IN THE SUPREME COURT OF TENNESSEE
AT JACKSON
June 4, 2010 Session Heard at Nashville
STATE OF TENNESSEE v. DAVID LYNN JORDAN
Direct Appeal from the Court of Criminal Appeals
Circuit Court for Madison County
No. 05-431 Roy B. Morgan, Jr., Judge
_______________________________________
No. W2007-01272-SC-DDT-DD - Filed September 22, 2010
The defendant was convicted by a jury of the first degree murders of Renee Jordan, Jerry
Hopper, and David Gordon, and the attempted first degree murders of James Goff and Larry
Taylor, as well as leaving the scene of an accident. The jury sentenced the defendant to death
for each of the first degree murders. The trial court sentenced the defendant to twenty-five
years for each of the attempted murders, to be served consecutively, and to thirty days for the
misdemeanor. On appeal, we hold (1) the trial court erred in ruling pursuant to Tennessee
Rule of Evidence 615 that persons attending the guilt/innocence phase of the trial could not
testify at the sentencing hearing; (2) the trial court’s ruling regarding witness sequestration
did not violate the defendant’s right to a public trial; (3) the trial court erred in allowing an
expert to incorporate hearsay testimony within his opinion without a limiting instruction; (4)
the trial court did not err in permitting a victim’s fiancée to offer victim impact testimony;
(5) the prosecution engaged in improper argument during the sentencing hearing; (6) the trial
court did not err in its instructions to the jury on the felony murder aggravating circumstance;
(7) the various aggravating factors charged were not duplicative; (8) each of the death
sentences satisfies our statutory mandatory review; and (9) the cumulative errors in this case
do not entitle the defendant to relief. As to the remaining issues raised by the defendant, we
agree with the Court of Criminal Appeals’s conclusions and attach as an appendix to this
opinion the relevant portions of that court’s decision. The defendant’s convictions and
sentences are affirmed.
Tenn. Code Ann. § 39-13-206(a)(1); Judgment of the
Court of Criminal Appeals Affirmed
C ORNELIA A. C LARK, J., delivered the opinion of the Court, in which J ANICE M. H OLDER,
C.J., and G ARY R. W ADE, W ILLIAM C. K OCH, J R., and S HARON G. L EE, JJ., joined.
George Morton Googe, District Public Defender, Jackson, Tennessee, and Lloyd Tatum,
Henderson, Tennessee, for the appellant, David Lynn Jordan.
Robert E. Cooper, Jr., Attorney General and Reporter; Michael E. Moore, Solicitor General;
James E. Gaylord, Asst. Attorney General; James G. Woodall, District Attorney General; Al
Earls and Jody S. Pickens, Asst. District Attorneys General, for the appellee, State of
Tennessee.
OPINION
FACTS 1
This case arises from a shooting incident on January 11, 2005, at the Tennessee
Department of Transportation (TDOT) facility in Jackson, where David Lynn Jordan
(“Defendant”) killed three people: Renee Jordan, his thirty-one-year-old wife who was
employed at TDOT; Jerry Hopper, an employee of the Tennessee Division of Forestry
who was at the TDOT office; and David Gordon, a motorist Defendant ran off the road en
route to the TDOT garage. Defendant also shot and injured two other TDOT employees,
James Goff and Larry Taylor.
State’s Proof
The State’s theory at trial was that Defendant first threatened and then decided to
murder his wife because he believed she was having an affair with a co-worker, Johnny
Emerson, and because she told him she wanted a divorce.
Johnny Emerson testified that he was employed as a mechanic at the TDOT garage
where Mrs. Jordan worked. Emerson explained that he and Mrs. Jordan were “just real
good friends,” but acknowledged that their relationship had developed “[a] little bit”
beyond a co-worker relationship. Physically, their relationship was limited to hugging
and kissing. Emerson said that Mrs. Jordan had been talking about getting a divorce. On
one occasion, Defendant telephoned Emerson at home regarding his relationship with
Mrs. Jordan. Defendant told Emerson that he was “too old” for Mrs. Jordan and that he
“needed [his] ass whooped.” Emerson agreed with Defendant that he “didn’t have no
business doing what [he] did.” Defendant also contacted Emerson’s wife on numerous
occasions. At some point prior to January 11, 2005, Emerson informed Mrs. Jordan that
he was not going to divorce his wife. Emerson testified that he was not at work on
January 11, 2005, because he was on medical leave.
1
We have incorporated with only minor revisions the Court of Criminal Appeals’s comprehensive statement
of the proof adduced in this case.
2
Linda Sesson Taylor, an attorney in Jackson, testified that Mrs. Jordan hired her on
December 14, 2004, to represent her in divorce proceedings against Defendant. She said
she initially prepared the necessary documents for a contested divorce, and Mrs. Jordan
told her she would have the money to pay her fee after the Christmas holiday. Taylor said
she also prepared the paperwork to obtain a restraining order against Defendant, and Mrs.
Jordan had an appointment scheduled for January 12, 2005.2 Taylor identified a page out
of her phone message book indicating that Mrs. Jordan had called her office on
January 11, 2005, at 9:56 a.m. wanting to know how much Taylor charged for an
uncontested divorce.
Kevin Deberry, the next-door neighbor of Defendant and Mrs. Jordan, testified that
Mrs. Jordan called him on the night of January 10, 2005, and was upset with Defendant.
About an hour later, Defendant came to Deberry’s house and asked Deberry to take Mrs.
Jordan’s dog to their house and get his house key, but Deberry refused to do so.
Defendant then told Deberry if he did not take Mrs. Jordan’s dog to her, he “was gonna
take it over there and shoot it in the driveway.” As Defendant turned to walk away,
Deberry noticed what he believed to be a “snub-nose .38” in Defendant’s back pocket.
Defendant then turned around and told Deberry that he “better watch [his] back, you
never kn[o]w which way the bullets are gonna fly.” Deberry called Mrs. Jordan and told
her to take her child and leave the house because Defendant was on his way over there.
Mrs. Jordan told Deberry that Defendant had left some threatening voice mails on her
phone. Defendant later called Deberry and apologized. The two men talked “for awhile”
and Deberry offered Defendant a drink. Defendant declined but called back later and
accepted Deberry’s offer of alcohol. Deberry said that he took a half-gallon bottle of
vodka to Defendant’s house at about 1:00 a.m. and put it in the freezer. Although
Defendant and his children were still up when he arrived, Deberry did not stay and
returned home.
Kenneth Evans, Mrs. Jordan’s cousin, testified that he was aware that Defendant
and Mrs. Jordan were having marital problems and, on January 10, 2005, Mrs. Jordan
called and told him that “she was about to have a nervous breakdown, and she was scared
of [Defendant], that he was calling threatening her.” Mrs. Jordan told Evans that
Defendant “was on his way out to the house and that he said . . . it didn’t matter how
many lawyers she had and how much money she had, that what he had for her wasn’t
going to do her any good.” Evans advised Mrs. Jordan to leave the house and go to the
police department, but she refused to do so, saying that Defendant had “had run-ins with
the police department before. He would shoot me there whether the police was there or
2
On direct examination, Ms. Taylor testified that Mrs. Jordan’s appointment was scheduled for January 11,
2005, but, on cross-examination, after reviewing her statement, she agreed that the appointment was for
January 12.
3
not, and he would probably shoot them, too.” Evans then told her to come to his house,
which she did. After she arrived, they took Mrs. Jordan’s three-year-old daughter to Mrs.
Jordan’s mother’s house. Evans later hid Mrs. Jordan’s car at a friend’s house, and they
returned to Evans’ home around 10:30 p.m.
The following morning, January 11, 2005, Mrs. Jordan and Evans, a TDOT
“[p]arts runner,” went to work. Mrs. Jordan worked in the office of the TDOT garage,
which was commonly referred to as “the crow’s nest.” That morning, Evans was in the
crow’s nest with Mrs. Jordan until approximately 11:10 a.m., when he left to go pick up
some parts. Ricky Simpson and James Goff were in the office with Mrs. Jordan when he
left.
Vernon L. Stockton, Sr. testified that on January 11, 2005, he was employed as an
equipment mechanic at the TDOT garage which was located in the same building as the
crow’s nest where Mrs. Jordan worked. He said he knew that Mrs. Jordan and Defendant
were having marital problems. Between 9:30 and 10:00 a.m. on the morning of January
11, Mrs. Jordan handed Stockton her portable phone when it rang and asked him to
answer it. Stockton recognized the caller’s voice as that of Defendant. Defendant asked
to speak to Mrs. Jordan, but Stockton told him that she was in the restroom because she
did not want to talk to him. Stockton said he later left TDOT to pick up some parts and
was not present when the shooting occurred.
Sonny Grimm testified that he was riding in a Ford pickup while Paul Forsythe
was driving it westbound on Lower Brownsville Road on January 11, 2005. The two men
worked for Ralph’s Trailers and were on their way to pick up some starter fluid for a
backhoe. A green car was traveling in front of them. As they approached Anglin Lane,
Grimm saw Defendant, who was driving a red pickup truck, run a stop sign and strike the
green car, knocking it off the road. Grimm wrote down the license plate number of
Defendant’s vehicle; he said that Defendant continued traveling toward the TDOT
garage. Grimm, Forsythe, and the driver of the green car followed Defendant to the
garage. There, Grimm saw people running everywhere. Forsythe gave the driver of the
green car the license plate number of the red pickup truck. Defendant came out of the
garage and told the driver of the green car, “You better leave.” The driver responded,
“I’m not going [any]where.” Defendant said, “yes, you are, too,” reached inside his truck,
pulled out a rifle, and shot the driver.
Paul Forsythe testified that, on the morning of January 11, 2005, he and Sonny
Grimm were traveling west on Lower Brownsville Road behind a green car when they
saw a red Mazda pickup truck come down Anglin Lane, run a stop sign, and strike the
green car, knocking it off the road. Forsythe followed the truck to get its license plate
number for the driver of the green car. Because he was driving, Forsythe called out the
4
license number to Grimm, who wrote it down. The pickup truck then ran a four-way stop
and turned into the main entrance of TDOT. Forsythe called 911 and pulled into the
TDOT parking lot. The green car then pulled up, the driver got out, and Forsythe gave
the driver, David Gordon, the tag number of the pickup truck. As Gordon was walking
back to his car, Defendant came out of the TDOT building and told Gordon to leave.
When Gordon said, “I’m not going [any]where,” Defendant said, “You will” and then
reached inside his truck and pulled out a long gun. Gordon threw his hands up in the air
and told Defendant, “Please don’t shoot. Wait a minute.” However, Defendant started
shooting, and Forsythe and Grimm fled the scene.
Randy Joe Perry, a TDOT employee, testified that on January 11, 2005, Defendant
came to the TDOT garage and pushed Perry out of his way as he approached the steps
leading up to the crow’s nest where Mrs. Jordan worked. David Pickard, another TDOT
employee who was standing near Perry, said, “Who was that son-of-a-bitch?” Defendant,
who had his right hand in his coat pocket, turned around and gave Perry and Pickard a
“hard look” before going upstairs to the crow’s nest. Perry then heard three or four
gunshots and, looking through the window in the crow’s nest, saw Defendant pointing a
gun at Jerry Hopper who was sitting in a chair. Perry heard another gunshot and saw
Hopper slump over. Hearing more gunshots, Perry ran and got behind his truck. Shortly
thereafter, Defendant calmly walked outside to his vehicle. Perry next noticed a man get
out of another vehicle and walk toward Defendant. Defendant reached inside his truck
and retrieved a rifle. The man who had been walking toward Defendant stopped and
raised his hands. A few seconds later, Defendant fired several shots at the man. Perry
described the shots as coming from a “fully automatic” and so quick that he could not
count them. The man Defendant shot “went out of sight down behind the vehicle.”
Defendant walked over to the fallen man, shot again, “and then he turned and just calmly
walked back towards his truck, put the rifle in his truck, just eased in there and drove off
just as easy” toward the front gate.
David Thomas Pickard testified that he was standing near the stairs with Randy
Perry and other employees when Defendant came in the garage and shoved him and Perry
backwards as he walked past the group of men. Pickard responded by saying, “Who does
that crazy son-of-a-bitch think he is?” Defendant, who smelled of alcohol, turned around
and got in Pickard’s face “like he wanted to whoop [him].” Defendant then proceeded
upstairs to the crow’s nest where Mrs. Jordan was facing the window. Pickard saw
Defendant shoot Mrs. Jordan and described the shooting: “The first time it went ‘Pow’
and she went like this and come back and he went ‘Pow, Pow, Pow,’ like that.” Pickard
ran out of the garage to his office located across from the garage. After instructing the
employees in his office to lock the door, Pickard went back outside and saw Defendant,
pistol in hand, exit the garage and go to his truck and retrieve a rifle. Pickard went back
inside the office and, a few minutes later, saw Defendant leave in his truck. Pickard then
went to the crow’s nest where he saw Mrs. Jordan and Jerry Hopper lying on the floor.
5
He said he looked at Mrs. Jordan and knew she was dead, but Hopper was still alive and a
man was trying to resuscitate him. Outside in the parking lot, Pickard saw another man
lying on the ground. He said the man was not dead at that time, but he “was turning real
yellow-looking and blood was everywhere.”
James Goff testified that he was in the crow’s nest with Mrs. Jordan, Larry Taylor,
and Jerry Hopper when Defendant came in, raised his shirt, and pulled out what appeared
to be a nine-millimeter pistol. Mrs. Jordan had her back to the door, and Defendant called
out her name. Mrs. Jordan turned around, and Defendant started shooting. Goff stated
that Defendant was about 6 feet away. Defendant shot Mrs. Jordan in the chest and fired
additional shots, including what appeared to be a shot to the forehead. Defendant then
shot Hopper. Taylor dove under a desk, and Defendant shot Goff in the leg, the right side
of the neck, the arm, and the stomach. Although he did not see Taylor being shot, Goff
heard two more shots and heard Taylor grunt. As Defendant was leaving the crow’s nest,
Goff heard him mutter, “I love you, Renee.”
After Defendant left the room, Goff got up and asked Taylor about his condition.
He saw Hopper lying on the floor “in bad shape” and Mrs. Jordan was dead. Goff was
then able to make his way to the main office for help. He said he was hospitalized for
three days as a result of his injuries.
Larry Taylor testified that he was ending a telephone call inside the crow’s nest
when Defendant entered the room, stood there “for a moment or so,” pulled his coat back,
brandished a weapon, and took a “police stance.” Defendant then called Mrs. Jordan by
name and, when she turned to face him, shot her. One gunshot struck her in the stomach
area. She fell back in a chair, and Defendant fired two additional shots, with the second
shot striking her torso “a little higher up” and the third shot striking her in the head. Mrs.
Jordan fell to the floor, and Taylor could tell that she was dead. Taylor dove under a desk
for protection, heard more gunshots, and saw Goff fall. He then heard more gunshots and
felt pain in his legs. Taylor heard the door close, and Goff asked him if he was all right
before leaving the room. Taylor then got up and saw Hopper on the floor on his knees
with his face in his hands and saw Mrs. Jordan on the floor with her face in a pool of
blood. He called 911 and was trying to assist Hopper when he heard the door open and
saw Defendant with “a rifle-type gun.” Taylor looked Defendant “square in the eye” and
stood back up, holding both his hands in front of him. He asked Defendant if he could
leave, and, after a brief pause, Defendant said, “Yeah, you can go out now.” After Taylor
got downstairs, he heard gunshots in rapid succession and hurriedly went out the door.
He saw Goff, who was “kind of delirious” and holding a towel to his neck, and told
another employee, Alvin Harris, to drive Goff to the hospital in the parts truck. Taylor
then got in his car and drove himself to the hospital where he was treated for the gunshot
wounds to his legs.
6
Freddie Ellison, a reserve sheriff’s deputy and a mechanic at TDOT, testified that
when he returned to the garage from his lunch break around 11:30 a.m., people were
running out of the garage. He then observed Defendant, whom he had known for
approximately twenty years, walk out the roll-up doors of the garage. Ellison asked
Defendant what he was doing. Defendant raised his right hand and Ellison saw two semi-
automatic handguns. Defendant said, “Go on. Back off. Just go on. Back off.”
Defendant had his hand on one of the guns. Ellison retreated to the back of the building
where he observed David Gordon pull up in a green car. Gordon announced that “[t]he
guy in the red pickup truck has run over me,” and Ellison advised Gordon to “back off”
because Defendant had a gun. Gordon refused, stating that he had the police on the way.
Ellison then heard “automatic” gunfire and called the Madison County Sheriff’s
Department for assistance. He and Willie Martin left TDOT and went “out on 223.” He
saw Defendant leave in his red pickup truck, driving normally and headed toward
Jackson.
Shortly thereafter, Ellison observed an unmarked police unit and advised dispatch
to instruct the unit to follow Defendant. Ellison then returned to the TDOT garage and
saw David Gordon on the ground. Gordon had been shot multiple times. Inside the
crow’s nest, Ellison discovered “blood all over the floor” and saw Mrs. Jordan lying on
the floor with multiple gunshot wounds. He described Mrs. Jordan as being “shot all to
pieces,” including being shot in the forehead. Jerry Hopper had been shot several times in
the chest.
Alvin Harris, a “store clerk” at TDOT who picked up and delivered parts, testified
that he heard gunshots and went to the garage where he encountered Goff who was
holding his throat and bleeding. He also saw Taylor who was “real panicky” and pointed
to his legs when Harris asked him if he was hurt. Taylor told Harris that Defendant had
shot Mrs. Jordan and that she was “gone.” Because Goff was losing a lot of blood and
Harris feared death was imminent, Harris decided to drive Goff to the hospital rather than
wait for the ambulance.
Darrell Vaulx, a TDOT mechanic, testified that as he was leaving the shop on
January 11, 2005, he saw Defendant, Mrs. Jordan, Hopper, and Taylor through the glass
window in the crow’s nest. Defendant pointed a gun at Mrs. Jordan, and she fell. Vaulx
heard two more gunshots and saw Defendant turn toward the men in the crow’s nest.
Vaulx said he and other employees ran outside to the parking lot where Vaulx saw
Defendant’s red Mazda pickup truck. Vaulx then saw Defendant come outside and
calmly walk to his truck. Thinking that Defendant was leaving, Vaulx ran inside to the
crow’s nest where he found Mrs. Jordan on the floor with three gunshot wounds to the
head. Someone yelled, “He’s coming back,” and Vaulx ran back outside to the parking
lot and noticed that Defendant’s truck was still there. He then heard a noise that sounded
7
like an airgun or a rifle. After someone said Defendant was getting in his truck and
leaving, Vaulx went back inside and found Hopper who was “breathing just a little bit”
and “[s]quirming” like he was in pain. Vaulx administered CPR to Hopper until the
paramedics arrived.
George Washington Bond, a TDOT employee who worked in the car wash room in
the garage, testified that he heard “three pops,” looked out the window in the garage door,
and saw Defendant standing over “the victim.” Defendant then looked at Bond and shook
his head, which Bond interpreted to mean “[d]on’t get involved.” Bond saw what
appeared to be the grip of a gun in Defendant’s hand. Defendant then walked into the
garage and went to the crow’s nest. Bond saw Defendant pointing a long gun toward
where Mrs. Jordan sat. Bond then ran to another building and did not return to the
garage. On cross-examination, Bond acknowledged that he did not see Defendant shoot
“the victim.” 3
Barbara Surratt, Mrs. Jordan’s mother-in-law from a previous marriage, testified
that, even after Mrs. Jordan and her son divorced, she remained “very close” with Mrs.
Jordan. During the early part of 2005, Mrs. Jordan was staying with Surratt at her home
on Old Pinson Road. On January 11, 2005, at approximately 1:30 a.m., Surratt received a
telephone call from Defendant. Defendant told her that he knew Mrs. Jordan was not
there and asked her to tell Mrs. Jordan “happy birthday” the next time she saw her.
Surratt stated that Mrs. Jordan’s birthday was not until February. Around 11:30 a.m.,
Surratt telephoned Mrs. Jordan at work and, during their conversation, heard an “ungodly
racket, loud noises” and a sound like “a chair go across the room.” She screamed Mrs.
Jordan’s name, but got no answer. After it became quiet, Surratt heard Defendant say,
“Renee. Renee. I hate you.”
Jackson Police Sergeant Mike Thomas testified that he was on patrol in an
unmarked cruiser on Vann Drive when he received a call about the shooting at the TDOT
garage. En route to the scene, Sergeant Thomas was advised that the suspect had a
machine gun. Before reaching the TDOT garage, he observed a red Mazda pickup truck
matching the description of the suspect’s vehicle and began pursuit of the truck. The
truck ran a stop sign. Shortly thereafter, a marked patrol unit, driven by Sergeant Sain,
passed the truck on Anglin Lane. Sergeant Sain turned his cruiser around and joined the
pursuit. Another unmarked unit, driven by Captain Priddy, joined the pursuit after the
suspect’s vehicle forced Captain Priddy’s vehicle off the road. Officer Maxwell placed
his patrol cruiser in position to do a partial roadblock. The suspect’s vehicle hit Officer
3
Although Bond did not identify “the victim” by name, the context of his testimony indicates that he was
referring to David Gordon.
8
Maxwell’s car, and Sergeant Thomas pulled in behind it to block it from leaving. The
suspect, identified as Defendant, was taken into custody. A search of Defendant’s person
revealed a loaded .45 caliber pistol and a loaded nine-millimeter pistol. Inside
Defendant’s truck, the officers discovered a rifle and a shotgun.
Officer Ted Maxwell of the Jackson Police Department testified that he responded
to a call concerning the shooting at the TDOT garage. En route to the scene, he
encountered Defendant, driving a red pickup truck, followed by two police units. Officer
Maxwell said he was traveling north on Anglin Lane, and Defendant was traveling south.
Ultimately, Maxwell managed to stop Defendant by ramming the front of his vehicle.
Defendant got out of his vehicle, and Maxwell noticed a gun in the small of his back
under his belt. Sergeants Sain and Thomas placed Defendant on the ground and removed
two handguns from him that Maxwell identified as an Intra Arm Star .45-caliber semi-
automatic with a clip containing six live rounds and one live round inside the chamber,
and an Intra Arm Star nine-millimeter semi-automatic with a clip containing two live
rounds and one live round in the chamber. Maxwell said that eight .45-caliber and
nineteen nine-millimeter rounds were recovered from Defendant’s pockets.
Tennessee Highway Patrol Sergeant Johnny Briley testified that he initially
received a call regarding a hit-and-run accident on Lower Brownsville Road at Anglin
Lane involving a red Mazda pickup truck. While proceeding to that location, he received
another call about the shooting at the TDOT garage. He received information that there
were multiple victims involved. Before he reached the TDOT garage, he observed that
the suspect vehicle had been pulled over by Jackson police officers. He stopped at the
scene. Sergeant Briley said that he had known Mrs. Jordan and her family for thirty years
and also knew Defendant. As Defendant stood up, he told Sergeant Briley, “She fucked
me over, Johnny.” Sergeant Briley responded, “No, she didn’t, David.” Sergeant Briley,
who was standing within a foot of Defendant, detected an odor of alcohol on Defendant’s
person. Defendant was subsequently placed in the backseat of a police car.
Jackson Police Officer Rodney Anderson testified that, en route to the scene of the
shooting, he received a call that the suspect was headed down Anglin Lane. Officer
Anderson turned onto Anglin Lane where he observed a vehicle matching the description
of the suspect’s vehicle between two patrol cars. The driver of the vehicle, Defendant,
was taken into custody and placed in the backseat of Officer Greer’s marked police unit.
As Officers Greer and Anderson were transporting Defendant to the Criminal Justice
Complex, Defendant spontaneously told them that:
he could have cut the police in half with his weapon, that he had full auto.
He stated that his wife’s dead and she’s full of holes. He stated she drove
him crazy . . . by fucking around on him, and he advised that he shot her
9
with her brother’s gun. He also stated that he feels sorry for his daughters,
and that Mrs. Jordan wouldn’t be fucking around on anybody else.
Defendant also said that the other people “just got in the way” and asked how many
people were hurt. Defendant also said that his wife “hurt him and tore his heart out” and
that he had been “going crazy” for a month. Officer Anderson said that Defendant
smelled of alcohol.
Investigator Jeff Shepherd of the Jackson Police Department testified that, as part
of his investigation, he retrieved and recorded voice mail messages left on Mrs. Jordan’s
cell phone. The audiotape of the messages was entered into evidence and played for the
jury; a transcript of the messages was also provided. The messages included one left at
10:48 p.m. on January 10, 2005, stating “You’re the only asshole on the face of this earth
that I truly hate”; one left at 2:11 a.m. on January 11, 2005, stating “I’ll see you at work,
bitch”; one left at 2:17 a.m. on January 11, 2005, stating “I hope you go to work
tomorrow, bitch, ‘cause you’ll be there one day. It may not be tomorrow, but I will catch
up with your raggedy ass. Your day is coming.”; and one left at 2:19 a.m. on January 11,
2005, stating “You home wreckin’, low life, sorry mother fuckin’ bitch. Your ass is
gonna pay.” Additionally, Investigator Shepherd was involved in the booking process of
Defendant, during which Defendant asked him if Mrs. Jordan was “real bad messed up.”
Defendant started crying and told Shepherd that most people probably thought he was
crazy, but he was not crazy, he was “driven to crazy.” Defendant also said that the assault
rifle he used in the shooting belonged to his brother-in-law, Dale Robinson.4
Trent Harris, a paramedic at Jackson-Madison County General Hospital, testified
that he and Corey Shumate, an emergency medical technician, responded to the scene at
the TDOT garage, arriving at 11:39 a.m. They first attended David Gordon, who was
lying on his back in the parking lot and appeared to have gunshot wounds to the upper
right and upper left portion of his abdomen. Gordon was not breathing but had a faint
pulse. Harris intubated Gordon and immediately began transportation to the hospital. En
route, Gordon lost a pulse and CPR was initiated. Upon their arrival at the hospital,
Gordon’s care was transferred to the hospital’s trauma team.
Dr. Herbert Lee Sutton, a trauma surgeon at Jackson-Madison County General
Hospital, testified that he tried to save David Gordon’s life once he arrived at the hospital.
Dr. Sutton was able to regain a heartbeat on Gordon and performed surgery to try to stop
the bleeding in his abdomen and perineum. Dr. Sutton described what he saw when he
4
The record reflects that Investigator Shepherd referred to Defendant’s brother-in-law as Dale “Robinson.”
However, Mrs. Jordan’s father’s last name is “Roberson” according to the record.
10
surgically opened Gordon’s abdomen: “[T]he blast injury from what he was shot with
had almost morselized his intestines. It was like soup. And I’m quite sure even if I had
stopped him from bleeding and he had regained everything, he probably wouldn’t have
had any small intestine left from what I could see.” Despite all of Dr. Sutton’s lifesaving
procedures, Gordon died at 12:47 p.m.
Dr. Sutton testified that he also treated James Goff on January 11, 2005, for
multiple gunshot wounds which he described as wounds to the left arm, abdomen, left
thigh, and neck. The gunshot wound to the neck “went anterior to the trachea and the
carotid vessels which are the main vessels that go[] to his brain.” The bullet did not hit
any major arteries or veins. Dr. Sutton stated that Goff remained hospitalized until
January 13, 2005.
