State v. Carter

IN THE SUPREME COURT OF TENNESSEE
AT JACKSON
April 8, 2003 Session

STATE OF TENNESSEE v. PRESTON CARTER

Automatic Appeal from the Court of Criminal Appeals
Criminal Court for Shelby County
No. 93-09760 and 93-09761 Jon Kerry Blackwood, Judge

No. W2000-02204-SC-DDT-DD - Filed September 18, 2003

The appeal in this capital case arises from the resentencing of Preston Carter, who originally pleaded
guilty and was sentenced to death in 1995 for the felony murders of Thomas and Tensia Jackson.
On appeal, this Court reversed the death sentences because the jury had used an outdated verdict
form containing the incorrect burden of proof. See State v. Carter, 988 S.W.2d 145 (Tenn. 1999).
Following a resentencing hearing, the jury again imposed a sentence of death on both counts, and
the Court of Criminal Appeals affirmed. On automatic appeal under Tennessee Code Annotated
section 39-13-206(a)(1), we designated the following issues for oral argument:1 (1) whether the trial
court abused its discretion in admitting photographs of the victims’ bodies; (2) whether the trial court
committed reversible error in excluding certain mitigating evidence; (3) whether the admission of
victim impact evidence violated the constitutional provisions against ex post facto laws; and (4) all
other issues mandated by Tennessee Code Annotated section 39-13-206(c)(1). Having carefully
reviewed these issues, we hold that none warrants reversal of the sentences of death. Accordingly,
we affirm the Court of Criminal Appeals.

Tenn. Code Ann. § 39-13-206(a)(1) (1991 & Supp. 1993);
Judgment of the Court of Criminal Appeals Affirmed

JANICE M. HOLDER, J., delivered the opinion of the court, in which FRANK F. DROWOTA , III, C.J.,
and E. RILEY ANDERSON and WILLIAM M. BARKER, JJ., joined. ADOLPHO A. BIRCH, JR., J., filed a
dissenting opinion.

James A. Simmons and Thomas F. Bloom, Nashville, Tennessee, for the appellant, Preston Carter.

Paul G. Summers, Attorney General and Reporter; Michael E. Moore, Solicitor General; and
Elizabeth T. Ryan, Assistant Attorney General, for the appellee, State of Tennessee.

1
“Prior to the setting of oral argument, the Co urt shall review the record and briefs and consider all errors
assigned. The Court may enter an order designating those issues it wishes addressed at oral argument . . . .” Tenn. R.
Sup. Ct. 12.2.
 OPINION

FACTUAL BACKGROUND

During the early morning hours of May 28, 1993, Carter, accompanied by Darnell Ivory and
Louis Anderson, went to a Memphis apartment complex where Thomas and Tensia Jackson resided
with their young daughter, Tierney.2 The three men were under the mistaken belief that the
Jacksons’ apartment was the residence of a drug dealer whom they intended to rob. Carter and
Anderson knocked on the door of the Jacksons’ apartment. Mr. Jackson came to the door but did
not open it. Carter and Anderson asked Mr. Jackson “if he [had] anything.” Mr. Jackson replied that
he did not know what they were talking about, and he refused to open the door. The men quickly
realized they had the wrong apartment. Nevertheless, after handing a sawed-off shotgun to
Anderson, Carter kicked in the apartment door.

Carter and Anderson entered the Jacksons’ apartment and demanded money. Mr. Jackson
was told to call for his wife to “come out” and was forced into a closet. As Carter searched the
apartment for money or drugs, Anderson raped Mrs. Jackson. According to Carter, Mr. Jackson
came at him in an apparent attempt to defend his family. Carter admitted, however, that he shot Mr.
Jackson while Mr. Jackson was crouching in his daughter’s bedroom closet. Carter shot him at
point-blank range with the sawed-off shotgun. Mr. Jackson’s brain was literally blown out of his
skull, and he died instantly. Next, Carter found Mrs. Jackson in the bathroom. She was clad only
in a t-shirt, and she was screaming, “Please don’t shoot me. I’ll do anything. Please don’t shoot.”
Ignoring her pleas to live, Carter shot Mrs. Jackson at close range as she lay on the bathroom floor.
The shotgun pellets entered her left eye, and her brain exploded. She also died instantly.

Shortly before 4:00 a.m., three of Mr. Jackson’s co-workers arrived at the Jacksons’
apartment to pick him up for work at a local bakery. Among the co-workers were Mrs. Jackson’s
brother, Derrick Lott, and Thomas Jackson’s brother, Kenneth Jackson. They found the front door
to the Jacksons’ apartment kicked in and the master bedroom ransacked. Mr. Lott discovered the
Jacksons’ daughter lying in a pool of blood in the closet with her dead father. The child had not been
physically injured.

On the evening of May 28, 1993, the date of the double homicide, Carter was arrested. He
gave a statement to police admitting that he shot Mr. and Mrs. Jackson. The sawed-off shotgun
Carter used was found in his apartment, and he admitted using this weapon to shoot the two victims.

