concurring and dissenting.
While I fully concur with the majority on Issues II and III, I would affirm the trial court’s decision to move the trial to Johnson County — at least upon this record. I therefore dissent to the ruling in Issue I. Here, the defendant claims that the trial court erred by granting the very relief he sought before his second trial. He should not be able to challenge that ruling — at least at this point.
*13I view the death penalty phase of the trial as an extension of the guilt phase. It is entirely dependent upon a conviction of the crime charged. In my view, the defendant has waived any Rule 21 or Art. I, § 9, entitlements by his request for another change from Hamblen County. If, however, it can be shown that there is “undue excitement against the defendant in the [new] county” which might prevent a fair trial, the defendant may complain about the change to Johnson County. Tenn.R.Crim.P. 21.
In State v. Nichols, 877 S.W.2d 722, 728 (Tenn.1994), the supreme court made the following observations about the nature of venue:
The constitutional concern with the locality of trial has its origins in colonial history. When the British Parliament in 1769 attempted to try American colonists for treason in England, the Virginia House of Bur-gesses responded that such a plan would deprive colonists of “the inestimable Privilege of being tried by a Jury from the Vicinage, as well as the Liberty of summoning and producing Witnesses in such Trial.” The Declaration of Independence denounced the English monarchy “[f]or transporting us beyond Seas to be tried for pretended offenses.” The first Continental Congress lauded “the great and inestimable privilege of being tried by their peers of the vicinage.... ” There can be little doubt that early Americans valued highly the right to be tried by local jurors in the place where the crime occurred.
The court ruled, however, that a “change of venue motion constitutes a waiver of Article I, § 9, rights” as provided by the Tennessee Constitution. Id. And, when there is a waiver, there is no error by the change ordered by the trial court “unless the defendant is prejudiced, the administration of justice harmed, or the trial court abuses its discretion.” The record here does not now demonstrate any such danger by the change from Hamblen County to Johnson County. Any complaints about Johnson County are either too old or too new. Too old because the trial court’s initial change of venue to Hamblen County, which passed over Johnson County, was January 8, 1985; now, some ten years later, the likelihood of a fair trial there may be greater than in Hamblen County. Too new because the defendant has prematurely attacked the order of change, that is, he has not yet established “prejudice,” harm to the “administration of justice,” or an “abuse of discretion.”
I will attempt to summarize. The defendant’s historical entitlement was to be tried by a jury of his peers; that is, to have a jury selected from Sullivan County, the county in which the crime occurred. See Chadwick v. State, 201 Tenn. 57, 60, 296 S.W.2d 857, 859 (1956). That protection, afforded by both the constitution and a rule of procedure which tracks the constitutional mandate, was waived by the defendant’s consent to the first venue change. Because the defendant sought to change the venue from Hamblen County at the inception of his second trial, the one which resulted in this felony murder conviction, he has also waived any venue entitlement there. Because this penalty phase is an extension of the guilt phase, the defendant cannot challenge the refusal to change the trial site and then later, after relief is granted, veto the new place of trial; instead, the defendant must establish cause for objection to the new county. The majority’s interpretation would never allow a change in the location of the trial when the defendant did not ask for or consent to the change, no matter how difficult it might be to find an impartial jury. Thus, I would conclude that the trial court, at least for now, has the discretionary authority to change the trial location to Johnson County. The record does not now demonstrate that was erroneous.