Eric Leath, a paramedic with the Medical Center EMS, testified that he was also
dispatched to the TDOT garage. Upon his arrival, he was directed inside to an office
where he observed a man lying on the floor on his back and a woman lying inside the
door to the left. The woman had “a massive . . . injury to her head that had blood tissue
lying all around, pooled around her head” and had no signs of life. The other victim,
Jerry Hopper, was very pale and had “some gasping or . . . agona[l], gasping-type breaths,
just very shallow, slow.” Hopper had a faint carotid pulse. Leath inserted a breathing
tube, but Hopper was unresponsive. A Jackson police officer offered assistance to Leath
and began CPR. Hopper was then moved to an ambulance and transported to the
hospital. Upon arrival at the hospital, Hopper exhibited no signs of life.
Dr. David James testified that he treated Jerry Hopper, who had two gunshot
wounds to his abdomen. Upon Hopper’s arrival at the hospital, he was not breathing and
all attempts at resuscitation were unsuccessful. Hopper was pronounced dead at 12:34
p.m. Dr. James also treated Larry Taylor at the Jackson-Madison County General
Hospital. Taylor had suffered gunshot wounds to both of his upper legs.
Dr. Tony R. Emison, the medical examiner and coroner for Madison County,
testified that he requested autopsies on the bodies of the three deceased victims. The
bodies were sent to the state medical examiner’s office in Nashville.
Dr. Staci Turner testified that she performed the autopsy on Mrs. Jordan. Dr.
Turner found that Mrs. Jordan had been shot eleven times, resulting in wounds to the
head, torso, and right leg. Dr. Turner found injuries to the scalp, the skull, the bones of
the face, the brain, multiple ribs, the right lung, the diaphragm, the liver, the right kidney,
the stomach, the small intestine, the urinary bladder, and the uterus. Dr. Turner recovered
multiple bullets, bullet jackets, bullet cores and white plastic disk fragments during the
11
autopsy. The gunshot wound to Mrs. Jordan’s forehead was fired from a handgun within
a foot of the body.
Dr. Turner discovered a visible bullet in a partial exit wound in the back of Mrs.
Jordan’s head. She recovered the bullet and the jacket that had separated from the bullet.
The bullet was identified as a Black Talon-type bullet, one fired from a handgun. She
described the bullet as having a bullet core and a jacket, “and when it enters the body, the
jacket usually opens and forms sharp points that look like talons.” Other fragments
discovered in Mrs. Jordan’s body were identified as coming from a high-powered assault
rifle. Dr. Turner described the wounds associated with the bullets fired from the assault
rifle: “They went through multiple ribs on the right side of the body, through the right
lung, through the diaphragm . . . , through the liver and the kidney and into the spinal
column and then lodged in the muscle of the back with some fragments scattered
throughout the organs.” Two notes were found in the victim’s clothing, both addressed to
Mrs. Jordan. One note was signed, “Your faithful faithful worried David.” The second
note was signed, “Your forgiving husband, David Lynn Jordan.” Dr. Turner concluded
that the cause of Mrs. Jordan’s death was multiple gunshot wounds.
Dr. Amy R. McMaster testified that she performed the autopsy on Jerry Hopper.
Hopper had suffered multiple gunshot wounds and had multiple abrasions and lacerations
resulting from these wounds. Dr. McMaster discovered a gunshot wound to the right
wrist and two gunshot wounds to the right side of his abdomen. She recovered two
projectiles from Hopper’s body. The projectiles were large caliber deformed hollow point
bullets, which were consistent with those fired from a nine-millimeter weapon. Dr.
McMaster concluded that the cause of Jerry Hopper’s death was multiple gunshot
wounds.
Dr. McMaster testified that she also performed the autopsy on David Gordon.
Gordon had multiple gunshot wounds and injuries associated with the wounds. Although
no exact number of wounds could be determined, Gordon had been shot at least thirteen
times. He had wounds to his right thigh, right forearm, right lower abdomen, right and
left sides of the torso, buttocks, and left hip. The projectiles recovered from these
wounds were consistent with a 7.62 millimeter round. Dr. McMaster concluded that the
cause of Gordon’s death was multiple gunshot wounds.
Sergeant Mike Turner of the Jackson Police Department testified that he collected
evidence from the red Mazda pickup truck. Among the items he recovered were: a
loaded Norinco SKS 7.62 assault rifle with twenty-six rounds in the magazine and one in
the chamber; a black bag containing a large quantity of assorted ammunition; a loaded
Mossberg twelve-gauge shotgun with two rounds in the magazine and one in the
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chamber; loose ammunition; a 7.62 magazine with fourteen rounds of ammunition; two
spent 7.62 casings; and a .38 special caliber Winchester spent casing.
Agent Cathy Ferguson of the Tennessee Bureau of Investigation (TBI) testified
that, on January 11, 2005, she was employed as a violent crimes investigator with the
Jackson Police Department. She said she responded to the scene at the TDOT garage and
was directed to the crow’s nest area where she found Mrs. Jordan lying in a large pool of
blood that contained brain matter. Realizing that she could not help Mrs. Jordan,
Ferguson assisted with the CPR on Jerry Hopper. Ferguson subsequently recovered
evidence found inside the crow’s nest and outside the garage, including nine-millimeter
and 7.62 shell casings, bullet fragments, and a note on which Grimm had written
Defendant’s license tag number. She said that fifteen 7.62 shell casings were recovered
from the exterior crime scene and four from inside the crow’s nest. Nine nine-millimeter
shell casings and one live nine-millimeter round were found inside the crow’s nest.
TBI Agent Scott Lott testified that he and other agents executed a search warrant
at Defendant’s house on January 11, 2005. Among the items recovered were: a
Thompson Center Firearms .50 caliber muzzle loader, a Montgomery Ward 30/30 rifle, a
Remington 20-gauge pump shotgun, a Remington 30.06 rifle, a Remington Caliber .243
rifle, a Ruger .22-caliber rifle, a Savage Firearms .22-caliber rifle, a Ruger .44 magnum
rifle, a Springfield .410-gauge shotgun, a Pioneer 750 .22-caliber rifle, a Bauer Firearms
.25-caliber automatic handgun, a .38 Special revolver, five live rounds of Winchester .38
Special ammunition, and a trigger group assembly.
TBI Agent Shelly Betts, accepted by the trial court as an expert in ballistics,
testified that she examined evidence collected in this matter, including a 12-gauge
shotgun, a Norinco SKS rifle, a Star .45-caliber semi-automatic pistol, and an Inter Arms
Star nine-millimeter semi-automatic pistol. She said that the safety feature functions on
the SKS rifle had been converted to fire in fully automatic mode, rather than the semi-
automatic mode, which was how it had been manufactured to function. She explained
that several modifications had been made to the rifle’s trigger housing assembly, causing
the weapon to fire continuously once the trigger was pulled. Agent Betts tested several
cartridge cases recovered from the crime scene and determined that they had been fired
from the SKS rifle. Additionally, she tested nine-millimeter cartridge cases recovered
from the interior crime scene and determined that they had been fired from the Star nine-
millimeter pistol. She examined bullet fragments recovered from David Gordon’s right
thigh and determined that one had “conclusively been fired through the barrel of the SKS
rifle.” Agent Betts further determined that some of the fragments recovered from
Gordon’s right hip and abdomen had been fired through the barrel of the SKS rifle. She
also examined nine-millimeter projectiles recovered from Jerry Hopper’s back and pelvis
and determined they had been fired from the Star nine-millimeter pistol. Her examination
13
of the nine-millimeter projectiles recovered from Renee Jordan’s leg and uterus revealed
they had been fired from the Star nine-millimeter pistol. Agent Betts said that the nine-
millimeter projectile recovered from Mrs. Jordan’s brain had “probably” been fired from
the Star pistol. Fragments recovered from Mrs. Jordan’s liver and chest were
conclusively identified to the SKS rifle. Agent Betts explained that the 7.62 rounds found
in the bodies of Mrs. Jordan and David Gordon were hollow point bullets, meaning that
as soon as they struck the skin they fragmented into numerous pieces. She examined the
7.62 magazine found inside Defendant’s truck and described it as “an SKS-type
detachable magazine that would function in this SKS rifle, and it holds approximately 31
rounds.”
Madison County Sheriff’s Department Sergeant Chad Lowery testified that, shortly
after Defendant was apprehended, he went to Defendant’s home to check on the welfare
of any children who may have been at the home, but no children were present when he
arrived. Sergeant Lowery discovered a loaded pistol on top of the refrigerator and saw
several other weapons in the home. On the kitchen counter, Sergeant Lowery observed a
handwritten note, which stated: “Renee got what she deserved. Bitch. I’m sorry. I love
you. Thanks for being so good to me. Love you Shelby, Sydney, Deanna. Thanks, Mom
and Dad. You did all you could.” On cross-examination, Sergeant Lowery
acknowledged that, during Defendant’s apprehension, he “smelled alcohol, or what [he]
thought to be alcohol” on Defendant.
Defense Proof
Jackson Police Investigator Tyreece Miller testified that he interviewed Defendant
at approximately 3:35 p.m. on the day of the shooting. Defendant waived his right to an
attorney and volunteered to speak with Investigator Miller. During their conversation,
Defendant asked how many people he had shot and if Mrs. Jordan was dead. Defendant
provided a urine sample and consented to give a blood sample which was drawn at
approximately 9:50 p.m. Defendant said he had consumed approximately five shots of
vodka but “was not under the influence.” Defendant also provided the following
statement to Investigator Miller:
I’ve been married to Renee Jordan for five years. She has a son
named Tyler Surratt. He is my stepson. She has a daughter named Sydney
Jordan. She is my daughter also by Renee. I have three others by two other
women who are my former wives. Back in the summer 2002, Renee’s son
Tyler molested my daughter, Shelby Jordan. He was 10 years old and she
was 8 years old at the time. [Department of Children’s Services] was
involved, and Tyler had to go to counseling. On December the 11th, 2004,
Tyler was in Lindsey’s bedroom. He was lying on his back and he had
14
something in his hand. He was playing with Lindsey. He was trying to let
her get whatever it was out of his hand, but he had a tight grip on it. She
was reaching for it. He would let her grab his hand, and then he would pull
her across his body. He didn’t know it, but I was watching him. It looked
like he was pulling her across his penis. I saw him do this three times
before I stopped him. I went in the room. I cursed him. I told him that I
was going to stick my foot up his ass if he ever touched one of my
daughters again. I left and went deer hunting. When I got back, Renee was
on the phone with some man. My mother showed up, and Renee left and
never came back home. We did spend Christmas Eve, New Year’s Eve and
this past Sunday night together.
Back in September 2004, Renee started having an affair with Johnny
Emerson. He works in a building where she works. He works in the shop
and Renee works in the office. . . . I found out about their affair in October.
She admitted to it and I forgave her. This morning I woke up and had no
intentions of hurting Renee.
She called me from work. I was at home. She was acting like a
bitch. I had been begging and bending over backwards to make this work
up to this point. She unexpectedly told me that me and my daughters from
another marriage have until the first of February to get out of her house.
She said that she was going to see her lawyer tomorrow and she was going
to have me evicted. . . . Renee hung up on me before I had a chance to say a
word. This made my blood boil. I started loading my guns. I loaded my
12-gauge shotgun, a Star .45 caliber semi-automatic handgun and an SKS
fully automatic rifle with a folding stock. I put a 33-round clip in it. I left a
note on the counter stating that if something happens to me, I love my
mother, father and four daughters. I didn’t know if I was going to do
anything to Renee or not. I was thinking more of killing myself.
I got in my 1991 Mazda truck, red, and I was going to Renee’s
workplace at TDOT. On the way there I broad-sided a green four-door
vehicle. I was going down Anglin Lane. I was driving fast and couldn’t
stop soon enough. I T-boned the green car that was going down Lower
Brownsville Road. I didn’t stop. I went on up to TDOT. I pulled up to
where Renee works. I left the 12-gauge and the SKS in the truck. I had the
.45 in a holster on my hip, the nine-millimeter was in my back.
I walked in the office. Renee said, “What the fuck are you doing
here?” She was sitting in the chair at her desk. I didn’t say a word to her. I
15
pulled out the .45 and I shot her in the leg. I shot her in the leg because I
wanted her to look at me. She hollered. The guy that was sitting in the
corner got up and came at me. I shot him and he fell to the floor. I think he
was James Goff, but I’m not sure. I heard him moaning. Larry Taylor was
in the office. I patted him on the back with the pistol and told him that he
needed to get out of there. He left. I looked back at Renee, and she was
already dead I think. I can’t remember if I had shot her more than just in
the leg. I remember the last time that I shot her was in the top of the head
with the .45. I didn’t want to shoot her in the face.
I walked back out to my truck and I saw the guy in the green car that
I had hit. He was parked behind me. I got in the truck. He was pointing
his finger and coming at me. I grabbed the SKS and I fired it at him. He
went to the ground. I don’t remember going back to the office with the
SKS, but if there was a shell casing there, I must have fired it in the office.
I got in my truck and left. I had intentions of killing myself when I got back
home, but the police hit me head on.
I have made this statement openly and freely. I have not been
promised anything, and I have not been threatened in any way. I am sorry
that this happened. Renee didn’t deserve to die.
TBI Special Agent John W. Harrison testified that he analyzed the urine and blood
samples submitted by Defendant. The result of the blood sample, taken at 9:50 p.m., was
“no alcohol present.” Agent Harrison agreed that if a person consumed five shots of
vodka in the early morning hours but did not give a blood sample until 9:50 p.m., the
alcohol could have metabolized by that time. He explained that if a person consumed five
shots rapidly within an hour, the person’s blood-alcohol level would be approximately
.10%, but about five hours later, the level would be down to 0. The result of the urine
sample, taken at 3:35 p.m., was .17%. However, Harrison said not much significance
should be attached to that result because it did not indicate how much Defendant had had
to drink. He acknowledged that all the urine sample really revealed was that, sometime
prior to the collection of the sample, there had been alcohol in Defendant’s bloodstream.
Pursuant to the TBI’s normal operating procedure, the samples were preserved “for a
period of time and then destroyed.”
TBI Agent Kelly Hopkins testified that she performed a drug screen on the urine
and blood samples submitted by Defendant. The urine sample was positive for
Citalopram, an antidepressant, and benzodiazepines, which include antidepressant and
anti-anxiety medications, such as Xanax. The blood sample was positive for Citalopram
but negative for benzodiazepine. Agent Hopkins explained that, after a drug is ingested,
16
it first goes into the person’s bloodstream and is later metabolized in the urine. She said
that the blood sample was destroyed on January 3, 2006.
Officer Tikal Greer of the Jackson Police Department testified that when he and
Officer Anderson transported Defendant to the Criminal Justice Complex, he noticed a
strong odor of alcohol on Defendant’s person. Defendant told the officers that “his wife
was dead, full of holes” and that she had driven him crazy by “fucking around on him.”
Defendant also said that “he hated [that] people got in the way” and that his wife “got a
taste of his .45 and her brother’s gun.” Once they arrived at the Criminal Justice
Complex, Defendant admitted “to killing or hurting four people.”
Sergeant Marneina Murphy of the Madison County Sheriff’s Department testified
that she supervised Defendant’s booking process at the jail. She estimated that she was
around the defendant for thirty minutes to one hour and described his demeanor as “more
confused, maybe not focusing, probably dazed a little bit.” She acknowledged that
another officer asked Defendant the questions on the intake questionnaire.
Dr. Dennis Wilson, a clinical psychologist, testified that he evaluated Defendant,
meeting with him on four different occasions beginning on October 12, 2005, for a total
of eleven hours. He conducted clinical interviews, IQ testing, and some brief personality
testing. Dr. Wilson determined that Defendant was competent to stand trial and that a
defense of insanity was not available. However, in Dr. Wilson’s professional opinion,
Defendant “lacked substantial capacity when the crimes were committed,” meaning
Defendant was “unable to exercise restraint or judgment” and “unable to reflect or
premeditate.”
In formulating his opinion, Dr. Wilson discovered that Defendant was brought up
in a stable family. His parents were good parents and were active in the community. Dr.
Wilson opined that Defendant was determined to set up a loving, stable environment for
his children whom he clearly loved. Dr. Wilson also noted that Defendant had been
divorced twice and suffered from depression and anxiety. He was prescribed Prozac in
his early twenties. Defendant began self-medicating with alcohol and drugs, including
methamphetamine and crack cocaine. In 1986, Defendant was injured in a car accident.
He had a broken back and ribs and injuries to his knee, ankle, and pelvis. He developed
chronic headaches and various pains. Beginning in 1996, he was prescribed narcotic
medications, including hydrocodone, oxycodone, Vicodin, Lortab, and Darvocet. In
2000, Defendant was prescribed Xanax, an anti-anxiety medication, and Ambien, for
insomnia. Defendant, at various times, was given other medications for depression and
agitation.
17
At the time of his marriage to Mrs. Jordan in 2000, Defendant had stopped using
illegal drugs and “became a regular moderate beer drinker” that “would qualify for a
diagnosis of alcoholism.” Their daughter Sydney was born in late 2001. At this time,
Defendant’s previous wife was using drugs and neglecting their two daughters.
Defendant and Mrs. Jordan began trying to get custody of Shelby and Lindsey. Their
marriage began to deteriorate, however.
The couple attended marriage counseling. In September 2004, they got custody of
Shelby and Lindsey. Later, Mrs. Jordan told Defendant that she desired other male
companionship and, in October 2004, she started going to bars, staying out late, and
coming home intoxicated. Mrs. Jordan also told Defendant about her relationship with a
male co-worker and said she wanted to have sex with this co-worker. Divorce was
imminent, and Defendant’s family structure was crumbling. During this time, Mrs.
Jordan continued her intimate relationship with Defendant but also shared the details of
her encounters with other men with him. Defendant was confused and upset about her
extramarital activities. Defendant’s doctor doubled his dose of Xanax on January 4,
2005. Mrs. Jordan then gave Defendant a deadline of February 1 for him and his two
daughters to move out of the house. Dr. Wilson opined that this was the end of whatever
was left of Defendant’s dream of creating a happy home for his children.
Dr. Wilson further testified that on the date of the shooting, Defendant drank
alcohol and had not slept for three days. His world had collapsed, and he could no longer
control his behavior. Defendant started talking to himself. People observing Defendant
after the shooting described him as being “out of it.” Defendant expressed remorse over
the incident and cooperated with the authorities. Dr. Wilson concluded:
[Defendant] has a major depressive disorder, recurrent episodes. It was
moderate over his lifespan. He had generalized anxiety disorder, alcohol
abuse and a borderline personality disorder. This is by definition someone
who has a hard time maintaining interpersonal relationships, dealing with
problems, coping with stress. He just never was any good with any of that
stuff. At the time of the crime, it is my opinion that he was intoxicated with
alcohol, and it is my opinion, I believe, that he was also intoxicated with
anxiolytics which was the Xanax. These two drugs, alcohol and the Xanax,
potentiate each other, and anything can happen if you take both of those
things together. . . . [T]hey sort of multiply each other. They can easily do
brain damage.
...
18
[D]issociative disorder is when . . . [t]here’s a disruption in the
usually integrated functions of consciousness, memory or perception of the
environment. That’s from the Diagnostic & Statistical Manual.
...
You also have symptoms of what we call derealization. That’s as if
you’re detached and you’re an outside observer. It’s like you’re watching
someone else do it.
...
I don’t think he was in control of his faculties when all this
happened. I don’t know if it was from the stress, from the depression, the
anxiety, the dissociation, the intoxication, or, most likely a combination of
all of the above.
Dr. Wilson opined that Defendant was substantially impaired to the extent that he was
unable to form premeditation.
Asked on cross-examination if Defendant was in control at the time of the
shooting, Dr. Wilson said that Defendant “was in control sometime before the crime and
he became in control again after the crime, but during the crime he was not. I’m not sure.
It’s a gray area, a gradual change. I just don’t know.” Dr. Wilson opined that Defendant
was not capable of forming intent at the time of the shooting. He said that Defendant
“knew the difference between right and wrong. He was not insane. He was just
incapacitated.” Dr. Wilson explained that Defendant’s “behavior was inconsistent and
out of control. He was in and out of consciousness there. He knew some things,
remembered some things and not others, but I don’t think he was at all in control the
whole time.”
Rebuttal Proof
In rebuttal, the State recalled Investigator Tyreece Miller. Miller reiterated that, at
the time Defendant gave his statement, Defendant said he had been drinking but was not
under the influence of any drugs or alcohol. He said that Defendant walked steadily, was
able to answer the questions he asked, and was “very coherent.” Miller said that
Defendant did not appear to be under the influence of drugs or alcohol. Defendant
consented to give a urine sample but initially refused to provide a blood sample because
he did not like needles.
19
Following the department’s standard operating procedures, Miller wrote down
Defendant’s statement as he talked and allowed him to review it before he signed it.
Asked if Defendant made any additional comments that were not included in his
statement, Miller said Defendant told him, “Today is Renee’s father’s birthday. I guess I
gave him a hell of a birthday present.” According to the driver’s license belonging to
Mrs. Jordan’s father, his date of birth was January 11, 1932. Miller asked Defendant if he
could include the birthday present comment in the statement, but Defendant said, “I don’t
want that in there.” Defendant also told Miller, “[Mrs. Jordan] was in a pool of blood the
last time that [he] shot her.”
On cross-examination, Investigator Miller said that Defendant signed a waiver of
his rights at 3:50 p.m. and signed his statement at 5:35 p.m. Defendant eventually gave
his consent for a blood sample at 9:50 p.m. Miller acknowledged that a Breathalyzer test
was not performed on Defendant and that Defendant told him he was taking medication.
Miller said that although the police department had video equipment, he did not have it
brought to the Criminal Justice Center to videotape Defendant’s interview because it was
against departmental policy and not standard operating procedure. Miller said he was not
aware of the availability of any video equipment in the booking area of the Criminal
Justice Center.
Dr. Daryl Matthews, a forensic psychiatrist, testified that he evaluated Defendant
on April 24, 2006. Dr. Matthews spent approximately six hours with Defendant, during
which he conducted a psychiatric interview and a mental status evaluation. As a result of
his examination of Defendant, Dr. Matthews did not find a severe mental disorder and
said, “I don’t believe [Defendant] has ever had a severe mental disorder.” Dr. Matthews
concluded that Defendant “was able at the time of the offense . . . to act intentionally and
to act with premeditation.” He added that Defendant was able to conform his behavior to
the requirements of the law.
In reaching his determination that Defendant had the capacity to premeditate, Dr.
Matthews said he reviewed, among other things, the note Defendant wrote, the recorded
messages Defendant left on Mrs. Jordan’s cellular telephone, the statements of various
witnesses at the scene, and the police reports. The messages Defendant left on Mrs.
Jordan’s phone included sarcastic comments about her obtaining a restraining order and
statements such as: “I hope you go to work tomorrow, bitch, ‘cause you’ll be there one
day. It may not be tomorrow, but I will catch up with your raggedy ass. Your day is
coming” and “Your ass is gonna pay.” Dr. Matthews disagreed with Dr. Wilson that
Defendant was dissociated at the time of the shooting, saying that dissociation is very
common, mostly pertains to memory, and has nothing to do with intent or premeditation.
20
Among the witness statements Dr. Matthews reviewed was that of Paul Forsythe,
which Dr. Matthews recited:
The driver of the red truck told the driver of the green car to get out of here.
The driver of the green car said, “No, you hit me.” The driver of the red
truck folded the seat forward on the truck and he said, “You will.” He
pulled out a black rifle with a silencer or something on the end of the barrel.
He fired at the driver of the green car.
Dr. Matthews also recited from the statement of George W. Bond, Sr.: “The man with the
gun was white. He looked up and saw me and shook his head as if to tell me he didn’t
want me involved.” Dr. Matthews said that Defendant’s statement to Sergeant Johnny
Briley, “Renee fucked me over, Johnny,” showed that Defendant recognized Briley and
indicated the “intactness of his mental capacity.” Dr. Matthews read from the statement
of Freddie Ellison: “When I saw [Defendant], he had a gun and was trying to hide it. I
said, ‘David, what are you doing?’ He said, ‘Just go on.’ I said, ‘What’s the matter? He
said, ‘Just go on.’” Dr. Matthews said that Defendant’s ability to recognize someone he
knew at the scene, Freddie Ellison, implied that he “had the ability in memory to keep in
mind people that he knew, and most importantly . . . he had the ability not to . . . shoot
Mr. Ellison.” Dr. Matthews concluded that Defendant was making choices and able to
control himself at the time of the shooting.
Verdicts
The jury convicted Defendant of the first degree premeditated murder of Renee
Jordan, the first degree premeditated murder of Jerry Hopper, the first degree felony
murder of Jerry Hopper, the first degree premeditated murder of David Gordon, the first
degree felony murder of David Gordon, the attempted first degree murder of James Goff,
the aggravated assault of James Goff, the attempted first degree murder of Larry Taylor,
the aggravated assault of Larry Taylor, and leaving the scene of an accident. The trial
court merged the convictions for the felony murder and premeditated murder of Jerry
Hopper into a single conviction for first degree murder and, similarly, merged the
convictions for the felony murder and premeditated murder of David Gordon into a single
conviction for first degree murder. The court also merged the two aggravated assault
convictions with the two attempted first degree murder convictions.
Penalty Phase
Donald Roberson, Renee Jordan’s father, testified that she was the youngest of his
three children; his only daughter; and his last living child. One son died of cystic fibrosis
when he was seven years old, and the other son died at age thirty-three. Roberson related
21
that Renee’s daughter, Sydney, was four years old at the time of her mother’s death and
that he and his wife currently had custody of her. He said that Sydney still asks for her
mother. Since Renee’s death, Roberson has experienced “attacks, anxiety and
depression.” Roberson added that Renee was murdered on his birthday, and he is no
longer able to celebrate his birthday.
Robert E. Lee Gordon, Jr., David Gordon’s older brother, testified that he and
David had two other brothers, both of whom were deceased at the time of David’s death.
Gordon, Jr. explained the impact of the death of his last remaining brother on him and his
family. He said that he has difficulty sleeping and that his brother’s death is “all I think
about, the way he died.” One of David’s sons was in college and the other in high school,
but both gave up on school as a result of their father’s death. Gordon, Jr. said he had
buried two brothers and his mother in the past two years. He related that David was a
hard worker, a good father, and “very well respected . . . a fine man.”
Shane Gordon, the eighteen-year-old son of David Gordon, testified that he was a
junior in high school when his father was killed. He said that he thought about his
father’s death “all the time and it gets me down. . . . It’s just something that’s hard to deal
with.” He said that his father was a hard worker and was kind to everyone.
Renee Dawson testified that David Gordon was her fiancé and best friend. On the
date of his murder, Ms. Dawson and Gordon had a lunch date planned. The couple had
moved into a new home together on Thanksgiving Day, but Ms. Dawson was unable to
keep the home after Gordon’s death. Ms. Dawson stated, “I would say that my life is
empty and my life ended that day as well.”
Emma Hopper, the wife of Jerry Hopper, testified that they had been married
twenty-nine years. She explained that losing her husband was like “losing half of
myself.” Mr. Hopper worked for the Tennessee Division of Forestry and had been a state
employee for twenty-eight years. At the time of his murder, Mr. Hopper had been making
plans for retirement. Mrs. Hopper explained that the couple planned on spending more
time with their young granddaughter, who was eighteen months old at the time of Mr.
Hopper’s death. She said that she had not been able to spend a single night in their home
since his death and had been living with her daughter and her family. Mrs. Hopper
testified that her granddaughter still asks, “Where is my papaw?”
Misty Ellis, the daughter of Jerry Hopper, testified that she had worked with
victims of crimes in the past. She described her experience dealing with her father’s
death as an “[a]bsolute nightmare.” Ellis said that it was “just torture” to know that one
day she would have to explain to her daughter why her grandfather was no longer here.
