State v. Austin

IN THE SUPREME COURT OF TENNESSEE
AT JACKSON
June 4, 2002 Session Heard at Nashville

STATE OF TENNESSEE v. RICHARD HALE AUSTIN

Appeal from the Court of Criminal Appeals
Criminal Court for Shelby County
No. B-58357 C. Creed McGinley, Judge, by Designation

No. W1999-00281-SC-DDT-DD - Filed September 16, 2002

The appeal in this capital case arises from the resentencing of Richard Hale Austin, who originally
was convicted and sentenced to death in 1977 as an accessory before the fact in the premeditated
murder of Julian Watkins. This Court affirmed the conviction and sentence. See State v. Austin,
618 S.W.2d 738 (Tenn. 1981), cert. denied, 454 U.S. 1128 (1981). In 1997 the Sixth Circuit Court
of Appeals granted habeas corpus relief as to Austin’s sentence, holding that counsel was ineffective
at the penalty phase of the original trial. See Austin v. Bell, 126 F.3d 843 (6th Cir. 1997), cert.
denied, 523 U.S. 1079 and 532 U.S. 1088 (1998). Following a resentencing hearing, the jury again
imposed a sentence of death, and the Court of Criminal Appeals affirmed. On automatic appeal
under Tennessee Code Annotated section 39-13-206(a)(1) (1997), we designated the following issues
for oral argument:1 1) whether the trial court committed reversible error in excluding certain
mitigating evidence; 2) whether the trial court committed reversible error in admitting victim impact
evidence; and 3) whether the sentence of death is disproportionate, and all other issues mandated by
Tennessee Code Annotated section 39-13-206(c)(1). Having carefully reviewed these issues and the
remainder of the issues raised by Austin, we conclude that they do not warrant relief. Accordingly,
we affirm the Court of Criminal Appeals in all respects.

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

JANICE M. HOLDER, J., delivered the opinion of the court, in which PANEL: 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.

Frank J. Glankler, Jr. and Robert L. Hutton, Memphis, Tennessee, for the Appellant, Richard Hale
Austin.

1
“Prior to the setting of oral argument, the Co urt shall review the record and briefs and consider all errors
assigned. The Co urt may enter an order designating those issues it wishes addressed at oral argument. . . .” Tenn. R.
Sup. Ct. 12.2.
Paul G. Summers, Attorney General and Reporter; Michael E. Moore, Solicitor General; and Amy
L. Tarkington, Deputy Attorney General, for the Appellee, State of Tennessee.

OPINION

FACTUAL BACKGROUND

In early 1977 Watkins was an undercover agent investigating illegal gambling at the Golden
Cue, Austin’s pool hall in Memphis. Based on Watkins’ work, indictments were returned against
Austin, his wife, and several of his employees and associates, including Terry Lee Casteel. Watkins
was to be the principal witness against them. At the resentencing hearing, Casteel testified for the
State that Austin was upset about the gambling charges and blamed Watkins.2 Austin told Casteel,
“I need to do something about it. I need to take care of him.” Austin eventually hired Jack Charles
Blankenship, an escaped convict, to murder Watkins. On the evening of May 22, 1977, Casteel and
Blankenship drove to Watkins’ house, but Watkins was not at home. Blankenship spent the night
in a trailer owned by Austin’s wife. The next morning Casteel drove Blankenship to Watkins’
automobile body repair shop. Blankenship lured Watkins outside and then fatally shot him in the
head, neck, and chest. Casteel and Blankenship returned to the trailer, where Austin paid
Blankenship $980 for the murder.3

Marilyn Lee Pryor, who worked at the Golden Cue, testified that in early May 1977 Austin
commented that Watkins was an “S-O-B, and that he should have his brains shot out.” Pryor saw
a man fitting Blankenship’s description leave the Golden Cue with Austin and Casteel the night
before Watkins’ murder. The next morning, as Austin and Casteel were leaving the Golden Cue,
Austin told Pryor that “they had to take care of some business.” When Pryor later told Austin that
she had given the police a statement in connection with the murder investigation, he told her that she
was a “stupid, cold bitch and that [she] should have been killed, too.”

In addition to proof regarding the circumstances of the murder, the State introduced victim
impact evidence. Carolyn Watkins-Cupp, Watkins’ widow, testified that the victim had been a
loving, kind, generous, hard-working man who had been active in his community. Steve Watkins,
the youngest of the victim’s three sons, testified that he was eight years old at the time of the murder.
He described his father as everything to him and as good as anyone can be. Both witnesses testified
that Watkins’ death had left an emptiness in the family.

The defense tried to create lingering doubt as to Austin’s involvement in the murder. The
defense theory was that Casteel had hired Blankenship. Levi Haywood, an inmate who had been in

2
Casteel also had testified against Austin in the original trial. At that time Casteel was charge d with first degree
murder in connection with W atkins’ de ath. He eventually pleaded guilty to second degree murder and received a twenty-
year sentence.

3
Austin had agreed to pay $1000, but he subtracted $20 for the case of beer Blankenship had received the night
before the murder.

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jail with Casteel in 1977, testified that Casteel told him that Austin was not involved in Watkins’
murder. Troy Bullock, a friend of Austin, testified that several days before Watkins’ murder Casteel
picked up a piece of paper with Blankenship’s telephone number on it and stated, “I will take care
of this. . . . I’m taking care of [Austin’s] business.”

The defense called Blankenship, the actual killer, to testify on Austin’s behalf.4 After
supporting Austin’s innocence for twenty-two years, Blankenship suddenly and surprisingly
repudiated his prior statements. Blankenship stated that he had lied in the past and would now tell
the truth because he had made his peace with God. Blankenship then testified in detail about the
circumstances of the killing and how Austin had recruited and paid him to murder Watkins.

The defense next introduced testimony from employees of the Department of Correction that
Austin, who at the time of resentencing was almost sixty years old, was a model prisoner and a man
of good character. Austin had only one minor disciplinary write-up in his twenty-two years on death
row and had achieved the highest classification level possible based on good behavior. He was a
teacher’s aide and tutored other inmates for the GED examination. Two retired guards told how
Austin had saved their lives during a prison riot in 1985.

Members of Austin’s family testified that Austin was the fourth of eight children and was a
good pool player. At the time of resentencing, he suffered from diabetes. Despite his long years in
prison, Austin remained in close contact with family members who visited him often. His
stepdaughter described Austin as kind, generous, and honest.

The last witness for the defense was Dr. Mark Cunningham, a clinical and forensic
psychologist, who had evaluated Austin. Dr. Cunningham opined that there was a very high
likelihood that Austin would continue to have a good adjustment to incarceration and a low to very
low likelihood that he would commit acts of serious violence. Dr. Cunningham also stated that
Austin’s presence would tend to reduce overall violence in the prison system.

Based on this proof, the jury found that the State had proven beyond a reasonable doubt the
following aggravating circumstance: “The defendant committed the murder for remuneration or the
promise of remuneration, or employed another to commit the murder for remuneration or the
promise of remuneration.” Tenn. Code Ann. § 39-2404(i)(4) (Supp. 1977).5 In addition, the jury

4
Blankenship, who had pleaded guilty to first degree murder and received a life sentence, did not testify at the
origina l trial.

5
The State also sought the death penalty based on the aggravating circumstance in Tennessee Code Annotated
section 39-2404(i)(6) (Supp. 1977): “The murder was committed for the purpose of avoiding, interfering with, or
preventing a lawful arrest or prosecution of the defendant or another.” The jury did not find this aggravating
circum stance.

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found that the State had proven that the aggravating circumstance outweighed any mitigating
circumstances beyond a reasonable doubt.6 As a result, the jury sentenced Austin to death.

EXCLUSION OF MITIGATING EVIDENCE

Austin challenges the trial court’s exclusion of certain mitigating evidence during the
resentencing hearing. Specifically, Austin contends that the trial court erroneously excluded the
following evidence: 1) a vice squad report requesting indictments based on Watkins’ undercover
gambling investigation; 2) testimony of Terry Casteel that Austin had reported his automobile stolen
while Casteel was using it; 3) testimony of Reverend Joe Ingle about Austin’s actions during a 1985
prison riot; and 4) a 1995 deposition of Jack Charles Blankenship.

The admissibility of evidence at the resentencing hearing in this case is governed primarily
by Tennessee Code Annotated section 39-2404(c) (Supp. 1977) [now section 39-13-204(c) (Supp.
2001)],7 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) below; and any evidence
tending to establish or rebut any mitigating factors. Any such
evidence which the court deems to have probative value on the issue
of punishment may be received 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 of the state of Tennessee.

Under this statute, any evidence relevant to the circumstances of the murder, the aggravating
circumstances of the murder, or the mitigating circumstances, which has probative value in the
determination of punishment, is admissible. State v. Teague, 897 S.W.2d 248, 250 (Tenn. 1995).
Because the exclusion of mitigating evidence potentially undermines the reliability of the sentencing
determination, we review any error in failing to admit such evidence under a constitutional harmless
error standard. See State v. Cauthern, 967 S.W.2d 726, 739 (Tenn. 1998).

6
Austin was not entitled to the “beyond a reasonable doubt” weighing standard because the offense was
committed before the death penalty statute was amended in 1989. Any error in this re gard, howe ver, inured to Austin’s
benefit. See State v. Bush, 942 S.W .2d 489, 506 n.10 (Tenn. 1997 ).

7
The sentencing law at the time the murder was committed is the applicable law. State v. Brimmer, 876 S.W.2d
75, 8 2 (T enn. 1994 ).

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 Vice Squad Report

During the testimony of Floyd Cupp, the defense sought to introduce a vice squad report,
dated March 31, 1977, requesting indictments on several people based on Watkins’ undercover
gambling investigation. Cupp was a retired Memphis police officer who had worked with Watkins
during the undercover gambling investigation and had prepared the report. The defense argued that
the report was evidence of other persons who had a motive for killing Watkins. The trial court
refused to admit the report on the ground that it was hearsay.

Contrary to the ruling of the trial court, hearsay is admissible in a capital sentencing hearing.
See State v. Odom, 928 S.W.2d 18, 28 (Tenn. 1996). The Rules of Evidence should not be applied
to preclude the admission of relevant evidence in a capital sentencing hearing. See State v. Sims, 45
S.W.3d 1, 14 (Tenn. 2001). Because Austin did not offer any evidence linking any of the other
persons named in the vice squad report to Watkins’ murder, the report was of negligible probative
value. However, it was not irrelevant. Evidence concerning other persons who had a motive to kill
Watkins was relevant to support residual doubt as a nonstatutory mitigating circumstance. The trial
court allowed defense counsel to cross-examine Cupp concerning the names contained in the report.
If testimony concerning the content of the vice squad report was relevant enough to be admissible,
then the report was admissible as well. We therefore conclude that the trial court erred in excluding
the report. However, because the essence of the vice squad report was admitted through Cupp’s
testimony, the error in excluding the report itself was harmless beyond a reasonable doubt. See
Cauthern, 967 S.W.2d at 739.

Testimony of Terry Casteel

Terry Casteel testified that he had used Austin’s Cadillac to drive Marilyn Pryor to her home
in Greenwood, Mississippi, two or three days after Watkins’ murder. On cross-examination, defense
counsel asked Casteel if he knew that Austin had reported to the Memphis Police Department that
the automobile had been stolen. After Casteel answered that he had been told that Austin had made
the report, the trial court sustained the State’s hearsay objection. Austin complains that the trial court
erred by excluding as hearsay Casteel’s acknowledgment that Austin reported his automobile stolen.

The defense theory was that Austin would not have alerted the police to look for the
automobile while Casteel was using it if the two men had been accomplices in Watkins’ murder.
Evidence that Austin reported his automobile stolen therefore was relevant to rebut proof that Austin
had orchestrated Watkins’ murder with Casteel and Blankenship. As we indicated above, hearsay is
admissible in a capital sentencing hearing. Therefore, the trial court erred in sustaining the State’s
hearsay objection. We conclude, however, that any error in failing to admit Casteel’s statement was
harmless beyond a reasonable doubt. The jury was unlikely to find that Austin’s reporting the
automobile stolen several days after the shooting rebutted the overwhelming evidence establishing
that Austin and Casteel were accomplices in Watkins’ murder.

