State v. Middlebrooks

IN THE SUPREME COURT OF TENNESSEE
AT NASHVILLE

FILED
FOR PUBLICATION
July 6, 1999
FILED: July 6, 1999
Cecil Crowson, Jr.
Appellate Court Clerk
STATE OF TENNESSEE, )
) DAVIDSON CRIMINAL
Appellee, )
)
)
Vs. ) HON. ANN LACY JOHNS,
) JUDGE
)
DONALD RAY MIDDLEBROOKS, )
)
Appellant. ) NO. 01S01-9802-CR-00017

For Appellant: For Appellee:
Lionel R. Barrett, Jr. John Knox Walkup
Nashville, Tennessee Attorney General & Reporter

Richard McGee Michael E. Moore
Nashville, Tennessee Solicitor General

Kathy Morante
Deputy Attorney General
Nashville, Tennessee

At Trial:
Victor S. Johnson III
District Attorney General

Roger D. Moore
Assistant District Attorney General

John C. Zimmerman
Assistant District Attorney General
Nashville, Tennessee

OPINION

AFFIRMED ANDERSON, C.J.
 This case is before us for automatic review of the Court of Criminal Appeals’

affirmance of a death sentence imposed upon Donald Ray Middlebrooks in a

Davidson County resentencing hearing for first degree murder. 1

Middlebrooks initially was convicted of felony murder and sentenced to death

based on the jury’s finding that evidence of two aggravating circumstances -- that

the murder was “especially heinous, atrocious, or cruel in that it involved torture or

depravity of mind,” Tenn. Code Ann. § 39-2-203(i)(5) (1982) (now codified in Tenn.

Code Ann. § 39-13-204(i)(5) (1997 & Supp. 1998)), and that the victim was killed in

the commission of a felony, Tenn. Code Ann. § 39-2-203(i)(7) (1982) (now codified

in Tenn. Code Ann. § 39-13-204 (i)(7) (1997 & Supp. 1998)) -- outweighed evidence

of mitigating circumstances.

On appeal, this Court affirmed Middlebrooks’ conviction but remanded the

case for resentencing because the (i)(7) felony murder aggravating circumstance

used to impose the death sentence duplicated the offense of felony murder and

therefore failed to narrow the class of death-eligible defendants under Article I,

Section 16 of the Tennessee Constitution. State v. Middlebrooks, 840 S.W.2d 317

(Tenn. 1992), cert. dismissed, 510 U.S. 124, 114 S. Ct. 651, 126 L. Ed. 2d 555

(1993).2

At the resentencing hearing, the jury again sentenced Middlebrooks to death

based on the aggravating circumstance that “the murder was especially heinous,

1
“Whenever the death penalty is imposed for first degree murder and when the
judgment has become final in the trial court, the defendant shall have the right of direct appeal from
the trial court to the court of criminal appeals. The affirmance of the conviction and the sentence of
death shall be automatically reviewed by the Tennessee supreme court. Upon the affirmance by the
cou rt of c rim inal ap pea ls, the clerk shall d ock et the cas e in the supr em e cou rt and the c ase shall
proceed in accordance with the Tennessee Rules of Appellate Procedure.” Tenn. Code Ann. § 39-13-
206(a)(1) (1997).

2
Jus tice D rowo ta an d for me r Jus tice O ’Brien disse nted as to this h olding in
Middlebrooks. 840 S.W .2d at 347-50 (Drowota, J., dissenting).

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atrocious, or cruel in that it involved torture or depravity of mind.” Tenn. Code Ann.

§ 39-2-203(i)(5). The Court of Criminal Appeals affirmed Middlebrooks’ sentence.

After the case was docketed as a death penalty appeal in this Court, we entered an

order specifying three issues for oral argument: (1) whether Tenn. Code Ann. § 39-

2-203(i)(5), the aggravating circumstance applied in this case, was constitutional; (2)

whether the prosecutor’s closing argument violated Middlebrooks’ right to due

process; and (3) whether the sentence of death is disproportionate.3

After reviewing the record, the Court of Criminal Appeals’ decision, the issues

raised, and the applicable law, we have determined beyond a reasonable doubt that

none of the alleged errors affected the sentence imposed by the jury; moreover, the

evidence supports the jury’s sentence of death, and the sentence is not

disproportionate or arbitrary as applied to the defendant. We have also determined

that the aggravating circumstance, Tenn. Code Ann. § 39-2-203(i)(5), was

constitutionally applied in this case. Accordingly, we affirm the sentence of death

by electrocution.

FACTUAL BACKGROUND

We begin by reviewing the evidence introduced at the resentencing hearing.

On the day of the murder, April 26, 1987, Donald Ray Middlebrooks, a twenty-four-

year-old white male, his wife, Tammy Middlebrooks, a seventeen-year-old white

female, and their friend Roger Brewington, a sixteen-year-old white male, had set up

a make-shift flea market in East Nashville. When Kerrick Majors, the fourteen-year-

old black male victim, and four of his friends walked over and began looking at the

items on the table, Tammy Middlebrooks yelled “Hey, ya’ll niggers leave our stuff

alone.”

3
“Prior to the setting of oral argument, the Court shall review the record and briefs and
consider all errors assigned. The Court may enter an order designating those issues it wishes
addressed at oral argument.” Tenn. Sup. Ct. R. 12.

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 Donald Middlebrooks and Brewington chased after Majors and the other

boys. Shannon Stewart testified that as he fled from the scene, he saw Brewington

grab Majors and drag him toward the table, where Middlebrooks struck Majors in the

face and knocked him down. Stewart heard Middlebrooks order Majors to “shut up

nigger.” The boys who made it to safety told Majors’ mother what had happened.

Majors’ mother called the police and also searched for her son. The next day

Majors’ naked body was found lying face up in a dry creek bed under a foam

mattress in the woods near the area where Majors had been abducted.

Bruises, scrapes, abrasions, and burns covered Major’s body. A woven belt

was strapped around his left wrist. A large laceration was sliced across his right

wrist. Two large lacerations made by a sharp instrument formed an “X” across his

chest. A bloody and swollen gash was above his left eye. His nose was bloody,

red, badly burned, and had pieces of skin missing. His lips were swollen and

lacerated, and the inside of his mouth was bloody and lacerated. His testicles were

badly swollen, and his legs were covered in blood down to his feet. There was urine

on different parts of his body and on a rag tied in a tight knot around his neck that

had been used as a gag in his mouth. A bloody stick lay next to his head. Finally,

there were two deep stab wounds in his chest a couple of inches apart.

