-204(i)(2), (i)(5), (i)(6), and (i)(7) fail to narrow the class of death eligible

defendants because they combine to encompass the majority of the homicides in

this jurisdiction. There is nothing in the record to support the defendant's

argument. Moreover, (i)(2) and (i)(6) do not pertain to this case. Factor (i)(2) was

-29-
not relied upon by the state and factor (i)(6) was rejected by the jury. Thus the

claim with respect to these factors is without merit. See, e.g., State v. Brimmer,

876 S.W.2d 75, 87 (Tenn. 1994); State v. Cauthern, 778 S.W.2d 39, 47 (Tenn.

1989).

(b)

The defendant argues that the death penalty in Tennessee is

imposed capriciously and arbitrarily. 27 He asserts ten arguments in support of this

contention. First, he complains that the prosecutors in this state have unlimited

discretion as to whether to seek the death penalty in a given case. Second, the

defendant argues that the prosecutor's unfettered discretion to subject any

defendant charged with first degree murder to a capital sentencing hearing

constitutes an improper delegation of judicial power and of legislative power in

violation of Article II, Section 2 of the Tennessee Constitution. Third, he argues

that such discretion violates state and federal guarantees of equal protection and

results in the wanton and freakish imposition of the death penalty that was

condemned in Furman v. Georgia, 408 U.S. 238, 92 S. Ct. 2726 (1972). Fourth,

the defendant argues that the failure to create a uniform system of jury selection

results in unequal treatment for capital defendants that necessarily results in the

arbitrary and capricious imposition of the death penalty. Fifth, he argues that the

manner of selecting “death qualified” jurors results in juries that are prone to

conviction. Sixth, the defendant argues that capital defendants should be allowed

to address jurors’ popular “misconceptions” regarding parole eligibility, the cost of

incarceration versus the cost of execution, general deterrence and the method of

execution. Seventh, he argues that it is constitutional error to instruct juries that

they must agree unanimously in order to impose a life sentence without telling

27
In support of his contentions, the defendant cites to numerous studies, newspaper
articles, law rev iew articles, and journals. Ther e is no eviden ce in the record, h owever, with
respect to any of hi s contentions. See, e.g., Smith, 857 S.W.2d at 23.

-30-
juries the effect of a nonunanimous verdict. Eighth, he argues that the Tennessee

Pattern Jury Instructions create a reasonable likelihood that jurors believe that

they must unanimously agree on the existence of any mitigating factors. Ninth,

the defendant argues that the Tennessee death penalty statute fails to require that

the jury make the ultimate determination of whether death is appropriate in a

specific case. And tenth, the defendant submits that it is constitutional error to

deny the defendant the right to give final closing argument in the penalty phase of

a capital trial based upon his contention that once an aggravating circumstance is

proven, the burden of proof shifts to the defendant to present mitigating evidence.

Relative to the defendant’s first argument that prosecutors have

unlimited discretion as to whether to seek the death penalty in a given case, our

supreme court has held that opportunities for discretionary action that inhere in

the processing of a murder case, including the authority of the prosecutor to select

those persons whom he or she wishes to prosecute for a capital offense, do "not

render the death penalty unconstitutional on the theory that the opportunities for

discretionary action render imposition of the death penalty freakish or arbitrary."

Brimmer, 876 S.W.2d at 86 (quoting Gregg v. Georgia, 428 U.S. 153, 96 S. Ct.

2909, 2937 (1976)). See also Cooper v. State, 847 S.W.2d 521, 536-38 (Tenn.

Crim. App. 1992) (rejecting similar claim in post-conviction context). This issue is

without merit.

Second, the defendant argues that the discretion accorded the

prosecution is an improper delegation of legislative and judicial power in violation

of Article II, Section 2 of the Tennessee Constitution. The defendant makes

reference to costs and expenditures that result from a prosecutor's decision to

seek the death penalty and argues that such appropriations must be made by the

legislature. He does not, however, offer support for his contention in the record.

The state does not address this issue in its brief.