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 Testimony of Reverend Joe Ingle

As mitigation proof, Austin presented the videotape depositions of two retired prison guards,
Hardin Green and John Owen, describing Austin’s actions during a 1985 prison riot. Both Green and
Owen testified that Austin protected them and five other guards from inmates in the general
population who had started a riot and were trying to break into the death-row unit. Later, Austin
presented the testimony of Reverend Joe Ingle, a prison minister who had had a pastoral relationship
with Austin for twenty-two years. After relating information about Austin, Ingle was asked to
specifically recall the 1985 prison riot. Ingle explained that his knowledge of the riot was gained
from conversations with John Owen. When Ingle began to relate what Owen had told him, the State
objected. The trial court sustained the objection, finding that Ingle’s testimony was hearsay8 and
duplicated Owen’s testimony.

As a preliminary matter, we note that Austin failed to make an offer of proof concerning
Ingle’s testimony. Under similar circumstances, we have held that the issue is waived. See State v.
Stout, 46 S.W.3d 689, 704 n.10 (Tenn. 2001); see also Sims, 45 S.W.3d at 15. Because Ingle’s
testimony about Austin’s actions during the riot presumably would have mirrored Owen’s testimony,
we conclude that the record is adequate for review. We will therefore address the issue on its merits.

Citing Skipper v. South Carolina, 476 U.S. 1 (1986), Austin contends that Ingle’s testimony
was not cumulative because Ingle was the only live witness presented to testify regarding Austin’s
actions during the riot. In Skipper, the United States Supreme Court determined that mitigating
testimony about the defendant’s good behavior in prison was not cumulative because it came from
disinterested witnesses such as jailers while the earlier evidence had come from the defendant and
his family and was the type of evidence a jury would naturally discount as self-serving. 476 U.S. at
7-8. Unlike Skipper, the jury in Austin’s case already had heard the testimony of two disinterested
witnesses – Green and Owen – concerning the mitigating evidence. Moreover, the excluded
testimony was based on second-hand knowledge, not first-hand observation as in Skipper. Ingle’s
testimony was no less cumulative because the prior testimony was presented by videotape
depositions.

A finding that mitigating evidence is cumulative, however, does not make such evidence
inadmissible. As we have indicated, the Rules of Evidence do not govern the admissibility of
evidence under Tennessee Code Annotated section 39-2404(c) (Supp. 1977) [now
section 39-13-204(c) (Supp. 2001)]. See Sims, 45 S.W.3d at 14. We have found error when a trial
court excluded mitigating evidence on the ground that it was cumulative. See Cauthern, 967 S.W.2d
at 738. In that case, the trial court excluded a letter written to the defendant from his eight-year-old
son expressing love and support. In light of the principles expressed in section 39-13-204(c), we
concluded that the trial court erred in excluding the letter. 967 S.W.2d at 738. We further held,
however, that the error was harmless beyond a reasonable doubt because the essence of the evidence
was presented to the jury in other forms. Id. at 739.

8
As we previously noted, hearsay is admissible in a capital sentencing hearing.

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 In the present case, the excluded evidence was more than cumulative – it was duplicative.
Ingle was not an eyewitness to Austin’s actions during the prison riot. Ingle could only repeat what
Owen had told him. With no offer of proof to demonstrate otherwise, we must assume that Ingle’s
testimony would have consisted of hearsay duplicating Owen’s previous testimony. Notwithstanding
the principles expressed in § 39-2404(c) (Supp. 1977) [now § 39-13-204(c)], a trial court still retains
some discretion in controlling the presentation of proof in a capital sentencing hearing within the
confines of constitutional requirements. See Sims, 45 S.W.3d at 14. Given the duplicative nature
of Ingle’s hearsay testimony, we are unable to conclude that the trial court erred in excluding the
evidence. Furthermore, even if Ingle’s testimony should have been admitted, any error in excluding
the testimony was harmless beyond a reasonable doubt. See Cauthern, 967 S.W.2d at 739.

Deposition of Jack Charles Blankenship

In a deposition taken in 1995 for Austin’s federal habeas corpus proceedings, Blankenship
denied that Austin had any involvement in Watkins’ murder. During the resentencing hearing,
however, Blankenship repudiated his prior statements. To counter Blankenship’s testimony, the
defense cross-examined Blankenship concerning his prior statements and then sought to introduce
as substantive evidence the 1995 deposition of Blankenship in its entirety. The trial court denied the
request but permitted the deposition to be marked as an exhibit for the limited purpose of impeaching
the witness. The court instructed the jury accordingly.

As we have previously stated, hearsay is admissible in a capital sentencing hearing.
Blankenship’s 1995 deposition was relevant to rebut the aggravating circumstance that the murder
was committed for remuneration and to support residual doubt as a nonstatutory mitigating
circumstance. Therefore, the trial court erred in not allowing the deposition to be used as substantive
evidence. Although the trial court did not completely exclude the deposition, the limitation on the
jury’s consideration of the deposition potentially undermined the reliability of the sentencing
determination and is, therefore, an error of constitutional magnitude. Cf. Cauthern, 967 S.W.2d at
739.

Austin contends that the error was not harmless for several reasons. First, he argues that the
limitation on the jury’s consideration of the deposition cannot be harmless beyond a reasonable doubt
because the deposition was relevant to rebut the only aggravating circumstance. Austin has presented
no authority and we have found no support for a per se reversible error rule in cases where only one
aggravating circumstance exists. Second, Austin contends that the only other proof supporting the
aggravating circumstance – the testimony of Terry Casteel – lacked credibility. Contrary to Austin’s
assertion, overwhelming evidence, including the testimony of Marilyn Pryor corroborating Casteel’s
testimony, supported the aggravating circumstance. Finally, Austin asserts that the error cannot be
harmless because Blankenship’s testimony in the deposition was “compelling and unequivocal.” The
jury was in the best position to assess the credibility of Blankenship. If, despite vigorous cross-
examination, the jury believed Blankenship’s recantation of his prior deposition testimony, it is
unlikely that reading the entire deposition into evidence would have produced a different result.

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 In a similar case, we found the exclusion of such mitigating evidence to be harmless beyond
a reasonable doubt. See Stout, 46 S.W.3d at 705. In Stout, the defendant sought to introduce the
testimony of two accomplices in an effort to show that his own involvement in the murder was minor.
The defendant also sought to call a chaplain to testify about a gang practice of blaming crimes on
former members. Although we concluded that the trial court erred in excluding the proposed
mitigating evidence, we held that the error was harmless beyond a reasonable doubt. The testimony
of the accomplices was of dubious value because they had testified during the guilt phase that the
defendant led the offenses and shot the victim. Id. Likewise, other evidence was presented regarding
the defendant’s theory that he was falsely accused by gang members, and this evidence obviously was
rejected by the jury. Id. Like the evidence in Stout, the excluded evidence in this case was of dubious
value. Blankenship testified at the resentencing hearing that Austin hired him to kill Watkins. The
1995 deposition proclaiming Austin’s innocence likely would not have been very persuasive to the
jury since Blankenship fully admitted that the deposition testimony was false. Additionally, just as
in Stout, Austin presented other proof to support his residual doubt theory, and the proof obviously
was rejected by the jury.

In State v. Hartman, 42 S.W.3d 44 (Tenn. 2001), we reversed the sentence because of a
combination of errors: the exclusion of evidence relevant to residual doubt as a mitigating
circumstance and insufficient evidence to support one of the aggravating circumstances. Id. at 59.
The present case is distinguishable from Hartman. Unlike Hartman, the jury in this case did not rely
on an invalid aggravating circumstance. Moreover, the residual doubt evidence in this case was not
completely excluded. Substantial portions of the deposition were read to the jury during
Blankenship’s testimony. The entire deposition was introduced as an exhibit. The jury was precluded
only from considering the deposition as substantive evidence.

The practical effect of using the deposition for impeachment purposes was not much different
than introducing it as substantive evidence. The jury was presented with two theories: either Austin
hired Blankenship to commit the murder or Austin did not. Rejection of the first theory would
necessarily mean acceptance of the second. If the jury had found that the deposition impeached
Blankenship’s credibility, then the jury would not have believed Blankenship’s testimony at the
resentencing hearing and would have found, instead, that Austin did not hire Blankenship to murder
Watkins. It is not likely that the result would have been any different if the deposition had been
introduced as substantive evidence. The limitation on the jury’s consideration of the deposition did
not affect the jury’s decision to Austin’s prejudice and was, therefore, harmless beyond a reasonable
doubt.

VICTIM IMPACT EVIDENCE

The trial court admitted victim impact evidence from Carolyn Watkins-Cupp, the victim’s
widow, and Steve Watkins, one of the victim’s sons. Austin raises three arguments regarding the
victim impact evidence. First, Austin contends that the evidence was unduly prejudicial and
cumulative. Second, he asserts that the trial court failed to follow the procedure set out in State v.

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Nesbit, 978 S.W.2d 872, 891 (Tenn. 1998). Finally, he claims that the prosecutor’s closing argument
regarding the function of victim impact evidence was improper under Nesbit.

Victim impact evidence and prosecutorial argument on the evidence are not barred by the
Tennessee Constitution or the Constitution of the United States. See Nesbit, 978 S.W.2d at 889.
However, not all victim impact evidence is admissible. Victim impact evidence may not be
introduced if 1) it is so unduly prejudicial that it renders the trial fundamentally unfair, or 2) its
probative value is substantially outweighed by its prejudicial impact. See id. at 891. Generally,
victim impact evidence should be limited to information which provides “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.

The victim impact evidence about which Austin complains was limited to the victim’s role
as husband and father and to the loss suffered by the victim’s immediate family. This evidence is of
the nature contemplated by Nesbit and is similar to the victim impact evidence found appropriate in
State v. Smith, 993 S.W.2d 6, 17 (Tenn. 1999). We conclude that the victim impact evidence in this
case was not cumulative or unduly prejudicial and that its probative value was not substantially
outweighed by its prejudicial impact.

In Nesbit, we established the following procedural guidelines for the admission of victim
impact evidence: 1) the State must notify the trial court of its intent to produce victim impact
evidence; 2) upon receiving notification, the trial court must hold a hearing outside of the presence
of the jury to determine the admissibility of the evidence; and 3) the victim impact evidence should
not be admitted until the trial court determines that evidence of one or more aggravating
circumstances is already present in the record. 978 S.W.2d at 891. Austin asserts that this procedure
is constitutional in nature. Although the admission of unduly prejudicial victim impact evidence may
implicate due process concerns, the procedure established in Nesbit is not constitutionally mandated.
This procedure merely enables the trial court to adequately supervise the admission of victim impact
evidence. See id.

In compliance with the procedural requirement established in Nesbit, the State in this case
notified the trial court of its intent to introduce victim impact evidence, and the trial court conducted
a jury-out hearing to determine the admissibility of the evidence. However, Nesbit’s third
requirement was not fulfilled when the trial court allowed the victim impact testimony of Watkins’
widow to be presented before any proof of an aggravating circumstance existed in the record.
Requiring the existence in the record of proof of an aggravating circumstance before the presentation
of victim impact evidence lessens the risk that the admission of unduly prejudicial victim impact
evidence will render the trial fundamentally unfair. If unduly prejudicial victim impact evidence is
admitted first, then the danger exists that the jury may not fairly consider the other evidence presented
at the sentencing hearing. Because the victim impact testimony of Watkins’ widow was not unduly
prejudicial, we conclude that the variance from the procedure established in Nesbit did not affect the

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result of the resentencing hearing on the merits and, therefore, was harmless error. See Tenn. R.
Crim. P. 52(a).

In his final challenge to the victim impact evidence, Austin contends that the prosecutor
improperly told the jury how to weigh the evidence. In Nesbit, we cautioned that victim impact
evidence “does not carry the force and effect of an aggravating circumstance in the sentencing
calculation.” 978 S.W.2d at 894. We held that the prosecutor in that case erroneously characterized
the victim impact evidence as an aggravating circumstance to weigh against mitigation proof. Id. In
the present case, the prosecutor specifically told the jury that they could only weigh aggravating and
mitigating circumstances. The prosecutor’s comment that they were also required to consider “the
impact of this crime” did not improperly characterize the victim impact evidence as an aggravating
circumstance. Accordingly, we find no error in the prosecutor’s closing argument.

PROPORTIONALITY REVIEW

We are bound by statute to review the application of the death penalty to 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;

(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.