In addition to proof regarding the circumstances of the murders, the State introduced
evidence at the resentencing hearing that Carter had previously been convicted of aggravated robbery
with a shotgun.

2
The name of the Jacksons’ daughter is sometimes spelled “Tyranny” in the record. There is also some
uncertainty as to the child’s age at the time of the murders. She was either two or three years old.

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 The State also presented victim impact evidence from two witnesses. Betty Mister, Tensia
Jackson’s mother, testified that she and her husband have custody of the Jacksons’ daughter. Ms.
Mister stated that Tierney misses her parents very much and wishes she could share her
accomplishments with them. Ms. Mister explained that Thomas and Tensia Jackson had been high
school sweethearts and that Mr. Jackson was “like a son of mine.” Tensia and her mother shared a
very close relationship. Ms. Mister told how Tensia, Ms. Mister’s firstborn child, helped to care for
her three younger siblings. Tensia Jackson’s siblings were deeply affected by her death. According
to Ms. Mister, Tensia was extremely close to her brother, Derrick Lott, and Tensia’s death “tears him
apart.” Ms. Mister said that the Jacksons’ deaths created a void, especially at family gatherings and
holidays. She concluded, “You know, they are missing very much in our lives.”

Kenneth Jackson, the second victim impact witness, was the older brother of Thomas
Jackson. He had worked with his brother at the bakery, and they had carpooled to work each
morning. Kenneth Jackson was present when the bodies of Thomas and Tensia Jackson were
discovered. He testified that Thomas and Tensia “were just in love with each other.” He described
Thomas as a beautiful, good-hearted man who had never been to jail or to “a club.” According to
Kenneth Jackson, Thomas’s main priority had been his wife and his daughter.

In mitigation, Carter presented the testimony of Dr. Joseph Charles Angelillo, a clinical
psychologist. Dr. Angelillo interviewed Carter prior to the re-sentencing hearing, reviewed
background materials such as Carter’s school records and interviews with Carter’s friends and
family, and administered three tests to Carter. Dr. Angelillo testified that the first test, the Wechsler
Adult Intelligence Scale, revealed that Carter had a full scale I.Q. of 78, which was described as
being in the “borderline range.” Scores below the “borderline” indicate mild retardation. The
second test, the Woodstock Johnson Test of Achievement, measures a person’s current knowledge.
This test showed Carter’s proficiency in mathematical calculations at grade level 7.3, in applied
mathematics at grade 5.8, in verbal encoding at grade 7.6, and in reading comprehension at grade
11, with a broad scale reading score at the seventh grade level. The third test, the Millon Clinical
Multiaxial Inventory, Third Edition, a personality test, showed that Carter has “generalized anxiety
disorder” and obsessive-compulsive personality traits. This test also showed that Carter has
histrionic personality features, typified by a dramatic and shallow personality and difficulty
empathizing with others. According to this test, Carter also possesses schizotypal personality
features characteristic of persons who prefer solitude and exhibit eccentric behavior and beliefs. On
cross-examination, Dr. Angelillo conceded that Carter is not mentally retarded.

The next witness was Carter, who testified that he had gone through the eighth grade in
school and that at the time of resentencing he was twenty-nine years of age and had three children
– two boys, eight and seven years old, and a girl, aged nine. He stated that he married in March of
2000 and that his wife visits him in prison on a weekly basis. Carter testified that he had been
drinking alcohol and using marijuana all day prior to the double homicide and that he retrieved the
sawed-off shotgun from his apartment when he, Anderson, and Ivory decided to commit a robbery.
He admitted killing Mr. and Mrs. Jackson, but he asserted that he did not intend to kill anyone when
he first went to the apartment. Carter conceded, however, that he knew very soon after he arrived

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at the Jacksons’ residence that he was at the wrong apartment but that he nonetheless decided to rob
the victims.

Carter stated that he did not know why he murdered the Jacksons, and he asked for
forgiveness from the victims’ families. Carter testified that he had changed since his former days
of “just drinking and using drugs and taking things that I wanted.” As a result, Carter legally
changed his name to “Akil Jahi.” “Akil,” he explained, means “one who uses reason,” and “Jahi”
means “dignity.” Carter testified that his years in prison taught him “[h]ow precious life is,” how
to “respect other people and respect authority,” and “how to love and [have] compassion toward
people.” He thinks about the Jacksons all the time, and he asked to be permitted to help others avoid
doing what he had done. He has had no disciplinary problems while on death row and missed
passing the G.E.D. exam by a single point. He writes poetry and participates in twice-weekly
Christian worship services. On cross-examination, Carter admitted that he had been convicted of
breaking into and burglarizing a vehicle in 1991 and that he was on probation for a theft conviction
when he murdered the Jacksons.

Two employees of the Riverbend Maximum Security Institution, where Carter is on death
row, also testified. Brenda K. Morrison, the Inmate Relations Coordinator, testified that Carter poses
no disciplinary problems. According to Ms. Morrison, Carter achieved the least restrictive security
rating in the shortest possible time. Ms. Morrison described Carter as being “very helpful.” In her
opinion, Carter “would not have a problem fitting in with the general [prison] population [if a
sentence of life were returned].” The second witness, Cheryl Donaldson, a counselor for death row
inmates, had daily interaction with Carter for over four years when he worked in an area near her
office. Ms. Donaldson testified that Carter never exhibited any violent tendencies and she found him
to be trustworthy.