The autopsy indicated that the cause of death was a stab wound to the chest

and that the murder weapon had been plunged to a depth of 3.3 inches. The “X”

carved into Majors’ chest was inflicted before the stab wounds, and at least one of

the stab wounds was made prior to his death. Majors was alive and conscious

throughout the infliction of the injuries and wounds. Majors lived a minimum of five

to six minutes and a maximum of thirty minutes from the time of the stab wounds.

He also would have been conscious part of the time while bleeding to death after

being stabbed.

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 Two days after the murder, Brewington voluntarily notified the police that

Donald Middlebrooks and Tammy Middlebrooks were involved in the murder. He

showed the officers a bloodstained knife with a brass knuckle handle that had been

used on Majors. Brewington also told the officers where to find Middlebrooks and

his wife.4

After being arrested, Middlebrooks gave a video-taped confession to the

police in which he admitted his own involvement but described Brewington as the

leader. According to Middlebrooks, after dragging Majors into the woods,

Brewington tied Majors’ hands and then slapped him, beat him with brass knuckles,

urinated in his mouth, and made him swallow. Middlebrooks said that Brewington

also beat Majors’ testicles, threatened to cut “it” open, beat his mouth and tongue

with a stick, and stuck a stick in Majors’ anus. Whenever Majors resisted or

screamed, Brewington continued to beat and slap him. Brewington told Majors he

was taking him “back to the days of Roots.” Brewington “dropped” the knife

repeatedly on top of Majors, gagged him, and slashed his wrist. Middlebrooks

stated that Tammy Middlebrooks also slapped Majors and burned his nose with a

cigarette lighter.

Middlebrooks said that Majors was crying and begging them to stop. When

Majors pleaded that all he wanted to do was to “go to school and get an education,”

Brewington replied “F--- you, nigger.” Middlebrooks also said that Majors’ cries were

getting on his nerves so he asked Brewington to stop. According to Middlebrooks,

Brewington then kissed Majors on the forehead and told him that it was “the kiss of

death.”

4
All three were charged with Majors’ murder. Brewington was eventually tried as an
adult and convicted of first degree murder, aggravated kidnapping, and armed robbery and sentenced
to consecutive sentences of life, 40 years, and 35 years, respectively. Because he was a minor, he
was no t eligible for the d eath pen alty. See State v. Brewington, No. 89-232-III, 1990 WL 83406 (Tenn.
Crim . App. Ju ne 20, 19 90), perm. app. denied, (Tenn . Oct. 1, 19 90). Ta mm y Middlebro oks ple d guilty
to first degr ee m urder an d was s entenc ed to life im prisonm ent.

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 In the video-taped confession, Middlebrooks admitted stabbing Majors once

and striking him across his legs with a switch. Middlebrooks explained that both he

and Brewington stabbed Majors once. In a prior statement, however, Middlebrooks

claimed to have inflicted both stab wounds. He also claimed he did not stop the

torture because he was afraid of Brewington and is “scared to fight.” At another

point, Middlebrooks contended that he stabbed Majors to prove he was “cooler” than

Brewington.

According to the State’s proof, fourteen-year-old Majors was small for his

age.5 He was described as a good student who loved school. He was not a violent

person, nor did he carry a weapon. Since his murder, his mother’s health has

deteriorated. She has been on medication and will not leave the house except for

doctor appointments. She has had a nervous breakdown, suffers from panic

attacks, and has not been able to sleep at night since the murder. Majors’ older

brother blames himself for Majors’ death and now suffers from mood swings.

Shannon Stewart testified that he had spoken with Middlebrooks the morning

of the murder. Middlebrooks had told Stewart that he was a member of the KKK,

that he “hated niggers,” and that he punched a black man just for saying hello.

Stewart also testified that he overheard Middlebrooks order Majors to “shut up

nigger.”

The defense introduced mitigation evidence as follows: Middlebrooks’

cousins, James and Carol Sue Little, and his half-sister, Sharon Fuchs, testified

about Middlebrooks’ childhood. Middlebrooks grew up in Texas. His father died

when he was four. His mother remarried and had another child, Ms. Fuchs, before

she again divorced. Middlebrooks’ mother either left the children at night with

relatives or else would take them to bars with her.

5
The autopsy indicated that Kerrick Majors was 4' 11" tall and weighed 112 pounds.

-6-
 According to the proof, Middlebrooks’ mother would often bring men to the

house, and the children sometimes heard or saw their mother having sex. Ms.

Fuchs testified that sometimes these men would molest her while her mother

watched. She further testified that she, Middlebrooks, and other children in the

family were molested by different family members. For example, Middlebrooks was

often left alone with a male relative who had sexually abused him, and

Middlebrooks’ mother would grab him between his legs and also watch him use the

bathroom. According to Sharon Fuchs, the small town in which they grew up lacked

counseling services or social service agencies where they could seek help for

sexual abuse. According to her, no one in the family ever discussed or admitted the

family’s problems.

The proof further indicated that Middlebrooks was often angry and got into

trouble. He was sent to a Methodist Home for Children in Waco for two years.

Later, he was twice sent to prison. Between prison stays, Middlebrooks started to

have seizures. On one occasion he climbed a water tower and threatened to

commit suicide. He was hospitalized more than once at a mental institution.

A psychologist, Dr. Jeffrey L. Smalldon, performed neuropsychological and

psychological evaluations of Middlebrooks. From these evaluations, interviews,

testing, and prior education and medical records, Smalldon concluded that

Middlebrooks has a severe borderline personality disorder. Middlebrooks exhibited

several characteristics of the disorder including inconsistent behavior, instability of

mood, a marked identity disturbance, impulsive and reckless behavior, poor anger

control, and recurring suicidal or self-destructive acts. Smalldon testified that the

documents from other mental health professionals who have evaluated

Middlebrooks indicate that he suffers from substance abuse, psychotic personality

disorder, and schizophrenia. Middlebrooks also suffers a mild degree of organic

brain impairment which causes him to be more impulsive and less able to delay his

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responses. Finally, Smalldon testified that Middlebrooks has also exhibited

characteristics of adults who were sexually abused as children.