Tenn. Code Ann. § 39-13-206(c)(1) (1997). Having thoroughly reviewed the record, we find that the
sentence of death was not imposed in an arbitrary fashion. We conclude that the State presented
sufficient proof to uphold the jury’s finding of the aggravating circumstance in Tennessee Code
Annotated section 39-2404(i)(4) (Supp. 1977): “The defendant committed the murder for
remuneration or the promise of remuneration, or employed another to commit the murder for
remuneration or the promise of remuneration.” This aggravating circumstance was amply supported
by the testimony of Casteel and Blankenship that Austin hired Blankenship to murder Watkins. We
further hold that the evidence supports the jury’s finding that the aggravating circumstance
outweighed any mitigating circumstances beyond a reasonable doubt. Contrary to Austin’s assertion,
a reasonable jury could have found that the proffered mitigating circumstances of residual doubt,
relative culpability for the offense, and positive prison behavior were outweighed by the aggravating
circumstance.

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 We next determine whether the sentence of death in this case is disproportionate to the penalty
imposed in similar cases, considering the nature of the crime and the defendant. See Tenn. Code Ann.
§ 39-13-206(c)(1)(D) (1997). We are mindful of the following principles applicable to
proportionality review:

In conducting a comparative proportionality review, 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 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. Hall, 976 S.W.2d 121, 135 (Tenn. 1998) (citations omitted). We have found the following
factors helpful in choosing and comparing 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. Id. In comparing defendants, we consider the following traits: 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. Id.

In the present case, the victim was shot execution-style in the head and then several more
times in the neck and chest. The motive for the killing was to retaliate against the victim for his
undercover work exposing Austin’s illegal gambling. The murder clearly was premeditated in that
Austin hired another person to commit the murder.

Austin, a white male, was thirty-seven years old at the time of the murder and almost sixty
years old at the time of the resentencing hearing. A psychologist testified for the defense that an
inmate of Austin’s age was exceedingly unlikely to commit acts of serious violence in prison. Austin
presented mitigating evidence attesting to his positive contributions to the prison community while
incarcerated and his efforts to ensure the safety of prison guards during a prison riot. No evidence
of prior criminal history was presented at the resentencing hearing. 9 Austin’s role in the murder was
significant in that he instigated the plan to murder the victim and hired the actual killer. No evidence
was presented to show that Austin cooperated with the authorities or showed any remorse for the

9
The trial judge’s report under Tenn. Sup. Ct. R. 12 reflects a 1966 larceny conviction and a 196 1 robbery
conviction.

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murder. Considering the nature of the crime and the defendant, we conclude that this murder places
Austin into the class of defendants for whom the death penalty is an appropriate punishment.

Austin contends that his sentence is comparatively disproportionate because his co-defendants,
Casteel and Blankenship, received lesser sentences. Statutory proportionality review involves a
comparison only with cases in which a capital sentencing hearing was actually conducted. See State
v. Bland, 958 S.W.2d 651, 666 (Tenn. 1997). Because neither Blankenship nor Casteel was subjected
to capital proceedings, their cases are not similar cases for purposes of proportionality review.

Citing Nuthill v. State, 30 Tenn. (11 Hum.) 247 (1850), Austin argues that he could not
receive a greater sentence than Blankenship as a matter of law because a defendant convicted as an
accessory before the fact cannot be sentenced to death if the principal received a life sentence.
Austin’s reliance on Nuthill is misplaced. At the time of the offense in this case, Tennessee Code
Annotated section 39-2407 (Supp. 1977) expressly provided that the punishment imposed upon an
accessory before the fact of murder in the first degree did not depend on the sentence imposed on the
principal.

Austin also asserts that he has not found a case in Tennessee history in which an accessory
before the fact received a sentence of death and the principal was sentenced to life. Tennessee law
no longer distinguishes between accessory before the fact and the principal. In three cases, we have
upheld the death penalty for the person who instigated the murder – the equivalent of accessory before
the fact – when the actual killer received a lesser sentence. See State v. Stevens, ___ S.W.3d ___
(Tenn. 2002); State v. Hutchison, 898 S.W.2d 161 (Tenn. 1994); State v. Stephenson, 878 S.W.2d
530 (Tenn. 1994).10

Based upon an exhaustive review of the record and Rule 12 reports from trial judges in trials
for first degree murder, we conclude that the present case is proportionate when compared to other
murders for hire in which the death penalty was imposed. See Stevens, S.W.3d (defendant
hired acquaintance to murder wife and mother-in-law); Hutchison, 898 S.W.2d 161 (defendant hired
several people to drown victim for insurance proceeds); Stephenson, 878 S.W.2d 530 (defendant
hired acquaintance to kill wife); State v. Wilcoxson, 772 S.W.2d 33 (Tenn. 1989) (defendant, who
was hired by wife of victim to kill her husband, procured brother to commit offense);11 State v.
Porterfield, 746 S.W.2d 441 (Tenn. 1988) (defendant hired co-defendant to kill husband); State v.

10
In Stephenson, the case was remanded for resentencing due to an instructional error during the sentencing
phase of the trial. 878 S.W.2d at 556. On remand, the parties reac hed an agreement to reduce the sen tence to life
without the po ssibility of pa role. On ap peal, we held that the life without parole sentence wa s illegal because it was not
a legal sentencing optio n at the time of the o ffense. Stephenson v. Carlton, 28 S.W.3d 910, 912 (Tenn. 2000). A new
sentencing hearing ha s not been he ld.

11
Upon post-conviction review Wilcoxson was granted relief as to his sentence based on ineffective assistance
of counsel. See W ilcoxso n v. State, 22 S.W.3d 289 (T enn. Crim. App. 1999). A new sentencing hearing has not been
held.

-12-
Coker, 746 S.W.2d 167 (Tenn. 1987) (defendant arranged for murder of paramour’s husband).12 In
two of these cases, murder for hire was the sole aggravating circumstance. See Hutchison, 898
S.W.2d 161, Stephenson, 878 S.W.2d 530. After reviewing these cases, and many others not cited,
we conclude that the penalty imposed by the jury in this case is not disproportionate to the penalty
imposed for similar crimes.

We have considered Austin’s argument that the only Tennessee cases similar to his are those
of William Groseclose and Ronald Rickman. Groseclose hired Rickman and another man to kill his
wife. On direct appeal, we found the death sentences to be proportionate. State v. Groseclose, 615
S.W.2d 142, 150-51 (Tenn. 1981). In federal habeas corpus proceedings, the convictions and
sentences were reversed based on ineffective assistance of counsel. See Groseclose v. Bell, 130 F.3d
1161 (6th Cir. 1997); Rickman v. Bell, 131 F.3d 1150 (6th Cir. 1997). On retrial, the jury again
convicted Groseclose and Rickman of first degree murder but sentenced them to life imprisonment.
The Rule 12 report reflects that the trial judge was of the opinion that the jury did not impose the
death penalty because of the defendants’ twenty years of good behavior in prison. As we have stated
many times, “the isolated decision of a jury to afford mercy does not render a death sentence
disproportionate.” State v. Keen, 31 S.W.3d 196, 222 (Tenn. 2000) (citations omitted). We recently
affirmed the sentence of death in a resentencing case involving similar mitigating evidence of good
behavior in prison. See Terry v. State, 46 S.W.3d 147 (Tenn. 2001). Given the numerous similar
cases in which the death penalty has been imposed, we are unable to conclude that the sentence of
death imposed by the jury in this case represents an aberrant sentence.

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 circumstance, that the evidence supports the jury’s finding that the aggravating
circumstance outweighs mitigating circumstances beyond a reasonable doubt, and that the sentence
is not excessive or disproportionate.

Having carefully considered the issues raised by Austin regarding the exclusion of mitigating
evidence and the admission of victim impact evidence, we hold that these issues are without merit
or do not require reversal. Having reviewed all of the other issues raised by Austin, we conclude that
they do not warrant relief. With respect to issues not addressed in this opinion, we affirm the decision
of the Court of Criminal Appeals. Relevant portions of that opinion are incorporated herein and are
attached as an appendix. The defendant’s sentence of death is affirmed and shall be carried out on
the 23rd day of January, 2003, unless otherwise ordered by this Court or proper authority. It

12
Upon post-conviction review Coker was granted relief as to his sentence based on ineffective assistance of
counsel. At a bench trial on resentencing, Coker was sentence d to life imprisonment. See Coker v. State, No.
01C0 1-9804-CC -00152 (T enn. Crim. App. 1999).

-13-
appearing that defendant Richard Hale Austin is indigent, costs of this appeal are taxed to the State
of Tennessee.

___________________________________
JANICE M. HOLDER, JUSTICE

-14-
 APPENDIX

(Excerpts from the Court of Criminal Appeals’ Decision)

-15-
 IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
January 9, 2001 Session

STATE OF TENNESSEE v. RICHARD HALE AUSTIN

Direct Appeal from the Criminal Court for Shelby County
No. B-58357 C. Creed McGinley, Judge, by designation

No. W1999-00281-CCA-R3-DD - Filed March 6, 2001

In 1977, Richard Hale Austin was found guilty by a Shelby County jury of accessory before the fact
to the first degree murder of Julian Watkins. Austin’s conviction stemmed from his role in
commissioning the murder of Watkins, a reserve deputy sheriff. The jury subsequently found the
presence of aggravating factor (i)(4), murder for remuneration, and imposed a sentence of death. In
1997, Austin was granted habeas corpus relief in the form of a new sentencing hearing by the Sixth
Circuit Court of Appeals. At the re-sentencing hearing, twenty-two years after his original trial, a jury
again found the presence of the (i)(4) aggravating factor and again imposed a sentence of death. It is
from this sentencing decision that Austin appeals. In this appeal, Austin presents numerous issues for
our review, including (1) the disqualification of the Tennessee Supreme Court; (2) challenges to the
selection of various jurors; (3) the admission and exclusion of evidence; (4) the introduction of victim
impact evidence; (5) prosecutorial misconduct during closing argument; (6) the propriety of the jury
instructions; (7) whether application of the (i)(4) aggravator violates State v. Middlebrooks; (8)
prejudice due to the delay in imposing a sentence of death; (9) the constitutionality of Tennessee’s
death penalty statutes; and (10) whether the jury imposed a proportionate sentence. After a careful
review of the record, we affirm the imposition of the sentence of death.

Tenn. R. App. P. 3; Judgment of the Criminal Court Affirmed.

DAVID G. HAYES, J., delivered the opinion of the court, in which JOE G. RILEY and JOHN EVERETT
WILLIAMS, JJ., joined.

Frank J. Glankler, Jr. and Robert L. Hutton, Memphis, Tennessee, for the Appellant, Richard Hale
Austin.

Paul G. Summers, Attorney General and Reporter, Michael Moore, Solicitor General, Amy L.
Tarkington, Assistant Attorney General, William L. Gibbons, District Attorney General, and John
Campbell and Thomas Henderson, Assistant District Attorneys General, for the Appellee, State of
Tennessee.
 OPINION

[Deleted: Factual Background and Proof at the Re-Sentencing Hearing]

I.
Disqualification of Tennessee Supreme Court and/or State Attorney General

During the pendency of the re-sentencing hearing, the Appellant filed, in the Shelby County
Criminal Court, a “Motion to Disqualify Supreme Court and/or Attorney General from Future
Proceedings in this Cause.” The substance of the motion was based upon the Appellant’s allegation
that the Tennessee Supreme Court’s constitutional directive to appoint the Attorney General results
in a biased tribunal and violates the constitutionally mandated separation of powers. See TENN
CONST . Art. VI, sec. 5; TENN. CODE ANN . § 8-6-101 (1993). Contemporaneously, the Appellant
issued subpoenas to the justices of the supreme court; Court of Criminal Appeals Judge Paul G.
Summers;13 Mr. Charles Ferrell, Director, Administrative Office of the Courts; and Attorney General
Knox Walkup. The trial court denied the motion and quashed the subpoenas, finding that the motion
was premature. This court denied the Appellant’s application for extraordinary review pursuant to
Tenn. R. App. P. 10, holding that none of the persons subpoenaed had any involvement in the case
at the trial level. See State v. Richard Hale Austin, No. 02C01-9811-CR-00341 (Tenn. Crim. App.
at Jackson, Nov. 9, 1998). The Tennessee Supreme Court denied the Appellant’s application for
extraordinary appeal from this court’s order. See State v. Richard Hale Austin, No. 02S01-9811-CR-
00112 (Tenn. at Jackson, Feb. 1, 1999).