22
TBI Agent Cathy Ferguson identified photographs of the victims. Exhibit 179 was
a photograph of James Goff depicting the bullet wound to his abdomen. Exhibit 180 was
a photograph of James Goff depicting the bullet wound to his neck. Exhibits 181 and 182
were photographs of Larry Taylor depicting the gunshot wounds to his legs. The
photographs of Goff and Taylor were taken at the emergency room. Exhibit 183 was a
photograph depicting Renee Jordan as she was found in the crow’s nest at the TDOT
garage.
Dr. Amy McMaster testified that Dr. Staci Turner performed the autopsy on Renee
Jordan. Identifying exhibit 184 as a photograph depicting a gunshot wound to Mrs.
Jordan’s forehead, Dr. McMaster stated that the wound was inflicted from a “close
range.” She explained that it was “a close range wound because there’s soot,” or burnt
gunpowder, on the skin surrounding the wound. She said that the wound to the forehead
was a fatal wound. The autopsy further revealed a gunshot wound to the back of Mrs.
Jordan’s head, which went through her head and exited on her face. Exhibit 185 was a
photograph depicting the gunshot wound to the back of the head. Dr. McMaster stated
that this wound also would have been fatal. Dr. McMaster also identified nine entrance
wounds on Mrs. Jordan’s torso. She stated that there was significant injury to the
abdominal area, which was a potentially fatal wound. Dr. McMaster said that this wound
would have been painful. She explained, “in general terms, the body has about 30
seconds’ worth of reserve of oxygen in the brain. So assuming your heart stops
immediately, you’ve got about 30 seconds left of oxygen in your brain that will allow you
to remain conscious.” She affirmed that, during this time, one could experience pain.
She added that, depending on other factors such as adrenaline, this time period could be
longer. Dr. McMaster additionally stated that the wounds to Mrs. Jordan’s body were
from two different caliber bullets and agreed that the wounds were “beyond that which
was necessary to inflict death.” On cross-examination, she admitted that there was no
indication in the autopsy report of post-mortem wounds.
Regarding the autopsy of Jerry Hopper, Dr. McMaster testified that he had two
gunshot wounds to his abdomen, which injured segments of bowel and also segments of
the aorta. Dr. McMaster stated that these wounds would not have been immediately fatal
but would have been painful. Hopper also sustained a gunshot wound to his right wrist.
Dr. McMaster was unable to determine the order in which the wounds were inflicted.
Dr. McMaster testified that she performed the autopsy on David Gordon. Gordon
had “at least 13 entrance wounds” which were inflicted from the front, the side, and the
back of the body. Gordon sustained injury to his bowel area, specifically, the natal cleft.
The wounds sustained to the buttocks and natal cleft could be consistent with Gordon
being face-down on the pavement. She opined that the number of wounds were more
23
than that necessary to cause death. She added that the wounds would have been painful
and that Gordon would have eventually lost consciousness.
In mitigation, Defendant presented the following testimony. Larry Jordan,
Defendant’s younger brother, testified that, during their childhood, he and Defendant
played ball and went fishing and hunting. Their father was their Little League coach.
Jordan stated that he would be devastated if his brother was sentenced to death. He added
that, if his brother received a sentence of life without parole, he would maintain his
relationship with him. Jordan testified that Defendant has a close relationship with his
four daughters.
Suzie Silas, a guidance counselor at Malesus Elementary School, testified that
Defendant had obtained custody of Shelby and Lindsey, his daughters from a previous
marriage. She characterized Defendant as a concerned parent and said that he regularly
checked on his children. After Defendant was incarcerated, Lindsey wrote a letter
expressing her desire to spend a day with Defendant because “I miss my daddy very
much.” Ms. Silas also received a letter from Defendant after his incarceration, thanking
her for helping his children.
Michael Lee Merriwether testified that he met Defendant while incarcerated at the
Criminal Justice Complex. He stated that he and Defendant often read Christian
literature. Merriwether added that it was a benefit to him to have this interaction with
Defendant. He opined that Defendant has the ability to do some good while in jail,
including ministering to others.
Cheryl Fisher testified that she dated Defendant before his marriage to Renee
Jordan. They remained friends after their romantic relationship ended. She opined that,
if Defendant received a sentence of life, his children would benefit. She explained that
Defendant was a very good father and that his children idolized him. Ms. Fisher related
how Defendant’s children were having difficulty rationalizing the potential punishment of
death.
Madison County Deputy Andre Denice Hays, a jailer at the Criminal Justice
Complex, testified that she had frequent contact with Defendant and described him as
quiet and polite. Deputy Hays opined that Defendant would make a good prisoner and
would be able to serve a sentence of life without parole without being a risk to any
prisoner, guard, or other human being.
Sergeant Neina Murphy, also assigned to the Criminal Justice Complex, testified
that she had not had any problems with Defendant since his incarceration. She affirmed
that Defendant had not demonstrated to her that he would be a threat to any prisoner,
24
guard, or other human being. She added that she would be disturbed if Defendant
received the death penalty.
Madison County Deputy Jason Walker, a jailer at the Criminal Justice Complex,
testified that Defendant often mentioned his family. Deputy Walker stated that
Defendant’s demeanor was pleasant, he never complained, and he did what he was told to
do. He described Defendant as one of the better inmates. Deputy Walker opined that
Defendant would make a good prisoner in the penitentiary and would not be a threat to
other individuals.
Deanna Jordan, Defendant’s oldest daughter, testified that she was a junior at
Freed-Hardeman University. She said that she had three sisters, Lindsey, Shelby, and
Sydney, and that they all loved their father and knew that he loved them. She stated that,
while her father will not be able to walk her down the aisle, she would like for him to be
able to meet his grandchildren some day. She stated that she wanted Defendant to have a
part in their lives, even if it was just visitation.
Dr. Dennis W. Wilson made a PowerPoint presentation to demonstrate the
psychological point of view of the mitigating factors. He explained that Defendant
started life in a stable and loving family but later suffered from depression, anxiety, and
insomnia. He stated that Defendant began using drugs and alcohol. Dr. Wilson spoke of
Defendant’s two failed marriages before marrying Renee. He mentioned Defendant’s
four children. He described Defendant’s health problems and prescription medications.
Dr. Wilson testified regarding the disintegration of Defendant’s marriage to Mrs. Jordan.
He said Defendant took too much Xanax, drank vodka, lost control, and “fell apart.”
Dr. Wilson also described Defendant’s remorse expressed very soon after the
incident. He verified Defendant’s status as a model prisoner. He added that Defendant
was fully aware that he will spend the rest of his life in prison. Dr. Wilson opined that the
structured setting of incarceration was good for Defendant because the stressors of every
day life were gone. Defendant had adjusted well to the environment. Dr. Wilson added
that Defendant had been a loving and active father.
Dr. Wilson provided his opinion as a clinical psychologist:
[Defendant] was under a lot of stress. He has a long history of not being
able to deal with stress or change, and he was disturbed at the time of this
crime.
And t[o]o, he was impaired also due to that chronic depression and
anxiety, plus the intoxication. He just wasn’t used to drinking that much.
25
He took the Xanax in an attempt to try to sleep or calm down. He wasn’t
trying to get intoxicated, but the net effect was that he became impaired.
...
Confinement is -- No one will ever have to worry about him doing
something like this ever again, and even inside the prison system, he’s
likely to have a calming effect. . . . And importantly, he will be punished
for what he did.
Gary Morris, the pastor of Bemis United Methodist Church, testified that
Defendant’s parents were members of his congregation. Since the incident, Morris had
visited Defendant at the jail between thirty-five and fifty times. He recalled that, the day
after Defendant’s arrest, Defendant appeared dazed and confused. Defendant was very
tearful and emotional and asked Morris to attend Mrs. Jordan’s funeral. Morris stated
that Defendant had expressed his repentance and remorse. He added that it would be
devastating to the family if Defendant received a sentence of death.
At the close of the proof, the trial court instructed the jury on the following
statutory aggravating circumstances:
Number 1: The Defendant knowingly created a great risk of death to
two or more persons other than the victim murdered during the act of
murder. That aggravating circumstance could possibly apply to Count 1, 2
or 3.5
Number 2: The murder was especially heinous, atrocious or cruel in
that it involved torture or serious physical abuse beyond that necessary to
produce death. Counts 1, 4 or 5 possibly.6
Number 3: The murder was committed for the purpose of avoiding,
interfering with or preventing a lawful arrest or prosecution of the
Defendant or another. Consideration of Counts 2, 3, 4 and 5.
5
Count One referred to the premeditated murder of Mrs. Jordan, Count Two referred to the premeditated
murder of Mr. Hopper, and Count Three referred to the felony murder of Mr. Hopper.
6
Count Four referred to the premeditated murder of Mr. Gordon, and Count Five referred to the felony
murder of Mr. Gordon.
26
Number 4: The murder was knowingly committed, solicited, directed
or aided by the Defendant while the Defendant had a substantial role in
committing or attempting to commit first degree murder. Knowingly means
that a person acts knowingly with respect to the conduct or to circumstances
surrounding the conduct when the person is aware of the nature of the
conduct or that the circumstances exist. A person acts knowingly with
respect to a result of the person’s conduct when the person is aware that the
conduct is reasonably certain to cause the result. The requirement of
knowingly is also established if it is shown that the Defendant acted
intentionally.
Intentionally means that a person acts intentionally with respect to
the nature of the conduct or to a result of the conduct when it is the person’s
conscious objective or desire to engage in the conduct or cause the results.
That one is for consideration on Counts 1 through 5.
Number 5: The Defendant committed mass murder which is defined
as the murder of three or more persons, whether committed during a single
criminal episode or at different times within a 48-month period. For
consideration of Counts 1 through 5.
Number 6: The Defendant knowingly mutilated the body of the
victim after death. For consideration in Count 1.
See generally Tenn. Code Ann. § 39-13-204(i)(3), (5), (6), (7), (12), (13) (2003). The
trial court additionally instructed the jury as to applicable mitigating circumstances as
follows:
Tennessee law provides that in arriving at the punishment, the jury shall
consider . . . any mitigating circumstances raised by the evidence which
shall include but are not limited to the following:
Number 1: The murder was committed while the Defendant was
under the influence of extreme mental or emotional disturbance.
Number 2: The capacity of the Defendant to appreciate the
wrongfulness of his conduct or to conform his conduct to the requirements
of the law was substantially impaired as a result of mental disease or defect
or intoxication which was insufficient to establish a defense to the crime but
which substantially affected his judgment.
27
Number 3: The Defendant has adjusted well to the structure of prison
life.
Number 4: The Defendant has expressed remorse, has accepted
responsibility for his actions and is willing to accept punishment for his
crimes.
Number 5: The Defendant has a loving and supportive family.
Number 6: Any other mitigating factor which is raised by the
evidence produced by either the prosecution or defense at either the guilt or
sentencing hearing. That is, you shall consider any aspect of the
Defendant’s character or record or any aspect of the circumstances of the
offense favorable to the Defendant which is supported by the evidence.
See generally Tenn. Code Ann. § 39-13-204(j)(2), (8), (9). After receiving further
instructions from the court, the jurors retired from open court to begin their deliberations
at 8:05 a.m. They returned with their verdict at 3:30 p.m.
As to the first degree murder of Renee Jordan, the jury returned a verdict of death,
finding that the State had proven the following statutory aggravating circumstances
beyond a reasonable doubt:
Number 1: That the Defendant knowingly created a great risk of
death to two or more persons other than the victim murdered during the act
of murder.
2: The murder was especially heinous, atrocious or cruel [in] that it
involved torture or serious physical abuse beyond that necessary to produce
death.
4: The murder was knowingly committed, solicited, directed or aided
by the Defendant while the Defendant had a substantial role in [committing]
or attempting to commit that first degree murder.
...
5: The Defendant committed mass murder which is defined as the
murder of three or more persons, whether committed during a single
criminal episode or at different times within a 48-month period.
28
And 6: The Defendant knowingly mutilated the body of the victim
after death.
The jury further found that these aggravating circumstances outweighed any mitigating
circumstances beyond a reasonable doubt.
As to the first degree murder of Jerry Hopper, the jury returned with a verdict of
death, finding that the State had proven the following statutory aggravating circumstances
beyond a reasonable doubt:
1: The Defendant knowingly created a great risk of death to two or
more persons other than the victim murdered during the act of murder.
3: The murder was committed for the purpose of avoiding,
interfering with or preventing a lawful arrest or prosecution of the
Defendant or another.
4: The murder was knowingly committed, solicited, directed or aided
by the Defendant while the Defendant had a substantial role in committing
or attempting to commit first degree murder.
...
5: The Defendant committed mass murder which is defined as the
murder of three or more persons, whether committed during a single
criminal episode or at different time[s] within a 48-month period.
The jury further found that these aggravating circumstances outweighed any mitigating
circumstances beyond a reasonable doubt.
As to the first degree murder of David Gordon, the jury returned with its verdict of
death, finding that the State had proven the following statutory aggravating circumstances
beyond a reasonable doubt:
2: The murder was especially heinous, atrocious or cruel in that it
involved torture or serious physical abuse beyond that necessary to produce
death.
3: The murder was committed for the purpose of avoiding,
interfering with or preventing a lawful arrest or prosecution of the
Defendant or another.
29
4: The murder was knowingly committed, solicited, directed or aided
by the Defendant while the Defendant had a substantial role in committing
or attempting to commit first degree murder.
...
5: The Defendant committed mass murder which is defined as . . .
[the murder of] three or more persons, whether committed during a single
criminal episode or at different times within a 48-month period.
The jury further found that these aggravating circumstances outweighed any mitigating
circumstances beyond a reasonable doubt.
A sentencing hearing on the noncapital offenses was held at a later date. At the
conclusion of that hearing, the trial court imposed a twenty-five-year sentence for each of
the attempted first degree murder convictions (Counts 6 and 8); a six-year sentence for
each aggravated assault conviction (Counts 7 and 9); and a thirty-day sentence for leaving
the scene of an accident (Count 10). The trial court merged Counts 6 and 7 and Counts 8
and 9. The court ordered that the two twenty-five-year sentences be served consecutively
to each other for an effective sentence of fifty years.7
On direct appeal, the Court of Criminal Appeals affirmed Defendant’s convictions
and sentences.
ANALYSIS
I. Application of Tennessee Rule of Evidence 615
in Capital Trials
Prior to trial, the defense filed a motion requesting the trial court to allow “those
persons who are friends and/or family of Defendant that will only be testifying at the
sentencing hearing, be allowed to remain in the Courtroom for the entire trial.” The State
opposed the motion on the basis of Tennessee’s rule of witness sequestration, see Tenn.
R. Evid. 615, and asserted that the defense had not demonstrated that the presence of any
of Defendant’s friends or family members were essential to the presentation of his
defense. Tennessee Rule of Evidence 615, often referred to simply as “the rule,” provides
as follows:
7
The thirty-day misdemeanor sentence was ordered to be served concurrently with “all counts.”
30
Exclusion of witnesses. – At the request of a party the court shall order
witnesses, including rebuttal witnesses, excluded at trial or other
adjudicatory hearing. In the court’s discretion, the requested sequestration
may be effective before voir dire, but in any event shall be effective before
opening statements. The court shall order all persons not to disclose by any
means to excluded witnesses any live trial testimony or exhibits created in
the courtroom by a witness. This rule does not authorize exclusion of (1) a
party who is a natural person, or (2) a person designated by counsel for a
party that is not a natural person, or (3) a person whose presence is shown
by a party to be essential to the presentation of the party’s cause. This rule
does not forbid testimony of a witness called at the rebuttal stage of a
hearing if, in the court’s discretion, counsel is genuinely surprised and
demonstrates a need for rebuttal testimony from an unsequestered witness.
Tenn. R. Evid. 615. The trial court denied the defense motion after a hearing on the basis
that there was “no authority” supporting the motion, explaining that Rule 615 and the
statute governing capital sentencing, Tenn. Code Ann. § 39-13-204(c), “specifically
name[] those persons who may be excluded from the general rule of sequestration.”
Those persons are “members, or . . . representatives of the victim’s family.” Tenn. Code
Ann. § 39-13-204(c).
Approximately one month later, the defense filed a “renewed and amended”
motion to allow Defendant’s family to remain in the courtroom during the trial. The
defense reiterated that Defendant’s family members would not be called as witnesses
during the guilt/innocence phase of the trial, but would be called only if a sentencing
phase was necessary. The defense pointed out that relevant mitigating evidence was
admissible in a capital sentencing hearing even if in conflict with Tennessee’s Rules of
Evidence. See id. The State opposed the motion. After a hearing, the trial court denied
the motion, stating that Defendant “failed to establish that the presence of the Defendant’s
family was essential to his defense and that therefore the requirements of Tennessee Rule
of Evidence 615 were not met.”
At trial, the rule was requested and imposed. The trial court instructed “[e]veryone
that is a witness in this case, unless they have been predesignated by the State and defense
to remain in, . . . you are to remain outside.” In accordance with the trial court’s pre-trial
rulings and imposition of the rule, Defendant’s younger brother Larry and his eldest
daughter Deanna elected not to attend the trial; they were subsequently allowed to testify
at the sentencing hearing. Defendant’s parents chose to remain in the courtroom during
31
the trial and therefore were not permitted to testify at the sentencing hearing.8 The
defense informed the trial court during the sentencing hearing that, “had they testified,
they would have indicated that they love their son, that they would be devastated at a
sentence of death and basically just other things about the family relationship.”
On appeal, the Court of Criminal Appeals determined that Defendant was not
entitled to relief on this basis. The applicability of Tennessee Rule of Evidence 615 to
capital sentencing trials is an issue of first impression before this Court.
A. Standard of Review
We review a trial court’s decisions about the admissibility of evidence for an abuse
of discretion. State v. Banks, 271 S.W.3d 90, 116 (Tenn. 2008). “Reviewing courts will
find an abuse of discretion only when the trial court applied incorrect legal standards,
reached an illogical conclusion, based its decision on a clearly erroneous assessment of
the evidence, or employed reasoning that causes an injustice to the complaining party.”
Id. (citing Konvalinka v. Chattanooga-Hamilton County Hosp. Auth., 249 S.W.3d 346,
358 (Tenn. 2008)).
B. The Rule
Tennessee Rule of Evidence 615 codifies the long-established practice of
sequestering witnesses during a trial so that they may not hear one another testify prior to
testifying themselves. Witness sequestration “is a concept integrally related to the notion
that both parties to an adversarial proceeding are entitled to a fair hearing in the interests
of justice.” Webb v. State, 766 S.W.2d 236, 239 (Tex. Crim. App. 1989). According to
one source, “[t]he history of the rule is traceable to the Biblical story of Susanna,” Carlile
v. Texas, 451 S.W.2d 511, 512 (Tex. Crim. App. 1970), and this Court has also dated the
practice “from the days of Daniel,” Nelson v. State, 32 Tenn. (1 Swan) 237, 257 (1852).9
Indeed, this Court recognized many years ago that witnesses have been sequestered
“[s]ince probably the beginning of time in the trial of cases.” Nance v. State, 358 S.W.2d
327, 329 (Tenn. 1962).
8
Defense counsel informed the trial court that Larry and Deanna Jordan “were not present at the trial . . .
because of the rule. They were excluded and would have been available and happy and wanted to be able
to attend the whole trial.” As to Defendant’s parents, defense counsel stated that they “chose to be able to
attend the trial.”
9
The story of the falsely-accused Susanna, who is saved from execution by Daniel’s skillful cross-
examination of her accusers, appears in the Book of Daniel in the Old Testament. See
http://www.internationalstandardbible.com/S/susanna-the-history-of.html (last visited Sept. 14, 2010).
32
The rule serves significant goals. First, preventing witnesses from hearing other
witnesses testify before they, themselves, do “exercises a restraint on witnesses ‘tailoring’
their testimony to that of earlier witnesses.” Geders v. United States, 425 U.S. 80, 87
(1976). Second, sequestering witnesses “aids in detecting testimony that is less than
candid.” Id. Third, “[s]equestering a witness over a recess called before testimony is
completed serves . . . [to] prevent[] improper attempts to influence the testimony in light
of the testimony already given.” Id. See also Nance, 358 S.W.2d at 329 (observing that
the rule of sequestering witnesses “is designed to detect falsehood as well as to prevent
any witness from coloring his, or her, testimony either purposely or through influence by
talking to other witnesses and hearing them talk”); Nelson, 32 Tenn. at 257 (“The practice
of examining the witnesses separate and apart from each other, at the request of either
party, is invaluable, in many cases, for the ascertainment of truth and the detection of
falsehood.”); State v. Warren, 437 So.2d 836, 839 (La. 1983) (“The purpose of
sequestration is to assure that a witness will testify from his own knowledge of the case
without being influenced by the testimony of prior witnesses, and to strengthen the role of
cross-examination in developing the facts.”). In short, the underlying purpose of
sequestering witnesses is to preserve the credibility of their testimony in its pre-trial
condition. Thus, a potential witness’s violation of the rule should generally be considered
in terms of the witness’s credibility rather than in terms of his or her competency. See
Williams v. State, 523 S.W.2d 377, 380 (Ark. 1975) (“[A] violation by a witness of the
rule of sequestration of witnesses, through no fault of, or complicity with, the party
calling him, should go to the credibility, rather than the competency of the witness.”);
Navarrete v. State, 656 S.E.2d 814, 820 (Ga. 2008) (“A violation of the rule of
sequestration generally does not affect the admissibility of the testimony, but may impact
on the credibility of the offending witness.”).
Our current Rule 615 sets forth several specific exceptions to its application. First,
parties who are natural persons may not be excluded from the courtroom while witnesses
are testifying. Second, if a party is not a natural person but is, for instance, a corporation,
the party’s counsel may designate a natural person who may not be sequestered. Or, if the
State is a party, the prosecuting attorney may designate a crime victim, a crime victim’s
relative, or an investigating officer as immune from sequestration. Tenn. R. Evid. 615
advisory comm’n cmts to 1997 amend. Third, “a person whose presence is shown by a
party to be essential to the presentation of the party’s cause” may not be excluded from
the trial. Tenn. R. Evid. 615. The Advisory Commission Comments to Rule 615 explain
that an example of this third exception “might be an expert witness a lawyer needs to help
the lawyer understand opposing testimony” and add that “an expert witness who is to
learn facts only through hearing testimony in court [also] could be allowed to sit in the
courtroom under this [exception].” Indeed, this Court has previously recognized that
33
the dangers Rule 615 is intended to prevent generally do not arise with
regard to expert witnesses in any proceeding. In fact, the rules of evidence
provide that an expert witness may testify and base an opinion on evidence
or facts made known to the expert at or before a hearing and the facts need
not be admissible at trial. Moreover, an expert witness often may need to
hear the substance of the testimony of other witnesses in order to formulate
an opinion or respond to the opinions of other expert witnesses. In short,
allowing an expert witness to remain in the courtroom as an “essential
person” generally does not create the risk that the expert will alter or change
factual testimony based on what is heard in the courtroom.
State v. Bane, 57 S.W.3d 411, 423 (Tenn. 2001) (citation omitted).
These exceptions to the general rule of sequestration illustrate the tensions
between the underlying purpose of the rule and other, equally significant concerns. Thus,
a party to the litigation will not be prevented from hearing testimony, even if he or she
plans to testify and even though a party has the most incentive to tailor his or her
testimony. Also, a witness who is expected to offer expert opinion testimony about facts
testified to, as opposed to testimony about the facts themselves, is acknowledged to be
outside the scope of the rule. Both exceptions make clear that the rule does not establish
a concrete line which may never be crossed. Rather, as with other rules of evidence, there
is latitude within which a trial court is expected to exercise its discretion. That discretion
should be exercised with the aim of protecting the goals of the rule and should take into
account the risk that the witness for which an exception is sought “will alter or change
factual testimony based on what is heard in the courtroom.” Id.; see also State v. Hill,
590 N.W.2d 187, 189 (N.D. 1999) (recognizing that sequestration’s concern that a
witness will otherwise tailor his or her testimony “‘is justified . . . where “fact” or
“occurrence” witnesses are called to testify’”) (quoting United States v. Bramlet, 820 F.2d
851, 855 (7th Cir. 1987)).
C. Sanctions for Violations of the Rule
The case before us is unusual because, prior to trial, the defense sought and
obtained an advisory ruling on the right of family members to testify during sentencing if
they attended the guilt/innocence phase. More frequently, the rule is tested when a party
seeks to call to the witness stand a person who has remained in the courtroom after the
rule was invoked. In criminal prosecutions, the trial court’s response typically results in
one of two appellate issues: (1) the defense complains that the trial court permitted a
prosecution witness to testify despite his or her violation of the rule; and/or (2) the
defense complains that the trial court did not allow a defense witness to testify because he
34
or she violated the rule. See Webb, 766 S.W.2d at 239-40. In this case, we consider the
second of these issues.
Initially, we recognize that the defense in this case did not actually call
Defendant’s parents to the stand during the sentencing hearing. The State argues to this
Court that, accordingly, the trial court did not actually “exclude” their testimony. We are
not persuaded. The defense twice raised and attempted to resolve this issue in its favor
prior to trial. The trial court ruled against the defense both times. The issue was thus
adequately preserved. It was not incumbent upon the defense to risk displeasing the trial
court by calling witnesses that the trial court had already ruled would not be allowed to
testify. The effect of the trial court’s two pre-trial rulings was to require Defendant to
choose which family members could support him by their presence during his trial,
knowing that the testimony of any family member who attended the guilt/innocence phase
would be excluded at the sentencing phase of the trial. Ultimately, Defendant elected to
have his parents remain in the courtroom during the trial, thus forfeiting their testimony at
sentencing. He elected to forfeit the presence of his brother and oldest daughter at trial so
that they could testify during sentencing. The question before us is whether the trial court
erred in its pre-trial rulings, and we proceed with our analysis as if the defense had called
Defendant’s parents to the stand during the penalty phase and as if the trial court refused
to permit them to testify as a sanction for violating the rule by remaining in the courtroom
during the guilt/innocence phase.
Tennessee Rule of Evidence 615 does not set forth any particular sanctions that
should be imposed for its violation. Accordingly, trial courts have significant discretion
when deciding how best to deal with its violation. See, e.g., State v. Upchurch, 620
S.W.2d 540, 543 (Tenn. Crim. App. 1981) (“[W]hether to allow or not allow the
testimony of a witness who has violated the rule is within the discretion of the trial
court.”); Jones v. State, 548 S.W.2d 329, 332 (Tenn. Crim. App. 1976) (recognizing that
“it remains a matter of the Trial Judge’s discretion as to whether the witness who violated
the rule will be permitted to testify”). This discretion should be exercised in light of both
the policies at issue as well as the particular facts and circumstances of the case.
The possible sanctions available to a trial judge are numerous. The most severe
sanctions include a declaration of mistrial or “a ruling for or against a party on a
particular issue.” Neil P. Cohen et al., Tennessee Law of Evidence, § 615[11][b] (5th ed.
2005). Either of these sanctions “should be used only in egregious cases,” however,
“perhaps involving intentional violations of the rule for the purpose of creating perjured
testimony.” Id. A third potential significant sanction is to hold in contempt the witness
who deliberately violates the rule, because imposition of the rule results from a court
order. Id.
35
At the other end of the spectrum, less severe remedies include allowing the
offender to testify but subjecting her to cross-examination about her violation, the
testimony she heard, and the impact it may have had on her testimony. State v. Anthony,
836 S.W.2d 600, 605 (Tenn. Crim. App. 1992). Additionally, the jury may “be instructed
to consider the violation of the sequestration order in assessing [the credibility of] the
witnesses’ testimony.” Id.