During cross-examination, Dr. Smalldon admitted that Middlebrooks

confessed to a greater involvement in Majors’ death than he had in the video-taped

confession. For instance, Smalldon disclosed that Middlebrooks admitted to him

that it was his idea to hold Majors for ransom, that he helped tie Majors up, and that

he urinated on Majors. In an attempt to resolve the discrepancies between the

video-taped confession to the police and the confession made to him in the

interview, Smalldon explained that Middlebrooks is a chronic liar. Dr. Smalldon

conceded that Middlebrooks had never expressed any remorse to him. Smalldon

agreed that there were some indications in the medical records of Middlebrooks’

malingering, but testified that these indications were not inconsistent with mental

illness.

In rebuttal, the State introduced the testimony of two experts indicating that

Middlebrooks was exaggerating his mental illness symptoms, that he was competent

to stand trial, that he did not have a defense of insanity, and that he was not

committable. One expert testified that he could not say whether Middlebrooks was

mentally ill. The other expert testified that he made no finding of mental illness and

did not consider a personality disorder to be a mental illness.

After considering the evidence, the jury concluded that the aggravating factor

set forth in Tenn. Code Ann. § 39-2-203(i)(5), that the murder was “especially

heinous, atrocious, or cruel in that it involved torture or depravity of mind,”

outweighed the evidence of mitigating factors. Accordingly, the jury sentenced

Middlebrooks to death for the murder of Kerrick Majors.

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 CONSTITUTIONALITY OF PRE-1989 VERSION OF (i)(5)

The first issue designated for oral argument is constitutional. Middlebrooks

argues that the aggravating circumstance set forth in Tenn. Code Ann. § 39-2-

203(i)(5) (1982) -- that the murder was “especially heinous, atrocious, or cruel in that

it involved torture or depravity of mind” -- is unconstitutionally vague and that its

application to this case violates Article I, Section 16 of the Tennessee Constitution

and the Sixth, Eighth, and Fourteenth Amendments to the United States

Constitution.6

At the sentencing hearing, the trial court instructed the jury that “no death

penalty shall be imposed unless you unanimously find that the State has proven

beyond a reasonable doubt that the murder was especially heinous, atrocious, or

cruel in that it involved torture or depravity of mind.” It further instructed, however,

that the jury was to follow these definitions:

Heinous means grossly wicked or reprehensible, abominable, odious,
vile.

Atrocious means extremely evil or cruel, monstrous, exceptionally bad,
abominable.

Cruel means disposed to inflict pain or suffering, causing suffering,
painful.

Torture means the infliction of severe physical or mental pain upon the
victim while he remains alive and conscious.

Depravity means moral corruption, wicked or perverse act.

We begin with the principle that any aggravating circumstance must furnish a

principled guidance for the jury to choose between death and a lesser sentence.

E.g., Godfrey v. Georgia, 446 U.S. 420, 100 S. Ct. 1759, 64 L. Ed. 2d 398 (1980).

In applying this principle, we have consistently upheld the constitutionality of Tenn.

6
The trial co urt pr ope rly instr ucte d und er this pre-1 989 vers ion of (i)(5) , whic h wa s in
effect at th e time o f the offen se. State v. Cazes, 875 S.W .2d 253 ( Tenn . 1994), cert. denied, 513 U.S.
1086, 115 S. Ct. 743, 130 L. Ed. 2d 644 (1995). Effective in 1989, the aggravating circumstance was
ame nded to r eplace “d epravity of m ind” with “se rious phys ical abus e beyond that nece ssary to
produce death.” Tenn . Code Ann. § 39-13-20 4(i)(5) (1997 & Supp. 1998).

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Code Ann. § 39-2-203(i)(5) (1982) and have rejected the contention that it is vague

or overbroad. State v. Blanton, 975 S.W.2d 269, 280 (Tenn. 1998); State v. Black,

815 S.W.2d 166, 181 (Tenn. 1991); State v. Barber, 753 S.W.2d 659, 670 (Tenn.

1988). Moreover, in State v. Williams, 690 S.W.2d 517 (Tenn. 1985), we carefully

reviewed this aggravating circumstance and clarified its application by specifically

defining each term and qualifier contained in (i)(5). These Williams’ definitions were

included in the trial court’s charge to the jury in this case. We therefore reject

Middlebrooks’ claim that the aggravating circumstance was vague or overbroad.

Notwithstanding this Court’s precedent, Middlebrooks relies on several United

States Supreme Court decisions. See Shell v. Mississippi, 498 U.S. 1, 111 S. Ct.

313 112 L. Ed. 2d 1 (1990); Walton v. Arizona, 497 U.S. 639, 110 S. Ct. 3047, 111

L. Ed. 2d 511 (1990); Maynard v. Cartwright, 486 U.S. 356, 108 S. Ct. 1853, 100 L.

Ed. 2d 372 (1988); Godfrey, 446 U.S. 420, 100 S. Ct. 1759. In State v. Thompson,

768 S.W.2d 239, 252 (Tenn. 1989), we distinguished the language of the

aggravating circumstance in (i)(5) from the language condemned as

unconstitutionally vague in Godfrey and Maynard by pointing out that the “especially

heinous, atrocious, or cruel” language in Tennessee’s statute does not stand alone

but is modified and limited by the phrase “in that it involved torture or depravity of

mind.” Id. at 252; see also State v. Van Tran, 864 S.W.2d 465, 479 (Tenn. 1993)

(heinous, atrocious, or cruel defined and limited by “torture or depravity of mind”).