Following the reimposition of the death penalty, the Appellant filed a motion in this court
seeking leave to issue subpoenas and take testimony, or, in the alternative, to remand the case to the
trial court to take testimony. In his motion, the Appellant asserted that through the issuance of
subpoenas he “would be able to develop” the “political interconnectedness” “of the Tennessee
Supreme Court and the present Attorney General, Honorable Paul Summers.” He alleged that the
present Attorney General is a “favorite son” of the supreme court and a “de facto employee”
“beholden to the court.” Essentially, the Appellant argued that the circumstances surrounding the
appointment of Paul Summers as Attorney General are crucial “to proving a due process violation as
to the lack of an unbiased and impartial Supreme Court.” This court denied the Appellant’s motion,
finding that this court was without jurisdiction to entertain the motion. See State v. Richard Hale
Austin, No. W1999-00281-CCA-R3-PD (Tenn. Crim. App. at Jackson, Dec. 3, 1999). Additionally,
this court noted that “a claim involving disqualification or recusal of the Tennessee Supreme Court”
may not appropriately be considered by either the trial court or this court. Id. (citing Tenn. Sup. Ct.
R. 10, Canon 3(E)(1)(a); State v. Benson, 973 S.W.2d 202 (Tenn. 1998) (allegations of judge’s
impartiality or bias concerning a party or a party’s lawyer must be brought to the attention of the
judge(s) so challenged)).

13
The Appellant’s subpoenas were issued on September 29, 1998. The present Attorney General, Paul G. Summers, was
not sworn into office until January 1999.

Appendix - Pg. 2
-2-
 The Appellant now complains of the prior rulings of the trial court and this court. Specifically,
he alleges that had he been permitted to develop proof at the hearing before the trial court, he

would have been able to demonstrate that the Supreme Court
instructed Mr. Knox Walkup, who at the time was Attorney General,
to resign, telling him that he would not be reappointed. Furthermore,
the proof would have demonstrated that the Court had previously made
a private agreement to appoint Mr. Paul Summers as the next Attorney
General, notwithstanding the fact that the Supreme Court publicly
asserted it had a purportedly neutral selection process to select a new
Attorney General. All of these facts demonstrate the political
interconnectedness of the Supreme Court and the Attorney General.

As determined by prior panels of this court and by the trial court in this matter, this court is
unable to undertake review of the Appellant’s challenge. Although the Appellant raises constitutional
claims against Tennessee’s method of selecting the Attorney General, in essence, the Appellant seeks
recusal of the current Justices of the Tennessee Supreme Court based on their “favoritism” toward
current Attorney General Summers. Indeed, his argument before this court, as in his prior motions,
appears to assert approval of former Attorney General Walkup. Thus, this court will treat this issue
as one addressing the supreme court’s recusal and not as a constitutional challenge to the method of
appointment.

The right to a fair trial before an impartial tribunal is a fundamental constitutional right. See
Benson, 973 S.W.2d at 205 (citing Chapman v. California, 386 U.S. 18, 23 n. 8, 87 S. Ct. 824, 828
n. 8 (1967) (internal citations omitted)). Article VI, § 11 of the Tennessee Constitution provides that
“[n]o Judge of the Supreme of Inferior Courts shall preside on the trial of any cause in the event of
which he may be interested.” Benson, 973 S.W.2d at 205. The purpose of this constitutional provision
is to guard against the prejudgment of the rights of litigants and to avoid situations in which the
litigants might have cause to conclude that the court had reached a prejudged conclusion because of
interest, partiality, or favor. Id. (citing Chumbley v. People’s Bank & Trust Co., 57 S.W.2d 787, 788
(Tenn. 1933)). A judge’s determination of whether he or she will disqualify him or herself from
sitting in a case is a matter within that judge’s discretion. See generally Kinard v. Kinard, 986 S.W.2d
220 (Tenn. App. 1998); Young v. Young, 971 S.W.2d 386 (Tenn. App. 1997); State v. Connors, 995
S.W.2d 146 (Tenn. Crim. App. 1995); Wiseman v. Spaulding, 573 S.W.2d 490, 493 (Tenn. App.
1978)(citing State of Tenn. ex rel. Phillips v. Henderson, Warden, 423 S.W.2d 489 (Tenn. 1968)).
Thus, the Appellant’s motion must be brought to the attention of the justices whom he has challenged.
See generally Tenn. Sup. Ct. R. 10, Canon 3(E)(1)(a). Cf. Holder v. Tennessee Judicial Selection
Commission, 937 S.W.2d 877, 879 (Tenn. 1996) (justices disqualified themselves prior to hearing);
Pierce v. Tharp, 461 S.W.2d 950, 953-54 (Tenn. 1970), cert. denied, 402 U.S. 929, 91 S. Ct. 1527
(1971) (motion to recuse justices should have been brought after certiorari was granted but before
argument heard); Chumbley v. People’s Bank & Trust Co., 57 S.W.2d at 787 (supreme court justices
determined propriety of own recusal); Hooker v. Sundquist, No. 01A01-9709-CH-00533 (Tenn. at

Appendix - Pg. 3
-3-
Nashville, Feb. 16, 1999) (motion to recuse justices filed after application for permission to appeal
filed).

Neither the trial court nor this court has the prerogative or authority to arrive at any conclusion
regarding the alleged impartiality or bias of each challenged justice. The Appellant has yet to present
the motion to the supreme court. He is not yet precluded from presenting his challenge to the court
and may properly file his motion after the court has accepted review of his case. Although no precise
procedure is contemplated by the Canons nor established through case law, the accepted practice
when seeking the disqualification of a judge is through the filing of a motion for recusal with
supporting affidavits of prejudice. See generally 46 AM .. JUR.2D Judges §§ 194- 214 (1994 & Supp.
2000). There is no authority for the issuance of subpoenas, or any other discovery procedures, in
support of one’s motion to disqualify a judge. Id.

Accordingly, for the reasons set forth herein, we decline the Appellant’s invitation to
disqualify the justices of the Tennessee Supreme Court from participation in the review of his appeal.
The Tennessee Supreme Court is the proper court before whom the Appellant’s complaint should to
be lodged.

II.
Jury Selection Process

A. Individual Voir Dire

Immediately prior to the Appellant’s trial, the Shelby County case of State v. William
Groseclose and Ronald Rickman was retried. The Groseclose/Rickman case was, similarly, a twenty-
two-year old retrial of a murder for hire. On retrial, both Groseclose and Rickman received life
sentences. The “new” sentences were reported by the media as well as the public’s adverse response
to the more lenient sentences. Based on these events, counsel requested individual voir dire of
prospective jurors for the purpose of determining the impact of any collateral consequences stemming
from the Groseclose/Rickman verdicts. The trial court denied the request. The Appellant now
contends that his rights to an impartial jury and due process were violated as guaranteed by the Sixth
and Fourteenth Amendment of the United States Constitution.

The prevailing practice is to examine jurors collectively. State v. Jefferson, 529 S.W.2d 674,
681 (Tenn. 1975); State v. Oody, 823 S.W.2d 554, 563 (Tenn. Crim. App. 1991); State v. Hopper,
695 S.W.2d 530, 539 (Tenn. Crim. App. 1985). Indeed, even in a capital case, there is no requirement
that death qualification of a capital jury must be conducted by individual, sequestered voir dire. State
v. Stephenson, 878 S.W.2d 530, 540 (Tenn. 1999) (citing State v. Smith, 857 S.W.2d 1, 19 (Tenn.),
cert. denied, 510 U.S. 996, 114 S. Ct. 561 (1993); State v. Porterfield, 746 S.W.2d 441, 447 (Tenn.),
cert. denied, 486 U.S. 1017, 108 S. Ct. 1756 (1988)). Moreover, as a general rule, it is within the trial
court’s discretion to allow individual voir dire of prospective jurors. Stephenson, 878 S.W.2d at 540
(citing State v. Howell, 868 S.W.2d 238, 247 (Tenn. 1993), cert. denied, 510 U.S. 1215, 114 S. Ct.
1339 (1994); State v. Harris, 839 S.W.2d 54, 65 (Tenn. 1992), cert. denied, 507 U.S. 954, 113 S. Ct.

Appendix - Pg. 4
-4-
1368 (1993)). The ultimate goal of voir dire is to insure that jurors are competent, unbiased and
impartial, State v. Cazes, 875 S.W.2d 253, 262 (Tenn. 1994), cert. denied, 513 U.S. 1086, 115 S. Ct.
743 (1995); Howell, 868 S.W.2d at 247, and “[i]ndividual voir dire is mandated only when there is
a ‘significant possibility’ that a juror has been exposed to potentially prejudicial material.” Howell,
868 S.W.2d at 247; Harris, 839 S.W.2d at 65 (citing Porterfield, 746 S.W.2d at 447). The mere fact
that prospective jurors know something about a case at the time of impaneling is not unusual, nor is
it sufficient to invoke individual voir dire, where the trial court takes the necessary steps to ensure that
the accused receives a fair trial by a panel of impartial and indifferent jurors.

The record does not reflect that the re-sentencing of the Appellant was going to be a high
profile case. Indeed, the record reveals that only one juror had to be removed for cause because he
had already formed an opinion about the case, this juror also being the victim’s cousin. Additionally,
although defense counsel introduced as exhibits newspaper articles regarding the Groseclose/Rickman
re-sentencing, defense counsel failed to question the jurors about the impact of this case on the
Appellant’s re-sentencing. Irregardless of defense counsel’s failure, the media attention paid to the
Groseclose/Rickman case is of little import regarding the necessity of individual voir dire in the
present case. We cannot conclude that pretrial knowledge of matters arising from unrelated crimes
mandates individual voir dire. Cf. State v. Mann, 959 S.W.2d 503, 531 (Tenn. 1997) (Appendix)
(jurors do not live in a vacuum). Any concerns which may remain regarding the impact of publicity
arising from the Groseclose/Rickman re-sentencing were dispelled by the trial judge’s instruction to
the venire:

You must base your verdict only upon the law that is presented here in
court. I mean the evidence as presented here in court through witnesses
that are placed under oath, exhibits, and the law that I charge you. And
the reason I’m touching on that now is that [you] cannot base [your]
decision upon what you might have heard somewhere or what you
might have read in the newspapers. And the attorneys will touch on
this later, but I’m sure each of you understand, that we cannot have our
judicial system operate based upon what we’ve seen or heard or any
preconceived ideas.

The jury is presumed to follow the instructions of the court. Accordingly, we cannot conclude that
the trial court abused its discretion in denying individual voir dire. See generally Porterfield, 746
S.W.2d at 446-47 (if no prejudicial information is elicited during voir dire and if the jurors assert they
can disregard the pretrial publicity, there is no error in denying individual voir dire). This issue is
without merit.

B. Rehabilitation of Jurors

The Appellant next contends that he was denied an impartial jury because the trial court
denied the Appellant the opportunity to rehabilitate potential jurors who were excused for cause on
motion of the State because of their opposition to the death penalty. Specifically, the Appellant

Appendix - Pg. 5
-5-
challenges the removal for cause of Jurors Hilliard, Eslahi, Buffaloe, Massey, Brown, and Corken,
and of Alternate Jurors Brooks and Hudson.

Tenn. R. Crim. P. 24(b) gives the trial judge the right to excuse a juror for cause without
examination of counsel. State v. Hutchinson, 898 S.W.2d 161, 167 (Tenn. 1994), cert. denied, 516
U.S. 846, 116 S. Ct. 137 (1995) (citing State v. Alley, 776 S.W.2d 506 (Tenn. 1989); State v. Strouth,
620 S.W.2d 467, 471 (Tenn. 1981), cert. denied, 455 U.S. 983, 102 S. Ct. 1491 (1982)). In
determining when a prospective juror may be excused for cause because of his or her views on the
death penalty, the standard is “whether the juror’s views would prevent or substantially impair the
performance of his duties as a juror in accordance with his instructions and his oath.” Wainwright v.
Witt, 469 U.S. 412, 424, 105 S. Ct. 844, 852 (1985). The Supreme Court further observed that “this
standard likewise does not require that a juror’s biases be proved with ‘unmistakable clarity.’” Id.
However, the trial judge must have the “definite impression” that a prospective juror could not follow
the law. Hutchinson, 898 S.W.2d at 167 (citing Wainwright v. Witt, 469 U.S. at 425-26, 105 S. Ct.
at 853). Finally, the trial court’s finding of bias of a juror because of his or her views concerning the
death penalty are accorded a presumption of correctness, and the Appellant must establish by
convincing evidence that the trial court’s determination was erroneous before an appellate court will
overturn that decision. Alley, 776 S.W.2d at 518.