Of course, another frequently-used sanction, and the one utilized in effect by the
trial court in this case, is exclusion of the witness. Generally, this remedy is well within
the court’s discretion. In the unique arena of criminal prosecutions, however, this
particular sanction risks conflict with a defendant’s fundamental constitutional right to
call witnesses and present a defense. See, e.g., Wright v. State, 473 So.2d 1277, 1280
(Fla. 1985) (recognizing that exclusion of a criminal defendant’s witness for violating the
rule “implicates the defendant’s sixth amendment right to present witnesses in his own
behalf”); Commonwealth v. Scott, 436 A.2d 161, 163 (Pa. 1981) (recognizing that
excluding a criminal defense witness for offending the rule could “constitute a violation
of his fundamental constitutional rights to compulsory process for obtaining witnesses in
his favor and to a fair trial”); Webb, 766 S.W.2d at 240. This remedy is therefore
disfavored in this category of cases. See, e.g., United States v. Torbert, 496 F.2d 154,
158 (9th Cir. 1974) (“[B]ecause of the availability of alternative sanctions to enforce the
order [of sequestration], and because of the constitutionally based right of the defendant
to relevant testimony in his favor, it is ordinarily an abuse of discretion to disqualify a
witness unless the defendant or his counsel have somehow cooperated in the violation of
the order.” (citations omitted)); United States v. Schaefer, 299 F.2d 625, 631 (7th Cir.
1962) (“Sequestration of witnesses is a great aid in eliciting the truth, but disqualification
of the offending witness absent particular circumstances is too harsh a penalty on the
innocent litigant”); Robinson v. Tennessee, 340 F.Supp. 82, 86 (E.D. Tenn. 1972), aff’d
474 F.2d 1273 (6th Cir. 1973) (“A court . . . should have no discretion to exclude the
testimony of a witness violating an exclusion rule where the testimony of the witness was
material to the case and where such violation was without fault on the part of a party or
his counsel.”); Benn v. United States, 801 A.2d 132, 141 (D.C. 2002) (recognizing that “a
witness who has violated a sequestration order may be excluded from the witness stand
only under extreme and exceptional circumstances”); State v. Burdge, 664 P.2d 1076,
1084 (Ore. 1983) (holding that “exclusion of a witness in a criminal case is too grave a
sanction where the violation of the [sequestration] order was not intentional and not
procured by a connivance of counsel or for some improper motive.”); Scott, 436 A.2d at
163 (“Because of the availability of alternative sanctions to enforce a sequestration order
and because of the fundamental constitutional basis for an accused’s right to present
relevant testimony in his favor, it ordinarily would be an abuse of discretion to disqualify
a witness unless either the accused or his counsel has somehow cooperated in the
violation of the order.”); State v. Burke, 522 A.2d 725, 729 (R.I. 1987) (“Unless violation
36
of the sequestration order is due to the consent, connivance, procurement or knowledge of
the defendant or his counsel, a trial justice should not deprive a criminal defendant of his
right to present testimony [but should instead] consider alternative sanctions . . . such as
the issuance of a cautionary instruction to the jury or in some instances a contempt
proceeding against the witness.” (citations omitted)); Williams, 523 S.W.2d at 380 (“The
power to exclude the testimony of a witness who has violated the rule should be rarely
exercised.); In re KC v. State, 92 P.3d 805, 808 (Wyo. 2004) (“Exclusion should be
allowed only when it is necessary to preserve the integrity of the fact finding process.”).
Indeed, the Supreme Court has recognized that
[i]f a witness disobeys the order of withdrawal, while he may be proceeded
against for contempt and his testimony is open to comment to the jury by
reason of his conduct, he is not thereby disqualified, and the weight of
authority is that he cannot be excluded on that ground merely, although the
right to exclude under particular circumstances may be supported as within
the sound discretion of the trial court.
Holder v. United States, 150 U.S. 91, 92 (1893); see also Smith v. State, 72 Tenn. 428,
430 (1880) (recognizing that “the right of excluding the witness for disobedience to the
[sequestration] order is in the discretion of the Court, a discretion rarely exercised” and
that “if the witness remain in Court, in disobedience of the order of separation, his
testimony, on that ground alone, cannot be excluded, but is a matter for observation on his
evidence”).
Several courts have pondered the “particular circumstances” referred to in Holder
that may support exclusion. In Schaefer, the federal Court of Appeals for the Seventh
Circuit interpreted Holder as meaning that a trial court “may not disqualify the witness
merely because he disobeys the rule but that this alternative is available if particular
circumstances are shown. . . . [W]e interpret these particular circumstances to mean some
indication the witness was in court with ‘the consent, connivance, procurement or
knowledge of the appellant or his counsel.’” 299 F.2d at 631 (quoting Holstein v. Grier,
262 S.W.2d 954, 955 (Tex. Ct. Civ. App. 1953)). In Braswell v. Wainright, 463 F.2d
1148 (5th Cir. 1972), the United States Court of Appeals for the Fifth Circuit considered a
habeas corpus proceeding by a defendant who had been convicted of aggravated assault
in a Florida state court. During the trial, the defense called a witness who had been
present in the courtroom, despite invocation of the rule. The trial court sustained the
prosecution’s objection on the basis of the rule. The federal appellate court held that the
trial court thereby erred because it “arbitrarily excluded [the witness] upon no other basis
than that he violated the rule.” Id. at 1156. The court emphasized that, when facing a
challenge to a defense witness under the rule, a trial court must take into account the
“particular circumstances” of the case and “weigh the exclusion of the witness against the
37
defendant’s [federal constitutional] right to obtain witnesses in his behalf.” Id. at 1155.
Where the witness is vital to the defense, the trial court may order exclusion only on the
basis of “some overriding policy consideration” or where the defendant makes a valid
waiver of his sixth amendment right to call witnesses on his behalf. Id. at 1156.
Similarly, in Webb, the Texas Court of Criminal Appeals considered the direct
appeal of a defendant convicted of aggravated robbery and sentenced to fifty-five years.
The defense called Elaine Adams to the stand in an effort to rebut a prosecution witness.
The prosecution objected on the basis that she had been in the courtroom in violation of
the rule. The trial court sustained the objection “[s]olely on the basis that the ‘rule’ had
been invoked and violated.” Webb, 766 S.W.2d at 239. After observing that “[t]he
question of what ‘particular circumstances’ may serve to support exclusion of a witness is
broad only in the abstract factual context of a case,” id. at 241, the court determined that a
trial court faced with this issue must first consider the reason for the violation and the
significance of the witness’s testimony to the defendant’s case, id. at 242. The court
formulated the following test for balancing the policies served by the rule against a
defendant’s constitutional right to call witnesses:
Where the “particular and extraordinary circumstances” show neither the
defendant nor his counsel have consented, procured, connived or have
knowledge of a witness or potential witness who is in violation of the
sequestration rule, and the testimony of the witness is crucial to the defense,
it is an abuse of discretion exercised by the trial court to disqualify the
witness.
Application of the standard must necessarily be on a case-by-case
basis, weighing or balancing the interests of both the State and the accused
in a fair proceeding. Thus, in the exercise of sound judicial discretion a
court must consider alternatives available to it and then choose among
them. Other sanctions, such as a cautionary instruction or a contempt
proceeding, are less pervasive options when an order has been violated.
The trial court must consider both the benefit and detriment flowing from
the order of disqualification. A detriment of disqualification will always be
the loss to the accused of the proffered testimony; evaluating this loss will
require considering the relative strength of the testimony, the importance or
“crucial” nature of the issue upon which it is offered, and the extent to
which it is cumulative of other evidence in the case. In contrast, the
benefits of disqualification include avoiding the risk that the party
proffering the testimony either intentionally or negligently violated the rule
through the actions of accused, counsel or witness; or that the witness’s
testimony will be tainted by exposure to other testimony or discussion.
38
This is not to say that the test is exclusive; other “particular or
extraordinary circumstances” may well exist, given the facts of each case.
However, the rationale for the test remains constant: given the
constitutional rights of an accused, disqualification of an offending witness
absent particular and articulable circumstances is too harsh a penalty to
impose upon a defendant who is without a verdict and chooses to exercise
his right to call witnesses in his behalf.
Id. at 244 (citation omitted). See also, e.g., Burdge, 664 P.2d at 1085 (“Refusal to allow
defense witnesses to testify for violation of an . . . order [of sequestration] should be
imposed only when necessary to preserve the ‘integrity of the fact-finding process’ and
requires that the competing interests be closely examined.” (quoting Berger v. California,
393 U.S. 314, 315 (1969))); Commonwealth v. Smith, 346 A.2d 757, 760 (Pa. 1975)
(“The selection of a remedy for the violation of a sequestration order is within the sound
discretion of the trial court. In exercising its discretion, the trial court should consider the
seriousness of the violation, its impact on the testimony of the witness, and its probable
impact on the outcome of the trial.” (citations omitted)).
We recognize that this case does not involve any question regarding the
circumstances under which Defendant’s parents were in “violation” of the rule. Rather, it
appears that they made a decision to respect the trial court’s pretrial rulings and attended
their son’s trial with the knowledge that they would therefore not be allowed to testify
during the sentencing hearing. There is, accordingly, no issue of bad faith, collusion, etc.,
here.10 These cases are instructive, nonetheless, as indicative of the factors a trial court
should consider before excluding a defense witness in a criminal trial for violating the
rule. Automatic exclusion of an accused’s witness who has been present during
testimony in violation of the rule, with no consideration given to the impact of the
proffered testimony or other relevant circumstances, risks error.
D. Admissibility of Evidence in Capital Sentencing Trials
Because this is a capital case, Tennessee Rule of Evidence 615 is not the only
provision we must consider in reviewing the trial court’s rulings on Defendant’s pretrial
motions concerning witness sequestration. Tennessee Code Annotated section 39-13-
204(c) governs the admission of evidence in capital sentencing trials and provides as
follows:
10
To the extent a party’s lawyer encourages a witness to violate the rule, a trial court would be justified in
suspecting that the violation was committed for the express purpose of altering the witness’s testimony.
That, of course, is the precise outcome intended to be avoided by imposition of the rule, and such behavior
justifies a severe sanction.
39
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); and any evidence tending to establish or rebut any mitigating
factors. Any such evidence which the court deems to have probative value
on the issue of punishment may be received regardless of its admissibility
under the rules of evidence; provided, that the defendant is accorded a fair
opportunity to rebut any hearsay statements so admitted. However, this
subsection (c) shall not be construed to authorize the introduction of any
evidence secured in violation of the constitution of the United States or the
constitution of Tennessee. . . . The court shall permit a member or members,
or a representative or representatives of the victim’s family to testify at the
sentencing hearing about the victim and about the impact of the murder on
the family of the victim and other relevant persons. Such evidence may be
considered by the jury in determining which sentence to impose. The court
shall permit members or representatives of the victim’s family to attend the
trial, and those persons shall not be excluded because the person or persons
shall testify during the sentencing proceeding as to the impact of the
offense.
Tenn. Code Ann. § 39-13-204(c) (2003) (emphasis added). This Court has emphasized
that this statute “‘expressly exempts evidence adduced in capital sentencing proceedings
from the usual evidentiary rules.’” State v. Sims, 45 S.W.3d 1, 13 (Tenn. 2001) (quoting
State v. Odom, 928 S.W.2d 18, 28 (Tenn. 1996)). And, we have previously concluded
that
in general, [section] 39-13-204(c) should be interpreted to allow trial judges
wider discretion than would normally be allowed under the Tennessee
Rules of Evidence in ruling on the admissibility of evidence at a capital
sentencing hearing. The Rules of Evidence should not be applied to
preclude introduction of otherwise reliable evidence that is relevant to the
issue of punishment, as it relates to mitigating or aggravating circumstances,
the nature and circumstances of the particular crime, or the character and
background of the individual defendant. As our case history reveals,
however, the discretion allowed judges and attorneys during sentencing in
first degree murder cases is not unfettered. Our constitutional standards
require inquiry into the reliability, relevance, value, and prejudicial effect
of sentencing evidence to preserve fundamental fairness and protect the
rights of both the defendant and the victim’s family. The rules of evidence
40
can in some instances be helpful guides in reaching these determinations of
admissibility. Trial judges are not, however, required to adhere strictly to
the rules of evidence. These rules are too restrictive and unwieldy in the
arena of capital sentencing.
Id. at 14 (emphases added); see also State v. Reid, 213 S.W.3d 792, 817 (Tenn. 2006)
(“The rules of evidence . . . do not limit the admissibility of evidence in a capital
sentencing proceeding.”); State v. Austin, 87 S.W.3d 447, 459 (Tenn. 2002) (“The Rules
of Evidence should not be applied to preclude the admission of relevant evidence in a
capital sentencing hearing.”). Thus, we have held that, in a capital sentencing hearing,
the question is not whether a particular item of proof is admissible pursuant to the
Tennessee Rules of Evidence, “but instead whether that evidence was reliable and
relevant to one of the aggravating or mitigating circumstances.” Reid, 213 S.W.3d at
817. These cases make clear that, in a capital sentencing proceeding, trial courts must
carefully evaluate any and all proffered mitigation evidence, utilizing any applicable
Rules of Evidence only as guidelines rather than as mandatory strictures. A rigid
adherence to Rule 615, or any other particular Rule of Evidence, is contraindicated by
section 39-13-204(c).
E. Intersection of the Rule and Capital Sentencing
Only rarely have courts specifically addressed the intersection of the rule and a
capital defendant’s right to present mitigation proof. In Dutton v. Brown, 812 F.2d 593
(10th Cir. 1987) (en banc), the United States Court of Appeals for the Tenth Circuit
considered a habeas corpus action by a defendant who had been convicted in Oklahoma
of first degree murder and sentenced to death. The same jury considered both the
defendant’s guilt and sentence in separate proceedings. Sequestration was ordered at the
beginning of trial. During the sentencing phase, the defense called the defendant’s
mother. The trial court “sua sponte, prohibited [her] from testifying because she had
attended the trial.” Id. at 595. The defendant’s attempts to obtain relief through direct
appeal and post-conviction proceedings were unsuccessful.
In granting habeas corpus relief on the defendant’s sentence, the Court of Appeals
stressed that the defendant’s mother’s testimony “would have been relevant mitigating
evidence and its exclusion impeded the jury’s ability to consider relevant aspects of [the
defendant’s] character.” Id. at 601. The mitigating evidence about which she would have
testified included “family background, medical history and education.” Id. The
defendant’s trial counsel indicated that the defendant’s mother “would have told the jury
that her son was ‘immature,’ was a ‘slow learner,’ did not ‘think real well,’ was ‘not very
smart,’ and was a ‘follower.’” Id.
41
In conducting its analysis, the appellate court stressed the unique nature of the
death penalty and the constitutional requirement “that the sentencer ‘not be precluded
from considering, as a mitigating factor, 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.’” Id. at 600 (quoting Lockett v. Ohio, 438 U.S. 586, 604
(1978)). The court also recognized the Supreme Court’s holding that a trial court’s
exclusion of relevant mitigating evidence may “‘impede[] the sentencing jury’s ability to
carry out its task of considering all relevant facets of the character and record of the
individual offender.’” Id. at 601 (quoting Skipper v. South Carolina, 476 U.S. 1, 8
(1986)). And, while the court recognized that “Oklahoma’s rule of sequestration is a
valid and important state rule,” id., it held that “the state trial judge erred by refusing to
permit counsel the opportunity to present this evidence to the sentencing jury,” id. at 599.
The Court emphasized that “evidentiary rules ‘may not be applied mechanistically’”
during the penalty phase of a capital case, id. at 601 (quoting Green v. Georgia, 442 U.S.
95, 97 (1979) (per curiam)), and offered the following guidance:
Assuming the exclusion order properly applied to the sentencing
proceeding, the trial court had the discretion to select means other than the
exclusion of [the defendant’s mother’s] testimony to enforce the
sequestration order. For example, it could have allowed [her] to testify, and
then instructed the jury that she was present during the guilt proceeding.
That approach would have permitted the jury to assess the witness’s
credibility while, at the same time, allowed [the defendant] to present
crucial mitigating evidence.
Id.
In a separate concurring opinion, Judge Moore emphasized the trial court’s
discretion under Oklahoma law to admit or exclude the testimony of a witness who did
not abide by an order of sequestration, and chastised the trial court because it “made no
effort to exercise this discretion, despite the knowledge that [the defendant’s mother] was
a vital witness.” Id. at 603 (Moore, J., concurring). Judge Moore further observed that,
“[e]ven through the Oklahoma rule is valid and important, its application to this case
worked a result which was beyond the underlying purpose of the rule itself” and “was
mechanistic and constitutionally unsupportable.” Id. at 604.
In rendering its decision, the Dutton court relied on Wright v. State, 473 So.2d
1277 (Fla. 1985). Id. at 602. In Wright, the Florida Supreme Court considered a case in
which the defendant denied his involvement in the victim’s murder. He was nonetheless
convicted and sentenced to death. After the close of the proof in the guilt phase of the
trial, the defense sought to introduce “newly discovered testimony” by a witness “who
42
had listened to portions of the trial testimony, followed newspaper accounts of the trial,
and discussed testimony with various persons attending the trial.” Id. at 1279. Her
testimony would have corroborated the defendant’s. The trial judge refused to reopen
proof on the basis that her testimony would violate the rule of sequestration.
The Florida Supreme Court held that “the trial judge erred in failing to exercise his
discretion to determine whether exclusion was warranted under the circumstances, and,
instead, applied the sequestration rule as a strict rule of law.” Id. at 1280. The Court
emphasized that the rule of sequestration “must not be enforced in such a manner that it
produces injustice” and that “enforcement of the rule against a defendant seeking to
introduce the testimony of a witness who has heard testimony in violation of the rule
implicates the defendant’s sixth amendment right to present witnesses in his own behalf.”
Id. The Court offered the following guidance:
Before it excludes testimony on the ground that the sequestration rule was
violated, the trial court must determine that the witness’s testimony was
affected by other witnesses’ testimony to the extent that it substantially
differed from what it would have been had the witness not heard the
testimony. Because of the sixth amendment ramifications, the court must
carefully apply this test before it excludes any material testimony offered by
a defendant in a criminal case, and should also consider whether the
violation of the rule of sequestration was intentional or inadvertent and
whether it involved bad faith on the part of the witness, a party, or counsel.
Id.; see also Cobb v. State, 260 S.E.2d 60, 70-71 (Ga. 1979) (holding that trial court
abused its discretion in disqualifying capital defendant’s wife from testifying in
presentence hearing because she was present at trial, where no evidence that her violation
of the rule was willful and where testimony she heard was not material to punishment).
These cases, as well as those we have referred to in the preceding section on Rule
615, make clear that a trial court should not automatically or arbitrarily exclude a defense
witness from a capital sentencing trial simply on the basis that the rule was invoked at the
beginning of trial and the witness nevertheless remained in the courtroom. Rather, the
court should exercise its discretion and consider all relevant circumstances. Those
circumstances may include, but are not limited to: (1) the reasons for the proffered
witness’s presence during the trial in contravention of the sequestration order; (2) any
complicity of the defendant and/or his counsel in the violation of a sequestration order;
(3) the relevance of the proffered witness’s testimony; (4) the relationship, if any,
between the proffered witness’s proposed testimony and the testimony he or she heard in
violation of the rule; (5) the potential impact on the proffered witness’s testimony by
proof heard in violation of the rule; (6) the extent to which the proffered testimony is
43
cumulative; (7) the efficacy of less drastic remedies; (8) the policies favoring admission
of the witness’s testimony; and (9) the extent to which allowing the witness to testify will
contravene the purposes served by the rule. To reiterate, the trial court must “inquir[e]
into the reliability, relevance, value, and prejudicial effect of sentencing evidence to
preserve fundamental fairness and protect the rights of both the defendant and the
victim’s family.” Sims, 45 S.W.3d at 14. In conducting this evaluation, the trial court
should place on the record its analysis and the reasons for its ruling. In no event should a
trial court automatically or mechanically rely on Tennessee Rule of Evidence 615 to
exclude mitigation proof from a capital sentencing trial on the basis that the witness was
present during the guilt/innocence phase of the trial. See Reid, 213 S.W.3d at 817 (in
determining whether to admit or exclude evidence at a capital sentencing hearing, the test
is whether the evidence is “reliable and relevant to one of the aggravating or mitigating
circumstances”).
In this case, the trial court twice applied Rule 615 in a strict manner and, in so
doing, prevented Defendant from offering his parents’ mitigation testimony at sentencing.
We hold that, in denying Defendant’s motions seeking relief from the rigid application of
Rule 615 to the sentencing proceeding, the trial court applied an incorrect legal standard
and thereby committed error.11 See Benn, 801 A.2d at 141 (trial court abused its
discretion because it “did not engage in the analysis that is legally required before the
‘draconian’ sanction of exclusion may properly be imposed”). As set forth above,
Tennessee Code Annotated section 39-13-204(c) provides that a trial court may admit any
proof it “deems to have probative value on the issue of punishment . . . regardless of its
admissibility under the rules of evidence.” Accordingly, before excluding Defendant’s
parents’ mitigation testimony on the basis of Rule 615, the trial court should first have
evaluated its probative value. The trial court did not engage in this analysis, and thereby
erred. Moreover, to the extent the trial court may have engaged in the appropriate
analysis, we hold that it reached the wrong result. Clearly, Defendant’s parents wanted to
attend their son’s trial out of parental concern rather than in an effort to tailor their
testimony; there was no collusion with counsel or Defendant in a clandestine attempt to
11
In addition to arguing that the trial court abused its discretion in its strict application of Rule 615, the
defense also argues that the capital sentencing statute violates equal protection and the separation of powers
doctrines because it specifically exempts persons related to the victim from the rule, but not those persons
related to the defendant. Because we have determined that the trial court abused its discretion with respect
to its Rule 615 rulings, it is not necessary that we address these alternative allegations of constitutional error.
See Owens v. State, 908 S.W.2d 923, 926 (Tenn. 1995) (“If issues in a case can be resolved on non-
constitutional grounds, courts should avoid deciding constitutional issues.”). Moreover, this Court has
previously rejected the argument that -304(c) violates separation of powers principles because it specifically
permits members of the victims’ families to both attend the guilt phase of a capital trial and subsequently
testify during the sentencing proceeding. See State v. Odom, 137 S.W.3d 572, 602-04 (Tenn. 2004)
(appendix).
44
circumvent the rule; their testimony was relevant to mitigation; there was little risk that
anything Defendant’s parents heard during the trial would have altered their testimony;
the trial court could have instead instructed the jury to take into consideration that
Defendant’s parents were present during trial when assessing their credibility; and
allowing them to testify would not have contravened the underlying purpose of the rule.
F. Exclusion of Testimony was Error
Our capital sentencing scheme permits a jury to impose the death penalty only
upon adequate proof of certain enumerated aggravating factors. Mitigation proof is not
so limited, however. Rather, the jury is required to consider any mitigating circumstances
that are raised by the proof at either the guilt or sentencing hearing. Tenn. Code Ann. §
39-13-204(j), (j)(9) (2003). Specific examples of mitigating circumstances are set forth in
the statute:
(1) The defendant has no significant history of prior criminal activity;
(2) The murder was committed while the defendant was under the influence
of extreme mental or emotional disturbance;
(3) The victim was a participant in the defendant’s conduct or consented to
the act;
(4) The murder was committed under circumstances that the defendant
reasonably believed to provide a moral justification for the defendant’s
conduct;
(5) The defendant was an accomplice in the murder committed by another
person and the defendant’s participation was relatively minor;
(6) The defendant acted under extreme duress or under the substantial
domination of another person;
(7) The youth or advanced age of the defendant at the time of the crime;
(8) The capacity of the defendant to appreciate the wrongfulness of the
defendant’s conduct or to conform the defendant’s conduct to the
requirements of the law was substantially impaired as a result of mental
disease or defect or intoxication, which was insufficient to establish a
defense to the crime but which substantially affected the defendant’s
judgment[.]
45
Tenn. Code Ann. § 39-13-204(j). Further, the United States Supreme Court has declared
that the federal constitution requires the jury in a capital case be allowed to consider
mitigating evidence, including “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, 438 U.S. at 604; see also Tenn. Code Ann. § 39-13-204(j)(9)
(mandating that the jury consider as mitigating circumstances “[a]ny other mitigating
factor which is raised by the evidence produced by either the prosecution or defense at
either the guilt or sentencing hearing”). And, this Court has recognized “that article I, §§
8 and 16 of the Tennessee Constitution require that the jury not be prevented from
hearing evidence about the defendant’s background, record, and character, and any
circumstances about the offense that may mitigate against the death penalty.” State v.
Stout, 46 S.W.3d 689, 704 (Tenn. 2001). This Court has previously recognized the
probative value of a capital defendant’s family members’ testimony about their
relationship with the defendant. See, e.g., State v. Thacker, 164 S.W.3d 208, 224 (Tenn.
2005) (“Testimony concerning the defendant’s estranged relationship with his parents
was relevant as mitigating evidence.”); State v. Cauthern, 967 S.W.2d 726, 738-39 (Tenn.
1998) (holding that trial court erred in excluding letter to defendant from young son
expressing love and support).
Defendant’s parents should have been allowed to testify at the sentencing hearing
in spite of their attendance at Defendant’s trial, and we hold that the trial court erred in
excluding this mitigation testimony. We must, therefore, determine the result of this
error. “[T]he exclusion of mitigating evidence potentially undermines the reliability of
the sentencing determination, and is an error of constitutional magnitude. 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.” Id. at 739 (citing Skipper, 476 U.S. at 4;
Satterwhite v. Texas, 486 U.S. 249, 258 (1988); Chapman v. California, 386 U.S. 18, 24
(1967)).
G. Constitutional Harmless Error
This Court has previously considered cases in which the trial court erroneously
excluded mitigation evidence and found the error to be harmless beyond a reasonable
doubt where the substance of the excluded evidence was nevertheless before the jury. For
instance, in Thacker, the defense sought to introduce evidence about the defendant’s
strained relationship with his parents. The trial court prevented the defense from asking
one witness about statements the defendant had made to her about his upbringing.
However, another witness was permitted to testify that the defendant’s parents were
absent from the trial by their own choice. This same witness also explained that the
defendant had had little contact with his mother as a child, and that his father had sent
him to live with his grandparents after remarrying. This Court ruled that the testimony
46
from the one witness was sufficient to render harmless beyond a reasonable doubt the trial
court’s erroneous exclusion of the other witness’s testimony. Thacker, 164 S.W.3d at
225.
Similarly, we ruled in Cauthern that the trial court’s erroneous exclusion of the
defendant’s son’s letter was harmless beyond a reasonable doubt because the defendant
testified that his young son visited him every few months, a photograph of the defendant’s
son was admitted, and 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.” 967 S.W.2d at 739.
See also State v. Rimmer, 250 S.W.3d 12, 24-25 (Tenn. 2008) (although trial court
erroneously excluded mitigation testimony on basis of hearsay, error was harmless
beyond a reasonable doubt because essence of excluded testimony was otherwise
presented to jury); Austin, 87 S.W.3d at 459 (trial court erroneously refused to admit
hearsay evidence, but harmless beyond a reasonable doubt because essence of hearsay
was admitted through other testimony); cf. Stout, 46 S.W.3d at 704-05 (trial court erred in
ruling proposed mitigation proof inadmissible, but harmless beyond a reasonable doubt
because of low probative value and jury rejected similar evidence during guilt phase).