This requirement satisfies the constitutional mandate of narrowing and both limits

and guides the sentencer in choosing whether to impose a sentence of death.7

7
Middlebrooks also cites recent federal habeas corpus decisions addressing the (i)(5)
circum stance . See Houston v. Dutton, 50 F.3d 381 (6th Cir. 1995 ); Rickman v. Dutton, 854 F. Supp.
1305 (M .D. Ten n. 1994) ; see also Coe v. Bell , 161 F.3 d 320 (6 th Cir. 199 8). Houston and Rickman
are distinguishable from Middlebrooks in that the trial court in those cases either failed to define the
terms or provided only incomplete definitions of the terms used in the (i)(5) circumstance. In addition,
the persuasiveness of Houston is weakened by the State’s concession that the instruction was
erroneo us in that ca se. See Houston 50 F.3d at 387. More importantly, however, this Court is not
bound by the decisions of the federal district and circuit courts but only by the decisions of the United
States S uprem e Cou rt. E.g., State v. McKay, 680 S.W.2d 447, 450 (Tenn. 1984). The
constitutionality of this aggravating circumstance has been challenged in the United States Supreme
Court in th e past; yet tha t Court ha s never granted review an d held this c ircum stance uncon stitutional.
While we recognize that denial of certiorari by the United States Supreme Court is not a ruling on the
mer its, see, e.g., Teague v. Lane, 489 U.S. 288, 296, 109 S. Ct. 1060, 1067, 103 L. Ed. 2d 334

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Furthermore, the proof in this case as previously summarized is sufficient to

establish both torture and depravity of mind as defined by prior decisions of this

Court.

PROSECUTORIAL MISCONDUCT

The second issue designated for oral argument concerns prosecutorial

misconduct. Middlebrooks contends that the prosecutor engaged in misconduct

during his closing argument in three separate and distinct ways: first by emphasizing

the victim’s family’s desire that the death penalty be returned; second by introducing

and arguing racial issues; and finally, by making extensive references to the Bible

and scripture. Middlebrooks argues that the misconduct violated his right to due

process and led to arbitrary and unreliable sentencing in violation of the Eighth and

Fourteenth Amendments to the United States Constitution and Article I, Sections 8

and 16 of the Tennessee Constitution. The State maintains that the argument was

not improper and that, even if deemed to be improper, was not reversible error.

In general, closing argument is subject to the trial court’s discretion. Counsel

for both the prosecution and the defense should be permitted wide latitude in

arguing their cases to the jury. State v. Bigbee, 885 S.W.2d 797, 809 (Tenn. 1994).

Argument must be temperate, predicated on evidence introduced during the trial,

relevant to the issues being tried, and not otherwise improper under the facts or law.

E.g., State v. Keen, 926 S.W.2d 727, 736 (Tenn. 1994).

We will review Middlebrooks’ contentions with these standards in mind.

Victim’s Family

(198 9), we none thele ss a dhe re to th is Co urt’s p rior de cisio ns up holdin g the cons titution ality of th is
agg rava ting c ircum stan ce un til the U nited State s Su prem e Co urt de term ines that th is circ um stan ce is
unc ons titution al.

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 With respect to the wishes of Kerrick Major’s family, 8 the prosecutor made the

following arguments:

We are not asking you to kill anybody. Each one of you said you
follow the law, and if the punishment, under the law, should be death,
you swore that you could impose that verdict. That is your oath.

Kerrick Majors lays in his grave, six feet under, but the last memory of
looking up and seeing this defendant thrust his knife into him twice, he
cries out for justice.

His family asks you to impose the death penalty. The State asks you
to impose the death penalty. The facts support it. He deserves it.
Justice demands it on the facts and the law.

In State v. Nesbit, 978 S.W.2d 872 (Tenn. 1998), we held that evidence and

argument regarding the impact of a crime on the victim’s family are not per se

improper or inadmissible under Tennessee statutory or constitutional law: “the

impact of the crime on the victim’s immediate family is one of those myriad factors

encompassed within the statutory language ‘nature and circumstances of the

crime.’” Id. at 890 (quoting Tenn. Code Ann. § 39-13-204(c) (1997 & Supp. 1998)).

Nor is such evidence or argument barred by the Eighth Amendment to the United

States Constitution. Payne v. Tennessee, 501 U.S. 808, 825, 111 S. Ct. 2597,

2608, 115 L. Ed. 2d 720 (1991).

Victim impact evidence and argument, however, must be relevant to the

specific harm to the victim’s family. It must be limited to “information designed to

show those unique characteristics which provide a brief glimpse into the life of the

individual who has been killed, the contemporaneous and prospective

circumstances surrounding the individual’s death, and how those circumstances

financially, emotionally, psychologically or physically impacted upon members of the

victim’s family.” Nesbit, 978 S.W.2d at 891 (footnote omitted); State v. Burns, 979

S.W.2d 276, 282 (Tenn. 1998). Moreover, we specifically noted that “admission of

8
The State argu es th at the issue shou ld be tr eate d as w aived for de fens e cou nse l’s
failure to object at trial or to raise the issue in the motion for new trial. We have elected to review the
issue on its merits.

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a victim’s family members’ characterizations and opinions about the crime, the

defendant, and the appropriate sentence violates the Eighth Amendment.” Nesbit,

978 S.W.2d at 888 n.8 (citing Payne, 501 U.S. 808, 111 S. Ct. 2597 and Booth v.

Maryland, 482 U.S. 496, 107 S. Ct. 2529, 96 L. Ed. 2d 440 (1987)).

Applying these principles indicates that the prosecutor’s statement, “[h]is

family asks you to impose the death penalty” was improper. 9 Although evidence to

this effect was not introduced during the sentencing hearing, and would have been

inadmissible, the prosecutor’s statement clearly is an improper characterization of

the family’s view as to the appropriate sentence.

Race

Middlebrooks argues that the prosecutor engaged in misconduct by

introducing evidence of his racial animus toward African-Americans and later

arguing that race was a factor in the killing. He contends that Shannon Stewart’s

testimony that Middlebrooks told him he was a member of the KKK, hated blacks,

and used the “N” word, as well as the evidence of racial epithets used by

Middlebrooks and Brewington before and during the killing, were not relevant to the

statutory aggravating circumstance and were prejudicial to his defense. He further

contends that the prosecutor erred by making reference to this evidence during

closing argument.

The State argues, and the Court of Criminal Appeals agreed, that the

evidence and argument were relevant to the facts and circumstances of the offense

and were proper rebuttal of Middlebrooks’ theory that Brewington was primarily

responsible for the crime and rebuttal of Middlebrooks’ mitigating evidence. We

9
As a rela ted issue , Middlebr ooks argues that the sta teme nt, “[t]he State asks you to
impose the death penalty,” was also improper. We disagree that this statement by itself constituted a
statem ent of the p rosecu tor’s pers onal opinio n or was in any ma nner im proper.