The challenged removals for cause were based on the following responses by the respective
jurors when questioned whether they could “sign [their] name to a verdict sentencing the defendant
to death”:

JUROR HILLIARD: No. . . . I don’t believe in [the death penalty] . . . .
I would stand by my own [personal convictions.]

JUROR ESLAHI: No, sir. . . . That’s correct, [I don’t believe in the
death penalty] . . . I would have to stand by my personal feelings.

JUROR BUFFALOE: No. . . . I would have to refuse.

JUROR MASSEY: Well, let me say it like this, when it come [sic] to
the death penalty, if someone else does something, if somebody say
that, I’m in favor of the death sentence. Sure. But I can’t sit there and
sign my name to something like that. . . . No. I can’t do that.

JUROR BROWN: No. . . . Well, I couldn’t determine and just judge
and say that I could, you know, give somebody the death penalty. . . .
No, I wouldn’t [consider the death penalty.]

JUROR CORKEN: . . .I’ll make a statement here. All my life I thought
I could, but when I really get down to it, I couldn’t. I would not be able
to vote for the death penalty. That’s the truth. . . .

Appendix - Pg. 6
-6-
 ALTERNATE JUROR BROOKS: I just – I couldn’t put anybody to
death.

ALTERNATE JUROR HUDSON: I don’t think I can do that. . . . I
think I would have to stand beside my own personal feelings.

After reviewing the answers of the excluded jurors, we conclude that their answers left “no
leeway for rehabilitation.” Strouth, 620 S.W.2d at 471; see also Alley, 776 S.W.2d at 517-18. In each
instance, either the court or the prosecutor extensively questioned the prospective jurors as to whether
they could apply the law to the evidence and consider all forms of punishment in this case. Each juror
was consistent in responding that he or she would not impose the death penalty. These jurors met the
standard for dismissal. See Hutchinson, 898 S.W.2d at 167. There is no error.

C. Jasper Case Hypothetical

As additional error within the voir dire process, the Appellant asserts that the trial court erred
by prohibiting questioning of potential Juror Clothier with respect to a recent homicide in Jasper,
Texas. By using the Jasper case as a hypothetical, the Appellant asserts that he could have
14

determined whether Juror Clothier would be competent, unbiased and impartial in following the law
and capable of rendering a capital verdict in a heinous case. The record does not indicate that the trial
court prevented defense counsel from questioning Juror Clothier regarding the Jasper, Texas, case. 15

14
The “Jasper case” involved the dragging death of a forty-nine-year-old African-American man by three members of a
white supremacist gang. The African-American man was chained behind a pickup truck and pulled for three miles over a bumpy East
Texas road. The incident received nationwide publicity.
15
During jury selection, the following colloquy occurred between defense counsel Hutton and potential Juror McMillon:

HUTTON: Well, let’s give you an exam ple. There’s a real famous one in Texas a couple
of days ago. A real horrible case. In a case like that, could you impose the death penalty
where somebody –

JUROR McMILLON: Nope.

HUTTON: —drags somebody to death?

JUROR McMILLON: Nope.

After further voir dire examination of potential Juror McMillon, the court excused Juror McMillon for cause and was replaced by
potential Juror Clothier. The following voir dire of this juror ensued:

GENERAL HENDERSON: The law says in Tennessee and I believe the judge will tell you
at the end that if the State proves at least one aggravating circumstance beyond a reasonable
doubt, and we prove the aggravating circumstance outweighs any mitigating evidence in the
case beyond a reasonable doubt, and law says the punishment shall be death. If you find
yourself in that situation where we’ve proven that aggravating circumstance beyond a
reasonable doubt, and we’ve proven that it outweighs any mitigating evidence beyond a
reasonable doubt, would you be able to sign your name to a verdict imposing the death
penalty?
(continued...)

Appendix - Pg. 7
-7-
15
(...continued)
JUROR CLOTHIER: I don’t think I could.

GENERAL HENDERSON: Okay. And again, it’s not something most people think about
in their ordinary course of life. You understand that under certain circumstances the law
says the punishment shall be death?

JUROR CLOTHIER: Yes.

GENERAL HENDERSON: If you were a part of the jury and found this was one of those
cases where the law . . . says the punishment shall be death, would yo u be able to follow that
law and sign your name to the verdict or would yo u stand by yo ur own personal feelings
a nd say, no. I ca n’t do that. . . .

JUROR CLOTHIER: Even though I felt like that maybe death was deserved in that specific
case, because of my religious beliefs, I’m not sure that I could actually sign – sign something
to put someone else to death.

GENERAL HENDERSON: And that’s why I bring it up. A lot of people say sometimes they
think that they’re in favor of the death penalty or that they think it’s a good thing, but in
Tennessee we require all twelve jurors to sign their name to a piece of paper sentencing the
defendant to death by electrocution. And we’re looking for twelve people who can do tha
t . . . . [D]o you think you can do that?

JUROR CLOTHIER: I don’t kno w that I can in this ca se. . . . [N]o. I can not.

GENERAL HENDERSON: Is there anything a bout this case, would it make any difference
what case it was?

JUROR CLOTHIER: I don’t know . I mean they brought up the Jasper, Texas, thing. I
think that’s terrible. And I think that person probably does deserve death. B ut I don’t
know that if I was on that jury that I could sign it.

...

THE COURT: Mr. Hutton, let me let you address this juror.

MR. HUTTON: Ms. Clothier, I don’t want to sound like a tape recorder. . . but I think it’s
more important that jurors ultimately realize that they are the judges. Okay? The State never
tells you, you must impose the death penalty. . . . Unless you personally believe that an
aggravator found by all of you outweighs any mitigation that you find. The mitigation
doesn’t have to be p roved by everybody. Anything put forth in the evidence that you believe
is mitigating, you have the right as a juror to weigh against what the State had proved as an
aggravator.

...

So my question is, can you think of a case, where like the J asper murder case, where you
could do that? Where you could find, well, this is a horrible crime. It’s a horrible murder.
There’s nothing I find that’s mitigating. And therefore, I could give the death sentence. And
I mean, it doe sn’t have to be every case. Doesn’t have to be many cases. The question is,
can you think of a possibility? Say the Jasper case. Or you know, if a close relative were
murdered. . . .
(continued...)

Appendix - Pg. 8
-8-
Indeed, the record reveals that Juror Clothier considered the Texas case when formulating her
responses to General Henderson. Additionally, defense counsel did include the Jasper, Texas,
reference in his questioning of the potential juror. Thus, it is unclear how the court denied defense
counsel from making reference to the Jasper, Texas, hypothetical. This claim is without merit.

D. Examination as to Juror’s Belief in the Bible

Finally, within his many claims regarding the impaneling of an impartial jury, the Appellant
claims that “[t]he trial court committed error in refusing to allow questioning of whether prospective
Juror Scott’s belief in the Bible would impact her ability to render a fair decision.” During voir dire
examination, potential Juror Scott stated, “Well, all the decisions I make are based upon the Bible,
because I believe it to be the truth.” Juror Scott continued to explain, “I believe that in certain
circumstances [the death penalty] is warranted.” She added that her religious beliefs would not affect
her decision regarding the Appellant. Defense counsel then inquired:

. . . Can you put aside your beliefs in the Bible, and the Bible as you
believe it, I’m not challenging that. I respect everybody’s opinion on
that. Can you put that aside in this case or after hearing the proof, do
you have a belief that when you go back in the jury room somehow
what’s in the Bible is going to impact the decision that you give to Mr.
Austin in this case?

The State objected and the court sustained, holding “You can ask their general philosophy. I think the
Constitution would prohibit you from inquiring into religious preferences.” Under the authority of
Morgan v. Illinois, 504 U.S. 719, 112 S. Ct. 2222 (1992), the Appellant contends that, since Juror
Scott stated that everything she does is guided by the Bible, he had an absolute right to determine
whether or not her religious beliefs in the Bible would affect her decision in the present case.

The right to question venire members is not unlimited, but must, of necessity, be limited to
inquiries that are material and relevant to the specific case being tried. See generally Layman v. State,
429 S.W.2d 832, 836 (Tenn. Crim. App. 1968). Generally, a trial court may properly limit inquiry into
a venire member’s religious beliefs in those instances where religious issues are expressly presented
in the case, where a religious organization is a party to the litigation or where the inquiry is a
necessary predicate to the exercise of peremptory challenges. See generally Yarborough v. United
States, 230 F.2d 56, 63 (4 th Cir. 1956), cert. denied, 351 U.S. 969, 76 S. Ct. 1034 (1956); Brandborg

15
(...continued)

(Emphasis Added). At this time, the State objected to defense counsel’s voir dire asserting that “[t]ha t’s an impossible hypothetical.
If a close relative were murdered, she wouldn’t be on the jury.” Th e court then re gained control of voir dire and asked M s. Clothier,
“Would you be open to considering all forms of punishment?” Juror Clothier replied affirmatively. General Henderson, again, posed
the question to Clothier as to whether she would be able to sign her name to a verdict imposing death. Clothier replied that she could
not. The juror was then excused.

Appendix - Pg. 9
-9-
v. Lucas, 891 F. Supp. 352 (E.D. Tex. 1995); State v. Via, 704 P.2d 238, 248 (Ariz. 1985), cert.
denied, 475 U.S. 1048, 106 S. Ct. 1268 (1986); Coleman v. United States, 379 A.2d 951, 954 (D.C.
Ct. App. 1977); Rose v. Sheedy, 134 S.W.2d 18, 19 (Mo. 1939); Corey Schriod Smith v. State, No.
CR-95-0205 (Ala. Crim. App. Aug. 25, 2000). Indeed,

As to religion, our jury selection system was not designed to subject
prospective jurors to a catechism of their tenets of faith, whether it be
Catholic, Jewish, Protestant, or Mohammedan, or to force them to
publicly declare themselves to be atheists. Indeed, many a juror might
have a real doubt as to the particular religious category into which they
could properly place themselves.

United States v. Barnes, 604 F.2d 121, 141 (2d Cir. 1979), cert. denied, 446 U.S. 907, 100 S. Ct. 1833
(1980).

The trial court, in the exercise of its discretion, controls the questions that can be asked to
keep the voir dire within relevant bounds. In the present case, we conclude that the trial court properly
restricted counsel from delving into the juror’s religious beliefs. The prospective juror previously
stated that her religious beliefs would not affect her decision in the present case. Accordingly, any
foray into her religious convictions was irrelevant as having no direct relationship to the parties
involved in the matter or the issues presented at re-sentencing. Additionally, any error by the court
in restricting voir dire is negated by the Appellant’s use of a peremptory strike against potential juror
Scott coupled with his failure to exercise all peremptory challenges. See generally Ross v. Oklahoma,
487 U.S. 81, 83-87, 108 S. Ct. 2273, 2276-2277, reh’g denied, 487 U.S. 1250, 109 S. Ct. 11 (1988)
(defendant’s use of peremptory challenge against challenged prospective juror waived complaint
against juror on appeal). Accordingly, the Appellant is not entitled to relief as to this claim.

III.
[Deleted: Refusal to Admit Hearsay Into Evidence]

IV.
Admission of Testimony of the Appellant’s Prior Threats of Violence

Marilyn Lee Pryor, an employee at The Golden Cue in May 1977, testified regarding
statements made by the Appellant shortly after the April raid. Specifically, she stated that the
Appellant remarked to her that “[Watkins] should have his brains shot out.” Additionally, she
described events occurring immediately after the murder of Julian Watkins. Ms. Pryor related that she
was questioned by Memphis Police Officers regarding the Appellant’s “whereabouts” and was
informed that she would be subpoenaed to come to court to give a statement. Later that same day, the
Appellant told her not to worry about the subpoena. The following morning the Appellant arranged
for Ms. Pryor to be driven to her home in Mississippi. The next day, unbeknownst to the Appellant,
Ms. Pryor returned to Memphis, gave her statement, and returned to Mississippi.

Appendix - Pg. 10
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 The State then inquired as to whether she had spoken to the Appellant after providing
authorities with her statement in 1977. Over defense objection, Ms. Pryor testified that, when she later
told the Appellant that “[she] had testified for the State,” [provided a statement], the Appellant “told
[her] that [she] was a stupid, cold, bitch and that [she] should have been killed, too. . . .” The
Appellant now complains that admission of this testimony was error. Specifically, he contends that

[s]uch threats would be inadmissible under Rule 608(b) of the
Tennessee Rules of Evidence since such conduct is not probative of
truthfulness or untruthfulness. Furthermore, the testimony was highly
prejudicial because allowing the jury to hear that Mr. Austin had
previously threatened her would only inflame the jury and the concern
substantially outweighed any probative value the testimony had.