The final mitigation witness was the Reverend Melita Padilla, an ordained United Methodist
minister. Ms. Padilla began visiting Carter in 1996 when she was a student at Vanderbilt Divinity
School. She visited Carter in prison on a regular basis as part of a program for visitation with death
row prisoners. Carter initiated the visitation by placing his name on a list of inmates wishing to
receive religious visitors. Ms. Padilla testified that she saw Carter grow as a person, both spiritually
and intellectually, during their acquaintance. She read into evidence a letter that Carter had written
to her.

Based on this proof, the jury found that the State had proven beyond a reasonable doubt the
following two aggravating circumstances applicable to the murders of both Thomas and Tensia
Jackson: “The defendant was previously convicted of one (1) or more felonies, other than the
present charge, whose statutory elements involve the use of violence to the person” and “The murder
was especially heinous, atrocious, or cruel in that it involved torture or serious physical abuse beyond
that necessary to produce death.” Tenn. Code Ann. § 39-13-204(i)(2), (5) (1991 & Supp. 1993). In
addition, the jury found that the State had proven that the aggravating circumstances outweighed any
mitigating circumstances beyond a reasonable doubt. As a result, the jury sentenced Carter to death
on both counts.

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 PHOTOGRAPHS OF VICTIMS’ BODIES

Three color photographs of the victims’ bodies at the crime scene were admitted into
evidence at the resentencing hearing. Two of these photographs were also admitted at the first
sentencing hearing. The first photograph shows Mr. Jackson crouched in a closet and covered with
blood. There is a large wound in his head through which part of his brain protrudes. The second
photograph shows Mrs. Jackson lying in a pool of blood on the bathroom floor between the wall and
the commode. The wound to her left eye is visible. The third photograph, which was admitted only
at the resentencing hearing, shows Mrs. Jackson lying on the bathroom floor in a pool of blood.
Unlike the second photograph, it shows Mrs. Jackson unclothed from the waist down.

In the first appeal, the Court of Criminal Appeals held that the trial court did not abuse its
discretion in admitting the first two photographs. Although the issue was raised in this Court in the
first appeal, we did not address the issue. In the appeal of Carter’s resentencing, the Court of
Criminal Appeals held that, under the doctrine of the “law of the case,” the appeal was governed by
its prior ruling upholding the trial court’s admission of the first two photographs. The Court of
Criminal Appeals held that the third photograph was admissible as evidence of the circumstances
of the crimes. The court noted that the third photograph was not unfairly prejudicial because the
portion of the photograph showing the unclothed part of Mrs. Jackson’s body was obscured by
shadow.

Carter argues that the photographs were unfairly prejudicial to him because they are
gruesome and graphic and have marginal evidentiary value. Carter further contends that the
photographs should not have been admitted because they were cumulative to evidence conveyed
through the testimony of witnesses. Finally, Carter asserts that an exception to the law of the case
doctrine applies because the prior ruling of the Court of Criminal Appeals upholding the trial court’s
admission of the first two photographs was clearly erroneous.

Under the doctrine of the law of the case, when an initial appeal results in a remand to the
trial court, the decision of the appellate court establishes the law of the case, which must be followed
upon remand by the trial court and by an appellate court on a second appeal. See State v. Jefferson,
31 S.W.3d 558, 561 (Tenn. 2000) (citing Memphis Publ’g Co. v. Tenn. Petroleum Underground
Storage Tank Bd., 975 S.W.2d 303, 306 (Tenn. 1998)). However, an issue decided in a prior appeal
may be reconsidered if: (1) the evidence offered at the hearing on remand was substantially different
from the evidence at the first proceeding; (2) the prior ruling was clearly erroneous and would result
in a manifest injustice if allowed to stand; or (3) the prior decision is contrary to a change in the
controlling law occurring between the first and second appeal. See id.

In the first appeal, this Court neither addressed nor decided by implication the issue of the
admission of the photographs. Therefore, the Court of Criminal Appeals properly applied the law
of the case doctrine in upholding the trial court’s admission of the first two photographs, even though
this Court reversed and remanded for a new sentencing hearing on another ground. Cf. Ladd v.
Honda Motor Co., 939 S.W.2d 83, 91 (Tenn. Ct. App. 1996) (holding that law of the case doctrine

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does not apply to intermediate appellate court opinions that have been reversed and vacated). As
explained below, Carter has failed to show that the prior ruling of the Court of Criminal Appeals was
clearly erroneous. Therefore, the Court of Criminal Appeals did not err in applying the law of the
case doctrine to the issue of the admissibility of the first two photographs. Because this Court
previously did not consider the admissibility of the photographs and did not decide the issue by
implication, the law of the case doctrine does not control our review of the issue.