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reached a similar conclusion in addressing the issue in Middlebrooks’ initial appeal

to this Court:

The testimony is clearly relevant to show premeditation and a
motive for the victim’s brutal slaying. The testimony is also relevant to
contradict the defendant’s statement that Roger Brewington was the
leader in the commission of the offense. In addition, given the
relevancy of these statements, we find that the prejudicial effect did
not substantially outweigh their probative value.

Middlebrooks, 840 S.W.2d at 330.

We again conclude that the testimony of Middlebrooks’ racial animus toward

African-Americans and his use of racial epithets toward Kerrick Majors before and

also during the offense was properly deemed relevant and admissible to rebut the

theory of defense and the mitigating evidence. The prosecutor, therefore, did not

engage in any misconduct by using and arguing this evidence.

Biblical References

Finally, Middlebrooks contends that the prosecutor improperly made

references to the Bible during closing argument.

[Defense counsel] has asked you to consider something else. He has
asked you to consider the book where the words of our Lord are
written, vengeance is mine.

This lady [victim’s mother] has come to this courtroom, not for
vengeance, but to turn this over to you, the law. If she was after
vengeance, this case would have never made it here.

The same book that says vengeance is mine says whoever sheddeth
man’s blood, whoever sheddeth man’s blood, then by man shall his
blood be shed. The Lord meant for the system of laws and justice to
govern societies wherever they are, and you are the tool of the Lord,
that part of justice -- [objection by defense counsel].

When defense counsel objected, the State responded, and maintains on appeal,

that its argument was a fair response to the following inappropriate statement made

in closing by defense counsel:

We do not apologize for asking for mercy, asking for leniency or
sympathy. . . . Our life is given by our creator, and it is not to be taken
lightly by man or our government using the guise of due process and

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 the judicial system as a thinly veiled guise for vengeance; vengeance,
which I think our creator says is his and not ours.

We have condemned Biblical and scriptural references in a prosecutor’s

closing argument so frequently that it is difficult not to conclude that the remarks in

this case were made either with blatant disregard for our decisons or a level of

astonishing ignorance of the state of the law in this regard. State v. Cribbs, 967

S.W.2d 773, 783-84 (Tenn. 1998); State v. Cauthern, 967 S.W.2d 726, 737 (Tenn.

1998); State v. Stephenson, 878 S.W.2d 530, 541 (Tenn. 1994); State v. Bates, 804

S.W.2d 868, 881 (Tenn.), cert. denied, 502 U.S. 841, 112 S. Ct. 131, 116 L. Ed. 2d

98 (1991). As we said in Cribbs, “[i]n the face of this clear and longstanding

precedent, the repeated introduction by prosecutors of such references into trials of

serious criminal offenses is inexplicable.” Id. at 784.

The obvious danger in such references by both prosecutors and defense

counsel is the risk that a sentencing decision may be made not upon the facts and

the law but on an appeal to the bias or passion of the jury. The prosecutor met an

improper Biblical reference with a similarly improper Biblical reference that did not

merely respond to defense counsel’s argument. The prosecutor went beyond what

could conceivably be deemed a fair response in literally equating the jury with “the

tool of the Lord.” As we have reiterated time and time again, the prosecutor has a

legal and ethical duty to refrain from this sort of misconduct. Thus, we agree with

Middlebrooks that the prosecutor’s argument was improper.

Effect of the Errors

Where argument is found to be improper the established test for determining

whether there is reversible error that requires resentencing is whether the improper

conduct “affected the verdict to the prejudice of the defendant.” Harrington v. State,

385 S.W.2d 758, 759 (Tenn. 1965); Bigbee, 885 S.W.2d at 809. In making this

determination, we must consider: 1) the conduct complained of, viewed in light of

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the facts and circumstances of the case; 2) the curative measures undertaken by

the court and the prosecution; 3) the intent of the prosecutor in making the improper

arguments; 4) the cumulative effect of the improper conduct and any other errors in

the record; and 5) the relative strength and weakness of the case. Bigbee, 885

S.W.2d at 809.

The first three factors weigh in favor of Middlebrooks’ argument. The

prosecutor made one improper argument that indicated it was the wish of the

victim’s family that a death sentence be returned. The statement about the family’s

wishes was brief and isolated, albeit improper. The defense did not object to and the

trial court did not take any curative action. The prosecutor made a second improper

argument paraphrasing scripture and equating the jury as the “tool of the Lord.” The

“tool of the Lord” remark triggered an objection from defense counsel. Despite the

serious error and the defendant’s objection, the trial court took no curative action.

At the very least, the trial court should have instructed the jury to disregard the

prosecutor’s argument and to decide the case based on the evidence and the law.

E.g., Cauthern, 967 S.W .2d at 737 (prosecutor’s biblical reference should have

triggered sua sponte curative action).

As to the prosecutor’s intent with respect to the argument regarding the

family’s wishes, there is little basis to arrive at a conclusion. As to the biblical

references, however, the State’s contention that it was merely a response to

defense counsel’s argument is unconvincing. While we do not condone defense

counsel’s similarly improper comment, the prosecutor made his comments in the

face of this Court’s consistent admonitions that such remarks are inflammatory and

highly improper. As discussed above, it is difficult not to conclude that such

recurring misconduct is either intentional or alarmingly uninformed.

-16-
 The remaining factors, however, weigh against a finding of reversible error.

The improper remarks, although serious, were a relatively small portion of the

prosecutor’s argument, which otherwise focused on the facts and circumstances of

the crime and a rebuttal of the defendant’s mitigating proof. The jury was also

instructed that arguments of counsel are not considered evidence. Finally, the

cumulative effect of the improper conduct of the prosecutor was far outweighed by

the strength of the evidence that supported the jury’s finding that the aggravating

circumstance outweighed proof of any mitigating factors.

The circumstances of the offense were shocking in their gruesomeness,

brutality, and inhumanity. Medical evidence established the nature and severity of

the injuries, bruises, cuts, abrasions, and wounds suffered by the victim. The victim

was beaten and cut in the face, mouth, body, legs, and testicles. The evidence

further indicated that an “X” had been carved into the victim’s chest before his death

from stab wounds. The victim was alive and conscious for much of the abuse

inflicted upon him, and was conscious and alive for a period of time after being

stabbed.