The Appellant’s reliance on the Rules of Evidence is misplaced. First, we again acknowledge
that, at a capital re-sentencing hearing,

evidence may be presented as to any matter that the court deems
relevant to the punishment and may include, but not be limited to, the
nature and circumstances of the crime; the defendant’s character,
background, history, and physical condition; any evidence tending to
establish or rebut the aggravating circumstances enumerated in
subsection (i) below; and any evidence tending to establish or rebut
any mitigating factors. Any such evidence which the court deems to
have probative value on the issue of punishment may be received
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. . . .

TENN. CODE ANN . § 39-2404(c). Generally, evidence of threats against witnesses attributed to the
accused is probative as being either (1) conduct inconsistent with the accused’s claim of innocence
or (2) conduct consistent with the theory that the making of such threats evinces a consciousness of
guilt. See generally NEIL P. COHEN ET AL., TENNESSEE LAW OF EVIDENCE § 4.01[13] (4 th ed. 2000)
(citing State v. Maddox, 957 S.W.2d 547, 552 (Tenn. Crim. App. 1997); Tillery v. State, 565 S.W.2d
509 (Tenn. Crim. App. 1978)). At the basis of the Appellant’s mitigation theory was evidence tending
to negate his culpability for the offense. Thus, testimony relating that the Appellant would have
preferred that Ms. Pryor be killed, rather than provide testimony relating to activities surrounding the
murder of Julian Watkins, was evidence probative to rebut the defense theory of mitigation and to
establish residual doubt of the Appellant’s guilt. Accordingly, the testimony was properly admitted
and we find no error.

Appendix - Pg. 11
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 V.
Cross-examination of Witness Levi Haywood

During the re-sentencing hearing, defense counsel presented the testimony of Levi Haywood,
who testified that he had met Terry Casteel at the Shelby County Jail. Casteel informed Haywood that
he had been beaten and coerced into testifying against the Appellant. Haywood continued to state that
Casteel regretted his role as a prosecuting witness and asserted that the Appellant had not been
involved in the murder. On cross-examination, Haywood admitted that he had previously “omitted”
that Casteel had been beaten by the police in his recitation of his dealings with Casteel. The
examination continued to reveal that Casteel was considered to be a “snitch” because he had
implicated the Appellant. The following colloquy ensued:

GENERAL CAMPBELL: What happens to snitches, Mr. Haywood?

HAYWOOD: That all depends.

GLANKLER: Object.

COURT: Overruled.

GENERAL CAMPBELL: What happens to snitches in the jail?

HAYWOOD: It all depends. I wasn’t a snitch and I almost got stabbed
by a plumber because an officer said that I killed somebody.

GENERAL CAMPBELL: What happens to a snitch, Mr. Haywood, in
prison?

HAYWOOD: In prison?

GENERAL CAMPBELL: Yeah.

HAYWOOD: They may get beat up. They may get put on segregated
lock up. It all depends.

GENERAL CAMPBELL: They may get killed, too?

HAYWOOD: Yeah, they might.

The Appellant now contends that the trial court erred in permitting into evidence Haywood’s
testimony about “[w]hat happens to snitches in the jail.” Specifically, he contends that the testimony
is “speculative and irrelevant” and should not have been admitted into evidence.

Appendix - Pg. 12
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 Again, at a capital sentencing hearing,

evidence may be presented as to any matter that the court deems
relevant to the punishment and may include, but not be limited to, the
nature and circumstances of the crime; the defendant’s character,
background, history, and physical condition; any evidence tending to
establish or rebut the aggravating circumstances enumerated in
subsection (i) below; and any evidence tending to establish or rebut
any mitigating factors. Any such evidence which the court deems
to have probative value on the issue of punishment may be
received 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. . . .

TENN. CODE ANN . § 39-2404(c). Under these criteria, the State may properly introduce reliable
testimony probative to rebut any mitigating circumstance advanced by the defense. In the present case,
the Appellant sought to introduce “residual doubt” evidence to rebut the murder for remuneration
aggravating circumstance.16 Specifically, he presented the testimony of Levi Haywood to relate that
Terry Casteel had only implicated the Appellant in the murder because Casteel was physically
intimidated by the police. The State then sought to explain Casteel’s motive in explaining to
Haywood and other inmates as to why he testified against the Appellant. Evidence regarding the
treatment of “snitches” was, therefore, probative in explaining Casteel’s differing justification of his
testimony to Haywood.17 Accordingly, we find no error in permitting the introduction of such
evidence. This claim is without merit.

VI.
Fifth Amendment Rights of Jack Charles Blankenship

Prior to the re-sentencing hearing, defense counsel obtained a writ of habeas corpus ad
testificandum to bring Jack Charles Blankenship to Memphis to testify. Upon arriving in Memphis,
Blankenship consulted with his attorney and was advised to assert his Fifth Amendment privilege
against self-incrimination. At the re-sentencing hearing, Blankenship invoked his Fifth Amendment
privilege upon being called to the stand. The trial court found that Blankenship’s Fifth Amendment
privilege had expired in the present case because his conviction for his criminal involvement in
Watkins’ murder was final and he was not subject to further prosecution. As such, the court ordered

16
“Residual doubt” evidence is not “a fact about the defendant or the circumstances of the crime, but is a state of mind
somewhere between reasonable doubt and absolute certainty of guilt.” Teague, 897 S.W.2d 253 (citing State v. Bigbee, 885 S.W.2d
797, 813 (Tenn. 1994)). “Residual doubt” evidence is admissible at a capital re-sentencing hearing where the evidence relates directly
to a mitigating factor or rebuts the State’s proof as to an aggravating factor. Teague, 897 S.W.2d at 253 (“[p]rohibiting evidence
regarding the extent to which the defendant did or did not participate in the commission of the crime would defeat in large measure
the defendant’s right to present evidence denying, explaining or rebutting evidence of aggravating circumstances).
17
The test for admissibility is not whether the evidence tends to prove the defendant did or did not commit the crime, but,
whether it relates to the circumstances of the crime or the aggravating or mitigating circumstances. See Teague, 897 S.W.2d at 252.

Appendix - Pg. 13
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Blankenship to testify. Blankenship proceeded to testify, corroborating the testimony of Terry Casteel
and recanting his previous testimony which exculpated the Appellant. The Appellant now contends
that the court unconstitutionally compelled Blankenship’s testimony.

A criminal defendant lacks standing to complain of the violation of a third party’s Fifth
Amendment privilege against self-incrimination. See, e.g., United States v. Tribunella, 749 F.2d 104,
106 n.1 (2d Cir. 1984); United States v. Minor, 398 F.2d 511, 513 (2d Cir. 1968); People v. Jenkins,
997 P.2d 1044, 1089 (Cal. 2000), petition for writ of cert. filed, (Oct. 24, 2000); People v. Homes,
654 N.E.2d 662, 668 (Ill. App. 1995). The Fifth Amendment privilege is personal and cannot be
vicariously asserted. Rogers v. United States, 340 U.S. 367, 371, 71 S. Ct. 438, reh’g denied, 341 U.S.
912, 71 S. Ct. 619 (1951). The Appellant was not compelled to testify; Blankenship was. Only
Blankenship, and not the Appellant, may assert a violation of the privilege. Whatever the merit of the
Appellant’s claim may be, the Appellant has no standing to assert the alleged violation of the Fifth
Amendment privilege of Blankenship. Accordingly, we need not address the merits of the Appellant’s
complaint.

VII.
[Deleted: Introduction of Victim Impact Evidence]

VIII.
Prosecutorial Misconduct during Closing Argument

In his next argument, the Appellant contends that the State violated his right to a fair trial by
arguing matters not in evidence during closing argument. Specifically, he asserts that the State:

crafted a blatantly false motive for Austin to kill Watkins, by arguing
to the jury that [the Appellant] would have lost his amusement license
and thus could no longer operate The Golden Cue. However, [the
Appellant] never held an amusement license, and there was put
forward no proof by the State that he ever did have such a license.

As asserted by the State, the Appellant failed to make a contemporaneous objection to the
prosecutor’s statements during closing argument. See State v. Green, 947 S.W.2d 186 (Tenn. Crim.
App. 1997); State v. Little, 854 S.W.2d 643, 651 (Tenn. Crim. App.1992) (failure to object to
prosecutor's alleged misconduct during closing argument waives later complaint). The failure to
object to the prosecutor’s statements results in waiver on appeal. See generally State v. Thornton, 10
S.W.3d 229, 234 (Tenn. Crim. App. 1999) (citing Tenn. R. App. P. 36(a)). Because the issue was
procedurally defaulted, we decline review of its merits.

Appendix - Pg. 14
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 IX.
Refusal to Instruct Jury as to Sentences Received by Co-Defendants

The Appellant argues that numerous constitutional rights were violated by virtue of the trial
court’s failure to instruct the jury to consider the sentences received by co-defendants Terry Casteel
and Jack Charles Blankenship as non-statutory mitigating circumstances.18 The trial court refused to
so instruct the jury, finding:

. . . [U]nder the statutory definition of accessory before the fact, it says,
the sentence may be, and I’m paraphrasing, I don’t even have it in
front of me, may be life or death. And then that extra line follows that.
It says, regardless of punishment for the principal or other people
involved. And as a result of that statutory scheme, I felt it’s
inappropriate to bring that up. And as a result, I did not put it in
there.[19 ]

Conceding that the statute provides that an accessory may receive a more severe sentence than the
principal, the Appellant maintains that this fact does not preclude consideration of the punishments
received by co-defendants as a mitigating factor in determining the appropriate sentence for an
accessory before the fact. In support of his position that sentences received by equally culpable
defendants be instructed as a mitigating circumstance, the Appellant relies upon our supreme court’s
opinion in State v. Odom, 928 S.W.2d 18 (Tenn. 1996), and the fact that the federal capital sentencing
provisions expressly provide that the non-death sentences received by equally culpable defendants
may be considered as a mitigating factor. See 18 U.S.C.S. § 3592(a)(4) (Law. Co-op. 2000 Supp.).

In State v. Odom, our supreme court held that, although TENN . CODE ANN . § 39-2-
204(e)(1)(1991), requires trial courts “to instruct the jury on any mitigating circumstances raised by
the evidence at either the guilt or sentencing hearing, or both, ” “neither the United States
Constitution nor the Tennessee Constitution requires the trial judge to read or submit non-statutory
mitigating circumstances to the jury.” Id. at 28-30. The trial court, additionally, noted that the law
prior to 1989,TENN. CODE ANN . § 39-2-203(e) (1982), did not require that non-statutory mitigating
factors be expressly instructed. Odom, 928 S.W.2d at 29 (citations omitted); see also Smith, 993
S.W.2d at 32, (Appendix) (Odom’s interpretation of TENN. CODE ANN . § 39-2-204(e)(1) not
applicable to sentence imposed under prior sentencing law).

18
The record shows that co-defendant Casteel received a twenty-year sentence and co-defendant Blankenship received a
sentence of life imprisonment.
19
TENN. CODE ANN. § 39-2407 provides:

Any person tried and convicted as an accessory before the fact of murder in the first degree
shall be punished by life imprisonment or by death under the provisions of Tennessee Code
Annotated, Sections 39-2402, 39-2404, 39-2405 and 39-2406, and said trial and sentence
shall not depend on when or if the principal is convicted nor on the punishment actually
imposed on said principal.