Tennessee courts have consistently followed a policy of liberality in the admission of
photographs in both civil and criminal cases. See State v. Banks, 564 S.W.2d 947, 949 (Tenn.
1978). The general rule, announced in Banks, is that photographs of a murder victim’s body are
admissible if they are “relevant to the issues on trial, notwithstanding their gruesome and horrifying
character.” Id. at 950-51. In addition, the admissibility of evidence at the resentencing hearing in
this case is governed primarily by Tennessee Code Annotated section 39-13-204(c) (1991 & Supp.
1993), which provides:

In the sentencing proceeding, evidence may be presented as to any
matter that the court deems relevant to the punishment and may
include, but not be limited to, the nature and circumstances of the
crime; the defendant’s character, background history, and physical
condition; 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 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.

Accordingly, any evidence relevant to the circumstances of the murder, the aggravating
circumstances relied upon by the State, or the mitigating circumstances is admissible if such
evidence has probative value in the determination of punishment. See State v. Teague, 897 S.W.2d
248, 250 (Tenn. 1995). This statute does not require, however, that the rules of evidence be
completely disregarded. The trial court retains its traditional role in controlling the introduction of
evidence, and it may continue to use the rules of evidence to guide its decisions regarding
admissibility of evidence in capital sentencing proceedings. See State v. Sims, 45 S.W.3d 1, 14
(Tenn. 2001).

We conclude that the three photographs at issue are relevant as background information
because they accurately depict the nature and circumstances of the crimes. The introduction of
background information regarding the nature and circumstances of the crime is especially important
in cases such as the one before us in which the defendant pleaded guilty. In such cases, the

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sentencing jury does not have the benefit of proof normally introduced in the guilt phase of the trial.
In this procedural posture, the parties are “entitled to offer evidence relating to the circumstances of
the crime so that the sentencing jury will have essential background information ‘to ensure that the
jury acts from a base of knowledge in sentencing the defendant.’” State v. Adkins, 725 S.W.2d 660,
663 (Tenn. 1987) (quoting State v. Teague, 680 S.W.2d 785, 788 (Tenn. 1984)).

We conclude that the photographs are also relevant for the purpose of establishing the
“heinous, atrocious, or cruel” aggravating circumstance for both murders. See Tenn. Code Ann.
§ 39-13-204(i)(5) (1991 & Supp. 1993). The (i)(5) circumstance states: “The murder was especially
heinous, atrocious, or cruel in that it involved torture or serious physical abuse beyond that necessary
to produce death.” Id. This Court has repeatedly held that photographs relevant to proving the
aggravating circumstance that the murder was especially heinous, atrocious, or cruel are admissible
in the penalty phase. See State v. Hall, 976 S.W.2d 121, 162 (Tenn. 1998) (appendix); State v.
Porterfield, 746 S.W.2d 441, 450 (Tenn. 1988); State v. McNish, 727 S.W.2d 490, 495 (Tenn. 1987).
We have held that the anticipation of physical harm to oneself is torturous. See Carter, 988 S.W.2d
at 150; State v. Nesbit, 978 S.W.2d 872, 886-87 (Tenn. 1998); State v. Hodges, 944 S.W.2d 346, 358
(Tenn.), cert. denied, 522 U.S. 999 (1997). The contested photographs aid in establishing that the
victims suffered torture in the form of severe mental anguish. The jury could infer from these
photographs that both victims anticipated physical harm. Mental torture also occurs when a victim
hears or anticipates the harm or killing of a spouse and is helpless to assist. See Carter, 988 S.W.2d
at 150-51. The jury could reasonably infer from the testimony that Mr. Jackson knew or strongly
suspected that his wife was being raped and that he was prevented from helping her. The photograph
showing Mrs. Jackson’s partially nude body corroborates her rape and is therefore also probative on
the question of mental torture. Likewise, the photograph showing Mr. Jackson’s body in the closet
corroborates testimony that the couple was separated during the violent attack. The jury could
reasonably infer from the testimony and the photographs that Mrs. Jackson was likewise helpless to
assist her husband and that she heard the shot that killed him while in fear for her own life.

We further conclude that the probative value of the photographs was not substantially
outweighed by the danger of unfair prejudice. We do not consider the photographs excessively
gruesome or shocking, especially in light of the graphic testimony in this case. Moreover, while the
photographs corroborate testimony presented at the sentencing hearing, the information sought to
be conveyed by the photographs, even if cumulative, is clearly admissible. See State v. Morris, 24
S.W.3d 788, 811 (Tenn. 2000) (appendix) (stating that “a relevant photograph is not rendered
inadmissible merely because it is cumulative”); see also State v. Van Tran, 864 S.W.2d 465, 477
(Tenn. 1993), cert. denied, 511 U.S. 1046 (1994) (holding that color photographs of deceased
victims at crime scene were admissible despite introduction of extensive color videotape showing
victims’ bodies as they were found); State v. Brown, 836 S.W.2d 530, 551 (Tenn. 1992) (concluding
that photographs of the victim’s body were admissible despite oral testimony “graphically”
describing victim’s injuries). Accordingly, we hold that the trial court did not abuse its discretion
in admitting the three photographs into evidence at the resentencing hearing.