Middlebrooks by his own admission fully participated in the capture of Kerrick

Majors and in the infliction of severe physical and mental pain to the victim by acts

of unimaginable cruelty, despite the young victim’s pleas for his life. Finally, after

three to four hours of repeated sadistic acts, Middlebrooks stabbed the victim.

The evidence was overwhelming in support of the jury’s findings that the

State had proven this aggravating circumstance beyond a reasonable doubt and

that this evidence was not outweighed by evidence of mitigating factors.

Accordingly, we conclude that the prosecutor’s misconduct did not prejudicially

affect the jury’s verdict.

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 In reaching this conclusion, our analysis has focused on whether the

misconduct affected the verdict to the prejudice of this defendant. As in Cribbs,

Cauthern, and similar cases, we have concluded that the evidence of the

aggravating circumstance is so substantial that it justifies upholding the jury’s verdict

despite the misconduct. In view of the pattern of such prosecutorial misconduct in

the trial court, as reflected on appeal in this Court and the Court of Criminal

Appeals, we should warn offending prosecutors of the consequences. Those who

interpret these cases as precedent for the view that improper closing argument and

misconduct of this nature will be held harmless error in all cases do so at their own

professional peril and at the risk that the misconduct, even if it does not prejudicially

affect the verdict, may be deemed to be prejudicial to the judicial process as a whole

and therefore require a new trial or resentencing. Tenn. R. App. P. 36(b).

We also observe that in addition to any action taken by the appellate courts,

the professional misconduct of prosecutors is more efficiently and authoritatively

addressed at the trial level where courts are in a better position to view the conduct,

assess its impact, and choose the appropriate action to ensure a fair trial. For

example, the trial judge can order the cessation of offending statements and can

give curative jury instructions. In egregious cases, the trial judge may sua sponte

stop a prosecutor’s prejudicial argument.

In addition, the trial courts may consider direct sanctions to deter

prosecutorial misconduct, including contempt citations, fines, and recommendations

for disciplinary action to the Board of Professional Responsibility. We encourage

the trial courts to consider these sanctions where the misconduct is flagrant. See

United States v. Wilson, 149 F.3d 1298 (11th Cir. 1998).

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 PROPORTIONALITY

A comparative proportionality review must be undertaken in capital cases

pursuant to Tenn. Code Ann. § 39-13-206(c)(1)(D) (1997). In conducting a

comparative proportionality review, we begin with the presumption that the sentence

of death is proportionate to the crime of first degree murder. State v. Hall, 958

S.W.2d 679, 699 (Tenn. 1997). The analysis compares the nature of the crime and

defendant to the crimes and defendants involved in other cases in which the death

penalty has been sought. This analysis seeks to identify aberrant, arbitrary, or

capricious sentences by determining whether the death penalty in a given case is

“disproportionate to the punishment imposed on others convicted of the same

crime.” State v. Bland, 958 S.W.2d 651, 662 (Tenn. 1997) (quoting, Pulley v.

Harris, 465 U.S. 37, 42-43, 104 S. Ct. 871, 875, 79 L. Ed. 2d 29 (1984)).10

In comparing similar cases, we consider many factors, including (1) the

means of death; (2) the manner of death; (3) the motivation for the killing; (4) the

place of death; (5) the similarity of the victims’ circumstances including age, physical

and mental conditions, and the victims’ treatment during the killing; (6) the absence

or presence of premeditation; (7) the absence or presence of provocation; (8) the

absence or presence of justification; and (9) the injury to and effects on

nondecedent victims. Bland, 958 S.W.2d at 667. In comparing similar defendants,

we consider factors such as: (1) the defendant’s prior criminal record or prior

criminal activity; (2) the defendant’s age, race, and gender; (3) the defendant’s

mental, emotional or physical condition; (4) the defendant’s involvement or role in

the murder; (5) the defendant’s cooperation with authorities; (6) the defendant’s

remorse; (7) the defendant’s knowledge of helplessness of victim(s); and (8) the

defendant’s capacity for rehabilitation. Id.

10
The Court of Criminal Appeals’ decision was released prior to our decision in Bland.
A rem and is unn ece ssa ry, how ever , sinc e the prop ortion ality rev iew o f the r eco rd an d oth er ca ses is
de novo.

-19-
 Without once again reciting the gruesome facts in full detail, the record

reveals that Middlebrooks participated in the brutal torture of the victim for

approximately four hours before finally stabbing him. The victim was mocked,

urinated upon, severely beaten, cut, raped with a stick, and his genitals were

beaten. The victim was alive and conscious throughout this torture and kept

pleading that he just wanted to go to school and get an education.

The evidence suggests several possible motives. Middlebrooks’ confession

indicated that he stabbed Majors to prove that he was “cooler” than Brewington.

Middlebrooks’ confession also suggested that the torture and killing were in

retaliation against the victim for knocking over an item on Middlebrooks’ and his co-

defendants’ flea market table. Middlebrooks also stated he stabbed Majors to end

the torture and put Majors out of his misery. The evidence also strongly indicates

that the torture and killing were racially motivated. However, there is not one shred

of evidence to suggest that Middlebrooks was justified or that Majors did anything to

provoke this attack in any way. Majors was a small fourteen-year-old boy who was

unarmed and defenseless against his attackers.

Middlebrooks, a twenty-four-year-old white male, apparently suffered from

mental problems. However, there is no evidence that Middlebrooks felt any remorse

for the crimes. Although Middlebrooks claims his role in the murder was slight, the

evidence shows that Middlebrooks helped drag this child into the woods and

participated in acts of torture inflicted on a helpless victim. Moreover, Middlebrooks,

while giving conflicting statements, admitted stabbing the victim at least once.

There is no evidence that Middlebrooks assisted or cooperated with authorities; to

the contrary, he initially resisted arrest and then provided a confession that

attempted to minimize his role in the offense. Despite the introduction of mitigating

evidence in the sentencing phase, there was little to show a strong potential for

rehabilitation.

