IN THE SUPREME COURT OF TENNESSEE
AT JACKSON
FOR PUBLICATION
STATE OF TENNESSEE, ) Filed: March 23, 1998
)
Appellee, )
) GIBSON CRIMINAL
) (Transferred from Montgomery Co.)
v. )
)
) HON. DICK JERMAN, JUDGE
RONNIE MICHAEL CAUTHERN,
Appellant.
)
)
)
FILED
No. 02-S-01-9612-CC-00108
March 23, 1998
Cecil Crowson, Jr.
Appellate C ourt Clerk
For Appellant: For Appellee:
Hugh R. Poland, Jr. John Knox Walkup
POLAND & POLAND Attorney General & Reporter
Clarksville, Tennessee
Michael E. Moore
Robert T. Bateman Solicitor General
BATEMAN, BATEMAN
& DARNELL, P.C. John P. Cauley
Clarksville, Tennessee Assistant Attorney General
Nashville, Tennessee
At Trial:
Clayburn Peeples
District Attorney General
Trenton, Tennessee
John Carney
District Attorney General
Clarksville, Tennessee
Steve Garrett
Assistant District Attorney
Clarksville, Tennessee
OPINION
CONVICTION AND SENTENCE
OF DEATH AFFIRMED. ANDERSON, C.J.
This case is before the Court for automatic review of the Court of Criminal
Appeals’ affirmance of a conviction for first-degree murder and a sentence of death
imposed upon the defendant, Ronnie M. Cauthern, in a Gibson County resentencing
hearing. 1 In addition to the death sentence imposed for the murder of Rosemary
Smith, the jury returned a life sentence for the murder of Patrick Smith. In imposing
the death sentence, the jury found that the evidence of one aggravating
circumstance, “[t]he murder was especially heinous, atrocious or cruel in that it
involved torture or serious physical abuse beyond that necessary to produce death,”
outweighed the evidence of mitigating circumstances beyond a reasonable doubt.
See Tenn. Code Ann. § 39-13-204(g) and (i)(5)(1991).
Although the defendant’s 1988 convictions for first-degree murder were
affirmed on direct appeal by this Court, the case was remanded for resentencing
because the trial court failed to suppress portions of a statement given by the
defendant after he rescinded his waiver of the Fifth Amendment right to remain
silent. State v. Cauthern, 778 S.W.2d 39 (Tenn. 1989), cert. denied 495 U.S. 904,
110 S.Ct. 1922, 109 L.Ed.2d 286 (1990). In the 1988 Clarksville trial, the defendant
was convicted of murdering Patrick and Rosemary Smith in the perpetration of a
felony. 2 The jury imposed the death sentence for both murders after finding that the
evidence of two aggravating circumstances, the murders were “especially heinous,
atrocious or cruel, in that [they] involved torture or depravity of mind,” and the
murders were committed during the perpetration of a felony, outweighed the
1
“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 to direct appeal from the trial court to the court of
criminal appeals. The affirmance of the conviction and the sentence of death shall be automatically reviewed by
the Tennessee Supreme Court. Upon the affirmance by the court of criminal appeals, the clerk shall docket the
case in the supreme court and the case shall proceed in accordance with the Tennessee Rules of Appellate
Procedure.” Tenn. Code Ann. § 39-13-206(a)(1)(Supp. 1996).
2
The defendant was also convicted of first-degree burglary, for which he was sentenced to ten years,
and aggravated rape, for which he was sentenced to forty years; the forty-year sentence is to run consecutively
to the death sentence. A co-defendant, Brett Patterson, received a life sentence for each murder.
-2-
evidence of any mitigating factors. 3 After a remand for resentencing, the Clarksville
trial court granted a motion for change of venue to Gibson County, Tennessee.
The defendant alleges that a number of errors occurred in the resentencing
hearing in the Gibson County trial court, including but not limited to the sufficiency of
the evidence and the jury instruction as to the heinous, atrocious or cruel
aggravating circumstance, the jury instruction as to the penalty of life without parole,
prosecutorial misconduct, and whether the death penalty was disproportionate.
After reviewing the record, the issues raised, and the Court of Criminal Appeals’
opinion, we have determined beyond a reasonable doubt that none of the alleged
errors affected the sentence imposed by the jury; moreover, the evidence supports
the jury’s sentence of death and the sentence is not disproportionate or arbitrary as
applied to the defendant. Accordingly, we affirm the sentence of death by
electrocution.
FACTUAL BACKGROUND
A summary of the State’s evidence offered at the resentencing hearing
begins on the morning of January 9, 1987, when police responded to a “burglary in
progress” at the home of Patrick and Rosemary Smith in Clarksville, Tennessee.
Upon arriving at the Smiths’ home, the police discovered that a back door had been
kicked in, a window had been broken, and the phone lines had been severed.
Inside, police discovered the body of Patrick Smith partially lying across the
bed in the master bedroom; abrasions and marks on his neck indicated that he had
been strangled. The body of Rosemary Smith was discovered in another bedroom;
her underclothes were next to her body and her nightgown was in the corner of the
3
Tenn. Code Ann. § 39-2-203(i)(5) & (7)(1982)[Now Tenn. Code Ann. § 39-13-204(i)(5) & (7)(1991 &
Supp. 1996)].
-3-
room. A scarf had been tied around her neck and knotted, with a small vase
inserted between the nape of the neck and the knot, creating a tourniquet.
The master bedroom was in disarray, indicating that a violent struggle had
taken place. The bedrail had splintered away from the headboard and the mattress
was on the floor. Credit cards, electronic gear and a videocassette recorder
appeared to be missing from the house. Police found costume jewelry in the house,
but no jewelry of value. A slip of paper containing the name of the defendant,
Ronnie Cauthern, was also found.
The medical examiner, Dr. Charles Harlan, concluded that the victims died of
ligature strangulation. Neither victim died instantaneously and could have lived for
as much as three to six minutes from the time the blood supply was cut off;
however, they may have been rendered unconscious in approximately thirty
seconds. There was evidence that someone had unsuccessfully attempted to
strangle Rosemary Smith with the scarf, and finally accomplished the strangulation
by using a vase as a tourniquet to increase pressure. The medical examiner also
found evidence that Rosemary Smith had attempted to relieve the pressure on her
neck when the strangulation instrument was being applied. There were abrasions
on her neck and face, and the thyroid cartilage surrounding her larynx had been
fractured.
In addition to the foregoing, other evidence offered at the resentencing
hearing was as follows. James Phillip Andrew testified that he was with the
defendant, Ronnie Cauthern, and Brett Patterson shortly after the offenses. W hile
watching television, they all saw an account of the Smiths’ murders in which a
reward was offered for information. Cauthern told Andrew that he had worked for
the Smiths in the past and that he broke into their home and made the woman get
into the closet, while he and Patterson strangled the man. Cauthern told Andrew
-4-
that he raped the woman once and that he had stolen a wedding ring, a VCR, and
some credit cards. Andrew testified that Cauthern seemed proud of what he had
done, and that he threatened to kill Andrew if he repeated anything about the
murders.
Joe Denning, Andrew’s roommate, also testified that Ronnie Cauthern
admitted his role in the killings. Cauthern told Denning that he had cut the
telephone lines to the house, had broken in through the back door, had shined
flashlights in the victims’ faces in order to wake them, and had placed Rosemary
Smith in a closet. He admitted to Denning that he had raped the woman and poured
wine coolers over her,4 and then attempted to kill her. He said he tried to strangle
the woman by tying a scarf around her neck, but did not have the strength to kill her,
so he used the vase to create a tourniquet. Denning testified that Cauthern’s
demeanor was “hyper” and “excited” when he related what he and Patterson had
done. He said that he was going to be famous and that he would not be caught
alive. He showed Denning credit cards, a checkbook, and some stolen jewelry
which he intended to give to his girlfriend.
Cauthern’s former girlfriend, Jackie Pigue, testified that on Thursday night,
January 8, 1987, Cauthern and Patterson were “solemn” and “quiet.” The next day
Cauthern gave her a watch and a wedding ring. He told her that someone owed him
money and he was holding the items as collateral. When she later saw a news
report regarding the murders and Cauthern’s arrest, she went to the police and gave
them the jewelry.
Cauthern and Patterson were arrested on January 12, 1987. Search
warrants were obtained for Cauthern’s car and Patterson’s house. Among the items
4
There was evidence of a wet, cloudy substance on the bed in which Mrs. Smith was found,
as w ell as o n Mr s. Sm ith’s fa ce an d thig h. Po lice als o disc over ed tw o bot tle ca ps fr om wine coole rs in
the hallway outside the bedroom.
-5-
found were the victims’ credit cards, identification cards, receipts, checks and two
key rings containing keys which unlocked the Smiths’ home and automobiles. The
police also found two ski masks, several handguns, a roll of 880 military cord, and
Patrick Smith’s jacket.
Initially, Cauthern gave several statements to the police, all of which were
admitted into evidence at the sentencing hearing. In the first statement, he denied
knowing the Smiths or anything about the murders. In a later statement, which was
recorded and transcribed, Cauthern admitted that he was in the Smiths’ home, but
denied that he had raped or murdered anyone. Claiming that he and Mrs. Smith
were having an affair, he contended that she had called and invited him to come to
the Smith house and enter through the back door. He said that both he and
Patterson had consensual sex with Mrs. Smith, and he denied that he participated in
the murders, raped the victim, or removed any items from the house.
In the mitigation portion of the resentencing hearing, Cauthern testified that
he was nineteen years old at the time of the murders. He stated that he never knew
his birth father and saw his birth mother approximately three times during his entire
life. His birth mother died, and he was adopted by his maternal grandmother and
step-grandfather who moved to Clarksville in 1973. The defendant attended
Northeast High School, but dropped out to care for his grandmother who had
Parkinson’s disease, so that his step-grandfather could continue to work. He was
married at the age of eighteen and at the time of the hearing, had an eight-year-old
son. Although he had divorced his son’s mother, he continued to see his son every
three to five months. Since his incarceration he had remarried. His wife, who lived
in Canada, was not at the hearing. He testified that he helps his parents by writing
letters for them.
-6-
Cauthern also said he had completed the Graduate Equivalency Examination
and a paralegal course since being incarcerated, and he serves as a teacher’s aide
to the unit prison teacher. He has achieved “A” status at Riverbend Maximum
Security Institution for privilege purposes, which is the highest status available for a
prisoner. He introduced letters of appreciation from a correctional officer and the
prison teacher. A Unit Review Panel Hearing form containing positive comments
concerning his behavior and attitude was also introduced. He makes extra money
by drawing greeting cards and selling them to other prisoners. Charles Tracy, a
teacher for the Department of Correction, testified that he chose Cauthern as a
teacher’s aide because he gets along well with others and has good communication
skills.