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 MITIGATING EVIDENCE

Ms. Padilla testified that Carter sent numerous cards, poems, and letters to her over
approximately four years and that she had brought these documents with her to court. Defense
counsel asked Ms. Padilla to pick one of the letters to read to the jury. The State objected to the
letter as hearsay. The trial court overruled this objection and allowed Ms. Padilla to read to the jury
a letter dated October 12, 1999. In the letter Carter expresses his gratitude to her for teaching him
how to love himself and others. Carter states, “God is . . . our rock that we must keep first as the
head of our everyday life.” Carter also discusses his use of the law library, conversations with
investigators, and the pastor’s possible assistance in his defense.

Defense counsel then attempted to introduce into evidence other letters and poems Carter had
sent to Ms. Padilla. Counsel argued that these additional letters and poems show Carter’s true
feelings in a way Carter would be unable to articulate through his testimony. Among the documents
that the trial court excluded were three cards, six poems, and two letters. These writings reveal
Carter’s religious feelings, his remorse, and his friendship with Ms. Padilla. For example, one small
hand-decorated card says, “We are safe and secure, for we are in the presence of God . . . for I know
whatever challenge we’re going through. [sic] He is with us, every step of the way. Peace, Akil.”
In a letter dated July 11, 1999, Carter tells Ms. Padilla that “I can’t change what happened six years
ago nor can I blame anyone but myself. I have lived a life of sin not to be that person anymore. No
matter how the outcome may be I won’t let go of my Lord’s mighty hands. Because right now my
friend, I owe Him my life.”

Although the trial court found that the additional documents were probative of Carter’s
friendship with Ms. Padilla and of Carter’s religious feelings, the court refused to admit them into
evidence because these mitigating factors had already been proven through Ms. Padilla’s testimony.
Carter argues that the trial court committed reversible error by excluding the correspondence. For
the following reasons, we hold that the trial court’s refusal to admit into evidence the proffered
correspondence between Carter and his pastor was error but that the error is harmless beyond a
reasonable doubt.

Mitigating evidence includes “any aspect of a defendant’s character or record and any of the
circumstances of the offense that the defendant proffers as a basis for a sentence less than death.”
Lockett v. Ohio, 438 U.S. 586, 604 (1978). Both the Eighth and Fourteenth Amendments to the
United States Constitution and Article I, section 16 of the Tennessee Constitution require the
sentencing body in capital cases to consider mitigating evidence. See McKoy v. North Carolina, 494
U.S. 433, 442 (1990); State v. Cauthern, 967 S.W.2d 726, 738 (Tenn. 1998); State v. Odom, 928
S.W.2d 18, 30 (Tenn. 1996); State v. Teague, 897 S.W.2d 248, 255 (Tenn. 1995). Consistent with
these constitutional dictates, Tennessee Code Annotated section 39-13-204(c) provides that evidence
tending to establish any mitigating factors is admissible in a capital sentencing hearing. Such
mitigating factors need not be specifically listed in the statute. Tennessee Code Annotated section
39-13-204(j)(9) provides for the admissibility of “any other mitigating factor which is raised by the
evidence . . . .” Tennessee Code Annotated section 39-13-204 thus provides for the liberal admission

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of mitigation evidence in the penalty phase and ensures that a jury will have as much information
as possible in making its sentencing determination.

Carter argues that the proffered correspondence was relevant as a “potential basis upon which
a juror could decline to impose the death penalty” and should have been admitted into evidence.
Cauthern, 967 S.W.2d at 738-39. We agree. It is well established that “the sentencer may not refuse
to consider or be precluded from considering ‘any relevant mitigating evidence.’” Skipper v. South
Carolina, 476 U.S. 1, 4 (1986) (quoting Eddings v. Oklahoma, 455 U.S. 104, 114 (1982)). The
writings that Carter sought to introduce into evidence in this case were probative of his character.
See Penry v. Lynaugh, 492 U.S. 302, 328 (1989) (holding that to ensure reliability that death is the
appropriate punishment the jury must be able to consider and give effect to any mitigating evidence
relevant to a defendant’s background and character or the circumstances of the crime). Accordingly,
we conclude that the writings that Carter sought to introduce into evidence were relevant mitigating
evidence. Thus, it was error for the trial court to exclude the proffered correspondence.

Our analysis does not end here, however. We must next consider whether this error was
harmless. The exclusion of mitigating evidence is an error of constitutional magnitude. See
Cauthern, 967 S.W.2d at 739. It is the State’s burden to prove that the error did not affect the verdict
and, therefore, was harmless beyond a reasonable doubt. See id.

In Cauthern, this Court found that the trial court’s error in refusing to admit a note written
by the defendant’s son was harmless beyond a reasonable doubt because “the essence of the excluded
evidence was presented to the jury in other forms.” Id. The Court concluded that the note in which
the defendant’s son expressed his love and support for his father was presented to the jury through
the defendant’s testimony and a photograph of the defendant with his son. Id.