As set forth above, the defense anticipated that Defendant’s parents would have
testified “that they love their son . . . and basically just other things about the family
relationship.” Although we are sensitive to the significance which a jury may attach to
the failure of a defendant’s parents to testify in mitigation, our close and careful review of
the record in this case convinces us beyond a reasonable doubt that the absence of
Defendant’s parents’ testimony at sentencing was harmless.
During the guilt/innocence phase of the trial, Dr. Wilson testified about
Defendant’s relationship with his parents:
[Defendant] had a stable family life, a loving father, loving mother. They
were both active in the community, good parents, no abuse. . . .
Environment was very stable. It was actually a two-parent family, which is
kind of unusual these days. They were married for a long period of time.
They raised their children correctly. . . . The family was involved in the
community, as I said. Father was a Little League coach. Mother worked in
a daycare. They were both above reproach. There’s no alcoholism, no
mental illness in the family, no kind of abuse.
From this I hypothesized that the Defendant was raised in a stable,
nurturing environment . . . [and] he went on with the rest of his life in an
attempt to recreate what he had had as a child . . . .
47
Dr. Wilson testified again at the sentencing hearing and reiterated that Defendant “has the
support and love of his family and friends.” Dr. Wilson stated that he had interviewed
Defendant’s parents and that both of them were in the courtroom. He also opined that it
“absolutely would be devastating to them” if Defendant received the death penalty.
Additionally, Defendant’s younger brother Larry Jordan testified. He explained
that their father was in the courtroom and was in poor health, suffering from cancer and
diabetes, and that he had suffered a stroke approximately a year earlier. Mr. Jordan also
pointed out where their mother was sitting next to their father, and identified numerous
family photographs in which Defendant was shown at various stages of his life with his
brothers and/or parents.
Gary Morris, the pastor of Bemis United Methodist Church, also testified that he
knew Defendant’s parents as congregants of his church, and noted their presence in the
courtroom. Mr. Morris explained that Defendant’s parents brought Defendant’s children
to church with them. Mr. Morris echoed that a death sentence would be “devastating” to
Defendant’s family.
Considered in its entirety, this proof provided the jury with a portrait of
Defendant’s parents as loving and supportive, and who would be devastated by their son
being sentenced to death. Thus, the jury was presented with the “essence” of the
excluded testimony. And, while the jury should have been given the opportunity to hear
this proof directly from Defendant’s parents, we are convinced beyond a reasonable doubt
that the jury’s verdicts of death would have been the same even had this testimony been
allowed. The jury applied multiple aggravating circumstances as to each victim. While
the defense elicited a considerable amount of evidence in support of mitigating
circumstances, the State both challenged much of this proof and also adduced
overwhelming evidence in support of aggravating factors. Accordingly, we hold that
Defendant is not entitled to relief on the basis that his parents did not testify in mitigation
at the sentencing trial.
II. Denial of Public Trial
In a related issue, the defense contends that the trial court’s strict application of
Rule 615, such that his family members had to choose between attending his trial or
testifying in mitigation in the event Defendant was convicted, compromised his right to a
public trial because two family members were not able to attend the guilt/innocence phase
in order to preserve their rights to testify during the penalty phase. See Cohen, supra, at §
615[10] (“Since the accused in Tennessee is entitled to a ‘speedy and public trial,’ the
prosecution’s use of Rule 615 to exclude a member of the public theoretically conflicts
48
with the accused’s right to a public trial.”) (footnote omitted). On the facts of this case,
we disagree.
The right to a public trial is guaranteed by both our federal and state constitutions.
See U.S. Const. amend. VI; Tenn. Const. art. I, § 9. The right is not absolute, however.
See Waller v. Georgia, 467 U.S. 39, 45 (1984). As recognized by the Rhode Island
Supreme Court,
although rooted in the reaction to the abuses of the secret proceedings of the
English Star Chamber, [the right to a public trial] is not usually viewed as
imposing “a rigid, inflexible straitjacket” upon a trial justice’s conduct of a
trial. Rather has it generally been recognized as being subject to a court’s
inherent power to regulate admission to the courtroom and to restrict
attendance at the trial as conditions and circumstances may reasonably
demand in order to preserve order and decorum, or to protect the rights of
the parties and the witnesses, or generally to further the administration of
justice.
State v. Mancini, 274 A.2d 742, 747 (R.I. 1971). See also State v. Lawrence, 167
N.W.2d 912, 914 (Iowa 1969) (observing that the right to a public trial “has generally
been viewed as a right subject to the inherent power of the court to limit attendance as the
conditions and circumstances reasonably require for the preservation of order and
decorum in the courtroom, and to reasonably protect the rights of parties and witnesses”).
Our own Court of Criminal Appeals has recognized that the right to a public trial
serves as a guarantee that the accused will be “fairly dealt with and not
unjustly condemned.”
The presence of citizens in the courtroom safeguards the accused
against (a) the court being used as an instrument of persecution, (b) the
abuse of judicial power and discretion, and (c) potentially perjurious and
abusive testimony. In addition, the public’s presence may induce unknown
witnesses to come forward with evidence relevant to the issues in
controversy or facts which can be used to impeach a witness, encourage the
trial participants to perform their respective duties conscientiously, and
afford the citizens in the community an opportunity to observe the criminal
justice system in progress, determine whether the system is functioning
adequately, and express these findings in the form of public opinion.
49
State v. Sams, 802 S.W.2d 635, 638 (Tenn. Crim. App. 1990) (quoting Estes v. Texas,
381 U.S. 532, 538-39 (1965)) (footnotes omitted). The sequestration of individual
witnesses pursuant to the rule does not threaten any of these interests. Indeed, witnesses
sequestered pursuant to the rule “are no longer considered members of the general public
for purposes of exclusion from the courtroom during criminal proceedings.” Tharp v.
State, 763 A.2d 151, 160 (Md. 2000). Thus, “it is clear that sequestration of witnesses in
the ordinary case does not violate a right to a public trial.” Cohen, supra, at § 6.15[10].
See also State v. Worthen, 100 N.W. 330, 331 (Iowa 1904) (holding that sequestration of
criminal defendant’s witnesses did not infringe upon his constitutional right to a public
trial).
In this case, the trial court excluded from Defendant’s trial only those persons who
would be witnesses. Although we have held that the trial court erred in its rigid
application of Rule 615 to Defendant’s sentencing hearing, the trial court’s error did not
violate Defendant’s right to a public trial. Defendant has cited us to no case law standing
for the proposition that a trial court who errs in applying a sequestration order thereby
necessarily violates a defendant’s right to a public trial, and we have found none.
Defendant is not entitled to relief on this basis.
III. Denial of Requested Limiting Instruction Regarding
Dr. Matthews’s Opinion Testimony
During his testimony in rebuttal during the guilt/innocence phase of Defendant’s
trial, the State’s witness Dr. Daryl Matthews stated that, in forming his expert opinion
about Defendant’s mental status, he “relied a great deal on the statements of the various
people who were at the scene.” One of the statements he referred to was a transcript of
the call that TDOT mechanic and reserve sheriff’s deputy Freddie Ellison placed to the
sheriff’s department, in which Ellison told the dispatcher that he knew Defendant and that
Defendant had told him “to go on” and “back off.” From this, Dr. Matthews inferred that
Defendant “had a lot of capacity to choose who he was going to shoot and who he wasn’t
going to shoot.” In additional support of this conclusion, Dr. Matthews referred to
Officer Anderson’s report that quoted Defendant as stating that he did not want to shoot
the police; to Mr. Bond’s statement that Defendant “looked up and saw me and shook his
head as if to tell me he didn’t want me involved”; and to Mr. Leach’s statement that,
when Defendant drove up to the garage and got out of his truck, Defendant walked past
Leach and nodded at him.
Dr. Matthews also quoted from Paul Forsythe’s statement about Defendant’s
interaction with Mr. Gordon. Forsythe had described the “driver of the red truck” as
“fold[ing] the seat forward on the truck” and then “pull[ing] out a black rifle with a
silencer or something on the end of the barrel.” Defense counsel objected and requested
50
the trial court to instruct the jury that there was no proof in the record that the gun with
which Defendant shot Mr. Gordon was equipped with a silencer. The trial court refused
on the basis that Forsythe’s statement did not claim definitively that the gun had a
silencer, but merely reflected that he thought he saw something that looked like one. The
court also told defense counsel that “the jury will be told they’ve got to look to the basis
. . . of the expert’s opinion, how he formed his opinion, what he relied on.”
Later, Dr. Matthews quoted from a statement by Jerry Reynolds, reciting that,
when Reynolds told James Ricky Simpson that Defendant had “just killed Renee,”
Simpson responded, “That son of a bitch called up there this morning . . . .” Defense
counsel objected to this testimony on the basis that it was hearsay. The court told the
prosecution to “move along” and instructed the jury to disregard “the last statements
made.”
Dr. Matthews also quoted from Defendant’s statement as reported by Investigator
Miller. Investigator Miller reported that Defendant “continued to make statements to me
and ask questions such as: ‘How much time do you think I’ll get for this? I don’t want to
rot in prison. I should have killed myself when the police stopped me. I hope I get the
death penalty.”
After Dr. Matthews’ testimony was concluded, defense counsel addressed the trial
court about the proposed jury instructions and requested that the jury be instructed not to
consider the hearsay contained in Dr. Matthews’s expert testimony as substantive
evidence. The court responded that it intended to charge Tennessee Pattern Jury
Instruction 42.02, emphasizing that portion of the instruction which informs the jury that
it is to evaluate expert testimony based upon its “judgment about whether the witness’s
background or training and experience is sufficient for the witness to give the expert
opinion” and that it had to “also decide whether the witness’s opinions were based on
sound reasons, judgment and information.” Defense counsel stated that this instruction
was not adequate and reiterated that the jury should also be instructed that “the hearsay is
not substantive evidence and it should not be used as proof of the underlying facts that the
expert is basing his opinion on.” The trial court did not issue the requested limiting
instruction.
In its brief to this Court, the State concedes that the trial court erred in not giving
the requested instruction, but contends that the error is harmless. We address this issue
both with respect to any impact on the guilt/innocence phase of Defendant’s trial, and
also with respect to any impact on the sentencing phase of Defendant’s trial.
Tennessee Rule of Evidence 703 sets forth the evidentiary parameters for the
grounds on which expert witnesses base their opinions. The Advisory Commission
51
Comments to Tennessee Rule of Evidence 703 provide that “[i]f the bases of expert
testimony are not independently admissible, the trial judge should either prohibit the jury
from hearing the foundation testimony or should deliver a cautionary instruction.” Where
an expert witness is referring to hearsay statements not otherwise admissible, then, the
trial court should instruct the jury that the hearsay statements are to be used only for
evaluating the expert witness’s testimony and should not be relied on as substantive
evidence. The trial court erred by not issuing the requested limiting instruction.
However, the trial court’s error entitles Defendant to a reversal of his convictions
only if the failure to give the limiting instruction “more probably than not affected the
judgment or would result in prejudice to the judicial process.” Tenn. R. App. P. 36(b).
The “crucial consideration” in this inquiry “is what impact the error may reasonably be
taken to have had on the jury’s decision-making.” State v. Rodriguez, 254 S.W.3d 361,
372 (Tenn. 2008). With one possible exception, we have no trouble concluding that there
was no impact on the jury’s deliberations resulting from the trial court’s failure to instruct
the jury that it could not consider as substantive evidence the otherwise inadmissible
hearsay included in Dr. Matthews’s testimony because the hearsay added very little to
what was already before the jury from other testimony.12
We are troubled, however, by Dr. Matthews’s rebuttal testimony about
Defendant’s statements to Investigator Miller, including “I don’t want to rot in prison. I
should have killed myself when the police stopped me. I hope I get the death penalty.”
Dr. Matthews characterized Defendant’s statements as
concern about the future, wondering about his – his penalty, knowing that
what he did was a crime, knowing something was going to happen,
knowing what the possible penalties are, knowing he could get the death
12
We note that some of the hearsay to which Dr. Matthews referred was, in fact, admissible pursuant to an
exception to the general rule disallowing hearsay. For instance, Ellison’s phone call to the sheriff’s
department was admissible as an “excited utterance,” see Tenn. R. Evid. 803(2), and was, indeed, admitted
during the State’s case-in-chief without objection. Defendant’s statements were admissible as admissions.
See Tenn. R. Evid. 803(1.2). A limiting instruction is not necessary where the hearsay to which the expert
is referring is otherwise admissible. See Tenn. R. Evid. 703 advisory comm’n cmts.
However, Dr. Matthews’s reference to Forsythe’s statement, obtained during an interview, involved
inadmissible hearsay. The defense’s complaint about this testimony is limited to the mention of a silencer.
However, since witnesses testified that they heard gunshots, it is highly unlikely that the statement had any
effect on the jury. Similarly, the report about Simpson’s statement appears to have been inadmissible
hearsay. The trial court instructed the jury to disregard the statement, however, and the jury is presumed to
have followed the trial court’s instruction. State v. Young, 196 S.W.3d 85, 111 (Tenn. 2006). Additionally,
the proof already showed that Defendant had acknowledged other persons at the TDOT facility and had
called Mrs. Jordan earlier.
52
penalty, choosing, is it better to rot in jail or get the death penalty. At that
moment, he was reflecting about that and decided on the death penalty.
This testimony was offered to rebut the defense’s expert testimony that Defendant was
incapable of premeditation and intent at the time he shot the victims.
Even relevant and otherwise admissible evidence may be excluded “if its probative
value is substantially outweighed by the danger of unfair prejudice.” Tenn. R. Evid. 403;
see also State v. Banks, 564 S.W.2d 947, 951 (Tenn. 1978). However, the defense did not
make a contemporaneous objection to this testimony or request that the jury be instructed
to disregard it. Any error in the admission of this testimony has therefore been waived.
State v. Hines, 758 S.W.2d 515, 519 (Tenn. 1988) (defendant not entitled to relief from
death sentence on basis that his statement that he wanted death penalty was admitted
during guilt phase and no objection was lodged). Nevertheless, we recognize that
admitting into evidence a defendant’s declarations about desiring the death penalty may
create a risk that the jury will subsequently rely on the defendant’s statements when
deciding punishment. Accordingly, the admission of such statements should occur only
after careful weighing, and the trial court should consider providing a limiting instruction
to ensure that the jury does not utilize the declarations as a non-statutory aggravating
circumstance.
While it may have been preferable for Defendant’s declarations to have been
excluded or accompanied by a limiting instruction, we are persuaded beyond any doubt
that their admission had no impact on the jury’s decisions to convict Defendant and
subsequently to sentence him to death for each of the murders he committed. The State
did not rely on this evidence during any of its closing arguments. Moreover, the proof in
this case, both as to Defendant’s guilt and as to the valid aggravating circumstances, was
simply overwhelming. The trial court instructed the jury correctly about the elements of
the crimes and the jury’s responsibilities with respect to determining whether to convict
Defendant of those crimes. The trial court also informed the jury that it could sentence
Defendant to death only upon its finding one or more aggravating circumstance for each
victim, and finding that the aggravating circumstance(s) outweighed the mitigating
circumstances beyond a reasonable doubt. The jury was in no way informed that it could
consider Defendant’s statements about his punishment in either determining his guilt or in
imposing sentence. Accordingly, we hold that Defendant is not entitled to relief on this
basis.
IV. Victim Impact Witnesses
Defendant raises two complaints about the victim impact testimony in this case.
First, he asserts that Renee Dawson should not have been allowed to testify about the
impact of David Gordon’s death because she was his fiancée rather than a family
53
member. Second, he asserts that an “excessive” number of witnesses testified about the
impact of David Gordon’s murder. In addition to Ms. Dawson, the victim’s older brother
and his eldest son testified, for a total of three victim impact witnesses. The State
disagrees that any error was committed in this regard.
Tennessee Code Annotated section 39-13-204(c) provides in pertinent part that the
trial court
shall permit a member or members, or a representative or representatives of
the victim’s family to testify at the sentencing hearing about the victim and
about the impact of the murder on the family of the victim and other
relevant persons. Such evidence may be considered by the jury in
determining which sentence to impose.
Tenn. Code Ann. § 39-13-204(c). The statute does not place any restriction on the
number of witnesses who may testify about the murder’s impact. This Court has
recognized, however, that the admissibility of victim impact evidence is subject to limits.
State v. Nesbit, 978 S.W.2d 872, 891 (Tenn. 1998). Thus, victim impact evidence should
be excluded if it “threatens to render the trial fundamentally unfair or [if it] poses a
danger of unfair prejudice.” Id. (citing Payne v. Tennessee, 501 U.S. 808, 836 (1991)).
Moreover, within these parameters,
victim impact evidence should be limited to information designed to show
those unique characteristics which provide a brief glimpse into the life of
the individual who has been killed, the contemporaneous and prospective
circumstances surrounding the individual’s death, and how those
circumstances financially, emotionally, psychologically or physically
impacted upon members of the victim’s immediate family.
Id. (footnote omitted).
We reject Defendant’s assertion that Renee Dawson should not have been allowed
to testify because of her status as the victim’s fiancée. Defendant contends that there “is
no provision in the [capital sentencing] statute for a friend of the victim to testify.” We
do not read the statute so narrowly, however. First, even before passage of the language
at issue, we recognized in Nesbit that victim impact evidence was permissible under both
the federal and state constitutions. Id. at 888-90. Accordingly, as we stated in State v.
McKinney, the capital sentencing statute “does not expressly restrict or limit the
introduction of other types of victim impact evidence authorized by law developed in our
prior cases.” 74 S.W.3d 291, 309 (Tenn. 2002). Rather, the limits on such evidence are
qualitative rather than based on genetic or institutional relationships. Second, the statute
54
expressly allows for a “representative” of the victim’s family to testify. A blood or
marital relationship is not a prerequisite for such status. Third, we think that there is a
valid distinction to be made between a “friend” and a fiancée with whom the victim had
purchased a house and with whom the victim was residing at the time of his murder.13 Cf.
State v. Young, 196 S.W.3d 85, 109-11 (Tenn. 2006) (holding error to admit testimony by
victim’s professor about the debilitating effects of the murder on an academic department
and testimony by the victim’s mother about the impact of the murder on victim’s “army of
friends”). Finally, as did the Court of Criminal Appeals, we note that the Victim’s Bill of
Rights contemplates that a person residing with a deceased victim may exercise the
victim’s rights. See Tenn. Code Ann. § 40-38-302(4)(A)(iii)(b) (2003). Accordingly, we
hold that it was not error for the trial court to permit Ms. Dawson to testify solely on the
basis of her status as the victim’s fiancée. See Thomas v. Commonwealth, 559 S.E.2d
652, 661-663 (Va. 2002) (statute defining victim as spouse, parent, sibling or legal
guardian did not preclude fiancée from giving victim impact testimony at capital trial).
Having held that the trial court did not err in permitting Ms. Dawson to testify, we
also hold that the combination of her testimony with that of Mr. Gordon’s brother and
son, whose testimony was brief and limited to appropriate topics, was not cumulative or
unduly prejudicial, and that its probative value was not substantially outweighed by its
prejudicial impact. Defendant is not entitled to relief on this issue.
V. Prosecution’s Closing Arguments
The defense complains that, during closing argument in the sentencing phase of his
trial, the prosecution misled the jury about its responsibility in sentencing Defendant;
belittled Defendant’s mitigation proof; and made inappropriate references to an “angel of
death.” Initially, we stress that it is incumbent upon defense counsel to object
contemporaneously whenever it deems the prosecution to be making improper argument.
A contemporaneous objection provides the trial court with an opportunity to assess the
State’s argument and to caution the prosecution and issue a curative instruction to the jury
if necessary.14 Additionally, defense counsel’s failure to object contemporaneously will
constitute a waiver of the issue on appeal. See Tenn. R. App. P. 36(a) (providing that an
appellate court need not grant relief where party failed to take reasonably available action
to prevent or nullify an error); see also State v. Stephenson, 195 S.W.3d 574, 601 (Tenn.
13
We emphasize that we do not decide in this case whether or under what circumstances a murder victim’s
“friend” may offer victim-impact testimony. The admissibility of victim-impact evidence must be decided
under the unique facts and circumstances of each individual case.
14
Even in the absence of an objection, a trial court may intervene sua sponte when prosecutorial argument
is clearly improper. See Cauthern, 967 S.W.2d at 737.
55
2006) (appendix); State v. Thomas, 158 S.W.3d 361, 413 (Tenn. 2005) (appendix); State
v. Little, 854 S.W.2d 643, 651 (Tenn. Crim. App. 1992) (defendant’s failure to object to
the State’s alleged misconduct during closing argument waives that issue).
In this case, the defense failed to lodge timely objections to the prosecutor’s
arguments. Our review is therefore limited to the parameters of this Court’s discretionary
plain error review. See Banks, 271 S.W.3d at 119. We will grant relief for plain error
only when five prerequisites are met: “(1) the record clearly establishes what occurred in
the trial court, (2) a clear and unequivocal rule of law was breached, (3) a substantial right
of the accused was adversely affected, (4) the accused did not waive the issue for tactical
reasons, and (5) consideration of the error is necessary to do substantial justice.” Id. at
119-20. It is the defendant’s burden to convince this Court that plain error exists, and we
need not consider all five factors “when it is clear from the record that at least one of
them cannot be satisfied.” State v. Bledsoe, 226 S.W.3d 349, 355 (Tenn. 2007).
A. Jury’s Role in Sentencing Decision
During its final closing argument, the prosecution told the jury:
If you vote – And I think it’s appropriate, and I’m asking you based
upon the law and the evidence to impose the death penalty in this case.
You’re not putting the Defendant to death. Don’t go for that trip. I’m not
putting the Defendant to death. The State of Tennessee is not putting that
Defendant to death. His actions, his conduct, his repeated conduct is such
that makes him responsible for his own conduct and the consequences of
that conduct.
The defense made no contemporaneous objection, but now contends that this argument
“misled the jury into feeling less responsible than it should be for the sentencing decision
that it had to make” and that its verdicts of death therefore failed to meet the “heightened
standard of reliability required under the 8th Amendment.”
In Caldwell v. Mississippi, the Supreme Court stated that “it is constitutionally
impermissible to rest a death sentence on a determination made by a sentencer who has
been led to believe that the responsibility for determining the appropriateness of the
defendant’s death rests elsewhere.” 472 U.S. 320, 328-29 (1985). In Caldwell, the
prosecution argued to the jury that its decision to render a death sentence was “not the
final decision. . . . Your job is reviewable. . . . [T]he decision you render is automatically
reviewable by the Supreme Court.” Id. at 325-26. Additionally, on objection, the trial
court endorsed the prosecution’s argument, telling the jury, “I think it proper that the jury
realizes that it is reviewable automatically as the death penalty commands.” Id. at 325.
56
Concluding that “the State sought to minimize the jury’s sense of responsibility for
determining the appropriateness of death,” the United States Supreme Court vacated the
death penalty. Id. at 341.
Subsequently, the high court has construed Caldwell as “‘relevant only to certain
types of comment – those that mislead the jury as to its role in the sentencing process in a
way that allows the jury to feel less responsible than it should for the sentencing
decision.’” Romano v. Oklahoma, 512 U.S. 1, 9 (1994) (quoting Darden v. Wainwright,
477 U.S. 168, 184 n.15 (1986)). Therefore, “‘[t]o establish a Caldwell violation, a
defendant necessarily must show that the remarks to the jury improperly described the
role assigned to the jury by local law.’” Id. (quoting Dugger v. Adams, 489 U.S. 401, 407
(1989)). See also State v. West, 767 S.W.2d 387, 399 (Tenn. 1989) (“The concerns
voiced in Caldwell are triggered when a jury is misled as to its role in the capital
sentencing scheme.”).
This Court has determined that
[t]he two steps in reviewing an alleged Caldwell violation are determining
(1) whether the prosecutor’s comments to the jury were such that they
would “minimize the jury’s sense of responsibility for determining the
appropriateness of death” and (2) whether the trial judge in the case
sufficiently corrected the impression left by the prosecutor.
West, 767 S.W.2d at 399 (quoting Mann v. Dugger, 844 F.2d 1446, 1456 (11th Cir.
1988)). In West, this Court held that the prosecutor’s argument that “the law is self-
executing,” that the law “provides the punishment, not you, [the jury],” and that “you [the
jury] don’t impose the sentence, the law provides the sentence, you are merely finders of
fact,” violated Caldwell. 767 S.W.2d at 399. We held that “[s]uch statements minimize
the jury’s role and allow[] [the jurors] to feel that the responsibility for a death sentence
rests elsewhere.” Id. We found the error harmless beyond a reasonable doubt, however,
because these
brief erroneous characterizations of the jury’s role in determining the
appropriateness of a death sentence were sufficiently corrected by the trial
judge [in its charge to the jury on its responsibility in determining the death
penalty] and the accurate portions of the district attorney’s and the
defendant’s arguments stressing the proper responsibility of the jury.
Id. at 399-400. Similarly, in State v. Cazes, 875 S.W.2d 253 (Tenn. 1994), we found
error where the prosecutor told the jury that “the law says it[’]s not your decision
anymore,” that “you’re not making the finding of the death penalty. You’re finding fact,”
57
that “the verdict is automatic,” and “the law book says what the verdict shall be.” Id. at
263-64. We determined the error to be harmless beyond a reasonable doubt, however,
because the trial court did not endorse the remarks but rather instructed the jury correctly
about its responsibility for determining whether a death sentence was appropriate, and
because “other portions of the State’s final argument correctly set forth the responsibility
of the jury under Tennessee’s capital sentencing procedure, and the defendant’s final
argument repeated and re[i]nforced the State’s correct argument.” Id. at 264.
Although the prosecution should avoid telling the jury that it is not putting a
defendant to death while simultaneously asking the jury to render a sentence of death, the
overall message of the quoted portion of the prosecution’s argument in this case was that
Defendant, himself, took the actions that made a death sentence possible. While seeking
to reassure the jury that Defendant was responsible for his own conduct and therefore
responsible for facing the ultimate punishment, the prosecution was not, in our view,
trying to shift the ultimate authority for imposing the death sentence to another entity, as
did the prosecution in Caldwell. Rather, we agree with our Court of Criminal Appeals
that this type of argument “can just as easily be interpreted as an expression of the
[defendant’s] burden of responsibility for his own actions.” State v. Blanton, No. 01C01-
9307-CC-00218, 1996 WL 219609, at *35 (Tenn. Crim. App. Apr. 30, 1996), aff’d, 975
S.W.2d 269 (Tenn. 1998). See also State v. Bush, 942 S.W.2d 489, 517 (Tenn. 1997)
(appendix) (observing that “the State may properly argue that a defendant is the ‘author of
his own fate’” (quoting Wright v. State, No. 01C01-9105-CR-00149, 1994 WL 115955,
at *16 (Tenn. Crim. App. Apr. 7, 1994))). We hold that the prosecution’s comments did
not go so far as to “minimize the jury’s sense of responsibility for determining the
appropriateness of death.” West, 767 S.W.2d at 399.
Further, even if the prosecution’s argument crossed the Caldwell line, the trial
court corrected any improper impression made by the prosecutor’s comments. Before the
prosecution began its closing argument, the trial court instructed the jury that “[i]t is now
your duty to determine within the limits prescribed by law the penalty which shall be
imposed as punishment for these three offenses” and that “[t]he jury is the sole judge of
the facts and of the law as it applies to the facts in this case.” After closing arguments
were finished, the trial court instructed the jury that,
[i]f you unanimously determine that at least one statutory aggravating
circumstance or several statutory aggravating circumstances have been
proven by the State beyond a reasonable doubt and said circumstance or
circumstances have been proven by the State to outweigh any mitigating
circumstance or circumstances beyond a reasonable doubt, the sentence
shall be death.