JURY INSTRUCTION - AGGRAVATING CIRCUMSTANCE (i)(5) - TORTURE
The defendant first argued that the jury instruction as to Tenn. Code Ann.
§ 39-13-204(i)(5)(1991) - the heinous, atrocious, or cruel aggravating circumstance -
was reversible error because the 1989 amendment was instructed to the jury rather
than the statute as it existed at the time of the offense in 1987.
At the time of the offense, the aggravating circumstance set out in Tenn.
Code Ann. § 39-2-203(i)(5)(1982) provided that “[t]he murder was especially
heinous, atrocious, or cruel in that it involved torture or depravity of mind.” In 1989,
the statute was amended to provide as follows: “[t]he murder was especially
heinous, atrocious, or cruel in that it involved torture or serious physical abuse
beyond that necessary to produce death.” Tenn. Code Ann. § 39-13-204(i)(5)
(1991). At the resentencing hearing, the trial judge instructed the jury in accordance
with the 1989 amendment, rather than in accordance with the statute as it existed in
1987 at the time the offense was committed. Neither the defendant nor the State
objected at trial.
-7-
This Court has decided that a resentencing hearing must be conducted in
accordance with the law in effect at the time of the offense. State v. Brimmer, 876
S.W.2d 75, 82 (Tenn.), cert. denied, 513 U.S. 1020, 115 S.Ct. 585, 130 L.Ed.2d 499
(1994). We have also held that the 1989 amendment to aggravating circumstance
(i)(5) is “a substantive change which imposes not a different level of proof upon the
State, but different factors of proof.” State v. Bush, 942 S.W.2d 489, 505 (Tenn.),
cert. denied, ___ U.S. ___, 118 S.Ct. 376, 139 L.Ed.2d 293 (1997). Obviously, the
amended version substitutes the phrase “serious physical abuse beyond that
necessary to produce death,” for the words “depravity of mind.” It is therefore
obvious that the trial judge committed error in charging the jury with the 1989 version
of the statute, rather than the statute as it existed at the time of the commission of
the offense in 1987. Id.
Assuming there is error, as we must, the next question is whether the error is
harmless. We faced a similar position in Bush, a case where the victim was beaten
and stabbed forty-three times in the face, neck, shoulders, and chest. Although the
offense occurred before 1989, the trial court committed error by instructing the jury
as to the law as changed in 1989, i.e., that the appropriate aggravating
circumstance was set out in Tenn. Code Ann. § 39-13-204(i)(5), “torture or serious
physical abuse beyond that necessary to produce death,” instead of Tenn. Code
Ann. § 39-2-203(i)(5), “torture or depravity of mind.” In spite of the error, we held
that the defendant’s treatment of the victim constituted “torture,” independent of the
depravity prong in -203(i)(5) or the serious physical abuse prong of -204(i)(5).
Moreover, we found that the evidence was sufficient to establish “depravity of mind”
beyond a reasonable doubt, even though the jury was not instructed with regard to
the definition of “depravity of mind.” Accordingly, we held that the trial court’s error
in failing to instruct on the pre-1989 version of the aggravating circumstance was
harmless beyond a reasonable doubt. Id. at 506.
-8-
Following the Bush analysis, we must review the evidence in this case to
determine whether it is sufficient to support the “torture” prong of the aggravating
circumstance, independent of the depravity or serious physical abuse prong. In this
case, the trial court correctly instructed the jury as to the terms “heinous, atrocious,”
and “cruel” as defined in State v. Williams, 690 S.W.2d 517, 529 (Tenn. 1985). The
trial judge also correctly instructed the jury that “torture” means “the infliction of
severe physical or mental pain upon the victim while he or she remains alive and
conscious.” Id. at 529.
Applying these principles, we find that there is sufficient evidence in this
record to establish the torture factor under Tenn. Code Ann. § 39-2-203(i)(5) or
Tenn. Code Ann. § 39-13-204(i)(5), independent of the depravity or serious physical
abuse prongs of the aggravating circumstances. The victim, Rosemary Smith, was
placed in a closet, first enduring the mental anguish of her husband’s murder in the
next room. She then was raped twice, ridiculed, suffered through a bungled attempt
at strangulation and strangled to death with a tourniquet device placed around her
neck that caused massive damage to her throat and larynx. There was evidence
that the victim struggled to save herself while still alive and conscious by attempting
to release the pressure which was applied to her neck. After the blood supply was
finally cut off at the end of the struggle, she may have lost consciousness in thirty
seconds but remained alive for three to six minutes. See, e.g., State v. Hodges, 944
S.W.2d 346 (Tenn.), cert. denied, ___ U.S. ___, 118 S.Ct. 567, ___ L.Ed.2d ___
(1997) (mental and physical pain suffered by victim of strangulation constituted
torture). Thus, we conclude that the proof of torture establishes beyond a
reasonable doubt that the jury would have sentenced the defendant to death, even
had no weight been given to the invalid criteria of “serious physical abuse.”
We also determined in Bush that had the jury been properly instructed, it
would have found the evidence sufficient to establish depravity of mind beyond a
-9-
reasonable doubt. “[D]epravity is inherent in the state of mind of a murderer who
willfully inflicts severe physical or mental pain on a victim prior to death or at a time
very close to the victim’s death.” Bush, 942 S.W.2d at 506; Williams, 690 S.W.2d at
529. The evidence outlined above is sufficient to conclude in this case that had the
jury been properly instructed regarding depravity of mind, it would have found the
evidence sufficient to establish this factor. See also State v. O’Guinn, 709 S.W.2d
561 (Tenn.), cert. denied, 479 U.S. 871, 107 S.Ct. 244, 93 L.Ed.2d 169 (1986)
(ligature strangulation constituted depravity of mind).
SUFFICIENCY OF EVIDENCE TO SUPPORT DETERMINATION
THAT MURDER WAS “HEINOUS, ATROCIOUS OR CRUEL”
In addition to the instructional error claimed, the defendant argues that the
proof is insufficient to support the “heinous, atrocious or cruel” aggravating
circumstance and is insufficient to support a finding that this lone factor outweighs
the mitigating circumstances presented in this case.5 The defendant contends that
the evidence implicated his co-defendant as the actual murderer and that the
evidence failed to show “torture” because the victim lost consciousness thirty
seconds into the act of killing her. The defendant also relies on State v. Odom, 928
S.W.2d 18 (Tenn. 1996), in which a majority of this Court found the evidence
insufficient to support this aggravating factor. We reject each of these contentions.
The evidence established that the defendant Cauthern was a major
participant in the crimes.6 Cauthern and his co-defendant kicked in the door to the
5
When this offense was committed, Tenn. Code Ann. § 39-2-203(g) required the jury to find
that no mitigating factors were sufficiently substantial to outweigh the statutory aggravating
circumstance. The trial court here charged the jury with the statute as amended in 1989, which
provides that the jury must find that the aggravating circumstances proven by the State outweigh any
mitigating circum stance s beyond a reaso nable do ubt. Ten n. Code Ann. § 39 -13-204 (g)(1)(B )(1991) .
Obviou sly, the 1989 version is m ore favo rable to the defend ant.
6
In Tison v. Arizona, 481 U.S. 137, 158, 107 S.Ct. 1676, 1688, 95 L.Ed.2d 127 (1987), the
Sup rem e Co urt he ld tha t the E ighth Am end me nt to th e Un ited S tates Con stitutio n doe s not proh ibit
imposition of the death penalty where a defendant is a major participant in a felony, and his mental
state is on e of reck less indiffe rence to hum an life. See also State v. Branam, 855 S.W.2d 563 (Tenn.
1993).
-10-
victims’ home in the middle of the night and cut the phone lines. They woke
Rosemary Smith and the defendant placed her in a closet while her husband was
murdered in the next room. The defendant raped the victim, poured alcohol on her,
and attempted to strangle her to death, an act that ultimately required the use of a
tourniquet. Although the victim may have lost consciousness in thirty seconds, there
was evidence of an earlier unsuccessful attempt at strangulation after which a vase
was used as an aid to increase pressure on the neck before the blood supply was
finally cut off. Other evidence demonstrated that she tried to relieve the pressure on
her neck as her larynx was being crushed and that she survived for three to six
minutes after the blood supply was cut off.
The evidence of torture in this case is remarkably similar to State v. Hodges,
supra. There the victim was bound and handcuffed to a bed while the defendant
ransacked his home for property and money. After discussing with a co-defendant
whether the victim should be killed, the defendant strangled the victim to death. As
to the torture prong, we commented and held:
[T]he victim suffered considerable mental pain as the defendant, along
with [a co-defendant], ransacked his home, looking for valuable
property and money. The helpless victim’s mental pain, no doubt,
increased when the defendant and [a co-defendant] . . . discussed
whether or not they should kill the victim. The evidence surrounding
the murder itself shows that the victim pleaded . . . for his life. Dr.
Harlan testified that the killing would have taken between three to five
minutes to accomplish and that the victim would have been conscious
for most of this period. [The co-defendant] testified that she heard the
victim moaning and making a choking sound. The facts and
circumstances surrounding this murder, including the strangulation, are
clearly sufficient to establish torture as that term has been defined . . .
and to support the jury’s finding that this murder was heinous,
atrocious, or cruel, in that it involved torture or serious physical abuse
beyond that necessary to produce death.
944 S.W.2d at 358 (emphasis added); see also State v. Shepherd, 902 S.W.2d 895
(Tenn. 1995)(asphyxiation and suffocation of victim constituted (i)(5)); State v.
Johnson, 743 S.W.2d 154 (Tenn. 1987), cert. denied 485 U.S. 994, 108 S.Ct. 1303,
-11-
99 L.Ed.2d 513 (1988)(suffocation, taking four minutes for victim to die, was
sufficient to prove (i)(5)). Accordingly, we conclude that the evidence was sufficient
to support the jury’s finding of this aggravating circumstance under the facts of this
case.
In making this determination, we distinguish this case from State v. Odom,
which is relied upon by the defendant. In Odom, the defendant accosted the victim,
stabbed her three times, raped her, and took her purse. A majority of this Court
found that the circumstance of that rape did not constitute torture and that,
according to the majority, such a holding would have permitted every murder in the
perpetration of a rape to be automatically classified as a death eligible offense and
would not narrow the class of death eligible offenders as required by the Eighth
Amendment to the United States Constitution and Article I, § 16 of the Tennessee
Constitution. In contrast, the defendant in the present case was also convicted of
first-degree burglary, which, when coupled with the murder of the victim’s husband,
the multiple rapes and strangulations of the victim, and the other evidence of torture
as outlined above, not only is sufficient to prove the aggravating circumstance but
also serves to narrow the class of death eligible offenders and distinguish this case
from Odom. Thus, Odom does not support the defendant’s argument that the
evidence was insufficient to support this aggravating circumstance.