In the present case, the letter read to the jury, Carter’s testimony, and the testimony of Ms.
Padilla conveyed the essence of the contents of the additional documents sought to be introduced
into evidence. The letter read to the jury reflects Carter’s faith in God and his gratitude to Ms.
Padilla for teaching him to love himself and others. Both Ms. Padilla and Carter testified concerning
Carter’s faith in God. Carter testified that since his incarceration he had learned to respect other
people, to respect authority, and to love and have compassion toward people. He testified about Ms.
Padilla’s visits and about his participation in Christian worship activities each week. He also asked
forgiveness from the victims’ families. The excluded correspondence reaffirms the letter admitted
into evidence as well as the testimony of Ms. Padilla and of Carter.

Carter argues that, unlike the excluded evidence in Cauthern, the State challenged the
substance of the testimony he sought to introduce through the excluded evidence. Carter asserts that
he was primarily relying on the changes that had occurred in his life as mitigation evidence. The
State argued that his new-found religiosity was fraudulent and self-serving. The excluded evidence
could have been used to buttress his mitigation evidence and counter the State’s argument. Carter
therefore contends that the error in excluding the additional letters, poems, and cards cannot be
harmless.

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 We conclude that the content of the excluded correspondence was adequately communicated
to the jury through other evidence, including the October 12 letter, Carter’s testimony, and Ms.
Padilla’s testimony. Based on this evidence, the trial court instructed the jury that it could consider,
among other factors, “remorse,” “religious reformation,” and “spiritual development” as non-
statutory mitigating factors. The trial court’s exclusion of the proffered evidence did not foreclose
the sentencing jury’s consideration of these mitigating factors in determining Carter’s punishment.
Moreover, Carter does not claim that the excluded evidence illustrates any additional mitigating
factors. Furthermore, the excluded evidence would have had little value in rebutting the State’s
arguments challenging the assertions of Carter that he had changed and found God. Accordingly,
we hold that the error in excluding the correspondence was harmless beyond a reasonable doubt.

VICTIM IMPACT TESTIMONY

Carter challenges the admission of victim impact evidence in his case, claiming that its
admission violated the constitutional provisions prohibiting ex post facto laws. He complains that
the pertinent sentencing statute, Tennessee Code Annotated section 39-13-204(c), did not expressly
allow such testimony until 1998, five years after the murders of Thomas and Tensia Jackson had
occurred. He also argues that the principal case discussing the permissible types of victim impact
evidence, State v. Nesbit, 978 S.W.2d 872 (Tenn. 1998), was not decided at the time the crimes were
committed. We rejected a similar argument recently in State v. Reid, 91 S.W.3d 247, 280 (Tenn.
2002).

As we explained in Reid, “the Ex Post Facto Clause does not by its own terms apply to
judicial decisions.” Id.; see generally U.S. Const. art. 1, §§ 9, 10; Tenn. Const. art. I, § 11; Rogers
v. Tennessee, 532 U.S. 451, 456 (2001). Furthermore, only if an alteration of a common law
doctrine of criminal law is “‘unexpected and indefensible by reference to the law which had been
expressed prior to the conduct in issue’” will it violate due process. Reid, 91 S.W.3d at 280 (quoting
Rogers, 532 U.S. at 461). Nesbit did not change existing law nor apply a new interpretation to
Tennessee Code Annotated section 39-13-204, the capital sentencing statute that was in effect when
Mr. and Mrs. Jackson were murdered. See id. Therefore, we conclude, as we did in Reid, that
Carter’s assertion that admitting victim impact evidence constituted an ex post facto violation is
without merit.

MANDATORY REVIEW FACTORS

Tennessee Code Annotated section 39-13-206(c)(1) requires that courts reviewing a sentence
of death for first degree murder determine whether:

(A) The sentence of death was imposed in any arbitrary fashion;

(B) The evidence supports the jury's finding of statutory aggravating
circumstance or circumstances;

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 (c) The evidence supports the jury's finding that the aggravating
circumstance or circumstances outweigh any mitigating
circumstances; and

(D) The sentence of death is excessive or disproportionate to the
penalty imposed in similar cases, considering both the nature of the
crime and the defendant.

Our review of the record confirms that the sentences in this case were not imposed in an arbitrary
fashion. We also conclude that the evidence is sufficient to support the jury’s finding that Carter was
previously convicted of a violent felony, see Tenn. Code Ann. § 39-13-204(i)(2) (1991 & Supp.
1993), and that the murders in this case were heinous, atrocious, or cruel in that they involved mental
torture, see Tenn. Code Ann. § 39-13-204(i)(5) (1991 & Supp. 1993). The proof at the resentencing
hearing revealed that on October 20, 1994, approximately three months prior to his conviction in this
case, Carter was convicted of aggravated robbery by use of a deadly weapon. This evidence is
clearly sufficient to establish that Carter was previously convicted of one or more felonies, other than
the present charge, whose statutory elements involved the use of violence to the person.3 This Court
previously determined that the evidence in this case was sufficient to support the (i)(5) aggravator.
See Carter, 988 S.W.2d at 150-51 (finding proof in the first sentencing hearing sufficient to support
aggravating circumstance (i)(5), particularly as it related to the mental torture present in this case).
The same facts upon which we relied in the initial appeal were presented at the resentencing hearing.
In addition, there has been no substantial change in the law since the previous appeal, and we do not
find our prior ruling erroneous. See State v. Jefferson, 31 S.W.3d 558, 561 (Tenn. 2000).
Accordingly, we reach the same conclusion, that the evidence is sufficient to support the (i)(5)
aggravating circumstance.