58
The jury therefore knew that it was responsible for deciding whether or not to impose the
death penalty on Defendant for each of the murders he committed. The jury was never
told by either the trial court or counsel for the parties that an appellate court, or any other
person or entity, would be reviewing the jury’s decision. Because no substantial right of
Defendant’s was adversely affected by the challenged argument, Defendant is not entitled
to plain error relief on this basis.
B. Belittling Mitigation Proof
Defendant also contends that, during closing argument, the prosecution improperly
“belittled” the mitigating circumstances. Specifically, he complains about the following
remarks:
What mitigating factors is he pointing to? He expresses remorse.
That doesn’t make this any better. That doesn’t make those three people
any less dead. That doesn’t take away from the pain and suffering of Larry
Taylor and James Goff. “I’m sorry” just won’t cut it. That’s not going to
mitigate the seriousness of this offense and what has happened out there at
the TDOT facility. Saying I’m sorry is just not going to get it.
Now I know his children love him. I would expect that from his
children. That doesn’t make this any better. Most people’s children love
them, but that doesn’t mean that these three people are any less dead, and
that does not mean that these people aren’t suffering just the same. That
doesn’t make it any better. That doesn’t make it anymore understandable.
It has absolutely nothing to do with what happened out there.
He adjusted well to prison life. That doesn’t make this any better.
He might live on in prison. That doesn’t weigh anything. That doesn’t
make this any more understandable.
Well let me tell you what weighs heavily against all of those
mitigating factors in this case. That this Defendant left his house that
morning with the intent of murdering his wife in cold blood, and it had
special meaning to him because he was gonna do it with her brother’s gun.
He had a special purpose there to make sure that when she turned around
after being shot in the leg, she knew she was dying with her brother’s gun.
That’s what’s weighty in this case.
...
59
Depravity of mind. . . . “I’m sorry” doesn’t mitigate that. “My children
don’t want me to die” doesn’t mitigate that. “I’ll do well in prison” doesn’t
mitigate that. “I read books while I’m in jail” doesn’t mitigate that.
(Emphasis added). We agree with the Court of Criminal Appeals that, for the most part,
the prosecutor’s remarks were aimed simply at the weight to be given the mitigating
circumstances. Such argument is proper. Banks, 271 S.W.3d at 135; State v. Brimmer,
876 S.W.2d 75, 85 (Tenn. 1994).
That portion of the argument we have italicized, however, went beyond simply
arguing the weight of mitigating factors. Arguing that the jury should give weight to
Defendant’s use of Mrs. Jordan’s brother’s gun was tantamount to arguing that aspect of
the crime as an aggravating circumstance. It is improper for a prosecutor to argue non-
statutory aggravating circumstances. See Terry v. State, 46 S.W.3d 147, 156 (Tenn.
2001) (recognizing that “the State may not rely upon non-statutory aggravating
circumstances in seeking the imposition of the death penalty”). Moreover, this argument
misstated the evidence. The gun which belonged to Mrs. Jordan’s brother was the assault
rifle. By the time Defendant shot Mrs. Jordan with that gun, she was already dead. She
did not, therefore, know that she was “dying with her brother’s gun.” There was,
however, a contemporaneous objection to this argument, and the trial court instructed the
jury that “which gun [was] utilized is not an aggravating factor in itself.” Additionally,
the trial court’s instructions made clear that the jury could base a verdict of death only
upon its unanimous finding of one or more of the statutory aggravating circumstances
charged. Defendant is therefore not entitled to relief on this basis.
C. “Angel of Death”
At the end of its closing argument during the sentencing phase of Defendant’s
trial, the defense offered the following quotations to the jury:
“The quality of mercy is not strained. It falls like the gentle rain
from heaven upon the place beneath.”
“It is twice blessed. It blesses him that gives and him that receives.”
“It’s the mightiest in the mighty. It becomes the throned monarch
better than [h]is crown. His scepter shows the force of earthly power, the
tribute to [h]is awe and majesty.”
60
“Wherein doth sit the dread and fear of kings. But mercy is above
this sceptered way. It is enthroned in the hearts of kings. It is a tribute to
God himself.”
And, “Earthly power shows most like God’s when mercy seasons
justice.”
Defense counsel did not identify the source of this quoted material to the jury.15
In response, the prosecution argued as follows:
Defense counsel would refer to God as he addresses this jury as he
tries to make you feel responsible for doing what you told the State of
Tennessee that you would do, and that’s follow the law and the instructions
of the Court. And each and every one of you promised, not only this
Defendant, but the State of Tennessee that you would follow the
instructions of the Court. That’s very important for a legal reason, and I’ll
state that in a minute.
...
Defense counsel would talk about the guilt trip he’s putting on you
with God and judgment. Let me tell you, ladies and gentlemen, what takes
care and addresses that argument by defense counsel, is rendering unto
Caesar that which is Caesar’s and unto God, that which is God’s. I
represent Caesar, and I have the duty and responsibility, as you do, to
follow the instructions given to you by the Court and that codified by the
State of Tennessee, and I suggest to you and I tell you, and I know you’ll
follow that law and instructions given to you by the Court.
...
They rely upon part of the testimony of Ms. Fisher, the former
girlfriend, one of their, quote, mitigating factors, and I believe she said that
Sydney, which would be Renee’s child along with the Defendant, made the
comment that, “Mama is an angel in heaven looking down on me.” And
ladies and gentlemen of the jury, I’m going to suggest to you that there was
another angel involved in this situation, and that angel is the angel of
death. And the angel of death went into that crow’s nest a few hours before
15
The author of this text is William Shakespeare. See The Merchant of Venice, Act iv Sc. 1.
61
Renee came to work, and a few hours before Jerry Hopper just happened to
need to have his state truck serviced that day, and just a few hours before
Mr. Gordon was involved in an auto accident. And how did the death angel
know to go there that morning? Because the death angel heard the
Defendant say on Tuesday, January 11th of ‘05 at 2:11 a.m., “I’ll see you at
work, bitch.” The death angel also heard at 2:17 a.m. the Defendant say, “I
hope you go to work tomorrow.” So the death angel was there and saw
everything that happened and everything that’s been presented in evidence
and wrote down the aggravating circumstances that occurred on or about
11:30 a.m. on the birthday of Renee’s father.
And these aggravating circumstances are that the Defendant
knowingly created a risk of death to two or more persons other than the
victim murdered during an act of murder. That will involve, I suggest,
ladies and gentlemen, three different counts of this indictment which you
will have. That will be the first count, the second count and the third count.
And second, the angel wrote down that this murder was especially
heinous, atrocious or cruel and that it involved serious physical abuse
beyond that necessary to produce death, and that will involve, I think the
Court will tell you, the first count involving Renee and the fourth count
involving Mr. Gordon and the fifth count of the felony murder indictment
of Mr. Gordon.
Now as the angel sat there and recorded these aggravating
circumstances, the angel also wrote down, the murder was committed for
the purpose of avoiding, interfering with or preventing a lawful arrest of the
Defendant or another, and that will apply as you see when you look at the
Defendant to Count 2 involving Mr. Hopper and his premeditated murder,
and Mr. Hopper, his felony murder count, and Mr. Gordon, the count of his
premeditated death, and the fifth count of this indictment, the felony murder
of Mr. Gordon. The angel had a lot to write down and a lot to observe and
a lot of things to have to be able to report at a later time.
And also I submit to you he wrote down the fourth aggravating
circumstance, that the murder was knowingly committed, solicited, directed
or aided by the Defendant while the Defendant had a substantial role in
committing or attempting to commit first degree murder. This will
encompass the first five counts of this indictment, Renee’s premeditated
murder, Mr. Hopper’s premeditated murder, Mr. Hopper’s felony murder,
Mr. Gordon’s premeditated murder and Mr. Gordon’s felony murder.
62
Then the angel goes and writes down that the Defendant committed
mass murder which is defined as the murder of three or more persons when
committed during a single criminal episode, which this was, or at different
times within a 48-month period.
And then the last thing that the angel wrote down which has been
preserved for your consideration is that the Defendant knowingly mutilated
the body of the victim after death.
...
There’s a part of [Defendant’s] conduct, deliberate, premeditated. The one
that Sydney wrote about, that “My mama is in heaven, an angel,” and the
one the death angel wrote about that’s contained by the State of Tennessee
in the law and evidence that will be instructed to you about aggravating
circumstances.
I even imagine that when the first shot went off and caught Renee in
the leg and got her attention, that it really got the attention of the death
angel who looked and realized that not only did it get Renee’s attention but
that it had gotten her attention. And then we’ve got the shot to the head.
Who can ever forget that. The angel will never forget, and that’s why it
was written down in these instructions.
...
I thank you for your consideration and your attention. It’s been
difficult. It’s difficult for me to make the decision that I thought this was
appropriate, but I did much the same, based upon the information provided
by the angel of death, that delineate and record and file the aggravating
circumstances. And I ask that you follow the law and the instructions given
to you by the Court and return a verdict that truth dictates and justice
demands.
(Emphases added).
Initially, we have no trouble concluding that the prosecution’s repeated references
to the “angel of death” and the “death angel” as “recording” and “writing down” and
“providing” the aggravating circumstances were improper. This argument implied that
the aggravating factors alleged to apply to Defendant’s murders were somehow delivered
63
from “on high” and possessed the imprimatur of a supernatural being. This implication
is, of course, not accurate.
In its brief to this Court, the State disingenuously purports that, “[i]f the ‘angel of
death’ is a religious figure, the State is unaware of the scriptural passage to which it is
referable.” We are not persuaded. Persons possessing even a casual acquaintance with
the Bible recognize that it refers to angels as holy messengers, for instance, the angel
Gabriel’s announcement to the Virgin Mary of her divine pregnancy. And, as we
emphasized in State v. Middlebrooks,
[w]e have condemned Biblical and scriptural references in a
prosecutor’s closing argument . . . frequently . . . .
The obvious danger in such references by both prosecutors and
defense counsel is the risk that a sentencing decision may be made not upon
the facts and the law but on an appeal to the bias or passion of the jury.
995 S.W.2d 550, 559 (Tenn. 1999). While the prosecutor in this case may not have
referred specifically to a particular Biblical passage, the repeated references to an angel
acting as a messenger were inappropriate allusions to the Christian religion.
This Court has admonished many times that closing arguments must be (1)
temperate; (2) predicated on the evidence adduced at trial; and (3) pertinent to the issues.
See State v. Hatcher, 310 S.W.3d 788, 813 (Tenn. 2010); State v. Thomas, 158 S.W.3d
361, 413 (Tenn. 2005) (appendix); Middlebrooks, 995 S.W.2d at 557; State v. Keen, 926
S.W.2d 727, 736 (Tenn. 1994); State v. Sutton, 562 S.W.2d 820, 823 (Tenn. 1978);
Russell v. State, 532 S.W.2d 268, 271 (Tenn. 1976). Additionally, because a prosecutor’s
role is to seek justice rather than simply advocate, the State’s prerogative during argument
is more limited than that of other parties. Thomas, 158 S.W.3d at 413 (appendix). As the
United States Supreme Court has recognized,
[The prosecutor] is the representative not of an ordinary party to a
controversy, but of a sovereignty whose obligation to govern impartially is
as compelling as its obligation to govern at all; and whose interest,
therefore, in a criminal prosecution is not that it shall win a case, but that
justice shall be done. As such, he is in a peculiar and very definite sense the
servant of the law, the twofold aim of which is that guilt shall not escape or
innocence suffer. He may prosecute with earnestness and vigor–indeed, he
should do so. But, while he may strike hard blows, he is not at liberty to
strike foul ones. It is as much his duty to refrain from improper
methods . . . as it is to use every legitimate means . . . .
64
Berger v. United States, 295 U.S. 78, 88 (1935). A prosecutor must therefore “refrain
from argument designed to inflame the jury.” State v. Hall, 976 S.W.2d 121, 158 (Tenn.
1998) (appendix) (quoting Coker v. State, 911 S.W.2d 357, 368 (Tenn. Crim. App.
1995)).
The State responds to this issue in its brief to this Court as follows:
The comments were . . . a trope; the prosecution depicted a supernatural
figure writing down aggravating circumstances as [Defendant] pursued his
course of conduct on January 11, 2005. The use of a literary device, in and
of itself, violates no constitutional stricture, and because the aggravators
that the prosecution portrayed the “angel” scribbling down were fully
supported by the evidence, the argument cannot be viewed as inflammatory.
We disagree that the argument “cannot be viewed as inflammatory” and suggest that the
State misses the point. The metaphor utilized by the prosecutor suggested that, while he
was shooting the victims, Defendant was accompanied by an angel who, apparently
fulfilling some angelic mission, dutifully recorded Defendant’s actions in order to later
convince a jury to impose the death penalty. This metaphor is inappropriate on its face.
We do not consider it temperate, it refers to no evidence in the record, it is not a
justifiable inference from any proof in the record, and it is not pertinent to the issues.
This argument was improper.
We will not overturn a verdict on the basis of a prosecutor’s improper argument
unless the impropriety affected the verdict. Sutton, 562 S.W.2d at 823. In conducting
this inquiry, we consider five factors:
(1) the conduct complained of viewed in context and in light of the facts
and circumstances of the case; (2) the curative measures undertaken by the
[trial] [c]ourt 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.
State v. Buck, 670 S.W.2d 600, 609 (Tenn. 1984) (quoting Judge v. State, 539 S.W.2d
340, 344 (Tenn. Crim. App. 1976)).
Taking these factors out of order, we first note that there were no specific curative
measures taken by the court or the prosecution. While this would ordinarily weigh
against the State, in this case, the defense must also bear some responsibility for failure to
object during the prosecutor’s argument, which limits our review to a plain error analysis.
65
Combining the first and third factors, we observe that the prosecutor did not begin
referring to the “death angel” until the rebuttal portion of his closing argument. The
trigger for the prosecutor’s improper comments appears to have been the defense’s
reference to Ms. Fisher’s mitigation testimony. The defense described Fisher as
Defendant’s “friend, who stood by him even after this horrible event” and “throughout
this horrible tragedy.” In rebuttal closing argument, the prosecutor recalled that Fisher
had testified that Defendant’s daughter referred to Renee, her murdered mother, as “an
angel in heaven.” The prosecutor then segued into his “trope” about the angel of death.
Thus, the intent of the prosecutor appears to have been to strike back at defense argument.
While the prosecutor reached too far in his argument, it appears that the prosecutor was at
least trying to place his argument in some overall context triggered by the argument of
defense counsel.
We view the fourth and fifth factors in tandem. The strength of the State’s case
was overwhelming. Defendant’s identity as the murderer was never in dispute; thus, the
defense made no effort to argue residual doubt. Moreover, not only did the State adduce
significant proof of multiple aggravating circumstances as to each victim, but this proof
was largely unchallenged. Instead, the defense focused on Defendant’s psychological
state as mitigation, proof which was strongly challenged by the State. And, although we
have identified other trial errors, we have deemed them harmless. Finally, we take note
of the trial court’s jury charges delivered during the sentencing proceeding. Prior to
opening statements, the court told the jury that
Tennessee statutory law provides that no death penalty shall be
imposed unless you find unanimously that one or more specified statutory
aggravating circumstances has been proven to you by the State beyond a
reasonable doubt, and that the aggravating circumstance or circumstances
outweigh the mitigating circumstances beyond a reasonable doubt. These
statutory aggravating circumstances are specific circumstances enumerated
by the legislature to establish which first degree murders will make a
defendant eligible for the death penalty. The State is limited to the statutory
aggravating circumstances.
After the parties closed their sentencing proof and prior to closing argument beginning,
the trial court instructed the jury as follows:
It is now your duty to determine within the limits prescribed by law the
penalty which shall be imposed as punishment for these three offenses.
Tennessee law provides that a person convicted of murder in the first
degree shall be punished by death, imprisonment for life without the
66
possibility of parole or by life – or by imprisonment for life. A defendant
who receives a sentence of imprisonment for life shall not be eligible for
release until the defendant has served at least 51 full calendar years of his or
her sentence. A defendant who receives a sentence of imprisonment for life
without parole shall never be eligible for release.
In arising [sic] at this determination, you are authorized to weigh and
consider any of the statutory aggravating circumstances proved beyond a
reasonable doubt and any mitigating circumstances which may have been
raised by the evidence throughout the entire course of this trial, including
the guilt-finding phase or sentencing phase or both. The jury is the sole
judge of the facts and of the law as it applies to the facts in this case. In
arriving at your verdict, you are to consider the law in connection with the
facts, but the Court is the proper source from which you are to get the law.
After the trial court instructed the jury as to each of the statutory aggravating factors at
issue, it continued:
Members of the jury, the Court has read to you the aggravating
circumstances which the law requires you to consider if you find are proved
beyond a reasonable doubt. You shall not consider any other facts or
circumstances as an aggravating circumstance in deciding whether the death
penalty or imprisonment for life without possibility of parole would be
appropriate punishment in this case.
Additionally, prior to closing arguments in the guilt/innocence phase of the trial, the court
instructed the jury that “[s]tatements, arguments and remarks of counsel are intended to
help you in understanding the evidence and applying the law, but they are not evidence.
If any statements were made that you believe are not supported by the evidence, you
should disregard them.” Later in its charge, but still before closing arguments in the
guilt/innocence phase, the court reiterated, “[r]emember that the statements of attorneys
are not evidence in this case.” And, at the commencement of the sentencing phase, the
trial judge told the jury, “I will remind you that statements of counsel are not evidence.”
We presume that the jury follows its instructions. Young, 196 S.W.3d at 111.
Considering the parties’ arguments as a whole, the trial court’s instructions, and
the evidence adduced during the sentencing proceeding of both aggravating and
mitigating factors, we hold that the prosecution’s references to the “angel of death” did
not affect the jury’s verdicts. Because Defendant has not demonstrated that any of his
substantial rights were adversely affected by the improper argument, he is not entitled to
plain error relief on this basis.
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VI. Mandatory Review
In reviewing Defendant’s three death sentences, Tennessee Code Annotated
section 39-13-206(c)(1) requires this Court to determine (1) whether each sentence “was
imposed in any arbitrary fashion”; (2) whether the evidence supports the jury’s findings
of the aggravating circumstances applicable to each death sentence; (3) whether the
evidence supports the jury’s determination that the aggravating circumstances outweigh
the mitigating circumstances as to each death sentence; and (4) whether each death
sentence “is excessive or disproprotionate to the penalty imposed in similar cases,
considering both the nature of the crime and the defendant.” Tenn. Code Ann. § 39-13-
206(c)(1) (2006).
A. Manner in which Death Sentences were Imposed
In accordance with its instructions, the jury determined unanimously that the State
proved beyond a reasonable doubt that several aggravating factors applied to each of the
three first degree murders committed by Defendant, and that these aggravating factors
outweighed the mitigating circumstances beyond a reasonable doubt. Our close review of
the record reveals that the sentencing hearing was conducted pursuant to the applicable
statutory provisions and rules of criminal procedure. Accordingly, we conclude that
Defendant’s three sentences of death were not imposed in an arbitrary fashion.
B. Evidence Supporting Aggravating Factors
In determining whether the evidence supports the jury’s findings of statutory
aggravating circumstances, an appellate court must determine, after viewing the evidence
in the light most favorable to the State, whether a rational trier of fact could have found
the existence of the aggravating circumstances beyond a reasonable doubt. State v.
Rollins, 188 S.W.3d 553, 571 (Tenn. 2006).
1. Renee Jordan
In sentencing Defendant to death for his first degree murder of Renee Jordan, the
jury applied five aggravating factors. We will address in turn the sufficiency of the proof
supporting each factor.
(i)(3): Risk of Death to Two or More Others
The jury determined that Defendant “knowingly created a great risk of death to
two (2) or more persons, other than the victim murdered, during the act of murder[ing]”
Mrs. Jordan. Tenn. Code Ann. § 39-13-204(i)(3). We have previously determined that
68
this aggravating circumstance “contemplates either multiple murders or threats to several
persons at or shortly prior to or shortly after an act of murder upon which the prosecution
is based.” State v. Cone, 665 S.W.2d 87, 95 (Tenn. 1984). The proof in this case
established beyond a reasonable doubt that, in conjunction with murdering Mrs. Jordan,
Defendant murdered two other persons and shot an additional two persons who were
fortunate enough to survive. The proof is more than sufficient to support the jury’s
finding of this aggravating circumstance.
(i)(5): Heinous, Atrocious, or Cruel
The jury also found that Defendant’s murder of Mrs. Jordan 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). This Court has
defined “torture” as “the infliction of severe physical or mental pain upon the victim
while he or she remains alive and conscious.” State v. Rollins, 188 S.W.3d 553, 572
(Tenn. 2006) (quoting State v. Pike, 978 S.W.2d 904, 917 (Tenn. 1998); State v.
Williams, 690 S.W.2d 517, 529 (Tenn. 1985)). And, we have repeatedly considered a
defendant’s actions in causing the victim to fear death or physical harm as a factor in
whether the defendant has created the severe mental pain or anguish relevant to a finding
of torture. See, e.g., State v. Carter, 114 S.W.3d 895, 903-04 (Tenn. 2003) (recognizing
that “the anticipation of physical harm to oneself is tortuous”); State v. Nesbit, 978
S.W.2d 872, 886-87 (Tenn. 1998); State v. Hodges, 944 S.W.2d 346, 357-58 (Tenn.
1997).
In this case, the proof established that, on the night preceding Mrs. Jordan’s
murder, Defendant called her repeatedly and left her threatening messages. Additionally,
Kenneth Evans testified that Mrs. Jordan called him on that same night, stating that “she
was about to have a nervous breakdown,” that “she was scared of” Defendant, and that he
had been making threatening phone calls to her. Mr. Evans explained that, according to
Mrs. Jordan, Defendant had told her that “it didn’t matter how many lawyers she had and
how much money she had, that what he had for her wasn’t going to do her any good.”
Mrs. Jordan rejected Mr. Evans’s suggestion that she go to the police department on the
grounds that Defendant would “shoot [her] there whether the police was there or not, and
he would probably shoot them, too.” Mrs. Jordan went instead to Mr. Evans’s house and
Mr. Evans hid her car. This proof establishes that Defendant’s conduct instilled a
significant fear of death in Mrs. Jordan.
In State v. Cooper, 718 S.W.2d 256, 257-60 (Tenn. 1986), this Court considered
the defendant’s actions in “threaten[ing] and intimidat[ing] [his wife] to the point of
distraction for several weeks prior to the homicide” followed by his “deliberate taunting
and threatening of [the] victim for hours before shooting at” her to constitute torture for
69
the purpose of the (i)(5) aggravating circumstance. See also State v. Hall, 8 S.W.3d 593,
605 (Tenn. 1999) (in discussing Cooper, noting that “[a]lthough death was instantaneous,
or nearly so, this Court found that the defendant’s threats and harassment throughout the
day had constituted mental torture and depravity of mind”). In this case, Defendant
directed similar behavior toward Mrs. Jordan, and his conduct appears to have generated
fear in her. Defendant’s conduct in following and threatening Mrs. Jordan satisfies the
definition of “torture” as utilized in the (i)(5) aggravator.
The proof also establishes that Defendant murdered Mrs. Jordan during his initial
shooting spree with a handgun. According to Mr. Goff and Mr. Taylor, when Defendant
entered the crow’s nest the first time, he called Mrs. Jordan’s name to get her attention.
According to Defendant’s statement, he shot Mrs. Jordan in the leg to get her attention.
Defendant’s statement is corroborated by the autopsy, which identified a gunshot wound
to Mrs. Jordan’s right thigh. In either event, Defendant got Mrs. Jordan’s attention and
then fired another shot. According to both Goff and Taylor, this second shot struck Mrs.
Jordan in the torso, as did the next (third) shot. Defendant was standing near the crow’s
nest door when he fired these first three shots. Goff said Defendant was about six feet
from Mrs. Jordan.
Defendant continued shooting Mrs. Jordan, striking her twice in the head. One of
these two gunshots was to Mrs. Jordan’s forehead, from no more than one foot away.
The other gunshot was to the back of Mrs. Jordan’s head. Defendant told the police that
the last shot he fired at Mrs. Jordan from his handgun was to the “top of [her] head.”
According to both Goff and Taylor, Mrs. Jordan did not survive these gunshots to her
head. Medical testimony confirmed that each of these gunshots to Mrs. Jordan’s head
were fatal.
The forensic pathologist who performed the autopsy on Mrs. Jordan’s body
identified eleven gunshot wounds. From these wounds, three handgun bullets were
recovered, including one from the close range shot to Mrs. Jordan’s forehead, one from
her thigh, and one from her abdomen. A fourth handgun bullet was recovered from her
clothing. The forensic pathologist could not determine the type of weapon that fired the
shot through the top of Mrs. Jordan’s head, which bullet exited through Mrs. Jordan’s
face, but Defendant’s statement establishes that this wound was inflicted during the initial
assault with the handgun. The proof therefore establishes that Defendant shot Mrs.
Jordan at least five times during the act of murdering her: once to her leg, twice to her
torso, and twice to her head. Four of these wounds were inflicted after Defendant got her
attention to make sure that she realized he was going to kill her. The proof also
establishes that the wound to Mrs. Jordan’s forehead was inflicted after Defendant had
shot her once in the leg and twice in the torso. Obviously, given the proof that this wound
was inflicted from no more than one foot away, Defendant had to advance upon Mrs.
70
Jordan as she lay incapacitated from the first several gunshots in order to inflict this fatal
shot.
In spite of having inflicted two fatal head wounds to Mrs. Jordan, Defendant left
the crow’s nest and returned with an assault rifle after having murdered Mr. Gordon. He
then shot Mrs. Jordan’s body several more times. Dr. Turner identified at least four
gunshot wounds as having been inflicted by an assault rifle.
This proof is sufficient to establish that Defendant’s murder of Mrs. Jordan
involved “serious physical abuse beyond that necessary to produce death.” See Odom,
928 S.W.2d at 25 n.5 (declining to limit serious physical abuse to that caused before
death). The proof is therefore sufficient on two bases to support the jury’s finding of this
aggravating circumstance.
(i)(7): Felony Murder
The jury found that Defendant “knowingly committed, solicited, directed, or
aided” Mrs. Jordan’s murder “while [he] had a substantial role in committing or
attempting to commit . . . first degree murder.” Tenn. Code Ann. § 39-13-204(i)(7).
Defendant argues that the evidence does not support this aggravating circumstance
because Mrs. Jordan was already dead before he shot anyone else. We are not persuaded.
Defendant’s actions in shooting all four people in the crow’s nest were of a piece. The
application of this aggravating circumstance does not hinge on the order in which the
victims died or were shot. Moreover, Defendant admitted in his statement that he shot
Mr. Goff when Mr. Goff attempted to interrupt his attack on Mrs. Jordan. The evidence
is therefore sufficient to demonstrate that Defendant killed Mrs. Jordan “while” he was
committing Mr. Goff’s attempted murder.
Defendant also complains about the trial court’s instructions regarding the mens
rea element of this aggravating circumstance. The trial court instructed the jury as
follows:
Knowingly means that a person acts knowingly with respect to the conduct
or to circumstances surrounding the conduct when the person is aware of
the nature of the conduct or that the circumstances exist. A person acts
knowingly with respect to a result of the person’s conduct when the person
is aware that the conduct is reasonably certain to cause the result. The
requirement of knowingly is also established if it is shown that the
Defendant acted intentionally.