Finally, the jury was instructed to consider several statutory mitigating factors:
1) the defendant had no significant criminal history; 2) the murders were committed
while the defendant was under the influence of extreme mental or emotional
disturbance; 3) the youth of the defendant; 4) the defendant’s capacity 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 as a matter of law but which
substantially affected his judgment through the ingestion of drugs; and 5) any other
-12-
mitigating evidence which was raised by the evidence. See Tenn. Code Ann. § 39-
13-204(j)(1991). The trial court also instructed the jury on several nonstatutory
circumstances: 1) the defendant was an enterprising young man at the time of the
crimes; 2) the defendant has a minor child; and 3) the defendant is married.7 The
jury found beyond a reasonable doubt that the aggravating circumstance
outweighed the mitigating circumstances in this case, and, as discussed above, the
evidence was sufficient to support this finding.
LIFE WITHOUT POSSIBILITY OF PAROLE - JURY INSTRUCTION
The defendant also contends that the trial court erred by not instructing the
jury that life without the possibility of parole was a possible punishment. The State
responds that the punishment of life without the possibility of parole was statutorily
inapplicable to the defendant’s case and that the defendant expressly asked the trial
court not to charge it. We agree with the State that the defendant has clearly
waived this issue, but we also find that the option was unavailable to the defendant
in this case.
Prior to 1993, the only punishments available for a person convicted of first-
degree murder were life imprisonment or death. Tenn. Code Ann. § 39-13-
202(b)(1991). The legislature later amended the statute to add life without
possibility of parole as a sentencing option. Tenn. Code Ann. § 39-13-202(c) (Supp.
1996). The amendment was specifically made applicable to offenses committed on
or after July 1, 1993. See 1993 Tenn. Pub. Acts, ch. 473, § 1.
Conceding that this offense occurred well before July 1, 1993, the defendant
argues that life without parole was a viable sentencing alternative because of Tenn.
7
The trial co urt ins truct ed th e jury o n the law as to m itigatin g circ um stan ces as am end ed in
1989, which requires instructions on statutory and also non-statutory factors if raised by the evidence
and sp ecifically reque sted. See Odom , 928 S.W.2d at 30. The statute at the time of this offense
required instructions only on statutory mitigating factors raised by the evidence. Tenn. Code Ann.
§ 39-2-203(e)(1982)[now Tenn. Code Ann. § 39-13-204(e)(1991)]. Again, the difference in the
instruction s favore d the def endan t.
-13-
Code Ann. § 39-13-204(k)(Supp. 1996), which provides that if a defendant is
granted a new trial, “either as to guilt or punishment or both, the new trial shall
include the possible punishments of death, imprisonment for life without possibility
of parole or imprisonment for life.” Because life without parole is a lesser penalty
than death, the defendant also relies upon Tenn. Code Ann. § 39-11-112 (1991),
which provides:
Whenever any penal statute or penal legislative act of
the state is repealed or amended by a subsequent
legislative act, any offense, as defined by the statute or
act being repealed or amended, committed while such
statute or act was in full force and effect shall be
prosecuted under the act or statute in effect at the time
of the commission of the offense. Except as provided
under the provisions of § 40-35-117, in the event the
subsequent act provides for a lesser penalty, any
punishment imposed shall be in accordance with the
subsequent act.
(Emphasis added).
First, the defendant clearly waived this issue prior to trial when he filed a
motion in which he specifically requested that the trial court “not . . . submit to the
jury the possible sentence of ‘Life Without Parole.’” Comments prior to jury
selection by the trial court and counsel make it abundantly clear that the defendant
did not want the jury to be charged on the option of life without the possibility of
parole. Furthermore, there is no indication that the State objected to this procedure.
Under these circumstances, the issue is waived. Tenn. R. App. P. 36(a).
Nevertheless, we will address the issue on the merits to provide further guidance on
these statutory provisions.
This Court’s role in construing a statute is to determine and to “give effect to
the legislative intent without unduly restricting or expanding a statute’s coverage
beyond its intended scope.” Owens v. State, 908 S.W.2d 923, 926 (Tenn. 1995).
We must determine the legislative intent from the plain language of the statute,
-14-
“read in context of the entire statute, without any forced or subtle construction which
would extend or limit its meaning.” State v. Davis, 940 S.W.2d 558, 561 (Tenn.
1997). As a matter of statutory construction, a specific statutory provision will
control over a more general statutory provision. Matter of Harris, 849 S.W.2d 334,
337 (Tenn. 1993). Moreover, a statute is generally presumed to operate
prospectively, unless the legislature indicates a specific intention otherwise.
Brimmer, 876 S.W.2d at 82.
We conclude that the specific enabling provision of the 1993 act, which
clearly states that the amendment applies to all offenses committed on or after July
1, 1993, controls, as a matter of statutory construction, over the more general
provisions of Tenn. Code Ann. § 39-13-204(k) or Tenn. Code Ann. § 39-11-112.
The defendant’s crime occurred well before July 1, 1993. The statute in effect at
that time, Tenn. Code Ann. § 39-2-203(k), provided that upon the grant of a new
trial, the available sentencing options were life imprisonment and death. There is no
indication that the legislature intended that the option of life without parole apply
retrospectively to offenses occurring before July 1, 1993. See, e.g., White v. State,
589 A.2d 969, 974 (Md. Ct. App. 1991)(trial judge lacked authority to charge the jury
on life without parole because the offense was committed prior to the effective date
of the statute adding the sentencing option). Accordingly, even had the defendant
not waived this issue, the trial court lacked the statutory authority to instruct the jury
that life without possibility of parole was a sentencing option in this case.
PROSECUTORIAL MISCONDUCT
The defendant next argues that prosecutorial argument led to arbitrary and
unreliable sentencing in violation of the Eighth and Fourteenth Amendments to the
United States Constitution and Article I, §§ 8 and 16 of the Tennessee Constitution.
Contending that the prosecutor’s references to him as “the evil one,” comparing him
to other notorious murderers, and calling for general deterrence prejudiced the jury,
-15-
the defendant asserts that these errors required a new sentencing hearing. To
place the issue in context, we recite the relevant portion of the closing argument:
Yes, we are asking for the death penalty. Why? Why
should Ronnie Cauthern die? I once heard an
interpretation of the Lord's Prayer. "Deliver us from evil,"
originally translated and actually read, "Deliver us from
the evil one"--far more personally [sic], far more graphic,
and far more intense--the evil one.
In the 1960's, the Rolling Stones came out with a song.
The refrain after each chorus was, "Pleased to meet you.
Hope you guess my name." And, I suggest to you it was
a song about the evil one appearing in person throughout
the ages in many different guises. Mr. Poland says
civilized society--in civilized society, we don't kill. But in
civilized society, we must address--we must stand up to,
we must confront the realities of our daily existence and
our daily survival not only of ourselves but of our children
and their children.
It came to dawn on me after I thought about, "Pleased to
meet you, hope you guess my name"--that on January
8th and January 9th, 1987, the evil one descended upon
Patrick and Rosemary Smith, and the evil one is smart,
the evil one is skilled, the evil one is wily, and the evil one
is manipulative. A simple little demonstration of that,
ladies and gentlemen, is this. The evil one appeared
today and produced greeting cards--"Merry Christmas,"
"Happy Holidays."
But on January the 8th, 1987, the evil one appeared at
the door of 351 Hampshire Drive, a home not unlike
yours in a neighborhood not unlike yours--the evil one
appeared there in disguise--a mask, a black jacket, a
pistol, strangling rope, and the evil one is capable of
taking advantage of what was available inside their
house.
Yes, whether you like it or not--whether you volunteered
or not, you are engaged in the ultimate battle in everyday
combat with the evil one, and he's not going to go away.
He appeared in Minnesota in the form of Jeffrey Dahlmer
[sic]. He appeared in Union, South Carolina, and on
January the 9th, he appeared in the door of Patrick and
Rosemary Smith. You cannot negotiate with the evil one,
ladies and gentlemen. You cannot deal in good faith with
the evil one. You have got to destroy and destroy, or he
and his benefactors will destroy you. He'll destroy us.
He'll destroy our children.
The evil one took the name of Ronnie Cauthern on that
day. That was his name, and he's beyond redemption.
He's beyond rehabilitation. There is no treatment for this
individual posing in a mask and taking human form.
-16-
There is no treatment for this person. This person has
been around through the ages and will appear again.
You cannot cure him. Don't try to save him. Engage him
in combat and destroy him. Do your duty. When you
open that paper and you find that the State has carried
out your instruction, you will have scaled the ramparts at
least one time, and you will have been a part of bringing
back peace and tranquility in your community and in our
community, and you will send a message to the evil one.
You will send a message that we stand ready--armed,
and ready to fight for all in the world, for everything that
you believe in, for the sanctity of your home, the blessing
of seeing your children reach adulthood and have your
grandchildren, and you will take that step and leave a
legacy to your children that they someday will not have to
grapple with what the Smiths had to deal with and what
Karen Rivetna and her mother have to deal with.
"Holiday Greetings"--a time for loved ones to get
together. Horrible chaos has been reaped and racked on
this family. I'm asking you to do your duty. Stand tall.
Thank you.
We have recognized that closing argument is a valuable privilege for both the
State and the defense and have allowed wide latitude to counsel in arguing their
cases to the jury. State v. Bigbee, 885 S.W.2d 797, 807 (Tenn. 1994).
Nonetheless, closing argument is subject to the discretion of the trial judge, and
must be temperate, predicated on evidence introduced during the trial, and relevant
to the issues being tried. State v. Keen, 926 S.W.2d 727, 736 (Tenn. 1994).
Here, it is evident that the prosecutor’s argument, in several respects,
violated these well-established standards. First, the prosecution’s reference to the
Lord’s Prayer and its requests for the jury to “combat and destroy” the “evil one,”
amounted to the use of biblical passages that the Court repeatedly has held to be
improper and inflammatory. State v. Stephenson, 878 S.W.2d 530, 541 (Tenn.
1994); State v. Bates, 804 S.W.2d 868, 881 (Tenn.), cert. denied 502 U.S. 841, 112
S.Ct. 131, 116 L.Ed.2d 98 (1990). Second, the frequent references to the
defendant as the “evil one,” used as epithets to characterize the defendant, were
also improper and potentially appealed to the bias and passion of the jury. Darden v.