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 Our review reveals numerous cases and defendants similar to this one in

which we concluded that the death penalty was neither arbitrary nor

disproportionate. In Hall, 958 S.W.2d 679, the defendant killed the victim with a gas

bomb that inflicted third degree burns to more than ninety percent of the victim’s

body. Like Middlebrooks, Hall was twenty-four years old at the time of the murder.

Like Middlebrooks, Hall was diagnosed as having a borderline personality disorder.

One of the aggravating circumstances found by the jury to support the sentence of

death was the present form of (i)(5)-- that “[t]he murder was especially heinous,

atrocious, or cruel in that it involved torture or serious physical abuse beyond that

necessary to produce death.” Tenn. Code Ann. § 39-13-204(i)(5) (1997 & Supp.

1998). Like the present case, the victim in Hall was alive and conscious for much of

the torture.

In State v. Hodges, 944 S.W.2d 346 (Tenn. 1997), the defendant strangled

the victim who had been bound hand and foot and rendered helpless. Hodges was

twenty-four when he committed this crime. Hodges’ victim was alive, conscious,

helpless, and pleading for mercy as the defendant strangled him. Hodges’

mitigating evidence, similar to Middlebrooks’, consisted of proof that he had been

sexually abused as a child and that he suffered from an anti-social personality

disorder. Despite this mitigating evidence, the jury sentenced Hodges to death

based in part upon the finding that the murder was “especially heinous, atrocious, or

cruel in that it involved torture or serious physical abuse beyond that necessary to

produce death.” Tenn. Code Ann. § 39-13-204(i)(5).

In Blanton, 975 S.W.2d 269, the twenty-nine-year-old defendant, along with

other co-defendants, escaped from prison and killed an elderly couple. The

evidence indicated that the defendant twice shot one victim, and he not only shot

but stabbed the other victim a total of thirteen times as she was struggling to get

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away. The evidence indicated that she lived for as long as fifteen minutes following

the infliction of her wounds. Like Middlebrooks’ victim, Blanton’s victim suffered

physically and psychologically before dying. Further, like Middlebrooks’ killing of

Majors, Blanton’s attack upon his victim was unprovoked. In mitigation, Blanton

submitted proof of his low intelligence, his impoverished childhood, and the troubled

relationships within his family. He had also, like Middlebrooks, argued that the

evidence implicated others for the killing. Blanton’s jury returned a sentence of

death based in part upon the finding of the (i)(5) aggravating circumstance.

In State v. Teel, 793 S.W.2d 236 (Tenn. 1990), the twenty-year-old defendant

lured a fourteen-year-old girl into the woods where he raped and killed her. Teel

was younger than Middlebrooks, and his victim was exactly the same age and of

similar vulnerability as Middlebrooks’ victim. In mitigation, Teel submitted proof that

he had a low level of education, did not know his father, and had lost his mother

when he was fourteen. Teel’s jury returned a sentence of death based in part upon

the finding that the evidence established the (i)(5) aggravating circumstance.

In State v. Alley, 776 S.W.2d 506 (Tenn. 1989), the defendant, almost thirty

years old, abducted the nineteen-year-old victim and raped her by pushing a tree

limb into her vagina to a depth of twenty inches. The victim suffered severe internal

injuries, hemorrhaging, and multiple injuries, bruises, and abrasions to her entire

body. Alley submitted substantial evidence that he had a borderline personality

disorder, if not a multiple personality disorder. Despite this evidence, the jury

returned a death sentence based in part upon the finding that the murder was

“especially heinous, atrocious, or cruel in that it involved torture or depravity of

mind,” the sole factor upon which the jury based Middlebrooks’ death sentence.

In State v. Pike, 978 S.W.2d 904 (Tenn. 1998), the eighteen-year-old

defendant lured the nineteen-year-old victim into the woods where for approximately

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an hour, the defendant beat the victim and sliced her body so many times that the

medical examiner could not even catalogue the multiplicity of wounds. The

defendant finally beat the victim to death with a chunk of asphalt. As in this case,

the victim was alive, conscious, and pleading for her life throughout the torture. Also

like this case, evidence indicated that the victim’s cries for mercy only irritated and

incited the defendant. Pike submitted proof of her troubled childhood, yet, like

Middlebrooks, Pike showed no remorse for her actions. The jury returned a death

sentence based in part upon the finding that the murder was “especially heinous,

atrocious, or cruel in that it involved torture or serious physical abuse beyond that

necessary to produce death.” Tenn. Code Ann. § 39-13-204(i)(5).

In Cauthern, 967 S.W.2d 726, the nineteen-year-old defendant, along with

his co-defendant, broke into a married couple’s home where he raped the wife and

strangled both the husband and the wife. The evidence indicated that both could

have lived for as long as three to six minutes from the time the blood supply was cut

off, but that they could have been unconscious in approximately thirty seconds.

Similar to Middlebrooks’ mitigating evidence, Cauthern submitted proof of his

troubled childhood, that he did not know his father and that he only had seen his

mother three times since birth. Unlike Middlebrooks, Cauthern also submitted the

favorable evidence of his attempts at rehabilitation, such as completing the graduate

equivalency exam and a paralegal course, evidence of his good behavior, and

evidence of his ability to get along with others. Cauthern’s jury nonetheless returned

a death sentence based solely on the finding that the evidence established the (i)(5)

aggravating circumstance.

In State v. Caughron, 855 S.W.2d 526 (Tenn. 1993), the twenty-seven-year-

old defendant and his girlfriend broke into the victim’s home, beat her, raped her,

tied her to the bed, strangled her, and drank her blood from shot glasses the

defendant had brought with him. Caughron’s victim suffered from multiple injuries

-23-
and begged for her life. In mitigation, Caughron submitted proof that he had a low

level of intelligence and an abusive and unstable childhood. Like Middlebrooks’ jury,

Caughron’s jury returned a death sentence based solely upon the finding that the

murder was “especially heinous, atrocious, or cruel in that involved torture or

depravity of mind.”

In State v. O’Guinn, 709 S.W.2d 561 (Tenn. 1986), the defendant raped and

murdered the seventeen-year-old victim. The evidence indicated that O’Guinn’s

victim had suffered a severe and brutal beating and had been raped with a hard,

wooden or metal object before she was strangled to death. In mitigation, O’Guinn

submitted proof of his strained relationship with his father. The jury returned a death

sentence based solely on the finding that the murder was “especially heinous,

atrocious, or cruel in that involved torture or depravity of mind.” We affirmed.