71
Intentionally means that a person acts intentionally with respect to
the nature of the conduct or to a result of the conduct when it is the person’s
conscious objective or desire to engage in the conduct or cause the results.
Defendant contends that these definitions “should not have been included within the
aggravator” because it lessened the State’s burden of proof as described in State v. Page,
81 S.W.3d 781, 787-88 (Tenn. Crim. App. 2002). However, this Court rejected the claim
that a superfluous definition of “knowingly” lessens the burden of proof in State v.
Faulkner, 154 S.W.3d 48, 59 (Tenn. 2005).
Defendant also argues that these definitions “gave the jury much more lee-way to
find these felony murder aggravators,” and that including the definitions within the
instruction on the aggravating circumstance “amount[ed] to amending th[e] aggravating
circumstance to make it unconstitutionally overbroad and vague.” We disagree.
In State v. Rogers, 188 S.W.3d 593, 618 (Tenn. 2006), the defendant made the
opposite argument: that the trial court tainted the jury’s finding of the (i)(7) aggravator
by failing to instruct the jury on the definition of “knowingly.” We noted that, when it
convicted the defendant of first degree premeditated murder, the jury necessarily
determined that the defendant acted intentionally with regard to the result of his conduct.
Id. The finding that a defendant acted intentionally also necessarily establishes that the
defendant acted knowingly. See Tenn. Code Ann. § 39-11-301(a)(2) (2003).
Accordingly, we held that any error in the trial court’s failure to define “knowingly”
within the instruction on this aggravating circumstance was harmless beyond a reasonable
doubt. Rogers, 188 S.W.3d at 618. Similarly, we hold that any error by the trial court in
its instructions on this aggravating circumstance in this case was harmless beyond a
reasonable doubt. The jury had already determined that Defendant had committed three
premeditated murders and two attempted premeditated murders. By doing so, it
necessarily concluded that Defendant acted intentionally when shooting all five of his
victims. The definition of knowing was therefore, at most, surplusage and did not affect
the jury’s verdict. See Faulkner, 154 S.W.3d at 60-61.
Moreover, we note that the term “knowingly” is used in the (i)(7) aggravating
circumstance to modify the words “committed, solicited, directed or aided.” Each of
these words refers to a type of conduct, but not necessarily to the result of the conduct.
Accordingly, it is not necessarily erroneous for a trial court to charge the “nature of
conduct” definition of “knowingly” in conjunction with the (i)(7) aggravator.
72
(i)(12): Mass Murder
As the fourth aggravating circumstance, the jury found that Defendant committed
“mass murder,” defined as “the murder of three (3) or more persons whether committed
during a single criminal episode or at different times within a forty-eight-month period.”
Tenn. Code Ann. § 39-13-204(i)(12). The jury convicted Defendant of murdering Mrs.
Jordan, Mr. Hopper, and Mr. Gordon on the same day and during the same criminal
episode. The proof is more than sufficient to support the jury’s application of this
aggravating factor.
(i)(13): Mutilation of Body
The jury found as a fifth and final aggravating circumstance that Defendant
“knowingly mutilated the body” of Mrs. Jordan after her death. Tenn. Code Ann. § 39-
13-204(i)(13). In support of this aggravator, the State relied on Defendant’s return to the
crow’s nest after killing Mrs. Jordan to shoot her body repeatedly with the SKS assault
rifle.
This Court has not previously addressed in detail the use of this aggravating
circumstance to impose the death penalty.16 In at least two cases, however, our Court of
Criminal Appeals considered its use in the imposition of a sentence of life without parole.
See State v. Thompson, 43 S.W.3d 516, 525-26 (Tenn. Crim. App. 2000), perm. appeal
denied (Tenn. Mar. 5, 2001); State v. Price, 46 S.W.3d 785, 827-28 (Tenn. Crim. App.
2000), perm. appeal denied (Tenn. Feb. 26, 2001). In both cases, the court noted that
mutilation is not statutorily defined and so turned to the dictionary definition of mutilation
as “‘to cut up or alter radically so as to make imperfect.’” Thompson, 43 S.W.3d at 525
(quoting Webster’s Third New International Dictionary, 1493 (1993)); Price, 46 S.W.3d
at 827 (same). The court also noted in both cases that “the legislative intent underlying
mutilation as an aggravating circumstance must be ‘that the General Assembly . . . meant
to discourage corpse desecration.’” Thompson, 43 S.W.3d at 525-26 (quoting Price, 46
S.W.3d at 828). In Thompson, the court concluded that the proof supported this
aggravating circumstance where, after the victim’s death, the defendant “stabbed him four
times in the back with a knife, slit his throat, cut his forehead and legs, and fractured both
of his legs by exerting great pressure from behind.” 43 S.W.3d at 526. In Price, the court
concluded that the defendant’s post-mortem infliction of flash burns on his murder
victim’s face satisfied the definition of mutilation. 46 S.W.3d at 828.
16
In State v. Davidson, 121 S.W.3d 600, 621 (Tenn. 2003), we affirmed without discussion the jury’s
application of the mutilation aggravator where the defendant sliced open his victim’s body from neck to
abdomen.
73
We recognize that the term “mutilation” is most frequently used to describe
activities that are more obviously disfiguring to a victim’s body than multiple gunshot
wounds. See, e.g., Terry v. State, 46 S.W.3d 147, 161, 166 (Tenn. 2001) (referring to
defendant’s actions in cutting off victim’s head and right forearm after killing him and
burning the body as “mutilation” in discussion of (i)(5) aggravator); State v. Harris, 989
S.W.2d 307, 311 (Tenn. 1999) (victim’s body “mutilat[ed]” where body parts severed and
heart removed; (i)(5) aggravator alleged). Nevertheless, we hold that the circumstances
of this case are sufficient to support the jury’s finding of this aggravating factor. During
his initial assault on his wife, Defendant shot two bullets into Mrs. Jordan’s head.
Medical proof established that each of these wounds was fatal, and Mr. Goff and Mr.
Taylor both testified that Mrs. Jordan appeared dead at the time they were still in the
crow’s nest. Certainly it is reasonable to infer that Defendant thought she was dead.
After murdering his wife, Defendant left the crow’s nest and walked to his truck. There,
he murdered another person. Unfinished, Defendant carried his assault rifle back to the
crow’s nest. He had a brief conversation with Mr. Taylor. Only after Mr. Taylor had left
the crow’s nest, descended the steps, and turned the corner did Defendant open fire on
Mrs. Jordan’s body. These circumstances support the inference that Defendant was intent
on desecrating Mrs. Jordan’s corpse. He did so by firing several high-powered bullets
into her body. Although these bullets did not succeed in severing any of Mrs. Jordan’s
body parts, they caused a great deal of damage. Freddie Ellison described Mrs. Jordan as
being “shot all to pieces.” Dr. Turner described the assault rifle gunshot wounds to Mrs.
Jordan’s ribs, right lung, diaphragm, liver, kidney, spinal column, and back muscles. We
hold that the multiple gunshot wounds that Defendant inflicted after Mrs. Jordan’s death
“alter[ed] radically so as to make imperfect” her body. The proof is sufficient to support
the jury’s application of this aggravating factor.
2. Jerry Hopper
With respect to Defendant’s first degree murder of Jerry Hopper, the jury found
four aggravating circumstances. We will address in turn the sufficiency of the proof
supporting each factor.
(i)(3): Risk of Death to Two or More Others
As it did with Defendant’s murder of Mrs. Jordan, the jury determined that
Defendant “knowingly created a great risk of death to two (2) or more persons, other than
the victim murdered, during the act of murder[ing]” Mr. Hopper. Tenn. Code Ann. § 39-
13-204(i)(3). While Defendant was murdering Mr. Hopper, he was also shooting Mr.
Goff and Mr. Taylor. The evidence is therefore sufficient to support this aggravating
circumstance.
74
(i)(6): Murder to Avoid Apprehension
The jury also found that Defendant murdered Mr. Hopper “for the purpose of
avoiding, interfering with, or preventing [his] lawful arrest or prosecution.” Tenn. Code
Ann. § 39-13-204(i)(6). The Court of Criminal Appeals concluded that the proof is not
sufficient to support application of this aggravating factor. We agree.
This aggravating circumstance “focuses on a defendant’s motives in committing a
murder.” State v. Reid, 164 S.W.3d 286, 315 (Tenn. 2005). Thus, while it need not be
his sole motive in committing the murder, id. at 316, there must be some “particular
proof” that Defendant murdered the victim at least in part to avoid apprehension, State v.
Hartman, 42 S.W.3d 44, 58 (Tenn. 2001). In this case, the State argues that the necessary
proof is provided by Defendant’s statement that, after he shot Mrs. Jordan, “[t]he guy that
was sitting in the corner got up and came at me. I shot him and he fell to the floor.” We
fail to see how this statement establishes that Defendant shot Hopper to avoid his
apprehension, particularly in light of Defendant’s deliberate and unhurried conduct
throughout his murderous spree. Rather, this statement suggests that Defendant did not
want to be interrupted in his mission to take his wife’s life. We note particularly that
Defendant allowed Mr. Taylor to leave the crow’s nest in spite of his familiarity with
Defendant and his witnessing of Defendant’s murders. The evidence is not sufficient to
support the application of this aggravating circumstance.
(i)(7): Felony Murder
The jury also found that Defendant murdered Mr. Hopper while committing or
attempting to commit first degree murder. See Tenn. Code Ann. § 39-13-204(i)(7). The
proof is sufficient to support this aggravating circumstance. In conjunction with shooting
Mr. Hopper, Defendant also shot Mrs. Jordan, Mr. Goff and Mr. Taylor, for which the
jury convicted him of first degree murder and two counts of attempted first degree
murder.
(i)(12): Mass Murder
The jury also applied as an aggravating factor that Defendant committed “mass
murder.” Tenn. Code Ann. § 39-13-204(i)(12). For the reasons set forth above, the proof
supports application of this aggravating circumstance.
75
3. David Gordon
The jury applied four aggravating circumstances in determining to impose the
death penalty on Defendant for his murder of David Gordon. We examine in turn the
sufficiency of the proof in support of each of these aggravators.
(i)(5): Heinous, Atrocious, or Cruel
As it did with Defendant’s murder of Mrs. Jordan, the jury found that Defendant’s
murder of Mr. Gordon 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). The testimony established that Defendant shot Mr. Gordon at
least thirteen times with a fully automatic high-powered assault rifle. Some of these shots
were fired after Mr. Gordon was face down on the ground. Medical testimony described
Mr. Gordon’s intestines as “morselized,” and the pathologist stated that there were more
wounds than necessary to inflict death and that the wounds were painful. The proof is
sufficient to support the jury’s application of this aggravating circumstance.
(i)(6): Murder to Avoid Apprehension
The jury also found that Defendant murdered Mr. Gordon “for the purpose of
avoiding, interfering with, or preventing [his] lawful arrest or prosecution.” Tenn. Code
Ann. § 39-13-204(i)(6). We hold that the evidence is not sufficient to support application
of this aggravating circumstance. There is no “particular proof” in the record
demonstrating that Defendant murdered Mr. Gordon in order to prevent his apprehension.
Rather, the proof supports the inference that Defendant murdered Mr. Gordon for the
same reason he murdered Mr. Hopper: because Mr. Gordon was interfering with his
mission to murder his wife and mutilate her body. Before returning to the crow’s nest
with his assault rifle, Defendant was intercepted by Mr. Gordon. Defendant warned Mr.
Gordon to get out of his way. When Mr. Gordon remained in Defendant’s way,
Defendant removed him with a spray of gunfire. Defendant then proceeded with the
remainder of his mission; notably, he did not flee the area after shooting Mr. Gordon in
front of numerous witnesses.
The evidence is not sufficient to support the application of this aggravating
circumstance.
(i)(7): Felony Murder
The jury also found that Defendant murdered Mr. Gordon while committing or
attempting to commit first degree murder. Tenn. Code Ann. § 39-13-204(i)(7). The
76
proof is sufficient to support this aggravating circumstance. Defendant murdered Mr.
Gordon in conjunction with his murders of Mrs. Jordan and Mr. Hopper and in
conjunction with his attempted murders of Mr. Goff and Mr. Taylor.
(i)(12): Mass Murder
The jury also found that Defendant’s murder of Mr. Gordon was part of a “mass
murder.” See Tenn. Code Ann. § 39-13-204(i)(12). The proof that Defendant shot and
killed Mrs. Jordan, Mr. Hopper, and Mr. Gordon on January 11, 2005, is sufficient to
support the application of this aggravating circumstance.
C. Weighing of Aggravating and Mitigating Circumstances
1. Duplicitous Aggravating Circumstances
As set forth above, this Court is statutorily required to review as to each death
sentence whether the evidence supports the jury’s determination that the aggravating
circumstances outweigh the mitigating circumstances beyond a reasonable doubt.
Defendant argues that the multiple aggravating circumstances were “overlapping” and
“duplicitous” and that the felony murder, mass murder, and great risk to two or more
persons aggravating circumstances “were so intertwined factually in this case that they
would be given too much weight when each was separately considered resulting in a
death sentence from an unreliable weighing process.” We disagree.
“[A]ggravating circumstance[s] must genuinely narrow the class of persons
eligible for the death penalty and must reasonably justify the imposition of a more severe
sentence on the defendant compared to others found guilty of murder.” Zant v. Stephens,
462 U.S. 862, 877 (1983); see also Banks, 271 S.W.3d at 154. This Court has recognized
that,
[i]n addition to providing a public declaration of the state’s policies
regarding the offenses deemed to warrant the use of the death penalty,
legislatively created guidelines can also serve to channel the discretion of
jurors in determining whether the death penalty is appropriate in a particular
case. Thus, they prevent the wanton and freakish imposition of the death
penalty.
Banks, 271 S.W.3d at 154 (citation omitted).
The aggravating circumstances at issue in this case each “meet the constitutional
requirements of narrowing the class of death penalty eligible persons and channeling juror
77
discretion.” Id. Contrary to Defendant’s contention, they are not duplicitous. Each of the
five aggravating circumstances properly applied by the jury relies upon different policy
justifications for rendering a murderer eligible for the death penalty. Moreover, that the
same conduct may satisfy certain elements of different aggravating circumstances does
not contaminate the jury’s sentencing process, or invalidate its weighing process. As
conceded by Defendant, neither the Supreme Court nor this Court has ruled
unconstitutional the use of the same evidence to satisfy elements of different, otherwise
valid aggravating circumstances. See Jones v. United States, 527 U.S. 373, 398-400
(1999); Hall, 958 S.W.2d at 692. We again decline to do so.
2. Weighing: Each Victim
Renee Jordan
We turn now to our inquiry of whether a reasonable juror could find beyond a
reasonable doubt that the five aggravating circumstances proved by the State with respect
to Mrs. Jordan’s murder outweigh the mitigating circumstances. The proof supporting the
aggravating circumstances is set forth above. Mitigating circumstances instructed to the
jury included (1) Defendant committed the murder while under the influence of extreme
mental or emotional disturbance; (2) Defendant’s capacity to appreciate the wrongfulness
of his conduct or to conform to the requirements of the law was substantially impaired as
a result of mental disease or defect or intoxication which was insufficient to establish a
defense to the crime but which substantially affected his judgment; (3) Defendant had
adjusted well to the structure of prison life; (4) Defendant expressed remorse, accepted
responsibility for his actions, and is willing to accept punishment for his crimes; (5)
Defendant has a loving and supportive family; and (6) any other aspect of Defendant’s
character or record, or any aspect of the circumstances of the offense favorable to
Defendant which is supported by the evidence.
In addition to proving aggravating circumstances, the State adduced significant
evidence that contradicted much of Defendant’s mitigation proof. Accordingly, we hold
that a rational juror could easily have concluded that the five aggravating circumstances
proved by the State outweighed the various mitigating circumstances.
Jerry Hopper
With respect to the death sentence imposed on Defendant for his murder of Jerry
Hopper, we have held that one of the four aggravating circumstances found by the jury –
that Defendant committed the murder to avoid apprehension – is not supported by
sufficient evidence. We may uphold a death sentence in spite of the erroneous
application of an aggravating circumstance when we are convinced beyond a reasonable
78
doubt that the jury would have imposed the same sentence absent its consideration of the
invalid aggravator. See State v. Howell, 868 S.W.2d 238, 259 (Tenn. 1993). In
conducting this inquiry, we must
completely examine the record for the presence of factors which potentially
influence the sentence ultimately imposed. These include, but are not
limited to, the number and strength of remaining valid aggravating
circumstances, the prosecutor’s argument at sentencing, the evidence
admitted to establish the invalid aggravator, and the nature, quality and
strength of mitigating evidence.
Id. at 260-61.
Invalidation of the (i)(6) aggravator leaves three remaining aggravating
circumstances found by the jury as to Defendant’s murder of Jerry Hopper. The evidence
in support of each of these three remaining aggravators is exceptionally strong. In
contrast, the evidence supporting the (i)(6) aggravator was slight, and the prosecution did
not stress this circumstance during its sentencing argument. The nature, quality and
strength of the mitigating evidence was hotly contested with a “battle of the experts.”
Our complete examination of the record reveals error in conjunction with Dr. Matthews’s
testimony; the exclusion of Defendant’s parents’s testimony at the sentencing hearing;
and improper argument by the prosecution. Nevertheless, we have determined that these
errors had no prejudicial impact on the jury’s verdicts. In light of our analysis under
Howell, we conclude that the jury’s erroneous consideration of the (i)(6) aggravating
factor was harmless beyond a reasonable doubt and that the jury would have imposed the
death penalty on Defendant for his murder of Mr. Hopper even had it given no weight to
the (i)(6) aggravating circumstance. Moreover, we also hold that a rational juror could
easily have concluded that the three aggravating circumstances properly applied to
Defendant’s murder of Mr. Hopper outweighed the mitigating circumstances beyond a
reasonable doubt.
David Gordon
For the same reasons we have determined that the jury would have imposed the
death penalty for Defendant’s murder of Mr. Hopper had it given no weight to the (i)(6)
aggravating factor, we hold that its erroneous application of the (i)(6) aggravating
circumstance in the imposition of the death penalty for Defendant’s murder of Mr.
Gordon is harmless beyond a reasonable doubt. We also hold that a rational juror could
easily have concluded that the three aggravating circumstances properly applied to
Defendant’s murder of Mr. Gordon outweighed the mitigating circumstances beyond a
reasonable doubt.
79
D. Proportionality Review
We next consider whether the sentences imposed in this case are excessive or
disproportionate to the penalty imposed in similar cases. This review identifies aberrant,
arbitrary, or capricious sentencing by determining whether the death sentence is
“‘disproportionate to the punishment imposed on others convicted of the same crime.’”
State v. Bland, 958 S.W.2d 651, 662 (Tenn. 1997) (quoting Pulley v. Harris, 465 U.S. 37,
43 (1984)). We begin with the presumption that a death sentence is proportional with the
crime of first degree murder. Hall, 976 S.W.2d at 135. In conducting this review, we
employ the precedent-seeking method of comparative proportionality review, in which we
compare this case with other cases involving similar defendants and similar crimes.
Bland, 958 S.W.2d at 665-67. While no defendants or crimes are identical, a death
sentence is disproportionate if a case is “plainly lacking in circumstances consistent with
those in cases where the death penalty has been imposed.” Id. at 668. Our inquiry,
however, does not require a finding that “a sentence less than death was never imposed in
a case with similar characteristics.” Id. at 665. This Court has repeatedly held that “the
pool of cases considered by this Court in its proportionality review includes those first
degree murder cases in which the State seeks the death penalty, a capital sentencing
hearing is held, and the sentencing jury determines whether the sentence should be life
imprisonment, life imprisonment without the possibility of parole, or death.” Reid, 164
S.W.3d at 316.
In reviewing the applicable pool of cases, we consider numerous factors about
each of the three murders, including:
(1) the means of death; (2) the manner of death; (3) the motivation for the
killing; (4) the place of death; (5) the victim’s age, physical condition, and
psychological condition; (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 effect upon non-decedent victims.
Id. Additionally, we consider numerous factors about Defendant including:
(1) prior criminal record [or activity], if any; (2) age, race, and gender; (3)
mental, emotional, and physical condition; (4) role in [each] murder; (5)
cooperation with authorities; (6) level of remorse; (7) knowledge of [each]
victim’s helplessness; and (8) potential for rehabilitation.
Id. at 316-17.
80
In this case, the proof established that Defendant and Mrs. Jordan were having
marital problems. On the morning of January 11, 2005, Mrs. Jordan told Defendant over
the phone that he and his two daughters needed to leave the marital residence. Mrs.
Jordan hung up before Defendant could respond, making his “blood boil.” Defendant
gathered several of his many weapons, including two handguns, a fully automatic assault
rifle, and a shotgun, together with numerous rounds of ammunition, and loaded these
items into the cab of his truck. He drove to the TDOT garage where Mrs. Jordan worked,
hitting another vehicle on his way. Once he arrived as his wife’s place of employment,
Defendant walked up the stairs and into the crow’s nest where his wife worked, walking
past several people on his way. He had armed himself with one handgun in a holster and
another handgun in the small of his back.
Upon walking into the crow’s nest through the only door, Defendant surveyed the
room and adopted a police stance. Mrs. Jordan was facing away from him and talking on
the phone. Defendant drew one of his pistols and, to get his wife’s attention, called her
name and shot her in the leg. As she turned to face him, he shot her twice more in the
torso. He shot her again through the back of her head, and he also walked up and placed
the muzzle of his handgun within a foot of her forehead and pulled the trigger.
Three other men were present in the office while Defendant was murdering his
wife. When Jerry Hopper rose to try and stop Defendant, Defendant shot him three times.
Defendant then shot James Goff four times. By this time, Larry Taylor had dived under a
desk, leaving his legs exposed. Defendant shot Larry Taylor twice in the legs as he left
the crow’s nest.
Returning to his truck, Defendant was confronted by the man who had been
driving the car he hit on the way to the garage. Defendant told Mr. Gordon to leave.
When Mr. Gordon persisted, Defendant retrieved his fully automatic assault rifle from his
truck and shot Mr. Gordon. Defendant continued to shoot Mr. Gordon after he fell to the
pavement, inflicting at least thirteen gunshot wounds. Several of these were to Mr.
Gordon’s backside.
Finished with Mr. Gordon, Defendant returned to the crow’s nest with his assault
rifle. After dismissing Larry Taylor from the office, Defendant opened fire on his wife’s
body. There is no proof that he attempted to render any aid to Mr. Hopper, who remained
in the crow’s nest and was still alive. Defendant then walked to his truck and left the
TDOT garage. Defendant did not stop to render aid to Mr. Gordon. Defendant initially
tried to evade the police, but was cooperative once he was taken into custody.
Defendant was forty years old when he committed these crimes. He is twice
divorced and has four daughters, one with victim Mrs. Jordan. He has no prior criminal
81
convictions. One expert witness diagnosed him with dissociative disorder, major
depressive disorder, generalized anxiety disorder, alcohol abuse, and borderline
personality disorder. He had been drinking alcohol at the time of the crimes. While he
initially attempted to evade the police, he was cooperative after his apprehension. He was
remorseful. His children and family members loved him. Several persons testified about
his good behavior while jailed and opined that he would be a model prisoner.
This Court has upheld the death sentence in numerous cases involving the
defendant’s murder of his wife or girlfriend. See, e.g., State v. Ivy, 188 S.W.3d 132
(Tenn. 2006) (defendant shot estranged girlfriend multiple times because she was going
to bring charges of domestic abuse against him; prior violent felony and murder to avoid
apprehension aggravating circumstances); Faulkner, 154 S.W.3d 48 (defendant struck
wife repeatedly in head with iron skillet; prior violent felony aggravator); State v. Suttles,
30 S.W.3d 252 (Tenn. 2000) (defendant stabbed girlfriend in parking lot; prior violent
felony and heinous, atrocious, or cruel aggravating circumstances); State v. Keough, 18
S.W.3d 175 (Tenn. 2000) (defendant stabbed wife after argument in bar and left her to
bleed to death in car; prior violent felony aggravator); State v. Hall, 8 S.W.3d 593 (Tenn.
1999) (after arguing with wife, defendant beat, strangled, and drowned her; heinous,
atrocious, or cruel aggravator); State v. Hall, 958 S.W.2d 679 (Tenn. 1997) (angry that
girlfriend left him, defendant set fire to her car while she was inside; heinous, atrocious,
or cruel and felony murder aggravators); State v. Smith, 868 S.W.2d 561 (Tenn. 1993)
(defendant stabbed and shot estranged wife; heinous, atrocious, or cruel and mass murder
aggravators); State v. Johnson, 743 S.W.2d 154 (Tenn. 1987) (defendant suffocated wife
with plastic bag; prior violent felony and heinous, atrocious, or cruel aggravators); State
v. Miller, 674 S.W.2d 279 (Tenn. 1984), on remand, 771 S.W.2d 401 (Tenn. 1989)
(defendant beat girlfriend to death with fists and fire poker and then stabbed her
numerous times; death sentence upheld under heinous, atrocious, or cruel aggravator).
This Court has also upheld the death sentence where the defendant committed
mass murder. See, e.g., Reid, 213 S.W.3d 792 (defendant shot and killed three victims
during robbery of fast food restaurant; prior violent felony, murder to avoid apprehension,
felony murder, and mass murder aggravators); State v. Holton, 126 S.W.3d 845 (Tenn.
2004) (defendant shot and murdered his four children; mass murder and, as to three
victims, under-twelve -years-old aggravators); State v. Carruthers, 35 S.W.3d 516 (Tenn.
2000) (defendants shot two men, strangled the mother of one of the men, and buried all
three victims alive; prior violent felony, heinous, atrocious, or cruel, felony murder, and
mass murder aggravators); Smith, 868 S.W.2d 561 (defendant shot and stabbed his wife
and two stepsons; heinous, atrocious, or cruel, murder to avoid apprehension, felony
murder, and mass murder aggravators); State v. Van Tran, 864 S.W.2d 465 (Tenn. 1993)
(defendant actively participated in restaurant robbery in which three persons were killed;
heinous, atrocious, or cruel and mass murder aggravators).
82
We have also upheld death sentences imposed on defendants with little or no prior
criminal history and/or psychological problems. See, e.g., State v. Pike, 978 S.W.2d 904
(Tenn. 1998) (defendant selected victim to murder, bludgeoned her to death, mutilated
body and kept piece of skull as souvenir; no prior criminal record and proof of emotional
or mental disturbance at time of crime; heinous, atrocious, or cruel and murder committed
to avoid apprehension aggravators); Hall, 958 S.W.2d 679 (defendant doused girlfriend
with gasoline, locked her in vehicle and set her on fire; no prior criminal convictions but
prior illegal substance abuse and proof of personality disorder; heinous, atrocious, or
cruel and felony murder aggravators); Bush, 942 S.W.2d 489 (defendant savagely beat
and stabbed seventy-nine-year-old acquaintance to death and later boasted of murder; no
criminal record and proof of mental disease; heinous, atrocious, or cruel and murder
committed to avoid apprehension aggravators); Smith, 868 S.W.2d 561 (defendant
murdered his wife by shooting her twice, slashing her throat, and stabbing her with an ice
pick; murdered two stepsons by shooting and stabbing; proof of personality disorders;
heinous, atrocious, or cruel, murders committed to avoid apprehension, felony murder,
and mass murder aggravators); State v. Zagorski, 701 S.W.2d 808 (Tenn. 1985)
(defendant shot two victims and slashed their throats; no prior criminal record; heinous,
atrocious, or cruel and felony murder aggravators); State v. Melson, 638 S.W.2d 342
(Tenn. 1982) (defendant beat victim to death with hammer blows to head after victim
discovered defendant’s theft; no significant prior criminal history; heinous, atrocious, or
cruel and murder committed to avoid apprehension aggravators).