Wainwright, 477 U.S. 168, 179, 106 S.Ct. 2464, 91 L.Ed.2d 144 (1986)(“animal”);
-17-
Bates, 804 S.W.2d at 881 (“rabid dog”). Third, the statements that the jury should
“do its duty” and that its verdict should send a message to the community
constituted a plea for general deterrence, which we have held has no application to
either aggravating or mitigating factors. Keen, 926 S.W.2d at 737; State v. Irick, 762
S.W.2d 121, 131 (Tenn. 1988), cert. denied, 489 U.S. 1072, 109 S.Ct. 1357, 103
L.Ed.2d 825 (1989). Finally, the argument impermissibly suggested to the jury that
the defendant, as an incarnation of "the evil one," should be sentenced to death not
only for the offense charged but also for other heinous offenses committed by "the
evil one" in the form of other notorious murderers. Cf. Bigbee, 885 S.W.2d at 812
(argument that imposition of the death penalty in the cases before the jury would be
an appropriate way to punish defendant for other crimes he had committed is
improper). In summary, we find that the State's argument was highly improper.
Where argument is found to be improper the established test for determining
whether there is reversible error is "whether the improper conduct could have
affected the verdict to the prejudice of the defendant." Harrington v. State, 215
Tenn. 338, 385 S.W.2d 758, 759 (1965). We must consider: 1) the conduct
complained of, viewed in light of the facts and circumstances of the case; 2) the
curative measures undertaken by the court and the prosecution; 3) the intent of the
prosecutor in making the improper statement; 4) the cumulative effect of the
improper conduct and any other errors in the record; and 5) the relative strength or
weakness of the case. Bigbee, 885 S.W.2d at 809; State v. Buck, 670 S.W.2d 600,
609 (Tenn. 1984).
Application of these factors indicates that the argument, while highly
improper, did not affect the verdict to the prejudice of the defendant. The remarks in
question were only a portion of the prosecutor’s summation. Although no curative
measures were taken by the trial court or the prosecution, this was primarily
-18-
because the defense failed to object.8 We suggest, however, that this is a case in
which the sua sponte intervention by the trial court would have been appropriate.
See Sparks v. State, 563 S.W.2d 564, 567 (Tenn. Crim. App. 1978). It appears that
the prosecution’s motivation in making the argument was to respond to defense
counsel’s assertion that the defendant should not receive a death penalty in a
civilized society and also to rebut the defendant’s evidence of his rehabilitative
potential. Finally, the misconduct must be viewed together with the overall record
and the overwhelming strength of the State’s case. The evidence supported the
aggravating factor relied on by the State, as well as a finding that this factor
outweighed the evidence of mitigating factors.
Accordingly, while we find that the prosecution's argument was patently
improper and caution prosecutors against similar argument in the future, we
nevertheless hold that in this case, the argument did not affect the sentence or
render the jury's decision arbitrary or unreliable under the Eighth and Fourteenth
Amendments to the United States Constitution or Article I, §§ 8 and 16 of the
Tennessee Constitution.
EXCLUSION OF MITIGATION EVIDENCE
The defendant argues that the trial court committed reversible error by
excluding evidence offered in mitigation, specifically, a note written to the defendant
by his son, which read:
Dear Dad,
I Love you Dad. I hope I come again gen [sic].
Some time. we went to Chuck [sic] Cheese. We went to
Wall [sic] Mart and we had fun.
Love always, Ryan
8
We note, however, that the prosecutor began his rebuttal by discussing the videotape of the
murder scene. When the defense objected to the scope of the rebuttal, the prosecutor stated that he
"intend[ed] to make it relevant to counsel's remarks . . ." The trial court overruled the objection. The
prosecutor then launched into the argument set forth above. No further objections were made.
-19-
The trial court excluded the letter, finding that it was of negligible probative value
and was cumulative to the other evidence presented. The State contends that the
ruling was not an abuse of the trial court’s discretion.
The United States Supreme Court has repeatedly held that the Eighth and
Fourteenth Amendments to the United States Constitution require states to allow the
sentencer in a death penalty case to consider mitigating evidence. McKoy v. North
Carolina, 494 U.S. 433, 442, 110 S.Ct. 1227, 1233, 108 L.Ed.2d 369 (1990).
Mitigating evidence includes “any aspect of a defendant’s character or record and
any of the circumstances of the offense that the defendant proffers as a basis for a
sentence less than death.” Lockett v. Ohio, 438 U.S. 586, 604, 98 S.Ct. 2954, 2964,
57 L.Ed.2d 973 (1978). Accordingly, “states cannot limit the sentencer’s
consideration of any relevant circumstance that could cause it to decline to impose
the [death] penalty.” McCleskey v. Kemp, 481 U.S. 279, 306, 107 S.Ct. 1756, 1761,
95 L.Ed.2d 262 (1987).
We have also stressed that Article I, § 16 of the Tennessee Constitution
requires that the jury not be precluded from hearing evidence about the defendant’s
background, record, and character, and any circumstances about the offense that
may mitigate against the death penalty. Odom, 928 S.W.2d at 30; State v. Teague,
897 S.W.2d 248, 255 (Tenn. 1995). Similarly, the statutory scheme in effect at the
time of this offense provided:
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; any evidence tending to establish or rebut the
aggravating circumstances enumerated in subsection (i)
below; 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. . . .
-20-
Tenn. Code Ann. § 39-2-203(c)(1982)[now Tenn. Code Ann. § 39-13-204(c)(Supp.
1996)]. The statute also contained specific statutory mitigating factors including,
“any other mitigating factor which is raised by the evidence produced by either the
prosecution or defense at either the guilt or sentencing hearing.” Tenn. Code Ann.
§ 39-2-203(j)(1982)[now Tenn. Code Ann. § 39-13-204(j)(Supp. 1996)].
In light of these controlling principles, it is our view that the trial court erred in
excluding the letter written to the defendant by his son. The defendant’s family and
young son who have expressed love and support are arguably relevant to the
defendant’s background and character, and a potential basis upon which a juror
could decline to impose the death penalty. Although constitutional and
nonconstitutional error is a line frequently blurred, the exclusion of mitigating
evidence potentially undermines the reliability of the sentencing determination, and
is an error of constitutional magnitude. See Skipper v. South Carolina, 476 U.S. 1,
4, 106 S.Ct. 1669, 1671, 90 L.Ed.2d 1 (1986). Thus, the burden is on the State to
prove that the error did not affect the verdict and, therefore, was harmless beyond a
reasonable doubt. Satterwhite v. Texas, 486 U.S. 249, 258, 108 S.Ct. 1792, 1798-
1799, 100 L.Ed.2d 284 (1988); Chapman v. California, 386 U.S. 18, 24, 87 S.Ct.
824, 828, 17 L.Ed.2d 705 (1967).
A review of the record reveals that the essence of the excluded evidence was
presented to the jury in other forms. The defendant testified that he had an eight
year old son who visited him every three to five months. A photograph of the
defendant with his son was introduced into evidence in mitigation. Based on this
evidence, the trial court instructed the jury that it could consider the fact that the
defendant has a minor son as a non-statutory mitigating factor.9 Accordingly, we
9
As discussed earlier, the statute in effect at the time of this offense did not require the trial
court to charge the jury on non-statutory mitigating factors.
-21-
conclude that the error in excluding this evidence did not affect the jury’s verdict and
was harmless beyond a reasonable doubt.
PROPORTIONALITY ANALYSIS
The defendant argues that his sentence is disproportionate to the penalty
imposed in similar cases, considering the nature of the crime and the defendant. A
statutory comparative proportionality review, which we must undertake pursuant to
Tenn. Code Ann. § 39-2-205(c)(4)(1982) [now Tenn. Code Ann. § 39-13-
206(c)(4)(Supp. 1996)], “presupposes that the death penalty is not disproportionate
to the crime in the traditional sense [and] purports to inquire instead whether the
penalty is nonetheless unacceptable in a particular case because disproportionate
to the punishment imposed on others convicted of the same crime.” State v. Bland,
___ S.W.2d ___ (Tenn. 1997)(quoting, Pulley v. Harris, 465 U.S. 37, 42, 104 S.Ct.
871, 875, 79 L.Ed.2d 29 (1984)). Although not constitutionally required,
comparative proportionality review “serves as an additional safeguard against
arbitrary or capricious sentencing.” Bland, ___ S.W.2d at ___; see Gregg v.
Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976).
In Bland, we identified two approaches to statutory comparative
proportionality review: the frequency method, which employs a statistical analysis to
identify the various factors leading to the imposition of the death penalty and the
frequency with which the punishment is imposed in similar circumstances; and the
precedent seeking method, which compares the case at issue with other cases in
which defendants were convicted of the same or similar crimes. We have
consistently employed the precedent method under our statutory scheme, and the
method, while not rigid or objective, serves the essential purpose of “identifying
aberrant sentences.” Id. at ___.
-22-
Although no crimes are precisely alike in the applicable pool of cases, i.e.,
those in which a capital sentencing hearing is held, we have identified numerous
factors for consideration regarding an offense: “(1) the means of death; (2) the
manner of death (e.g., violent, tortuous, 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.” Id. at ___. We have also identified factors to consider
regarding a particular defendant: “(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); and (8) the
defendant’s capacity for rehabilitation.” Id. at __.
Here, the means of death was ligature strangulation and the manner of
death, as we have held, was tortuous under the aggravating circumstance in Tenn.
Code Ann. § 39-2-203(i)(5). The motivation for the killings was to rob the victims
and to burglarize their home. The victim was awakened in the middle of the night,
placed in a closet while her husband was strangled to death, raped twice by two
perpetrators, and then herself strangled to death. There was extensive evidence
that the crimes had been planned in advance, and there was no provocation or
justification for the offenses. Although the defendant, who was 19 at the time of the
crimes, had no criminal record, there was little evidence as to his mental, emotional
or physical condition at the time of the offenses. There is no question that the
defendant played the major role in the planning and executing of the offenses.
-23-
Analysis of precedent in cases involving similar murders and defendants
reveals that the death penalty is not arbitrary or disproportionate. In State v.
Hodges, supra, the defendant, having decided to rob the victim, bound and
handcuffed the victim to a bed while he ransacked his apartment. After discussing
whether to kill the victim, the defendant then strangled the victim to death. As in this
case, one aggravating factor found by the jury was that the killing had been
“heinous, atrocious, or cruel” because it involved torture. Although there were two
other aggravating factors, there was also extensive psychological proof offered in
mitigation: the defendant had an antisocial personality disorder and he had been
raped as a child. We held that the penalty was not disproportionate. 944 S.W.2d at
358-59.