-31-
 In State v. Brackett, 869 S.W.2d 936 (Tenn. Crim. App. 1993), the

defendant argued that Tenn. R. Crim. P. 5(a), which allows the prosecution to

object to the defendant's waiver of a grand jury investigation and jury trial so as to

submit to the jurisdiction of the general sessions court, violated Article II, Sections

1 and 2. This court noted:

Article II, §1 of the Tennessee Constitution provides that
the powers of government are to be divided into the
Legislative, Executive, and Judicial Departments. In
general, the "legislative power" is the authority to make,
order, and repeal law; the "executive power" is the
authority to interpret and apply law; and the "judicial
power" is the authority to interpret and apply law. The
Tennessee Constitution provision prohibits an
encroachment by any of the departments upon the
powers, functions and prerogatives of the others . . . .
The branches of government, however, are guided by the
doctrine of checks and balances; the doctrine of
separation of powers is not absolute....

Brackett, 869 S.W.2d at 939 (citations omitted). The court also noted that Article

II, Section 2 states, "No person or persons belonging to one of these departments

shall exercise any of the powers properly belonging to either of the others, except

in the cases herein directed or permitted." Brackett, 869 S.W.2d at 940 n.3. In

addressing the defendant's claim, the court noted that the supreme court has the

authority to enact rules for our courts, T.C.A. § 16-3-402, and that the rules are

approved by resolution of the General Assembly. T.C.A. § 16-3-404. Thus, the

court concluded:

The rule to which the defendant objects in this instance
was, of course, initiated by the supreme court as a
means of improving the criminal procedure in this state.
Because the judiciary promulgated and the Legislature
approved the rule granting the prosecution the right to
reject a non-jury proceeding in the general sessions
court, we find no intrusion by either of the other branches
of government.

Brackett, 869 S.W.2d at 939-40.

We conclude that the reasoning of Brackett applies here as well.

The district attorney general is given statutory authority to prosecute criminal

cases in his or her jurisdiction. T.C.A. § 8-7-103(1). When the death penalty will

be sought in a first degree murder case, the prosecutor must afford notice to the

-32-
defendant of the intent to seek the death penalty, as well as notice regarding the

aggravating factors that will be relied upon. Tenn. R. Crim. P. 12.3(b). Thereafter,

the proceedings are governed by the provisions passed by the Legislature in

T.C.A. § 39-13-204. The defendant in this case has not shown, nor has he cited

authority to show, that this functioning violates the separation of powers doctrine

under Tennessee law. This issue is without merit.

Third, the defendant argues that the death penalty statute has been

imposed discriminatorily on the basis of economics, race, gender and geographic

region in the state. This argument has been rejected by the supreme court. See

Brimmer, 876 S.W.2d at 87 n.5; Cazes, 875 S.W.2d at 268; Smith, 857 S.W.2d at

23; State v. Evans, 838 S.W.2d 185, 196 (Tenn. 1992). Moreover, the record is

devoid of evidence indicative of an individualized showing of improper

discrimination with regard to the sentencing of the defendant in this case. See,

e.g., McCleskey v. Kemp, 481 U.S. 279, 292-93, 107 S. Ct. 1756, 1767 (1987);

Cooper, 847 S.W.2d at 531.

Fourth, the defendant submits that the failure to create a uniform

system of jury selection results in unequal treatment for capital defendants and

necessarily results in arbitrary and capricious imposition of the death penalty.

Specifically, the defendant contends that all capital defendants should be

guaranteed individual sequestered voir dire and a questioning process which

would maximize the prospective jurors' candor.

Our supreme court has rejected the argument that the lack of

uniform procedures mandating individual sequestered voir dire during jury

selection renders the imposition of the death penalty arbitrary and capricious. In

Cazes, 875 S.W.2d at 269, the court concluded, without discussion, that this

argument had been previously rejected in Caughron, 855 S.W.2d at 542. Further,

the court has said that the "ultimate goal of voir dire is to insure that jurors are

-33-
competent, unbiased and impartial, and the decision of how to conduct voir dire of

prospective jurors rests within the sound discretion of the trial court." Cazes, 875

S.W.2d at 269. See also Black, 815 S.W.2d at 180. In this case, the defendant

has not challenged any of the jurors selected or the manner in which the trial court

conducted voir dire. This issue is without merit.