Appendix - Pg. 15
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 Because the offense for which the Appellant was convicted was committed in 1977, the
supreme court’s interpretation of TENN. CODE ANN . § 39-2-204(e)(1), involving post-1989 capital
convictions, has no application to this case. The sentencing law in effect at the time of the offense,
i.e.,TENN. CODE ANN . § 39-2404 (e), did not require that the jury be instructed as to non-statutory
mitigating circumstances.20 See Smith, 993 S.W.2d at 32 (§ 39-2-203(e) does not require instruction
on non-statutory mitigating circumstances).21 Accordingly, we conclude that the trial court did not
err in refusing to instruct the jury as to the sentences received by the Appellant’s co-defendants as
such an instruction was neither statutorily nor constitutionally required.22

X.
Refusal to Instruct Jury as to Sentence of Life Without Parole

The Appellant asserts that he was entitled to have the jury instructed as to the sentencing
option of life without the possibility of parole. In 1993, the General Assembly amended the capital
sentencing statutes to provide for the sentence of life imprisonment without the possibility of parole.
State v. Keen, 31 S.W.3d 196, 213 (Tenn. 2000), petition for cert. filed, (Dec. 5, 2000) (citing 1993
Tenn. Pub. Acts ch. 473). It is well established that prior to 1993 the only punishments available for
a person convicted of first degree murder were life imprisonment and death. See Keen, 31 S.W.3d
at 213; State v. Cauthern, 967 S.W.2d 726, 735 (Tenn. 1998), cert. denied, 525 U.S. 967, 119 S. Ct.
414 (1998); see also State v. Bruce C. Reliford, No. W1999-00826-CCA-R3-CD (Tenn. Crim. App.
at Jackson, Oct. 2, 2000). Although the Appellant’s offense was committed prior to the effective date
of the act, he asserts that he is entitled to an instruction on life without the possibility of parole
because his sentencing hearing on remand occurred after the act was passed. Specifically, in support
of his position, the Appellant advances the following arguments:

(1) A sentencing scheme that does not offer a sentence of life without
the possibility of parole cannot be relied upon to reflect a properly
guided and reasoned decision that death is the most appropriate
punishment;

20
TENN. CODE ANN. § 39-2404(e) provides:

After closing arguments in the sentencing hearing, the trial judge shall include in his
instructions for the jury to weigh and consider any mitigating circumstances and any of the
statutory aggravating circumstances set forth in subsection (i) of this section which may be
raised by the evidence at either the guilt or sentencing hearing, or both. These instructions
and the manner of arriving at a sentence shall be given in the oral charge and in writing to
the jury for its deliberations.
21
TENN. CODE ANN. § 39-2404(e) is verbatim TENN. CODE ANN. § 39-2-203(e). Thus, the same analysis is applied.
22
Although we find it unnecessary to address the Appellant’s contention that sentences received by co-defendants are a
valid non-statutory mitigating circumstance, a determination of whether the circumstance is mitigating would be a cognizable issue
had the 1 989 Criminal Sentencing Act been applicable. See generally Odom, 928 S.W.2d at 30-32. Additionally, while we take no
position as to this determination, the Appellant is correct that under the Federal Death Penalty Act the circumstance that “[a]nother
defendant or defendants, equally culpable in the crime, will not be punished by death” is a statutorily enumerated mitigating factor.
18 U.S.C.S. § 3592(a)(4).

Appendix - Pg. 16
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 (2) A sentencing scheme that does not permit consideration of life
without the possibility of parole infringes upon evolving standards of
decency protected by the federal and state constitutions;

(3) A death sentence returned under a sentencing scheme which
requires juries to sentence defendants to the death penalty in order to
incapacitate the defendants from committing further crimes constitutes
excessive punishment; and

(4) Refusal to permit consideration of life without the possibility of
parole violates rights to equal protections of the laws.

While we respect the Appellant’s arguments in support of this claim, we note that the identical
arguments were recently rejected by our supreme court in State v. Keen, 31 S.W.3d at 213-219.
Accordingly, as we are bound by the precedent established by the supreme court, we find it
unnecessary to revisit the arguments recently dismissed by the court. This claim is without merit.

XI.
Refusal to Instruct Jury Regarding Parole Eligibility

During jury deliberation, the jury submitted a question to the court asking “how long is a life
sentence and if there is any possibility of parole.” After consulting with both the State and defense
counsel, the trial judge explained to the jury that, “once a jury starts it s deliberations, the trial judge
is extremely limited on his involvement. . . .” The judge continued that he was “not at liberty” to
respond to their question and that the law to be applied had already been charged. The jury resumed
deliberations at 9:35 a.m. and returned a verdict of death at 1:50 p.m..

The Appellant now complains that, under the authority of Simmons v. South Carolina, 512
U.S. 154, 114 S. Ct. 2187 (1994), the trial court’s failure to answer the jury’s question violated
virtually every constitutional right belonging to a capital defendant. As advanced by the State, our
supreme court reviewed and rejected this very same argument under almost identical circumstances
in State v. Bush, 942 S.W.2d 489, 503 (Tenn.), cert. denied, 522 U.S. 953, 118 S. Ct. 376 (1997).

In State v. Bush, the jury sent a note to the court fifteen minutes after deliberations began
asking, “How many years does the [defendant] serve if he gets life imprisonment and how long before
parole?” The trial court instructed the jury, “parole eligibility is not an issue in a capital case . . . .”
In approving the trial court’s response, our supreme court noted that, in Simmons, the Supreme Court
held that due process only required an instruction that the defendant is parole ineligible “where the
defendant’s future dangerousness is at issue, and state law prohibits the defendant’s release on
parole.” Bush, 942 S.W.2d at 503 (citing Simmons, 512 U.S. at 155-156, 114 S. Ct. at 2190). The
Supreme Court added that the Court would not “second-guess the refusal of a State to allow proof,
instruction, or argument to the jury on the availability of parole” “[i]f parole is an option for a
defendant sentenced to life imprisonment.” Bush, 942 S.W.2d at 503 (citing Simmons, 512 U.S. at

Appendix - Pg. 17
-17-
168-169, 114 S. Ct. at 2196; see also Simmons, 512 U.S. at 175-177, 114 S. Ct. at 2200 (O’Connor,
J., concurring) (parenthetical omitted)). Under the reasoning provided in Simmons, our supreme court
held that “[s]ince Tennessee is a state in which defendants sentenced to life imprisonment are eligible
for parole, Simmons does not require that the jury be given information about parole availability.”
Bush, 942 S.W.2d at 503. This position is supported by other decisions of the court “holding that the
after-effect of a jury’s verdict, such as parole availability, is not a proper instruction or consideration
for the jury during deliberations.”23 Bush, 942 S.W.2d at 503 (citing Caughron, 855 S.W.2d at 543;
State v. Payne, 791 S.W.2d 10, 21 (Tenn. 1990), aff’d by, 501 U.S. 808, 111 S. Ct. 2597 (1991)
(internal footnote omitted)). This issue is without merit.

XII.
Whether Aggravator (i)(4) Violates State v. Middlebrooks

The Appellant was found guilty of accessory before the fact to first degree murder. An
“accessory before the fact” is “[a]ny person who shall feloniously move, incite, counsel, hire,
command, or procure any other person to commit a felony. . . .” TENN. CODE ANN . § 39-107. In
imposing a sentence of death in this case, the jury found that “[t]he defendant committed the murder
for remuneration or the promise of remuneration, or employed another to commit the murder for
remuneration or the promise of remuneration.” TENN. CODE ANN . 39-2404(i)(4). The Appellant now
contends that the evidence used to convict him as an accessory before the fact to first degree murder
duplicated that used to support the aggravating factor in TENN. CODE ANN . § 39-2404(i)(4)
(employing another to commit the murder for the promise of remuneration). Relying upon State v.
Middlebrooks, 840 S.W.2d 317 (Tenn. 1992), the Appellant asserts that the duplication of facts to
support both the conviction and sentence does not achieve the constitutionally required “narrowing”
of death eligible defendants. See Zant v. Stephens, 462 U.S. 862, 877, 103 S. Ct. 2733 (1983)
(aggravating factor 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”).

In State v. Middlebrooks, 840 S.W.2d at 346, our supreme court held that, when a defendant
is convicted of felony murder, the aggravating circumstance set out in TENN. CODE ANN . § 39-13-
204(i)(7)(murder committed while committing certain enumerated felonies) does not narrow the class
of death eligible murderers sufficiently under the Eighth Amendment to the United States
Constitution and Article I, § 16 of the Tennessee Constitution "because it duplicates the elements of
the offense." See State v. Hall, 958 S.W.2d 679, 692 (Tenn. 1997), cert. denied, 524 U.S. 941, 118
S. Ct. 2348 (1998). The court reasoned that all participants in a felony murder, regardless of the
degree of culpability, enter the sentencing stage of the trial with at least one aggravating factor against

23
The Bush court did expressly recognize, however, the new sentencing option of life without the possibility of parole
effective July 1, 1993. See Bush, 942 S.W.2d at 503 n.8. The court also acknowledged another part of the legislative enactment
requiring the jurors now be instructed “that a defendant who receives a sentence of imprisonment for life shall not be eligible for
parole consideration until the defendant has served at least twenty-five full calendar years of such sentence.” Id. In addition, jurors
must be informed that “a defendant who receives a sentence of imprisonment for life without possibility of parole shall never be
eligible for release on parole.” Id. (citing TENN. CODE ANN. § 39-13-204(e)(2)).

Appendix - Pg. 18
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them because the aggravating factor duplicates the elements of the offense. Middlebrooks, 840
S.W.2d at 343 (quotation omitted).

The Appellant applies this same analysis to the (i)(4) aggravating factor when the conviction
is based upon “accessory before the fact.” The State acknowledges that this court, in the Appellant’s
fourth petition for post-conviction relief, rejected this identical issue and argues that, although not the
“law of the case,” this court should apply the same analysis in this direct appeal. See Richard H.
Austin v. State, No. 02C01-9310-CR-00238 (Tenn. Crim. App. at Jackson, May 3, 1995), perm. to
appeal denied, (Tenn. Nov. 6, 1995). The Appellant responds that this court misapplied the supreme
court’s decision in State v. Stephenson in determining that the Appellant had no Middlebrooks issue.
Specifically, he asserts that the Stephenson analysis is not germane to the present issue because the
Stephenson court based its decision on the criminal responsibility statute, a different underlying
statute than this court is faced with today. After re-examination of the issue, we remain convinced that
our previous rationale is correct and the same analysis applies.

In State v. Stephenson, 878 S.W.2d at 557, the defendant was convicted of first degree murder
by employing another to kill his wife. Stephenson’s conviction was based on his role in the killing
under the criminal responsibility statute, TENN. CODE ANN . § 39-11-402(2) (1991), and the death
sentence was based solely on the aggravating factor involving murder for remuneration or promise
of remuneration. TENN. CODE ANN . § 39-13-204(i)(4) (1991). The defendant claimed that the
constitutionally required narrowing of death eligible offenders was not achieved because of the
duplication of facts to support the conviction and the death sentence. Our supreme court disagreed,
noting that the defendant stood convicted of first degree premeditated murder, which is defined as an
“intentional, premeditated and deliberate killing of another.” TENN. CODE ANN . § 39-13- 202(a)(1)
(1991). The conviction was based on the criminal responsibility statute, TENN. CODE ANN . § 39-11-
402(2), which provides:

A person is criminally responsible for an offense committed by the
conduct of another if:

Acting with intent to promote or assist the commission of the offense,
or to benefit in the proceeds or results of the offense, the person
solicits, directs, aids, or attempts to aid another person to commit the
offense. . . .

The supreme court concluded that “the statutory aggravating circumstance found by the jury is a
proper narrowing device because it provides a ‘principled way in which to distinguish’ the cases in
which the death penalty is imposed from the many cases in which it is not. . . .” Stephenson, 878
S.W.2d at 557. The court reasoned:

The aggravating circumstance - the defendant employed another to
commit the murder for remuneration or the promise of remuneration -
does not duplicate the elements of the offense, even incorporating the

Appendix - Pg. 19
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 criminal responsibility statutes. Constitutional narrowing is
accomplished because at the sentencing hearing, the State was required
to prove that this defendant hired someone to kill his wife, or promised
to pay someone to kill his wife. Obviously, not every defendant who
is guilty of first-degree murder pursuant to the criminal responsibility
statutes has also hired another or promised to pay another to commit
the murder. Thus, the aggravating circumstance found by the jury in
this case narrows the class of death-eligible defendants as required by
State v. Middlebrooks, supra.

Id. at 557 (emphasis added).

As noted in this court’s decision in Richard H. Austin v. State, No. 02C01-9310-CR-00238,
the Appellant’s conviction was premised on a theory of criminal responsibility for the conduct of
another, although not expressly designated as such at the time.24 Specifically, the Appellant was
convicted of accessory before the fact to first degree murder. An accessory before the fact” is “[a]ny
person who shall feloniously move, incite, counsel, hire, command, or procure any other person to
commit a felony. . . .” TENN. CODE ANN . § 39-107. Applying the Stephenson rationale, not every
person who is convicted as an accessory before the fact to first degree murder has also hired another
or promised to pay another to commit the murder.25 Accordingly, as in Stephenson, we conclude that
the aggravating factor enumerated in TENN. CODE ANN. § 39-2404(i)(4) achieves the constitutionally
required narrowing of death eligible defendants even where the conviction is based on the defendant’s
role as an accessory before the fact. See Owens v. State, 13 S.W.3d 742, 764-765 (Tenn. Crim. App.
1999), perm. to appeal denied, (Tenn.), cert. denied, – U.S.–, 121 S. Ct. 116 (2000). For these reasons,
the Appellant is denied relief on this claim.