In State v. Brimmer, supra, the defendant handcuffed the victim to a tree and
strangled him to death with a wire slipknot. He was sentenced to death solely
because the killing occurred in the course of a felony. Tenn. Code Ann. § 39-2-203
(i)(7)(1982) [now Tenn. Code Ann. § 39-13-204(i)(7)(1991)]. There was substantial
mitigating evidence indicating that the defendant had a borderline personality
disorder, which resulted in impulsive and unpredictable behavior. We held,
however, that the evidence was sufficient to find that the single aggravating factor
outweighed evidence of mitigating factors and that the penalty, as applied to the
defendant under the facts and circumstances of the case, was not disproportionate.
876 S.W.2d at 88.
In State v. Keen, supra, the defendant received the death penalty for raping
the eight-year-old victim and then strangling her to death with a shoelace. The
evidence indicated that the victim may have been unconscious in a few seconds but
died in a few minutes. The jury found three aggravating factors: the victim was less
than twelve years old, the killing was heinous, atrocious, or cruel, and the killing
occurred during a felony. The defendant introduced evidence of his post-traumatic
-24-
stress disorder and dependant personality disorder, as well as evidence of his good
behavior in prison. Although the case was remanded for resentencing on an
unrelated issue, we stated that the penalty was not disproportionate as applied to
the defendant. 926 S.W.2d at 743. See also State v. Caughron, 855 S.W.2d 526
(Tenn.), cert. denied, 510 U.S. 979, 114 S.Ct. 475, 126 L.Ed.2d 426 (1993)(death
penalty not disproportionate applied to defendant who severely beat and strangled
the victim); State v. Teel, 793 S.W.2d 236 (Tenn.), cert. denied, 498 U.S. 1007, 111
S.Ct. 571, 112 L.Ed.2d 577 (1990)(death penalty not disproportionate where victim
suffered “neck trauma,” including possible strangulation); State v. Coe, 655 S.W.2d
903 (Tenn. 1983), cert. denied, 464 U.S. 1063, 104 S.Ct. 745, 79 L.Ed.2d 203
(1984)(death penalty not disproportionate where defendant raped, stabbed and
strangled the victim).
Our precedent also reveals that the punishment in this case is not arbitrary or
disproportionate merely because the defendant was 19 years of age at the time of
the offenses. In State v. Van Tran, 864 S.W.2d 465 (Tenn. 1993), cert. denied, 511
U.S. 1046, 114 S.Ct. 1577, 128 L.Ed.2d 220 (1994), a 19-year-old defendant shot
and killed a 74-year-old victim during a robbery. The defendant offered evidence of
his good employment record and lack of a prior criminal record. As in the present
case, the jury imposed the death penalty, finding that the murder was heinous,
atrocious or cruel pursuant to Tenn. Code Ann. § 39-2-203(i)(5). In State v. Taylor,
771 S.W.2d 387 (Tenn. 1989), cert. denied, 497 U.S. 1031, 110 S.Ct. 3291, 111
L.Ed.2d 799 (1990), a 21 year old defendant assaulted the victim with a knife and
the victim died from internal bleeding. The jury imposed the death penalty based on
three factors, including that the murder was heinous, atrocious or cruel pursuant to
Tenn. Code Ann. § 39-2-203(i)(5). In Bland, supra, the 19-year-old defendant
chased, shot and killed the victim. The jury imposed the death sentence on the
basis that the murder had been heinous, atrocious, or cruel in that it involved torture
or serious physical abuse beyond that necessary to produce death. Tenn. Code
-25-
Ann. § 39-13-204(i)(5). In each of these cases, we held that the death sentence
was neither arbitrary nor disproportionate, notwithstanding the youth of the
offenders.
The defendant’s main contention is that his punishment was disproportionate
because his co-defendant received a life sentence for the offense. A disparity in
sentencing may exist if there is a rational basis for the decision of the jury to impose
the death penalty on one perpetrator and not another. State v. Henley, 774 S.W.2d
908, 918 (Tenn. 1989), cert. denied, 497 U.S. 1031, 110 S.Ct. 3291, 111 L.Ed.2d
800 (1990); State v. Poe, 755 S.W.2d 41, 49 (Tenn. 1988), cert. denied, 490 U.S.
1085, 109 S.Ct. 2111, 104 L.Ed.2d 671 (1989); State v. Carter, 714 S.W.2d 241,
251 (Tenn. 1986), cert. denied, 479 U.S. 1046, 107 S.Ct. 910, 93 L.Ed.2d 860
(1987). Here, we said in the initial appeal of this case:
[t]here was sufficient evidence of other factors in support of the jury’s
verdict to give Cauthern the death penalty and Patterson life
imprisonment that would enable this Court to find that the sentence of
death was not imposed on Cauthern in any arbitrary fashion, or was
excessive or disproportionate to the penalty imposed in similar cases.
State v. Cauthern, 778 S.W.2d at 48 n.1. The defendant clearly was the leader in
the perpetration of this crime; he knew the victims and planned the offenses.
Patterson’s testimony at the sentencing proceeding expressed remorse, and, unlike
Cauthern’s, was consistent with the version of the offenses that he gave to
investigating officers. Patterson presented extensive evidence of mitigation
regarding his military service, background, and family support. In sum, there was a
basis for the different sentences imposed by the jury.
Similarly, there was a discernible basis for imposing a lesser sentence in the
factually similar case of State v. James Lloyd Julian, II, No. 03C01-9511-CV-00371
(Tenn. Crim. App., July 24, 1997, Knoxville). There, the defendant was convicted of
felony murder for strangling the victim in the course of a kidnapping and rape. The
-26-
jury, after a capital sentencing proceeding, imposed a sentence of life without
parole. The defendant, unlike Cauthern in the present case, offered substantial
mitigating proof in his defense. A clinical psychologist related the defendant’s
history of substance abuse, depressive disorder, and mixed personality disorder
with borderline features. There was evidence that the defendant had been sexually
abused as a child and that he had a history of violence when under the influence of
alcohol and hallucinogens. This proof of mitigation evidence, as well as the factual
proof of the offense, distinguishes Julian from the present case.
Although no two cases are identical, our review of the facts and
circumstances of this case, as well as relevant precedent, indicates that the death
penalty has been imposed in similar cases involving rapes and strangulation of the
victim. Accordingly, we conclude that the death penalty is neither arbitrary nor
disproportionate as applied in this case. See Tenn. Code Ann. § 39-2-
206(c)(1)(1982)[now Tenn. Code Ann. § 39-13-206(c)(1)(1991 & Supp. 1996)].
CONCLUSION
We have considered the errors claimed by the defendant and have
determined beyond a reasonable doubt that none affirmatively appear to have
affected the sentencing proceeding. W ith respect to issues not specifically
addressed herein, we affirm the thorough and well-reasoned decision of the Court of
Criminal Appeals, authored by Judge David H. Welles and joined in by Judge David
G. Hayes and Judge Cornelia A. Clark. Relevant portions of that opinion are
published hereafter as an appendix. The defendant’s sentence of death by
electrocution is affirmed. The sentence of death will be carried out as provided by
law on the 23rd day of June, 1998, unless otherwise ordered by this Court, or other
proper authorities.
-27-
Costs of this appeal are taxed to the defendant for which execution may
issue.
_______________________________
RILEY ANDERSON, CHIEF JUSTICE
CONCUR:
Drowota, Birch, and Holder, JJ.
Reid, J. - see separate Concurring Opinion
-28-
APPENDIX
IN THE TENNESSEE COURT OF CRIMINAL APPEALS
AT JACKSON
JULY 1996 SESSION
STATE OF TENNESSEE, )
)
Appellee, ) C.C.A. NO. 02C01-9506-CC-00164
)
VS. ) GIBSON COUNTY (TRANSFERRED
) FROM MONTGOM ERY COUNTY)
)
RONNIE MICHAEL CAUTHERN, ) HONORABLE DICK JERMAN, JR.
)
Appe llant. ) (Sentencing -Death Pe nalty)
For the Appellant For the Appellee
Hugh R eid Poland, Jr. Charles W. Burson
408 Franklin Street Attorney General and Reporter
Clarksville, TN 37040 450 Jam es Robe rtson Pkwy.
Nashville, TN 37243-0493
Robert T. Bateman John P. Cauley
221 South Third Street Assistant Attorney General
Clarksville, TN 37040 450 Jam es Robe rtson Pkwy.
Nashville, TN 37243-0493
Clayburn Peeples
District Attorney General
109 E. First Street
Trenton, TN 38382
John Carney
District Attorney General
204 Franklin Street, Suite 200
Clarksville, TN 37040
Steve G arrett
Assistant District Attorney General
204 Franklin Street, Suite 200
Clarksville, TN 37040
OPIN ION F ILED: December 2, 1996
DEATH PENALTY AFFIRMED
DAVID H. WELLES
JUDGE
-30-
OPINION
CONSTITUTIONALITY OF THE ESPECIALLY HEINOUS, ATROCIOUS,
OR CRUEL AGGRAVATOR
Next, the appellant contends that the language of the aggravating
circumstance found in Tennessee Code Annotated section 39-13-204(i)(5)
is too vague to satisfy constitutional standards. This aggravating
circumstance can be imposed in the death penalty context if the jury
determines beyond a reasonable doubt that “[t]he murder was especially
heinous, atrocious, or cruel in that it involved torture or serious physical
abuse beyond that necessary to produce death.” Id. Furthermore, the
appellant claims the definitions of the terms in the statute given by the trial
court are themselves too vague as well. The Supreme Court recently
addressed this issue in Odom. The Court upheld the validity of the
aggravating circumstance under constitutional attacks. See Odom, 928
S.W.2d at 25-26. Accordingly, the appellant’s issue is without merit.
ADMISSION OF THE VIDEOTAPE
The appellant claims that the trial judge abused his discretion by
allowing into evidence a videotape depicting the crime scene. Specifically,
the appellant argues that those segments of the tape showing the officers
turning the bodies over onto their backs in order to obtain an anterior view
were highly inflammatory and irrelevant. The appellant places great weight
upon the fact that the original trial judge redacted from the jury’s view
during the guilt phase of the trial those scenes depicting the moving of the
-31-
bodies. In response, the State argues that the video was relevant to show
the heinous, atrocious, or cruel nature of the crime.