We further conclude that the evidence was sufficient to support the jury’s finding that the
aggravating circumstances outweigh the mitigating circumstances beyond a reasonable doubt. In
determining whether the evidence supports the jury’s finding, the proper standard is whether, after
reviewing the evidence in the light most favorable to the State, a rational trier of fact could have
found that the aggravating circumstance(s) outweighed the mitigating circumstance(s) beyond a
reasonable doubt. See State v. Henderson, 24 S.W.3d 307, 313 (Tenn. 2000); State v. Bland, 958
S.W.2d 651, 661 (Tenn. 1997). The evidence is sufficient to support the jury’s decision that the two
aggravating circumstances outweighed, beyond a reasonable doubt, the various mitigating
circumstances presented by Carter (e.g., remorse; rehabilitation since incarceration; lack of future
violent tendencies; opportunity to provide positive benefit to society through ability to have contact
with inmates in general population; children and wife who need their father/husband; borderline

3
The State did not rely on the (i)(2) aggravating circumstance at Carter’s original sentencing hearing. However,
this does not preclude the State from relying on this aggravating circumstance upon resentencing. See State v. Harris,
919 S.W.2d 323, 330-31 (Tenn. 1996) (stating that at resentencing the State may offer pro of of any legally valid
aggravating circumstance); see also Hodges, 944 S.W.2d at 357 (stating that “so long as a defenda nt is convicted of a
violent felony prior to the sentencing hearing at which the previous conviction is introduced, this aggravating
circumstance is applicable”).

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intelligence; schizotypal/personality features, if any; religious reformation; spiritual development;
etc.). Given Carter’s prior conviction for a violent crime against a person, as well as the torturous
manner in which he murdered Thomas and Tensia Jackson, a rational juror could find that the
mitigating circumstances did not outweigh the aggravating circumstances beyond a reasonable doubt.

In conducting a comparative proportionality review as required by Tennessee Code
Annotated section 39-13-206(c)(1)(D), we have previously stated that

we begin with the presumption that the sentence of death is
proportional with the crime of first degree murder. A sentence of
death may be found disproportionate if the case being reviewed is
“plainly lacking in circumstances consistent with those in similar
cases in which the death penalty has previously been imposed.” A
sentence of death is not disproportionate merely because the
circumstances of the offense are similar to those of another offense
for which a defendant has received a life sentence. Our inquiry,
therefore, does not require a finding that a sentence “less than death
was never imposed in a case with similar characteristics.” Our duty
“is to assure that no aberrant death sentence is affirmed.”

State v. Powers, 101 S.W.3d 383, 403 (Tenn. 2003) (quoting State v. Hall, 976 S.W.2d 121, 135
(Tenn. 1998)) (citations omitted). In considering proportionality, we look at the facts and
circumstances of the crimes, the characteristics of the defendant, and the aggravating and mitigating
circumstances involved, and compare the present case with others in which a defendant was
convicted of the same or similar crimes. See State v. Godsey, 60 S.W.3d 759, 782 (Tenn. 2001)
(footnote omitted). The pool from which we select similar cases includes “only 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, regardless of the sentence actually imposed.” Id. at 783.
The following factors are useful in identifying and comparing similar cases: (1) the means and
manner of death; (2) the motivation for killing; (3) the place of death; (4) the similarity of the victims
and treatment of the victims; (5) the absence or presence of premeditation, provocation, and
justification; and (6) the injury to and effects on non-decedent victims. See Bland, 958 S.W.2d at
667. In comparing defendants, we consider the following non-exclusive factors: (1) prior criminal
history; (2) age, race, and gender; (3) mental, emotional, and physical condition; (4) role in the
murder; (5) cooperation with authorities; (6) remorse; (7) knowledge of helplessness of victim; and
(8) capacity for rehabilitation. See id.

In the present case, Mr. and Mrs. Jackson were innocent victims. The motive for the killings
was robbery. Although Carter acknowledged that he realized the Jacksons were not the drug dealers
he intended to rob, he and Anderson nonetheless terrorized them. Carter ransacked the Jacksons’
apartment looking for money or drugs while his accomplice, Anderson, raped Mrs. Jackson in the

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master bedroom. Mr. Jackson was forced into his daughter’s bedroom closet. Carter shot both
victims in the head, at close range, while their young daughter was present in the apartment.

Carter, who was twenty-four years old at the time he killed Mr. and Mrs. Jackson, confessed
to the murders. Proof was presented that he cooperated with the law enforcement officers
investigating the murders. Carter was convicted of aggravated robbery prior to his conviction in this
case. He is the father of four children and has married since his incarceration. Carter has a
“borderline” I.Q. and has been diagnosed with generalized anxiety disorder, obsessive-compulsive
disorder, and histrionic and schizotypal personality features. He admitted using drugs and alcohol
at the time of the murders. Carter has behaved well in prison, and he has stated that he has learned
to love and respect others. His pastor testified about his spiritual and intellectual growth.