In State v. Bush, 942 S.W.2d 489 (Tenn. 1997), the defendant stabbed the

elderly victim, the best friend of his grandmother, forty-three times. The evidence

indicated that the victim could have been rendered unconscious in either three to

four minutes or twenty to thirty minutes, depending upon the order in which the

wounds were inflicted. Bush submitted proof of his physically abusive childhood and

history of mental problems, such as a borderline personality disorder and possible

schizophrenia. The jury returned a death sentence based in part upon the finding

that the evidence established the (i)(5) aggravating circumstance.

In Nesbit, 978 S.W.2d 872, the nineteen-year-old defendant tortured the

twenty-year-old victim for at least six hours before shooting her once in the head.

The victim sustained burns to her body from six hours to minutes before her death.

She had also been struck on the bottom of her feet with a long, hard, thin object

such as a rod or coat hanger. Nesbit presented proof of his good behavior in jail

and testimony from his family describing him as honest, sincere, and responsible.

-24-
Unlike Middlebrooks, Nesbit testified to express his remorse for what had happened.

Also unlike Middlebrooks, Nesbit cooperated with police after his apprehension.

Like Middlebrooks’ jury, Nesbit’s jury returned a death sentence based solely on the

finding that the murder was “especially heinous, atrocious, or cruel in that it involved

torture or serious physical abuse beyond that necessary to produce death.”

In Bland, 958 S.W.2d 651, the nineteen-year-old defendant, without any

provocation, chased and twice shot an unresisting victim and then shot the victim

several more times as the victim sought refuge under a truck. The evidence

indicated that the victim could have lived and suffered pain from two to fifteen

minutes and could have been conscious up to four or five minutes. In mitigation,

Bland presented his own testimony as well as his family’s testimony that he had

never known his father and had been raised by his mother and grandmother. Bland

further testified that he had a low level of education. Bland’s jury sentenced him to

death based upon the sole finding that the murder was “especially heinous,

atrocious, or cruel in that it involved torture or serious physical abuse beyond that

necessary to produce death.”

In State v. McNish, 727 S.W.2d 490 (Tenn. 1987), the twenty-nine-year-old

defendant bludgeoned the helpless seventy-year-old victim in her home with a glass

vase. The victim was found alive and partially conscious immediately following the

beating, though she died a short time later. In mitigation, McNish relied upon his

own testimony as well as that of his parents, relatives, and friends. McNish also

relied upon the absence of any prior criminal record and, like Middlebrooks, the

evidence of his extreme mental or emotional disturbance. The jury returned a death

sentence based upon the sole finding that the murder had been “especially heinous,

atrocious, or cruel in that it involved torture or depravity of mind.”

-25-
 Though no two cases are identical, the offenses and the defendants in the

above cases bear many similarities with the present case. In all of the cases, the

murder was inflicted upon a helpless and innocent victim without any explanation or

provocation. In all of the cases, the victims were alive and conscious while suffering

severe mental or physical pain. In several of the cases, the victims suffered severe

and brutal beatings similar to the torture suffered by Kerrick Majors at the hands of

Middlebrooks and Brewington. In all of the cases, the jury found that the evidence

satisfied either the pre-1989 or the present version of the “heinous, atrocious, or

cruel” aggravating circumstance. Additionally, in at least eight cases, the

defendants were the exact same age or younger than Middlebrooks. In seven of the

cases, the defendants offered mitigating proof of their mental problems and

backgrounds that bore striking similarity to the evidence introduced by Middlebrooks.

Finally, several of the cases reject Middlebrooks’ contention that the death

penalty is arbitrary or disproportionate because a codefendant who was more

involved in the killing received a lesser sentence. Bland, 958 S.W.2d at 665;

Cauthern, 967 S.W.2d at 741; see also State v. Henley, 774 S.W.2d 908, 918

(Tenn. 1990), cert. denied, 497 U.S. 1031, 110 S. Ct. 3291, 111 L. Ed. 2d 800

(1989); State v. Poe, 755 S.W.2d 41, 49 (Tenn. 1988), cert. denied, 490 U.S. 1085,

109 S. Ct. 2111, 104 L. Ed. 2d 671 (1989). In Bland, we clearly stated that:

[e]ven if a defendant receives a death sentence when the
circumstances of the offense are similar to those of an offense for
which a defendant has received a life sentence, the death sentence is
not disproportionate where the Court can discern some basis for the
lesser sentence. Moreover, where there is no discernible basis for the
difference in sentencing, the death sentence is not necessarily
disproportionate.

958 S.W.2d at 665 (citation omitted). Our task is “to assure that no aberrant death

sentence is affirmed.” Id. After reviewing the cases discussed herein, as well as

numerous other first degree murder cases involving sentences of death and life

-26-
imprisonment, we conclude without any hesitation that the penalty imposed by the

jury in this case is not aberrant and is neither excessive nor disproportionate to the

penalty imposed for similar crimes.

CONCLUSION

In accordance with the mandate of Tenn. Code Ann. § 39-13-206(c)(1)

(1997) and the principles adopted in prior decisions of this Court, we have

considered the entire record in this cause and find that the sentence of death was

not imposed in any arbitrary fashion and that the evidence supports the jury’s finding

that the aggravating circumstance outweighed mitigating circumstances beyond a

reasonable doubt. We have considered the defendant’s assignments of error and

have determined that none require reversal. With respect to issues not specifically

addressed herein, we affirm the decision of the Court of Criminal Appeals, authored

by Judge Curwood Witt and joined in by Judge Joe G. Riley and Special Judge Joe

H. Walker, III. The relevant portions of that opinion are published hereafter as an

appendix.

The defendant’s sentence of death by electrocution is affirmed. The

sentence shall be carried out as provided by law on the 11th day of November,

1999, unless otherwise ordered by this Court or other proper authorities. Costs of

this appeal shall be assessed against the defendant, for which execution shall issue

if necessary.

________________________________
RILEY ANDERSON, CHIEF JUSTICE

Concur:
Drowota, Birch, Holder and Barker, JJ.

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