The admissibility of relevant videotapes of the crime scene and
victims has long been within the sound discretion of the trial judge, and his
or her ruling on admissibility will not be disturbed on appeal absent a clear
showing of an abuse of that discretion. State v. Banks, 564 S.W.2d 947,
949 (Tenn. 1978). See also, State v. Bigbee, 885 S.W.2d 797, 807 (Tenn.
1994); State v. Van Tran, 864 S.W.2d 465, 477 (Tenn. 1993). Moreover,
the recent trend is to vest more discretion in the trial judge's rulings on
admissibility. See Banks, 564 S.W.2d at 949; State v. Bailey, No. 01C01-
9403-CC-00105, Dickson County (Tenn. Crim. App., Nashville, July 20,
1995); perm. to appeal denied, id., (Tenn. 1996).
Evidence is relevant if it has "any tendency 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. However, relevant evidence "may be excluded if its probative
value is substantially outweighed by the danger of unfair prejudice,
confusion of the issues, or misleading the jury." Tenn. R. Evid. 403. Along
these lines, the trial court should be guided by the following matters in
determining the admissibility of relevant videotape evidence: the accuracy
and clarity of the video and its value as evidence; whether the video
depicts the body as it was found; the adequacy of testimonial evidence in
-32-
relating the facts to the jury; and the need for the evidence to establish a
prima facie case of guilt or to rebut the defendant's contentions. Banks,
564 S.W.2d at 951.
Prior to the sentencing hearing on remand, the trial judge heard
arguments regarding the admission of the videotape and ruled that the
probative value of the evidence in regards to the aggravating factor
outweighed any unfair prejudicial effect. The court also ordered that the
sound be turned off so as to avoid any improper influence from the
comments of the officers. See State v. Van Tran, 864 S.W.2d 465, 477
(Tenn. 1993). The segments of the videotape at issue in this appeal deal
with the camera shots of the victims. Those portions showing the general
layout of the house and the evidence of the burglary, while arguably
irrelevant for purposes of sentencing, are not at issue.
Both victims were found lying face down. Mr. Smith’s body was
wrapped in the covers kneeling against and on the bed, and Mrs. Smith’s
body was nude on the floor. The video shows close-ups of both victims as
they were found. The video then shows the officers removing the covers
from around Mr. Smith’s body, turning his body onto his back, and
examining his neck, arms and legs. The video zooms in on the wounds
around his neck and face. Likewise, the video shows the officers removing
the scarf from around Mrs. Smith’s neck and flipping her body over. Again,
the video zooms in on the wounds around her neck and face.
-33-
Both bodies exhibit a bluish tint to the skin and lips, as well as the
effects of lividity and rigor mortis. While the appellant may be correct to
argue that these postmortem features are irrelevant to any aspect of the
heinous, atrocious, or cruel aggravator, the nature of the various wounds to
the neck do appear relevant. Each victim was strangled with a different
object, and thus received different types of strangulation marks around the
neck. Moreover, as the expert testimony demonstrated, the pictures of
what are probably fingernail scratches indicate that the victims attempted
to free the pressure from around their necks. Because of the position in
which the victims were found, it was necessary for the officers to turn the
bodies over to examine the wounds to the neck. As the forensic
pathologist stated, the bluish color of the skin, i.e. cyanosis, is a natural
consequence of this type of killing. The stiffness of the bodies resulting
from the rigor mortis is also common after death, and not in and of itself so
inflammatory. See State v. Bigbee, 885 S.W.2d 797, 807 (Tenn. 1994).
As the trial court noted, though the condition of the bodies is not pleasant
by any means, it is “not so gruesome as to . . . shock the conscience of the
Court or of the jury.”
We believe the videos were relevant to the jury’s determination of
whether the murders were especially heinous, atrocious or cruel. We
conclude that the probative value of the videotape outweighs any unfair
prejudicial effect, and the trial judge therefore acted appropriately.
Contrary to the appellant’s argument, the fact that the judge on remand
-34-
allowed more of the video to be shown than did the original trial judge is
irrelevant to this Court’s inquiry into the issue. The original judge’s ruling
was based in part on showing the video during the guilt phase of the trial
rather than the sentencing phase. This issue is without merit.
EVIDENCE OF UNRELATED CRIMES
The appellant also argues that reversible error occurred when the
State introduced evidence concerning a different robbery for which the
appellant had been tried and acquitted. In response, the State argues the
appellant has waived the issue because he permitted the introduction of
the evidence and denied the court’s offer of a curative instruction.
The appellant was originally indicted on eight counts in this case.
Three of those charges pertained to crimes unrelated to the incident at the
Smiths’ residence, and they were severed from the indictment. The
appellant was subsequently tried and acquitted on those three counts.
Prior to the resentencing hearing, the trial judge granted the appellant’s
motion to keep the separate charges from the jury and warned the State
that a mistrial could follow if evidence of them surfaced.
During the State’s proof in the hearing, the State asked Detective
Charles Denton to read one of the appellant’s statements into evidence.
This statement was obtained during the first interview with the appellant on
January 12, 1987. The appellant objected to the introduction of this
-35-
statement because it was not a verbatim recording of the conversation
between the officer and the appellant, but rather consisted of Detective
Denton’s annotations from the interview. The court overruled the objection
and allowed the jury to review copies of the statement while the officer read
it aloud on the stand. The following question and answer appear in this
statement: “Question - Do you know who committed the armed robbery at
the Hornbuckle 66? Answer - No.” This reference was to one of the three
charges on which the appellant was acquitted. After this portion of the
statement was read, the appellant voiced another objection. The court
informed the witness not to read one further question in the statement
pertaining to the Hornbuckle robbery. The appellant, however, moved for a
mistrial because the jury was in fact reading along with the officer and
could see the next question: “Question - Do you know if Joe commit [sic]
the burglary - robbery with Pat? Answer - I think so.” The court overruled
the motion for mistrial, and the following exchange occurred: “Court - What
instruction do you suggest I give? . . . [Appellant’s counsel] - We’ll just
stand on the Motion for Mistrial.”
This situation is quite similar to that in State v. Smith, 893 S.W.2d
908 (Tenn. 1994). In Smith, one of the State’s witnesses made reference
to the defendant’s prior jail time. The defendant moved for a mistrial,
which the court denied. The court, however, gave the jury a curative
instruction to disregard the statement and not to consider it for any
purpose. Id. at 923. The Supreme Court held that it must assume the jury
-36-
followed the trial court’s instruction. Id. Moreover, the Court noted that
given the record as a whole in that capital case, the statement, though
improper, could not have prejudicially affected the jury. Id. (citing T.R.A.P.
36(b)). Likewise, in State v. Harris, 839 S.W.2d 54, 72 (Tenn. 1992) (citing
T.R.A.P. 36(b)), the Supreme Court, in considering the effect of statements
concerning prior criminal activity on the jury’s verdict in a capital case,
stated that the admission of the evidence was harmless beyond a
reasonable doubt when viewed in context of the entire record. See also
State v. Baker, 751 S.W.2d 154, 164 (Tenn. Crim. App. 1987); State v.
Lawson, 695 S.W.2d 202, 204 (Tenn. Crim. App. 1985).
The decisions in the above-cited cases were based in part upon the
appellate court’s assumption that the jury obeyed the trial court’s curative
instruction pertaining to the inadmissible evidence. In the case at hand,
the trial court gave no curative instruction. However, as the State notes,
the appellant refused to entertain the trial court’s offer to give such an
instruction. The decisions in the above-cited opinions also relied upon the
rationale of T.R.A.P. 36(b): “A final judgment from which relief is available
and otherwise appropriate shall not be set aside unless, considering the
whole record, error involving a substantial right more probably than not
affected the judgment or would result in prejudice to the judicial process.”
The first part of that same rule states, in pertinent part, that “Nothing in this
rule shall be construed as requiring relief be granted to a party responsible
-37-
for an error or who failed to take whatever action was reasonably available
to prevent or nullify the harmful effect of an error.” T.R.A.P. 36(a).
Accordingly, although the trial court seemed willing to entertain a
request for an instruction, the appellant refused to recommend an
instruction and decided instead to stand on his motion for mistrial. The
record indicates that the appellant also had an opportunity to review the
statement before it was introduced, and did not object to the improper
references.10 We believe Rule 36(a) controls our decision here. Moreover,
considering the whole record as mandated by 36(b), we find the error to be
harmless beyond a reasonable doubt. The improper statements were
brief, and given the context in which they were made, added no “‘new
dimension to the jurors’ view of [the appellant]’”. State v. Harris, 839
S.W.2d 54, 72 (Tenn. 1992) (quoting State v. Carter, 714 S.W.2d 241, 247-
48 (Tenn. 1986)). The statements do not associate the appellant with any
other criminal activity or legal proceedings. Furthermore, before the
hearing, the trial judge stated that a mistrial could be warranted if any
improper evidence concerning the prior acquittals were introduced. Since
he overruled the appellant’s motion, the judge must have been satisfied
that no prejudice resulted from these improper statements. We agree.
This issue, therefore, is without merit.
10
The appellant objected to the introduction of the statement, but his objection was grounded
upon something other than the reference to the prior acquittal; he objected because the statement
was not an exact transcript of the interview which was conducted.
-38-
ADMISSION OF TRANSCRIPT OF RECORDED STATEMENT
Next, the appellant contends it was reversible error for the trial court
to allow a transcript of a tape-recorded statement into evidence when the
State was unable to produce the original recording. The State argues that
the original has been lost and that the transcript was properly admitted
under the exception to the best evidence rule.
The evidence at issue here consists of a transcript of a tape-recorded
interview between the appellant and Detectives Denton and Griffy. On the
initial direct appeal of this case, the Supreme Court reversed the death
penalty based upon the improper introduction of a portion of the interview.
In accordance with the Supreme Court’s opinion, that portion of the
statement was not introduced during the hearing on remand. On remand,
a redacted transcript was read into evidence which omitted any mention of
Brett Patterson. As part of his complaint, the appellant argues that he was
“forced into the untenable position” of subsequently having to introduce the
unredacted portions of the statement which referred to Patterson’s
involvement.
Prior to the introduction of the transcript into evidence, there was
some discussion among the parties and the judge concerning the
whereabouts of the original taped recording. Apparently, the tape was lost
or misplaced by the Supreme Court sometime during the prior
proceedings. The trial judge made the following ruling:
-39-
All right. And, the Tennessee Supreme Court’s already seen it.
It’s been authenticated by the Trial Court in Montgomery
County and the Tennessee Supreme Court. I’m going to let
them read that portion which the Supreme Court said was
admissible . . . As an officer of the Court, I’m saying that [the
state] properly has this transcribed from the original tapes, and
over your objection and after noting your exception, I’m going to
allow its admission . . . It’s just that the tape is now gone and
has been lost by the Tennessee Supreme Court . . . and I’m
assuming that this transcript . . . is proper.