Based upon an exhaustive review of the record and Supreme Court Rule 12 reports from trial
judges in trials for first degree murder, we conclude that the present case is proportionate when
compared to other similar murders in which the death penalty was imposed. The following cases
in which the death penalty was imposed bear similarities to the current case: State v. Stout, 46
S.W.3d 689 (Tenn. 2001) (twenty-year-old defendant shot victim once in the head during course of
robbery, death sentence upheld based upon (i)(2), (i)(6), and (i)(7) aggravating circumstances,
despite evidence that defendant had turned to religion); State v. Sims, 45 S.W.3d 1 (Tenn. 2001)
(defendant and co-defendant were burglarizing victim’s house when victim came home unexpectedly
and defendant shot him in the head, jury applied (i)(2) and (i)(5) aggravators); State v. Chalmers, 28
S.W.3d 913 (Tenn. 2000) (twenty-one-year-old defendant shot victim during robbery and was
sentenced to death based upon the sole aggravating factor that he had previously been convicted of
a violent felony); State v. Smith, 993 S.W.2d 6 (Tenn. 1999) (twenty-three-year-old defendant
admitted to drinking alcohol and taking drugs prior to robbery and murder of victim and cooperated
with authorities, death sentence upheld based upon (i)(2) aggravator); State v. Burns, 979 S.W.2d
276 (Tenn. 1998) (twenty-three-year-old defendant shot and killed victim during robbery, death
sentence upheld based upon (i)(5) aggravator, despite evidence regarding defendant’s religious faith);
State v. Nesbit, 978 S.W.2d 872 (Tenn. 1998) (nineteen-year-old defendant shot and tortured victim
at victim’s house with victim’s young children present, death sentence upheld based upon (i)(5)
aggravator); State v. Cribbs, 967 S.W.2d 773 (Tenn. 1998) (twenty-three-year-old defendant shot
victim once in the head when she and her husband returned home to find the defendant and second
assailant burglarizing their home, death sentence upheld based upon (i)(2) and (i)(7) aggravators);
State v. Howell, 868 S.W.2d 238 (Tenn. 1993) (twenty-seven-year-old defendant shot victim in the
head during robbery of convenience store, death sentence upheld based upon (i)(2) aggravator); State
v. Van Tran, 864 S.W.2d 465 (Tenn. 1993) (nineteen-year-old defendant shot victim in the head
during course of robbery of restaurant, death sentence upheld based upon (i)(5) and (i)(12)
aggravators); State v. Harries, 657 S.W.2d 414 (Tenn. 1983) (thirty-one-year-old defendant shot
victim in the head during the course of robbing a convenience store, death sentence upheld based
upon (i)(2) aggravator). After reviewing these cases, and many others not specifically cited, we
conclude that the penalty imposed by the jury in this case is not disproportionate to the penalty
imposed for similar crimes.

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 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 and conclude that the sentence of
death has not been imposed arbitrarily, that the evidence supports the jury’s finding of the statutory
aggravating circumstances, that the evidence supports the jury’s finding that the aggravating
circumstances outweigh the mitigating circumstances beyond a reasonable doubt, and that the
sentence is not excessive or disproportionate.

We have reviewed all of the issues raised by Carter and conclude that they do not warrant
4
relief. Carter’s sentence of death is affirmed and shall be carried out on the 4th day of February,
2004, unless otherwise ordered by this Court or proper authority. It appearing that the defendant,
Preston Carter, is indigent, costs of this appeal are taxed to the State of Tennessee.

___________________________________
JANICE M. HOLDER, JUSTICE

4
In a supplemental filing, Carter argues for the first time that his sentences of death must be reversed based upon
decisions of the United States Supreme Court in Apprendi v. New Jersey, 530 U.S. 466 (2000), and Ring v. Arizona,
536 U.S. 584 (2002). He contends that according to these decisions the indictment in his case must be dismissed and
his convictions vacated because the aggravating circum stances were not charged in the indictment. Carter asserts that
Tennesse e’s statutory scheme of aggravating circumstances is analogous to that of the Federal Death Penalty Act and
points out that some federal courts have held that aggravating circumstances must be charged in the indictment. See
United States v. Prom ise, 255 F.3d 150 , 152 (4th C ir. 200 1) (drug case); United States v. Lentz, 225 F. Supp. 2d 672,
680 (E.D. Va. 2002) (capital case). Bec ause Carter failed to file a motion seeking permission to raise this supplemental
issue, it could be co nsidered waived . Carter’s argument, however, is without merit. This Court has held that “[n]either
the United States Constitution nor the Tennessee Constitution requires that the State charge in the indictment the
aggravating factors to be relied upon by the State during sentencing in a first degree murder prosecution.” State v.
Dellinger, 79 S .W .3d 4 58, 4 67 (Tenn.), cert. denied, 123 S. Ct. 695 (200 2).

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