24
Under the law existing at the time of this offense, an accessory before the fact was deemed a principal offender and
punished as such. See TENN. CODE ANN. § 39-108. This code section, in addition to TENN. CODE ANN. § 39-109 (defining aiders and
abettors), was subsequently repealed and replaced by the criminal responsibility statute. See TENN. CODE ANN. § 39-11-402. Indeed,
“[s]ubdivision (2 ) [of TENN. CODE ANN. § 39-11-402] sets forth the conduct of defendants formerly known as accessories before
the fact and aiders and abettors.” Sentencing Commission Comments, TENN. CODE ANN. § 39-11-402.
25
Additionally, we acknowledge that the Appellant raised the identical claim in his federal habeas corpus petition. The
District Court for the Middle District of Tennessee rejected the claim, holding that the Appellant’s “allegation of a Middlebrooks
violation fails to present a cognizable federal claim.” Austin v. Bell, 938 F.Supp. 1308, 1326 (M.D. Tenn. 1996). Nonetheless, the
district court proceeded to address the issue on its merits, concluding

[a]ccording to the law in effect at the time of Julian Watkins’ murder, an accessory before
the fact was deemed a principle offender and punished as such. See TENN. CODE ANN. § 39-
108 (repealed 1989). Because not every defendant who is guilty of first-degree murder
pursuant to the criminal responsibility statute has also hired another person to commit the
murder, however, the aggravating circumstance that Petitioner’s jury found did narrow the
class of death-eligible defendants in accordance with Middlebrooks. Stephenson, 878
S.W.2d at 557. Therefore, the aggravating circumstance that Petitioner’s jury found did
narrow the class of death-eligible defendants in accordance with Middlebrooks.

Austin v. Bell, 938 F.Supp. at 1327.

Appendix - Pg. 20
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 XIII.
Propriety of Court’s Refusal to Impose Life Sentence Due to Twenty-year Delay

The Appellant asserts that the twenty plus years delay in imposing the death penalty has
eviscerated any justification for carrying out the sentence of death; therefore, execution of this
sentence at this point would constitute cruel and unusual punishment under the Eighth Amendment
to the United States Constitution and Article I, Section 16 of the Tennessee Constitution. The United
States Supreme Court declined to review a similar issue in Lackey v. Texas, 514 U.S. 1045, 115 S.
Ct. 1421 (1995), petition for reh’g denied, 520 U.S. 1183, 117 S. Ct. 1465 (1997) (whether executing
a prisoner who has already spent seventeen years on death row violates the Eight Amendment’s
prohibition against cruel and unusual punishment). Notwithstanding, Justice Stevens, joined by
Justice Breyer, filed a memorandum, emphasizing that a denial of certiorari was not a ruling on its
merits and noting his belief that this concern should be further explored. Lackey v. Texas, 514 U.S.
at 1045, 115 S. Ct. at 1421. Specifically, Justice Stevens recognized that the delay in the execution
of judgments imposing the death penalty frustrates the two principal social purposes of the penalty,
i.e., retribution and deterrence. Lackey, 514 U.S. at 1045, 115 S. Ct. at 1421 (Stevens, J., respecting
denial of certiorari). In so stating, Justice Stevens invited the state and federal courts to “serve as
laboratories in which the issue [may] receive further study before it is addressed by this Court.” Id.
at 1045, 115 S. Ct. at 1421 (citing McCray v. New York, 461 U.S. 962, 963 103 S. Ct. 2438, 2439
(1983)).

The issue was again presented to the Court in Knight v. Florida, 528 U.S. 990, 120 S. Ct. 459
(1999). Justice Thomas, writing separately in the court’s denial of certiorari, opined:

. . .I am unaware of any support in the American constitutional
tradition or in this Court’s precedent for the proposition that a
defendant can avail himself of the panoply of appellate and collateral
procedures and then complain when his execution is delayed.
Consistency would seem to demand that those who accept our death
penalty jurisprudence as a given also accept the lengthy delay between
sentencing and execution as a necessary consequence. . . . It is
incongruous to arm capital defendants with an arsenal of
“constitutional” claims with which they may delay their executions,
and simultaneously to complain when executions are inevitably
delayed.
...

Knight v. Florida, _U.S. at __, 120 S. Ct. at 459-60 (Thomas, J., concurring in denial of certiorari)
(citations omitted). Justice Thomas, notably, revisited Justice Stevens previous invitation for the
lower courts to serve as “laboratories” in which the viability of this claim could receive further study.
He emphasized that, since Justice Stevens’ invitation, the lower courts have “resoundingly rejected
the claim as meritless.” Id. at 461, 120 S. Ct. at 461 (citing People v. Frye, 959 P.2d 183, 262 (Cal.
1998), cert. denied, 526 U.S. 1023, 119 S. Ct. 1262 (1999); People v. Massie, 967 P.2d 29, 44-45

Appendix - Pg. 21
-21-
(Cal. 1998), cert. denied, 526 U.S. 1113, 119 S. Ct. 1759 (1999); Ex parte Bush, 695 So.2d 138, 140
(Ala. 1997); State v. Schackart, 947 P.2d 315, 336 (Ariz. 1997), cert. denied, 525 U.S. 862, 119 S.
Ct. 149 (1998); Bell v. State, 938 S.W.2d 35, 53 (Tex. Crim. App. 1996), cert. denied, 522 U.S. 827,
118 S. Ct. 90 (1997); State v. Smith, 931 P.2d 1272, 1287-88 (Mont. 1996), cert. denied, 522 U.S.
965, 118 S. Ct. 410 (1997); White v. Johnson, 79 F.3d 432, 439-40 (C.A.5), cert. denied, 519 U.S.
911, 117 S. Ct. 275 (1996); Stafford v. Ward, 59 F.3d 1025, 1028 (C.A. 10 1995)). A panel of this
court similarly dismissed the claim without review. See State v. Charles Eddie Hartman, No. M1998-
00803-CCA-R3-DD (Tenn. Crim. App. at Nashville, May 17, 2000).

After consideration of the Appellant’s claim, we perceive no constitutional violation under
either the federal or the Tennessee constitution. We remain unconvinced that neither this state’s
capital sentencing law nor the accompanying subsequent appellate review of a capital conviction was
enacted with a purpose to prolong incarceration in order to torture inmates prior to their execution.
As in most cases, the delay in the instant case was caused in large part by numerous appeals and
collateral attacks lodged by the Appellant. This issue is without merit.

XIV.
Constitutional Challenges to Death Penalty

The Appellant raises numerous challenges to the constitutionality of Tennessee’s death penalty
provisions. The challenges raised by the Appellant have been previously examined and rejected by
case law decision. The body of law upholding the constitutionality of Tennessee’s death penalty
provisions, specifically, that rejecting the claims currently raised by the Appellant, is recited as
follows:

1. Tennessee’s death penalty statutes meaningfully narrow the class of
death eligible defendants; specifically, the statutory aggravating
circumstances set forth in TENN. CODE ANN § 39-2-203(i)(2), (i)(5),
(i)(6), and (i)(7) provide such a meaningful basis for narrowing the
population of those convicted of first degree murder to those eligible
for the sentence of death.26 See State v. Vann, 976 S.W.2d 93, 117-
118 (Tenn. 1998) (Appendix), cert. denied, 526 U.S.1071, 119 S. Ct.
1467 (1999); Keen, 926 S.W.2d at 742.

2. The death sentence is not capriciously and arbitrarily imposed in
that

(a) The prosecutor is not vested with unlimited discretion as to
whether or not to seek the death penalty. See State v. Hines,

26
We note that factors (i)(2), (i)(5), (i)(6), and (i)(7) do not pertain to this case as they were not relied upon by the State.
Thus , any individual claim with respect to these factors is without merit. See, e.g., Hall, 958 S.W.2d at 715; Brimmer, 876 S.W.2d
at 87.

Appendix - Pg. 22
-22-
919 S.W.2d 573, 582 (Tenn. 1995), cert. denied, 519 U.S. 847,
117 S. Ct. 133 (1996).

(b) The death penalty is not imposed in a discriminatory
manner based upon economics, race, geography, and gender.
See Hines, 919 S.W.2d at 582; Brimmer, 876 S.W.2d at 87;
Cazes, 875 S.W.2d at 268; Smith, 857 S.W.2d at 23.

(c) Standards or procedures for jury selection exist to insure
open inquiry concerning potentially prejudicial subject matter.
See Caughron, 855 S.W.2d at 542.

(d) The death qualification process does not skew the make-up
of the jury and does not result in a relatively prosecution prone
guilty-prone jury. See State v. Teel, 793 S.W.2d 236, 246
(Tenn.), cert. denied, 498 U.S. 1007, 111 S. Ct. 571 (1990);
State v. Harbison, 704 S.W.2d 314, 318 (Tenn.), cert. denied,
470 U.S. 1153, 106 S. Ct. 2261 (1986).

(e) Defendants are not unconstitutionally prohibited from
addressing jurors’ popular misconceptions about matters
relevant to sentencing, i.e., the cost of incarceration versus cost
of execution, deterrence, method of execution. See Brimmer,
876 S.W.2d at 86-87; Cazes, 875 S.W.2d at 268; Black, 815
S.W.2d at 179.

(f) There is no constitutional violation when the jury is
instructed that it must agree unanimously in order to impose a
life sentence, and is not told the effect of a non-unanimous
verdict. See Brimmer, 876 S.W.2d at 87; Cazes, 875 S.W.2d
at 268; Smith, 857 S.W.2d at 22-23.

(g) Requiring the jury to agree unanimously to a life verdict
does not violate Mills v. Maryland and McKoy v. North
Carolina. See Brimmer, 876 S.W.2d at 87; Thompson, 768
S.W.2d at 250; State v. King, 718 S.W.2d 241, 249 (Tenn.
1986), superseded by statute as recognized by, Hutchinson,
898 S.W.2d at161.

(h) The jury is required to make the ultimate determination that
death is the appropriate penalty. See Brimmer, 876 S.W.2d at
87; Smith, 857 S.W.2d at 22.

Appendix - Pg. 23
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 (i) The defendant is not denied closing argument in the penalty
phase of the trial. See Brimmer, 876 S.W.2d at 87; Cazes, 875
S.W.2d at 269; Smith, 857 S.W.2d at 24; Caughron, 855
S.W.2d at 542.

3. The appellate review process in death penalty cases is
constitutionally adequate. See Cazes, 875 S.W.2d at 270-71; Harris,
839 S.W.2d at 77. Moreover, the supreme court has recently held that,
“while important as an additional safeguard against arbitrary or
capricious sentencing, comparative proportionality review is not
constitutionally required.” See State v. Bland, 958 S.W.2d 651, 663
(Tenn. 1997), cert. denied, 523 U.S. 1083, 118 S. Ct. 1536 (1998).

Based upon the above case decisions, the appellant’s constitutional challenges to Tennessee’s death
penalty statutes are rejected.

XV.
[Deleted: Proportionality of Sentence]

Conclusion

In accordance with the mandate of Tenn. Code Ann. § 39-13-206(c)(1) and the principles
adopted in prior decisions of the Tennessee Supreme Court, we have considered the entire record in
this cause and find that the sentence of death was not imposed in any arbitrary fashion, that the
evidence supports, as previously discussed, the jury's finding of the statutory aggravating
circumstance, and the jury's finding that the aggravating circumstance outweighed mitigating
circumstances beyond a reasonable doubt. Tenn. Code Ann. § 39-13-206(c)(1)(A)(C). A comparative
proportionality review, considering both “the nature of the crime and the defendant,” convinces us
that the sentence of death is neither excessive nor disproportionate to the penalty imposed in similar
cases. Accordingly, we affirm the sentence of death imposed by the trial court.

DAVID G. HAYES, Judge

CONCUR:

JOE G. RILEY, Judge

JOHN EVERETT WILLIAMS, Judge

Appendix - Pg. 24
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