According to the record before the Court, the transcript of the
recorded interview was authenticated and introduced during the original
trial of this case. See also State v. Cauthern, 778 S.W.2d 39, 41 (Tenn.
1989). During that trial, the trial judge ordered the State to redact those
portions of the statement that referred to Patterson before the statement
was introduced. Moreover, the trial judge on remand acknowledged the
fact that the taped recording has been lost. Rule 1004 of the Tennessee
Rules of Evidence provides that other evidence of the original recording is
admissible if the original has been lost or destroyed. Accordingly, the
introduction of the transcript was proper.
Neither is there any merit to the appellant’s claim that he was
prejudiced by the introduction of both the redacted and unredacted
transcripts. The appellant seems to suggest that the evidence of the
redacted statement placed undue emphasis on his involvement in the
crimes. The trial judge, however, allowed the witness to take the stand
again and read the unredacted portions into evidence. Any harm caused
-40-
by the redacted statement, therefore, was cured by the additional
evidence. Accordingly, this issue is without merit.
NONSTATUTORY MITIGATING CIRCUMSTANCES
The appellant claims the trial judge should have instructed the jury it
could consider as mitigating factors the fact that the appellant’s co-
defendant received a life sentence, and that the appellant has been a
model prisoner and has helped others inside and outside the prison. The
State argues that neither the state nor federal constitution require the
judge to instruct the jury on nonstatutory mitigating circumstances.
The trial judge instructed the jury concerning the following statutory
mitigating circumstances: 1) the appellant has no significant criminal
history; 2) the murder was committed while the appellant was under the
influence of extreme mental or emotional disturbance; 3) the youth of the
appellant at the time of the crime; 4) the capacity of the appellant 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 as a matter of law but which substantially affected his judgment
through the ingestion of drugs; and 5) any other mitigating evidence which
is raised by the evidence. The judge also instructed the jury on the
following nonstatutory circumstances: 1) the appellant was an enterprising
young man at the time of the crime; 2) the appellant has a minor child; and
-41-
3) the appellant is married. The trial judge refused, however, to instruct the
jury that Patterson received a life sentence, the appellant has been a
model prisoner, and the appellant has helped others while in prison.
In State v. Odom, the Supreme Court recently addressed the issue of
instructions on nonstatutory mitigators under the death penalty statute as
amended in 1989. Although the Court recognized that the trial court is not
constitutionally mandated to instruct the jury on nonstatutory mitigating
factors, the Court did construe the 1989 amendments, see Tenn. Code
Ann. § 39-13-204(e)(1) (Supp. 1995), to require the judge to give the jury
specifically requested instructions on mitigating circumstances that are
raised by the evidence. See Odom, 928 S.W.2d at 29-30. In its
discussion, however, the Court also acknowledged that under the law as it
previously existed, see § 39-13-203(e) (1982), there was no statutory
provision requiring the trial court to instruct the jury specifically on
nonstatutory mitigators:
[T]he only mandatory instructions with respect to
mitigating circumstances are that those statutory circumstances
which are raised by the evidence shall be expressly charged,
and the jury must be told that they shall weigh and consider any
other facts or circumstances that are raised by the evidence
that they find to be mitigating circumstances, in making the
determination of which circumstances, aggravating or
mitigating, outweigh the other.
Odom, 928 S.W.2d at 29 (quoting State v. Hartman, 703 S.W.2d 106, 118
(Tenn. 1985)). See also State v. Cazes, 875 S.W.2d 253, 268 (Tenn.
1994); State v. Smith, 857 S.W.2d 1, 15 (Tenn. 1993); State v. Wright, 756
-42-
S.W.2d 669, 674 (Tenn. 1988); State v. King, 718 S.W.2d 241, 249 (Tenn.
1986).
The trial judge in this case instructed the jury on the law governing
mitigating circumstances as amended in 1989. See Tenn. Code Ann. §
39-13-204(e)(1) (Supp. 1995).11 The judge also instructed the jury on three
specific nonstatutory mitigating factors. As discussed previously, the
general provisions of § 39-11-112 and the principles against retroactive
application of statutes mandate that an offense committed under a
repealed or amended law shall be prosecuted under that law, unless the
new law provides for a lesser penalty. See State v. Smith, 893 S.W.2d
908, 919 (Tenn. 1994); State v. Brimmer, 876 S.W.2d 75, 82 (Tenn. 1994).
The amendments to those sections of the death penalty statute addressing
mitigating circumstances, however, do not pertain to lesser penalties.
Accordingly, the trial judge was not compelled to instruct the jury on
specific nonstatutory mitigating factors, and should have instructed the jury
under the law as it existed at the time of the commission of the offense.
However, because the instructions on the several nonstatutory mitigating
circumstances inured to the benefit of the appellant, any errors in the trial
court’s actions were harmless. See supra note 3. Furthermore, because
11
Prior to the 1989 amendments, the trial court was not required to inform the jury that no
distinction shall be made between statutory and specifically requested nonstatutory
mitigating factors . See § 39-13-203(e) (1982). The judge here instructed the
jury not to distinguish between the two type s of facto rs. See § 39-13-204(e)(1)
(Supp. 1995.).
-43-
the prior law did not require the judge to instruct on nonstatutory mitigating
circumstances, the trial judge’s refusal to instruct on the requested
mitigating factors at issue here was proper. This issue, therefore, is
without merit.
COMPETENCY OF JUROR FOREPERSON
The appellant next contends that the juror foreperson’s inability to
read the verdict form without the assistance of the trial judge effectively
denied him the right to an impartial jury. Specifically, the appellant
suggests that since the foreperson had difficulty reading the verdict form
aloud in open court, she probably encountered difficulty understanding the
legal instructions contained in the written charges. The State contends
that although the foreperson experienced some trouble reading the verdict
form, there is no evidence in the record which indicates she could not
understand the spoken word of the oral charges given by the judge.
The trial judge read the charges to the jury in open court before
allowing them to retire. Once the jury returned from their deliberations, the
following exchange ensued:
THE COURT: All right. I’m going to ask you to read
that for me if you will. With regard to the first count
of the indictment which alleges the murder of
Patrick Smith, what is your verdict?
MS. VALERIE CLARK: Life imprisonment. We, the
jury --
THE COURT: Will you read it -- read that for me?
MS. CLARK: We, the jury -- okay -- what’s that?
-44-
THE COURT: Unanimously.
MS. CLARK: Unanimously determine that one --
THE COURT: Statutory.
MS. CLARK: Statutory.
THE COURT: Aggravating.
MS. CLARK: Aggravating --
THE COURT: Circumstances.
MS. CLARK: Circumstances has been proven by
the State beyond a reasonable doubt. We, the jury,
therefore, find the sentence shall be imprisonment
for life.
THE COURT: And, you’ve each affixed your name
to that. Is that right?
MS. CLARK: Right.
THE COURT: With regard to the second count of
the indictment which alleges the death of Rosemary
Smith, what is your verdict?
MS. CLARK: Punishment of death.
THE COURT: Will you read that for me, please?
MS. CLARK: We, the jury --
THE COURT: Unanimously.
MS. CLARK: Unanimously find that the following list
-- listing --
THE COURT: Statutory.
MS. CLARK: Statutory.
THE COURT: Aggravating.
MS. CLARK: Aggravating.
THE COURT: Circumstances.
MS. CLARK: Circumstances of --
THE COURT: Do you want to list this for me? Can
you read that, please?
MS. CLARK: The murder was especially human --
THE COURT: Heinous.
MS. CLARK: -- heinous --
THE COURT: Atrocious.
MS. CLARK: -- atrocious, and cruel, in that is involved --
THE COURT: Torture.
MS. CLARK: -- torture --
THE COURT: Or serious --
MS. CLARK: -- or serious physical abuse beyond that
necessary to prove --
THE COURT: -- produce death.
MS. CLARK: -- produce death.
THE COURT: All right. Will you continue to read?
MS. CLARK: We, the jury --
THE COURT: Unanimously.
-45-
MS. CLARK: -- unanimously find that the State has been
proven beyond a reasonable doubt that the circumstances are--
THE COURT: Statutory.
MS. CLARK: -- statutory --
THE COURT: Aggravating.
MS. CLARK: -- aggravating circumstance or circumstances so
to list above outweigh any other --
THE COURT: Mitigating.
MS. CLARK: -- mitigating circumstances. Therefore, we, the
jury, unanimously find that the punishment for the defendant,
Ronnie --
THE COURT: Cauthern.
MS. CLARK: -- Cauthern shall be death.
THE COURT: Be seated please.
The Supreme Court dealt with this very issue in Kirkendoll v. State,
281 S.W.2d 243 (Tenn. 1955), a case wherein the death penalty was
affirmed. The Court held it was not error for the trial judge to accept a juror
who could not read the written charges given by the court. Id. at 255. The
Supreme Court reasoned as follows:
We think though that other jurors if necessary could read
this to that juror who could not read while in the jury room. The
purpose of having the written charge before them . . . was to
prevent and keep the jury from having to keep running
backward and forward into court getting the court to recharge
them on various and sundry little things that they might have
forgotten. It seems to us that as long as this written charge is
in the jury room that there are others there who can read that
this would satisfy that question. Consequently this assignment
must be overruled.
Id.
We believe that the holding and reasoning in Kirkendoll is dispositive
of the issue before us here. The appellant has failed to point to anything in
the record, apart from the difficultly in the reading of the verdict form, which
-46-
suggests Ms. Clark did not understand the oral charges given by the judge.
Nor has the appellant demonstrated that he suffered any prejudice as a
result of the Ms. Clark’s reading skills. Accordingly, we conclude that this
issue is without merit.
INDIVIDUAL AND SEQUESTERED VOIR DIRE
Next, the appellant claims the trial court erred when it denied the
appellant’s motion for individual and sequestered voir dire. Specifically, the
appellant contends the prospective jurors may have been aware of the
facts of this case prior to the hearing. The State contends the trial court
acted appropriately.
The appellant filed a pre-trial motion requesting permission to
conduct individual and sequestered voir dire of the prospective jurors. The
trial court denied the motion. During the voir dire, the prosecutor asked,
among others, the following questions:
Have any of you heard or read anything at all about this case?
Have any of you heard anyone express an opinion about what
ought to happen in this case?
There will be testimony that this crime occurred in Clarksville,
Tennessee. This is a case, by the way, about two Army
nurses, a husband, Patrick Smith, and his wife, Rosemary.