Fifth, the defendant argues that the manner of selecting "death

qualified" jurors results in juries that are prone to conviction. In State v. Teel, 793

S.W.2d 236, 246 (Tenn. 1990), cert. denied, 498 U.S. 1007 (1990), however, our

supreme court stated that "[t]his argument has been rejected by both the

Tennessee and United States Supreme Court." See also State v. Harbison, 704

S.W.2d 314, 318 (Tenn. 1986). The defendant has not offered any evidence in

which to substantiate his claim, nor has he presented a principled basis with which

to distinguish the supreme court holdings in this area.

Sixth, the defendant contends that capital defendants should be

allowed to address jurors' popular "misconceptions" concerning parole eligibility,

the cost of incarceration versus the cost of execution, general deterrence, and the

method of execution in order to avoid arbitrary decision making. This argument,

however, has been rejected on several occasions by our supreme court. See

Black, 815 S.W.2d at 179; See also Brimmer, 876 S.W.2d at 86-87; Cazes, 875

S.W.2d at 268. Moreover, the defendant did not present any evidence with

respect to his contentions.

As his seventh argument, the defendant submits that it is

constitutional error to instruct juries that they must agree unanimously in order to

impose a life sentence and to prohibit juries from being told the effect of a

nonunanimous verdict. See T.C.A. § 39-13-204(h). However, this contention also

has been repeatedly rejected by the supreme court. See Brimmer, 876 S.W.2d at

-34-
87; Cazes, 875 S.W.2d at 268; Smith, 857 S.W.2d at 22-23; Barber, 753 S.W.2d

at 670-71.

Relative to this issue, the defendant contends that requiring the jury

to agree unanimously to a life verdict violates the holding in McKoy v. North

Carolina, 494 U.S. 433, 110 S. Ct. 1227 (1990), and in Mills v. Maryland, 486 U.S.

367, 108 S. Ct. 1860 (1988). The claim has been held to be without merit under

Tennessee law. See Brimmer, 876 S.W.2d at 87; Thompson, 768 S.W.2d at 250;

State v. King, 718 S.W.2d 241, 249 (Tenn. 1986). In Brimmer, the court noted

that McKoy and Mills stand for the principle that any requirement that the jury must

unanimously find a mitigating circumstance before it can be considered violates

the Eighth Amendment. The court went on to state that the unanimous verdict

instruction does not violate these principles. Brimmer, 876 S.W.2d at 87. See

also Teel, 793 S.W.2d at 252. In any event, the trial court in the present case

instructed the jury that there was no requirement for jury unanimity or agreement

as to any particular mitigator. Also, it followed with instructions for each juror to

decide the case individually and for each to know that they were not required to

reach a unanimous verdict regarding mitigators or their weight. Thus, the

concerns expressed in McKoy and Mills are not present in this case.

Eighth, the defendant argues that the Tennessee Pattern Jury

Instructions create a reasonable likelihood that jurors are led to believe they must

unanimously agree on the existence of any mitigating factors. The supreme court

has repeatedly rejected this argument. See Brimmer, 876 S.W.2d at 87; Cazes,

875 S.W.2d at 268. Moreover, the trial court instructed the jury that "[t]here is no

requirement of jury unanimity as to any particular mitigating circumstance, or that

you agree on the same mitigating circumstance." It is a well-established rule in

Tennessee that a jury is presumed to have followed the instructions of the trial

court. State v. Lawson, 695 S.W.2d 202, 204 (Tenn. 1985).

-35-
 Ninth, the defendant claims that the statute fails to require that the

jury make the ultimate determination of whether death is the appropriate penalty in

a specific case. This argument has likewise been rejected by the supreme court.