We have upheld death sentences where the defendant presented proof that he was a
model prisoner. See, e.g., Banks, 271 S.W.3d 90 (defendant shot two persons during a
home robbery, killing one of them; murder committed to avoid apprehension and felony
murder aggravators); Austin, 87 S.W.3d 447 (defendant hired another to kill victim;
hiring another to commit murder for remuneration aggravator); Terry, 46 S.W.3d 147
(defendant shot and killed victim; heinous, atrocious, or cruel and murder to avoid
apprehension aggravators); Cauthern, 967 S.W.2d 726 (defendant strangled victim to
death; heinous, atrocious, or cruel aggravator). We have also upheld death sentences
where the defendant cooperated with the police and expressed remorse for the crimes.
See, e.g., Young, 196 S.W.3d 85 (defendant stabbed victim to death; prior violent
felonies, murder to avoid apprehension, and felony murder aggravators); State v. Cole,
155 S.W.3d 885 (Tenn. 2005) (defendant shot victim twice, killing him; prior violent
felony aggravator); State v. Irick, 762 S.W.2d 121 (Tenn. 1988) (defendant raped and
murdered child; victim less than twelve years old, heinous, atrocious, or cruel, murder to
avoid apprehension, and felony murder aggravators).
83
Our close review of the entire record in this case, together with our review of these
and other cases in which the death penalty was imposed and upheld, convinces us that the
death penalties imposed in this case for Defendant’s brutal murders of Renee Jordan,
Jerry Hopper, and David Gordon, are not disproportionate to the penalty imposed for
similar crimes.
VII. Cumulative Error
Our close review of the record in this case has revealed several trial errors. We
have determined that none of these errors, considered singularly, requires reversal of
either Defendant’s convictions or any of his death sentences. However, “the
combination of multiple errors may necessitate the reversal of a death penalty even if
individual errors do not require relief.” State v. Cribbs, 967 S.W.2d 773, 789 (Tenn.
1998). Considering the cumulative effect of the errors we have identified and discussed,
and considering all of the evidence adduced in this case, we are confident that the
combined effect of the trial errors had no impact on the jury’s verdict at either the
guilt/innocence phase or the sentencing phase of Defendant’s trial. Defendant is
therefore entitled to no relief on this basis.
CONCLUSION
In accordance with Tennessee Code Annotated section 39-13-206(c)(1) and the
principles adopted in prior decisions, we have considered the entire record in this case
and conclude that the sentences of death have not been imposed arbitrarily, that the
evidence supports the jury’s finding that the aggravating circumstances outweigh any
mitigating circumstances beyond a reasonable doubt, and that the sentences are not
excessive or disproportionate.
We have reviewed all of the issues raised by Defendant and conclude that they do
not warrant relief. With respect to issues that were raised in this Court but not addressed
in this opinion, including the sufficiency of the evidence supporting Defendant’s
convictions; the failure to videotape Defendant’s statements; the destruction of
Defendant’s urine and blood samples; the admission of photographs; the jury instructions
as to a finding that the aggravating circumstances outweigh the mitigating circumstances;
and the constitutionality of Tennessee’s lethal injection procedure and protocol; we affirm
the decision of the Court of Criminal Appeals. Relevant portions of that opinion are
incorporated herein and attached as an appendix. Defendant’s convictions and sentences,
including all three sentences of death, are affirmed.
84
The sentences of death shall be carried out as provided by law on the 27th day of
September, 2011, unless otherwise ordered by this Court or other proper authority. It
appearing that Defendant David Lynn Jordan is indigent, the costs of this appeal are taxed
to the State of Tennessee.
___________________________________
CORNELIA A. CLARK, JUSTICE
85
APPENDIX
(Excerpts from the Decision of the
Court of Criminal Appeals)
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
September 9, 2008 Session
STATE OF TENNESSEE v. DAVID LYNN JORDAN
Direct Appeal from the Circuit Court for Madison County
No. 05-431 Roy B. Morgan, Jr., Judge
ALAN E. GLENN, J., delivered the opinion of the court, in which NORMA MCGEE
OGLE and CAMILLE R. MCMULLEN, JJ., joined.
George Morton Googe, District Public Defender, Jackson, Tennessee, and Lloyd Tatum,
Henderson, Tennessee, for the appellant, David Lynn Jordan.
Robert E. Cooper, Jr., Attorney General and Reporter; James E. Gaylord, Assistant
Attorney General; James G. Woodall, District Attorney General; and Jody Pickens,
Assistant District Attorney General, for the appellee, State of Tennessee.
ANALYSIS
I. Guilt Phase Issues
A. Sufficiency of the Evidence
The defendant does not challenge the sufficiency of the evidence to support his
convictions for first degree murder.2 Notwithstanding, we have reviewed the evidence
introduced at trial and conclude that there is sufficient evidence contained in the record to
support a finding by the trier of fact that the defendant was guilty of first degree murder
on all three counts beyond a reasonable doubt. Tenn. R. App. P. 13(e).
2
The defendant also did not challenge the sufficiency of the evidence for his convictions of attempted first
degree murder and leaving the scene of an accident.
86
II. Penalty Phase Issues
A. Failure to Videotape Statements
The defendant contends that his rights to a fair trial, including his right to
confrontation, were violated by the interpretations of his confession to the investigator
which was not videotaped. Investigator Tyreece Miller testified that the defendant was
not under the influence at the time of his interview. He added that the defendant was
bragging and proud. The defendant asserts that the police department had video
recording equipment. At trial, Investigator Miller testified that it would have been against
standard operating procedure for him to take the video equipment to the Criminal Justice
Complex. As a result, the defendant’s statement was comprised of the answers to the
questions Investigator Miller asked him, which Miller wrote down. The defendant argues
that had the jurors been privy to the defendant’s actual demeanor when giving his
statement, they could have determined for themselves if the expressions of the defendant
were really those of regret rather than bragging. The defendant concludes that the denial
of electronic or video recording denied the trier of fact an essential tool in determining a
life or death sentence.
In State v. Rollins, 188 S.W.3d 553, 564-65 (Tenn. 2006), our supreme court held
that there was no state or federal constitutional right requiring the electronic recording of
interrogations. Indeed, the court wrote:
In State v. Godsey, 60 S.W.3d 759 (Tenn. 2001), this Court rejected
the argument that failing to electronically record interrogations requires
suppression of any statements resulting from the interrogations. We
acknowledged that courts in Alaska and Minnesota require interrogations to
be electronically recorded, id. at 771, but we pointed out that courts in
fifteen other states had refused to impose such a requirement, id. at 772 n.7.
More importantly, we emphasized that “neither the state nor the federal
constitution requires electronic recording of interrogations.” Id. at 771.
Although we found no constitutional or statutory authority
mandating that interrogations be electronically recorded, we recognized in
Godsey that such a rule would reduce the amount of time spent in court
resolving disputes over what occurred during interrogations and relieve the
judiciary of the burden of resolving such disputes. Id. at 772. We further
opined that given “the slight inconvenience and expense associated with
electronically recording custodial interrogations, sound policy
considerations support its adoption as a law enforcement practice.” Id.
Ultimately, however, we held that “the issue of electronically recording
custodial interrogations ‘is one more properly directed to the General
87
Assembly.’” Id. (quoting State v. Odom, 928 S.W.2d 18, 23-24 (Tenn.
1996)). In so holding, we emphasized that “‘[t]he determination of public
policy is primarily a function of the legislature.’” Id. (quoting Griffin v.
Shelter Mut. Ins. Co., 18 S.W.3d 195, 200-01 (Tenn. 2000)).
Id. at 564.
Our supreme court opined that:
whether, as a matter of public policy, Tennessee should mandate electronic
recording of custodial interrogations is a question for the General
Assembly, not this Court. A defendant’s statement need not be suppressed
because a law enforcement agency has adopted a policy against recording
interrogations. Such a policy does not violate the heightened due process
concerns that apply in capital cases.
Id. at 565. Accordingly, we cannot conclude that the defendant’s rights to a fair trial were
violated by the failure to have his statement videotaped. The defendant is not entitled to
relief on this issue.
C. Prosecutorial Misconduct
3. Destruction of Urine and Blood Samples
The defendant claims that his rights to a reliable sentencing determination, as well
as his rights to confrontation, due process, and to present a defense, were violated by the
State’s destruction of urine and blood samples. The defendant asserts that the question of
premeditation and issues regarding sentencing and mitigation were directly affected by
his mental state and involved what effects alcohol and drugs could have had on that
mental state. The defendant contends as constitutional error the fact that the Tennessee
Bureau of Investigation destroyed the blood and urine samples which rendered them
unavailable for further testing and made it impossible to accurately judge his alcohol and
blood content through separate analysis.
In State v. Ferguson, 2 S.W.3d 912, 914 (Tenn. 1999), the Tennessee Supreme
Court addressed the issue as to what factors guide the determination of the consequences
that flow from the State’s loss or destruction of evidence which the accused contends
would be exculpatory. The supreme court answered that the critical inquiry was whether a
trial, conducted without the destroyed evidence, would be fundamentally fair. Id. In
reaching its decision, the Ferguson court noted that its inquiry was distinct from one
under Brady v. Maryland, 373 U.S. 83, 87, 83 S. Ct. 1194, 1196 (1963), and United States
v. Agurs, 427 U.S. 97, 110-11, 96 S. Ct. 2392, 2401 (1976), because those two cases
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addressed “plainly exculpatory” evidence, while Ferguson addressed a situation “wherein
the existence of the destroyed videotape was known to the defense but where its true
nature (exculpatory, inculpatory, or neutral) can never be determined.” 2 S.W.3d at 915.
The court went on to explain that the first step in the analysis is determining
whether the State had a duty to “preserve” the evidence. Id. at 917. “Generally speaking,
the State has a duty to preserve all evidence subject to discovery and inspection under
Tenn. R. Crim. P. 16, or other applicable law.” Id. (footnote omitted). However,
“[w]hatever duty the Constitution imposes on the States to preserve
evidence, that duty must be limited to evidence that might be expected to
play a significant role in the suspect’s defense. To meet this standard of
constitutional materiality, evidence must both possess an exculpatory value
that was apparent before the evidence was destroyed, and be of such a
nature that the defendant would be unable to obtain comparable evidence by
other reasonably available means.”
Id. (quoting California v. Trombetta, 467 U.S. 479, 488-89, 104 S. Ct. 2528, 2533-34
(1984)). Only if the proof demonstrates the existence of a duty to preserve and further
shows that the State has failed in that duty must a court turn to a balancing analysis
involving consideration of the following factors: “1. The degree of negligence involved;
2. The significance of the destroyed evidence, considered in light of the probative value
and reliability of secondary or substitute evidence that remains available; and 3. The
sufficiency of the other evidence used at trial to support the conviction.” Id. (footnote
omitted).
The record reflects that the defendant’s blood and urine samples were taken on
January 11, 2005, and destroyed on January 3, 2006. Between the offense date and the
time the samples were destroyed, the defendant failed to file a motion to preserve the
evidence. During the trial, the defense presented the testimony of Special Agent John W.
Harrison, an analytical toxicologist with the TBI. Special Agent Harrison testified that the
result of the defendant’s urine test was .17, a reading reflecting the consumption of
alcohol. TBI Agent Kelly Hopkins testified that the defendant’s urine was positive for
Citalopram and Benzodiazepines. Special Agent Harrison also testified extensively as to
the metabolism of alcohol.
First, the State is not required to preserve samples taken for the limited purpose of
determining the defendant’s blood-alcohol level. See Trombetta, 467 U.S. at 491, 104 S.
Ct. at 2535. It is common knowledge that human blood is perishable, and specimens of
blood can only be maintained for a short period of time. Also, such evidence would not
be expected to play a significant role in the accused’s defense. Id. Moreover, it appears
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from the record that the TBI acted in good faith and apparently destroyed the blood
specimen in conformity with the established procedures of the laboratory. State v.
Brownell, 696 S.W.2d 362, 363-64 (Tenn. Crim. App. 1985); State v. Dowell, 705
S.W.2d 138, 141-42 (Tenn. Crim. App. 1985). The evidence did not possess any
exculpatory value that was apparent prior to its destruction, as the test results were
available. Accordingly, the TBI had no duty to preserve the evidence beyond its
established procedures. Moreover, even if the State had a duty to preserve the blood
sample and failed to do so, the defendant has failed to demonstrate that his right to a fair
trial was affected by the destruction of the evidence. See Ferguson, 2 S.W.3d at 917.
“[T]he mere loss or destruction of evidence does not constitute bad faith.” Edward
Thompson v. State, No. E2003-01089-CCAR3-PC, 2004 WL 911279, at *2 (Tenn. Crim.
App. Apr. 29, 2004), perm. to appeal denied (Tenn. Oct. 4, 2004).
The second factor is the significance of the missing evidence. The defendant has
not offered any proof that the State acted improperly in collecting or testing his blood. It
is undisputed that the defendant consented to have his blood drawn and the specimen
provided to the officer for the purpose of drug and alcohol testing. At trial, the defendant
presented the testimony of Special Agent Harrison, as we have stated, and there was no
evidence of tampering prior to testing. The defendant has failed to offer any evidence
that the test results reported by Agent Harrison do not accurately reflect the contents of
his blood and urine.
Finally, because there is no indication that additional testing of the defendant’s
blood and urine would have yielded results different from those found by the TBI, it
cannot be said that evidence critical to the defense was excluded. Moreover, as it was the
defendant who introduced the test results at trial, he cannot complain that he was deprived
of his right to present a defense. The defendant is not entitled to relief on this claim.
F. Introduction of Photographs
The defendant argues that the photographs admitted during the penalty phase were
“overly prejudicial and gruesome.” Specifically, the defendant argues that exhibit 141, a
photograph of the TDOT office depicting blood in the corner was “gruesome and
prejudicial.” Without singling out any of the other photographic exhibits, the defendant
argues, without elaboration, that they are “overly prejudicial and gruesome.”
Before entry into evidence of the photographs that the defendant argues were
prejudicial, the trial court conducted a lengthy hearing, during which the court examined
each of the photographs which the State sought to enter, heard the arguments of counsel
as to each photograph, and then ruled as to each photograph. As to all of the photographs,
the State explained what each depicted and its relevance to the State’s burden of proof.
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The defense responded that, as to the injuries to the deceased victims, the autopsy reports
sufficiently explained the nature and extent of the injuries so that the photographs, some
of which defense counsel described as “gory,” would prejudice the defendant.
As to the photographs of the deceased victim, David Gordon, the court required
that the State remove several of the photographs intended to be entered into evidence and
explained the relevance of the others:
I don’t want any duplication on the Gordon photos. For example, the
last two photos in the area that [defense counsel] was not certain if he was
pronouncing it right, take one or two of those out, and there might be one
other one that shows the same thing. But definitely on the last two I want
the State to make a decision.
I want to make it very clear that as I view the diagram referred to by
[defense counsel], there’s such a substantial difference in appreciating the
type of injuries sustained in the diagram versus seeing in the photos, and
again the Court finds that it is very probative in this case, and since we’re at
a sentencing hearing and the State’s arguing certain aggravators, . . .
probative value outweighs the prejudicial effect under these circumstances.
General, show us which one you’re going to pull out. Take it out.
And at the very first there might have been two that were somewhat of a
duplication.
As to the two photographs of the wounded victim, [James] Goff, the court
explained why these would be admitted:
Well[,] the aggravating factor [the prosecutor] stated was the
Defendant knowingly created a great risk of death to two or more persons
other than the victim murdered during the act of murder, and that’s the one
alluded to, and the State says this would be relevant to that particular
aggravator.
Under the circumstances for again the reasons I stated earlier, I
believe it would be appropriate because the State wants to use it toward the
proof of aggravator. There are only two photos here.
The court explained why the two photographs of the wounded victim, Larry
Taylor, would be admitted:
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The Court’s viewing those two photos of Larry Taylor. It’s very
limited photos in that there’s a draping, a white cloth around each of the leg
wounds. There is a small amount of blood on the white cloth, but it’s
certainly not grotesque or something that would in itself outrage the jury.
Again, we’re at a sentencing hearing, and since the State is wanting to use
these two photos for the same reason, I’ll stand on the basis I stated earlier
when we first talked about photos and let those two photos be introduced at
this time, but again, note [defense counsel] now raises the same objection
that he stated when we began.
As to the photographs of the deceased victim, Donna Renee Jordan, the court
determined that certain of the photographs would not be admitted because they were
duplicative and required that portions of others be covered. The court allowed only one
photograph of the victim’s body at the crime scene and explained why others were
admissible:
Again, under the Leach case, it was certainly made clear that certain
photos might be very unpleasant, but again, we’re dealing with the
sentencing phase, and we’re dealing with the burden on the State. The jury
has heard quite a bit of detail through the guilt phase before they found this
Defendant guilty of first degree murder about what took place, the firing
sequence. I just believe when you weigh probative and prejudicial in this
case, again noting it’s the sentencing phase, it’s highly, highly probative as
the aggravators that the State has pointed out and must prove. I’ll allow the
one photo in. And I’ll note, this is the only one from the crime scene that
the State is asking to show under these circumstances.
The admission of photographs is generally discretionary with the trial court and,
absent an abuse of that discretion, will not result in the grant of a new trial. State v.
Banks, 564 S.W.2d 947, 949 (Tenn. 1978). However, a photograph must be relevant to
an issue that the jury must decide before it may be admitted into evidence. State v. Vann,
976 S.W.2d 93, 102 (Tenn. 1998); State v. Braden, 867 S.W.2d 750, 758 (Tenn. Crim.
App. 1993); see also Tenn. R. Evid. 401, 402. Evidence that is not relevant to prove
some part of the prosecution’s case should not be admitted solely to inflame the jury and
prejudice the defendant. Additionally, the probative value of the photograph must
outweigh any unfair prejudicial effect that it may have upon the trier of fact. Vann, 976
S.W.2d at 102-03; see also Tenn. R. Evid. 403 (“Although relevant, evidence may be
excluded if its probative value is substantially outweighed by the danger of unfair
prejudice[.]”).
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While it can be said that photographs of crime victims who suffer serious bodily
injury are prejudicial by their very nature, a prejudicial photograph is not per se
excludable. What is excluded is evidence which is unfairly prejudicial, in other words,
evidence which has an undue tendency to suggest a decision on an improper basis,
frequently, though not necessarily, an emotional one. Banks, 564 S.W.2d at 951.
Exhibit 141 is a photograph of the crime scene which shows a puddle of blood on
the floor and Renee Jordan’s arm. The trial court determined that the photograph was
relevant and not prejudicial. We agree. Moreover, this court cannot conclude that Exhibit
141 was particularly gruesome or inflammatory. Thus, we conclude that the probative
value of the photograph is not outweighed by its prejudicial effect, and the trial court did
not abuse its discretion in allowing its admission. Further, it does not affirmatively
appear that the “admission of the photograph[ ] has affected the results of the trial.” See
Banks, 564 S.W.2d at 953. The defendant is not entitled to relief on this issue.
As to the remaining photographs which are not specifically challenged on appeal,
this court takes notice of the following proceedings in the trial court. See Tenn. R. App.
P. 27. Out of the presence of the jury, the prosecution revealed to the trial court the
collective photographs it planned to introduce during the penalty phase. The first set of
photographs was described as follows:
1. A photograph of David Gordon, post-mortem, showing an abrasion to
the right side of his forehead taken at the medical examiner’s office.
2. A photograph of David Gordon on a table showing injuries to his right
arm and right abdomen. A surgical scar is also visible.
3. A photograph of David Gordon revealing in detail impact of a wound
resulting from asphalt. The photograph also shows injuries to the abdomen,
showing the gunshot wounds.
4. A photograph of the right hip area of David Gordon showing gunshot
wounds and also evidence of an intermediate target striking his legs.
5. A photograph of David Gordon showing injury to the left abdomen,
showing approximately three gunshot wounds. Also, there is evidence of
surgical scars present in the photograph.
6. A photograph of David Gordon’s buttocks’ region, showing in detail the
gunshot wounds. Also visible are wounds to the left hip and left torso area.
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7. A photograph of David Gordon’s buttocks’ region. Also visible are
wounds to the right hip and upper right thigh.
8. A photograph showing a close-up of the wounds of David Gordon
showing injuries to the peritoneum, the area between the scrotum and the
rectum.
Defense counsel objected to this set of photographs stating that “some of these
photographs are quite gory.” A specific complaint was made to the photograph of David
Gordon’s peritoneum. In reviewing this set of photographs, the trial court determined that
the photographs were probative in regards to establishing the type of injuries sustained.
In this regard, the lower court found that the probative value outweighed the prejudicial
effect.
A second set of photographs was described as follows: “photograph taken at the
ER showing James Goff, and particularly the injury to his submandibular region.” The
defendant objected to this set of photographs, stating that the photographs were not those
of the deceased. He added that it was prejudicial and improper to show a photograph of a
wounded person to the jury in this case. The trial court determined that the photograph
was relevant to the State’s alleged aggravator that the defendant knowingly created a
great risk of death to two or more persons other than the victim murdered.
A third set of photographs depicted injuries sustained to Larry Taylor. The trial
court determined that the photograph was relevant to the State’s alleged aggravator that
the defendant knowingly created a great risk of death to two or more persons other than
the victim murdered.
A fourth set of photographs was described as follows:
1. A photograph of Renee Jordan showing the gunshot wound to the forehead.
2. A photograph of Renee Jordan depicting the entry wound to the back of the
head.
3. A photograph of Renee Jordan depicting an exit wound to the face,
specifically the side of the nostril.
4. A photograph of Renee Jordan depicting the entrance wound to the
forehead and the exit wound.
5. A photograph of the total body of Renee Jordan depicting multiple bullet
wounds to the abdomen and right breast.
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6. A close-up shot of Renee Jordan’s breast.
Reviewing the photographs, the trial court removed duplicitous photographs and
determined that the photographs were admissible in support of the aggravators alleged by
the State.
Additionally, a photograph showing Renee Jordan at the scene lying on the floor
with blood surrounding her head was admitted. The trial court determined that the
photograph was highly probative of the aggravators alleged by the State.
Photographs of a corpse are admissible in murder prosecutions if they are relevant
to the issues at trial, notwithstanding their gruesome and horrifying character. See Banks,
564 S.W.2d at 950-51. In this respect, photographs of murder victims are prejudicial by
their very nature. However, prejudicial evidence is not excludable per se. If this were
true, all evidence of a crime would be excluded at trial. Rather, what is excluded is
evidence which is unfairly prejudicial, in other words, evidence which has an undue
tendency to suggest a decision on an improper basis, frequently, though not necessarily,
an emotional one. Id. at 951.
The photographs admitted by the trial court were relevant to supplement the
testimony of the medical examiner and to support the aggravating circumstances alleged
by the State. See, generally, State v. Cole, 155 S.W.3d 885, 913 (Tenn. 2005) (Appendix).
We conclude that the probative value of the photographs was not outweighed by their
prejudicial effect, and the trial court did not abuse its discretion in allowing their
admission. Further, it does not affirmatively appear that the “admission of the
photographs has affected the results of the trial.” See Banks, 564 S.W.2d at 953. The
defendant is not entitled to relief on this issue.
G. Jury Instruction as to Aggravators and Mitigators
The defendant contends that it was a violation of his right to a jury trial under both
the Tennessee and United States Constitutions and to a reliable result under the Eighth
Amendment for the jury to be instructed that “if aggravators outweigh mitigators beyond
a reasonable doubt, the sentence shall be death.” In the defendant’s view, this instruction
removes jury discretion in the sentencing decision. This argument was addressed and
rejected in State v. Boyd, 797 S.W.2d 589, 596 (Tenn. 1990), where our supreme court
found that “[t]here is no likelihood that this statutory language imposes a ‘presumption of
death.’” See State v. Howell, 868 S.W.2d 238, 258 (Tenn. 1993); State v. Wright, 756
S.W.2d 669, 674 (Tenn. 1988); State v. Teague, 680 S.W.2d 785, 790 (Tenn. 1984).
Accordingly, the defendant is not entitled to relief on this issue.
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I. Lethal Injection Unconstitutional
The defendant asserts that Tennessee’s lethal injection procedure and protocol
violates principles of cruel and unusual punishment. In support of his claim, the
defendant relies upon the United States Supreme Court’s grant of certiorari in Baze v.
Rees, No. 07-5439 (U.S. Sept. 25, 2007) (granting review to determine the
constitutionality of Kentucky’s three-drug lethal injection protocol).
On April 16, 2008, the United States Supreme Court decided Baze v. Rees,
upholding the State of Kentucky’s lethal-injection protocol as not being violative of the
Eighth Amendment. Baze v. Rees, 553 U.S. [35], 128 S. Ct. 1520 (2008). The Supreme
Court’s plurality found that cruel and unusual punishment occurs where lethal injection as
an execution method presents a “substantial” or “objectively intolerable risk of serious
harm” in light of “feasible, readily implemented” alternative procedures. Id. at [51-52],
1531-32. However, the analysis was focused on the manner of lethal injection. Id. at [60-
62], 1537. The Baze Court held:
Kentucky has adopted a method of execution believed to be the most
humane available, one it shares with 35 other States . . . [which] if
administered as intended . . . will result in a painless death. The risks of
maladministration . . . such as improper mixing of chemicals and improper
setting of IVs by trained and experienced personnel - cannot remotely be
characterized as “objectively intolerable.” Kentucky’s decision to adhere to
its protocol despite these asserted risks, while adopting safeguards to
protect against them, cannot be viewed as probative of the wanton infliction
of pain under the Eighth Amendment.
Baze, 553 U.S. at [62], 128 S. Ct. at 1537-38.
For “the disposition of other cases uncertain,” Chief Justice Roberts stated that
“[a] State with a lethal injection protocol substantially similar to the protocol we uphold
today would not create a risk that meets [the ‘substantial risk’] standard.” Id. at [61], 1537
(emphasis added). The protocol adopted in Kentucky involves the combination of three
drugs: the first, sodium thiopental, induces unconsciousness when given in the specified
amounts and thereby ensures that the prisoner does not experience any pain associated
with the paralysis and cardiac arrest caused by the second and third drugs, pancuronium
bromide and potassium chloride.
Among other things, Kentucky’s lethal injection protocol reserves to
qualified personnel having at least one year's professional experience the
responsibility for inserting the intravenous (IV) catheters into the prisoner,
leaving it to others to mix the drugs and load them into syringes; specifies
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that the warden and deputy warden will remain in the execution chamber to
observe the prisoner and watch for any IV problems while the execution
team administers the drugs from another room; and mandates that if, as
determined by the warden and deputy, the prisoner is not unconscious
within 60 seconds after the sodium thiopental’s delivery, a new dose will be
given at a secondary injection site before the second and third drugs are
administered.
Baze, 553 U.S. at [35], 128 S. Ct. at 1522. Tennessee has adopted a three-drug protocol
for lethal injection similar to that of Kentucky. See, e.g., Baze, 553 U.S. at [44], 128 S.
Ct. at 1527; Workman v. Bredesen, 486 F.3d 896, 902 (6th Cir. 2007); Abdur’Rahman v.
Bredesen, 181 S.W.3d 292, 314 (Tenn. 2005). Therefore, we are unable to conclude that
Tennessee’s lethal injection procedure, which appears facially similar to the procedure
considered in Baze, is unconstitutional. The defendant is not entitled to relief on this
claim.
______________________________
ALAN E. GLENN, JUDGE
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