This crime occurred either on the night of January the 8th, 1987
or the early morning hours of January the 9th. Mr. and Mrs.
Smith -- Captain Smith and Captain Smith were captains in the
Army -- were at home asleep when two defendants, Ronald
Cauthern and another man, broke into their home, attacking
both of them, raped Mrs. Smith, garroted -- that’s a term you
-47-
may not know the meaning of right now, but if you’re chosen as
a juror you will before this case is over -- and left them both
dead. Now, have any of you ever heard anything about this
fact situation?
Is there anybody here who doesn’t think they can give the
defendant a fair trial?
The prospective jurors all responded negatively to each of these questions.
Individual and sequestered voir dire is required only when there is a
“significant possibility” that the prospective jurors have been exposed to
potentially prejudicial material before the trial. State v. Howell, 868 S.W.2d
238, 247 (Tenn. 1993); State v. Harris, 839 S.W.2d 54, 65 (Tenn. 1992).
The decision of whether to grant individual and sequestered voir dire of
prospective jurors lies within the sound discretion of the trial judge, and
that decision will not be overturned absent a finding of “manifest error.”
Howell, 868 S.W.2d at 247-48; Harris, 839 S.W.2d at 65.
The appellant has failed to demonstrate in the case at hand any
prejudice resulting from the trial court’s denial of his motion. All of the
prospective jurors indicated they had no knowledge of the facts or
circumstances of this case. The fact that the jury knew the appellant was
already convicted of first degree murder, contrary to the appellant’s claim,
is irrelevant to this issue. The nature of the proceedings in a capital case
necessarily creates a situation where the sentencing jury will always know
the guilt determination. The fact that this was a resentencing hearing does
not present any substantial distinctions, especially when the jury was
-48-
unaware of the prior proceedings. Accordingly, we find that the trial court
did not abuse its discretion in denying the appellant’s motion.
MERCY INSTRUCTION
The appellant claims the trial court should have instructed the jury
that it could recommend mercy when rendering its sentence. The
Supreme Court has continually upheld the trial court’s decision in this
respect. See State v. Bigbee, 885 S.W.2d 797, 813-14 (Tenn 1994); State
v. Cazes, 875 S.W.2d 253, 269 n.6 (Tenn. 1994); State v. Hartman, 703
S.W.2d 106, 119 (Tenn. 1985); State v. Melson, 638 S.W.2d 342, 366
(Tenn. 1982). Accordingly, this issue is without merit.
EVIDENCE OF THE UNDERLYING FELONIES
The appellant also alleges that the trial court erred by denying his
motion to prevent the State from introducing evidence of the underlying
burglary and rape. He contends this evidence did not relate to either the
aggravating or mitigating circumstances and thus was improperly before
the jury. In response, the State asserts that the trial court acted
appropriately.
Prior to trial, the appellant filed a motion to prevent the State from
introducing evidence of the underlying burglary and rape. The trial judge
denied the motion, stating:
-49-
This was all evidence that was originally introduced at the
original trial -- at the guilt phase of the trial, and I think the jury
is entitled to all the evidence from the guilt phase of the trial in
making their determination as to what the proper punishment
is. I think that’s the law. I don’t think that the rape itself could
be an aggravating circumstance, but evidence of the rape could
go to the proof of the aggravating circumstance that you’re
alleging, and for that reason that’s why I’m going to allow the
introduction.
In his argument before the Court, the appellant seems to suggest
that the Supreme Court’s holding in State v. Middlebrooks, 840 S.W.2d
317 (Tenn. 1992) controls this issue. Middlebrooks stands for the
proposition that the State cannot rely upon the underlying felony in support
of the aggravating circumstance that the murder was committed in the
perpetration of a felony when the appellant was convicted of felony murder.
Id. at 346. In the instant case, however, the State sought to prove the
existence of only one aggravating circumstance, that the murder was
heinous, atrocious, or cruel. Thus, there is no duplication problem like that
encountered in Middlebrooks. Id.
Moreover, in State v. Cazes, 875 S.W.2d 253, 270 (Tenn. 1994), the
Supreme Court, while conducting a Middlebrooks harmless error analysis,
stated: “A sentencing jury may properly hear evidence regarding the
circumstances of the offense.” See also State v. Smith, 893 S.W.2d 908,
925 (Tenn. 1994). As the trial court implied, the jury must be allowed to
consider the circumstances surrounding the murder in order to
appropriately determine the existence of the heinous, atrocious, or cruel
aggravating circumstance. The circumstances surrounding the murder
-50-
include evidence of the separate felonies. The trial court ruled, however,
that the State could not inform the jury that the appellant had been
convicted of burglary and rape. Because we believe the trial court acted
appropriately in this regard, we find no merit to this issue.
EXCLUSION OF PROSPECTIVE JUROR
The appellant maintains that the trial judge committed reversible
error by excusing a prospective juror because of his perceived views on
capital punishment. During voir dire, a prospective juror informed the
prosecutor that he did not think he could “live with” the imposition of the
death penalty. Subsequently, the judge asked the prospective juror if he
could follow the law. He responded by stating that “the Lord makes the
decision on death,” and that he did not think he could impose the penalty.
The judge thereafter excused the man from the jury.
The applicable standard for determining whether a juror was properly
excused for cause because of his beliefs on the death penalty was
delineated in Wainwright v. Witt, 469 U.S. 412, 424, 105 S.Ct. 844, 852, 83
L.Ed.2d 841 (1985), and is as follows: "whether the juror's views would
'prevent or substantially impair the performance of his duties as a juror in
accordance with his instructions and his oath.'" See State v. Alley, 776
S.W.2d 506, 518 (Tenn. 1989) (Tennessee Supreme Court adopts
Wainwright standard). Furthermore, the United States Supreme Court held
that "this standard does not require that a juror's bias be proved with
-51-
'unmistakable clarity.'" Wainwright, 469 U.S. at 424, 105 S.Ct. at 852. The
Court also noted that "deference must be paid to the trial judge who sees
and hears the jurors." Id. at 426, 105 S.Ct. at 853.
We agree that the prospective juror’s answers suggesting that he
could not impose the death penalty "would 'prevent or substantially impair
the performance of his duties as a juror in accordance with his instructions
and his oath.'" Id. at 424, 105 S.Ct. at 852. See also, State v. Smith, 893
S.W.2d 908, 915-16 (Tenn. 1994). Although this determination might not
be "unmistakably clear," it need not be. Moreover, as the United States
Supreme Court has held, great deference should be given to the trial
judge, who is "left with the definite impression that a prospective juror
would be unable to faithfully and impartially apply the law." Wainwright,
469 U.S. at 426, 105 S.Ct. at 853. The trial judge's findings "shall be
accorded a presumption of correctness and the burden shall rest upon the
appellant to establish by convincing evidence that [those findings were]
erroneous." State v. Alley, 776 S.W.2d 506, 518 (Tenn. 1989). The
appellant has failed to meet his burden in this case.
The appellant also contends that excusing the prospective juror
because of his religious beliefs further interferes with the appellant's
constitutional rights. Our Supreme Court has ruled that because a juror's
"'views on capital punishment may have had a religious foundation does
not necessarily transform the test mandated by the United States Supreme
-52-
Court in [Wainwright v. Witt] into religious tests for . . . [constitutional
purposes].'" State v. Jones, 789 S.W.2d 545, 547 (Tenn. 1990) (1990)
(quoting State v. Bobo, 727 S.W.2d 945, 949 (Tenn. 1987)). Accordingly,
Mr. Williams’ opposition to the death penalty, though possibly based on
religion, appropriately rendered him unfit as a juror. The trial judge acted
properly, and this issue, therefore, is without merit.
ADMISSION OF APPELLANT’S STATEMENTS
The appellant, relying on his brief submitted during the initial direct
appeal of this case, argues that the trial court erroneously allowed the
introduction of the appellant’s statements into evidence. The Supreme
Court previously addressed this issue on the original appeal of this case.
See State v. Cauthern, 778 S.W.2d 39 (Tenn. 1989). The remand of this
case was based upon the Court’s determination that a portion of the
appellant’s statement was erroneously introduced. Id. at 47. During the
resentencing hearing, the trial court followed the Supreme Court’s mandate
and excluded the objectionable portions of the statement. Accordingly,
because the Supreme Court has already addressed this issue, the
appellant’s argument must fail.
CONSTITUTIONALITY OF THE DEATH PENALTY
Finally, the appellant asserts the death penalty is cruel and unusual
punishment in violation of the state and federal constitutions. On direct
-53-
appeal, the Supreme Court rejected this argument. See State v. Cauthern,
778 S.W.2d 39, 47 (Tenn. 1989). Likewise, the Court has repeatedly upheld
the constitutionality of the death penalty in the face of similar challenges. See
State v. Smith, 893 S.W.2d 908 (Tenn. 1994); State v. Brimmer, 876 S.W.2d
75 (Tenn. 1994); State v. Cazes, 875 S.W.2d 253 (Tenn. 1994); State v.
Smith, 857 S.W.2d 1 (Tenn. 1993); State v. Black, 815 S.W.2d 166 (Tenn.
1991); State v. Boyd, 797 S.W.2d 589 (Tenn. 1990); State v. Teel, 793
S.W.2d 236 (Tenn. 1990); State v. Thompson, 768 S.W.2d 239 (Tenn. 1989).
Accordingly, this argument is without merit.
CONCLUSION
After a thorough review of the issues and the record before us as
mandated by Tennessee Code Annotated section 39-13-206(b) and (c), and
for the reasons stated herein, we affirm the appellant’s sentence of death.
We conclude that the sentence was not imposed in an arbitrary fashion, the
evidence supports the jury’s finding of the aggravating circumstance, and the
evidence supports the jury’s finding that the aggravating circumstance
outweighs any mitigating circumstances. Moreover, a comparative
proportionality review, considering both the circumstances of the crime and
the nature of the appellant, convinces us that the sentence of death is neither
-54-
excessive nor disproportionate to the penalty imposed in similar cases.12
Accordingly, the judgment of the trial court is affirmed.
________________________________
DAVID H. WELLES, JUDGE
CONCUR:
__________________________________
DAVID G. HAYES, JUDGE
__________________________________
CORNELIA A. CLARK, SPECIAL JUDGE
12
No execution date is set in this opinion. Tennessee Code Annotated section 39-13-
206(a)(1) provides for automatic review by the Tennessee Supreme Court upon affirmance of
the death penalty. If the sentence of death is upheld by the Supreme Court on
review, that court will set the execution date.
-55-
-56-