See Brimmer, 876 S.W.2d at 87; Smith, 857 S.W.2d at 22. The defendant's claim

that there is no weighing process for aggravating and mitigating factors is also

without merit. In State v. Bane, 853 S.W.2d 483, 488 (Tenn. 1993), the supreme

court said that "a specific method for balancing mitigating and aggravating factors

in a capital sentencing proceeding is not constitutionally required."

As his tenth and final argument in support of his contention that the

death penalty is imposed arbitrarily and capriciously in Tennessee, the defendant

contends that once an aggravating circumstance is proven, the burden of proof

shifts to the defendant to present mitigating evidence. Therefore, the defendant

argues, it is constitutional error to deny the defense the right to give the final

closing argument in the penalty phase. This issue has been rejected by the

supreme court on numerous occasions. See Brimmer, 876 S.W.2d at 87 n.5;

Cazes, 875 S.W.2d at 269; Smith, 857 S.W.2d at 24; Caughron, 855 S.W.2d at

542. In Smith, the court said that the "order [of argument] is not inherently

prejudicial to the defendant or favorable to the state in its use at the sentencing

stage of a death penalty proceeding." Smith, 857 S.W.2d at 24.

(c)

In another challenge to the death penalty statute, the defendant

argues that electrocution is cruel and unusual punishment, therefore, violating the

Eighth Amendment of the United States Constitution and Article I, Section 16 of

the Tennessee Constitution. Our supreme court rejected this argument in Black,

815 S.W.2d at 179, and has since reaffirmed its holding on several occasions.

See State v. Nichols, 877 S.W.2d 722, 737 (Tenn. 1994); Cazes, 875 S.W.2d at

268; Howell, 868 S.W.2d at 258; Smith, 857 S.W.2d at 23; Bane, 853 S.W.2d at

489.

-36-
 (d)

The defendant argues that the appellate review process in death

penalty cases is constitutionally inadequate in its application. He contends that

the appellate review process is not constitutionally meaningful because the

appellate courts cannot reweigh proof due to the absence of written findings

concerning mitigating circumstances, because the information relied upon by the

appellate courts for comparative review is inadequate and incomplete and

because the appellate courts' methodology of review is flawed. This argument

has been specifically rejected by our supreme court on numerous occasions.

Cazes, 875 S.W.2d at 270-71; see also State v. Harris, 839 S.W.2d 54, 77 (Tenn.

1992); Barber, 753 S.W.2d at 664.

Moreover, the defendant contends that the statutorily mandated

proportionality review is conducted in violation of due process and the law of the

land. He argues that there is no comprehensive procedure for gathering

information in capital cases and no published set of criteria for the review. In

support of his claim, the defendant argues that since the promulgation of the

current statute in 1977, the supreme court has found no death sentence to be

imposed in a disproportionate manner. 28

As previously noted, the appellate review provided for in the statute

has been held to afford a meaningful proportionality review. Brimmer, 876 S.W.2d

at 87-88; Cazes, 875 S.W.2d at 270-71. Moreover, our supreme court has relied

upon and upheld the use of trial court reports in capital cases pursuant to Rule 12,

Tennessee Supreme Court Rules. In Harris, 839 S.W.2d at 77, the court noted

that it has considered the information in such reports and that, because no two

cases or defendants are exactly alike, each review for proportionality must be

based on the individual defendant and the nature of the crime. See also Cazes,

28
We note, however, that in State v. Branam, 855 S.W.2d 563 (Tenn. 1993), the
supreme court found the death penalty to be disproportionate and red uced the defendant's
sentence to life . Id. at 570-71.

-37-
875 S.W.2d at 270-71 (Rule 12 report not prepared; supreme court's review for

proportionality based on its thorough review of the record and Rule 12 reports in

other cases). Accordingly, the defendant is not entitled to relief on this basis.

CONCLUSION

In consideration of the foregoing and the record as a whole, the

defendant's conviction for first degree murder and sentence of death are affirmed.

Joseph M. Tipton, Judge

CONCUR:

Gary R. Wade, Judge

John H. Peay, Judge

-38-