State v. Hodges

IN THE SUPREME COURT OF TENNESSEE
AT NASHVILLE

FOR PUBLICATION

STATE OF TENNESSEE, ) Filed: April 28, 1997
)
Appellee, ) DAVIDSON COUNTY
)
v. ) Hon. Walter C. Kurtz,
) Judge
HENRY EUGENE HODGES, )
)
Appellant. ) Supreme Court
) No. 01-S01-9505-CR-00080

FILED
FOR APPELLANT: FOR APPELLEE: April 28, 1997

Brock Mehler Charles W. Burson Cecil W. Crowson
Nashville, Tennessee Attorney General & Reporter Court Clerk
Appellate

Donald Dawson Kathy Morante
Bruce, Weathers, Corley, Dougman & Lyle Deputy Attorney General
Nashville, Tennessee Nashville, Tennessee

Michael E. Terry Victor S. Johnson, III
Nashville, Tennessee District Attorney General
Nashville, Tennessee

Thomas B. Thurman
Assistant District Attorney General
Nashville, Tennessee

Renee R. Erb
Assistant District Attorney General
Nashville, Tennessee

OPINION

TRIAL COURT AND
COURT OF CRIMINAL APPEALS AFFIRMED. DROWOTA, J.
 In this capital case, the trial court accepted pleas of guilty entered by the

defendant, Henry Eugene Hodges, to first-degree premeditated murder 1 and

especially aggravated robbery. 2 The trial court conducted a capital sentencing

hearing to determine the sentence on the conviction for premeditated murder in

accordance with Tenn. Code Ann. § 39-13-204(1991 Repl. & Supp. 1996). In the

sentencing hearing, the jury found three aggravating circumstances: (1) “[t]he

defendant was previously convicted of one or more felonies, other than the

present charge whose statutory elements involve the use of violence to the

person;” (2) “[t]he murder was especially heinous, atrocious or cruel in that it

involved torture or serious physical abuse beyond that necessary to produce

death;” and (3) “[t]he murder was committed while the defendant was engaged in

committing, or was an accomplice in the commission of, or attempting to commit,

or fleeing after committing a robbery.” Tenn. Code Ann. § 39-13-204(I)(2), (I)(5)

and (I)(7) (1991 Repl.). Finding that the three aggravating circumstances

outweighed mitigating circumstances beyond a reasonable doubt, the jury

sentenced the defendant to death by electrocution.

On direct appeal to the Court of Criminal Appeals, the defendant

challenged the sentence of death raising sixteen claims of error, each with

numerous subparts. After fully considering defendant’s claims, the Court of

Criminal Appeals affirmed the trial court’s judgment. Thereafter, pursuant to

1
The defendant pleaded guilty to both premeditated and felony first-degree murder. The
trial court merged the pleas and the defend ant was convicted of prem editated first-degree murder.

2
Altho ugh not p ertine nt to th is app eal, th e trial c ourt f oun d the defe nda nt to b e a m ultiple
and dang erou s off end er an d im pos ed a f orty yea r sen tenc e for the c onvic tion o f esp ecia lly
agg rava ted ro bbe ry whic h is to be se rved cons ecu tive to the d eath pena lty.

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Tenn. Code Ann. § 39-13-206(a)(1) (1996 Supp.), 3 the case was docketed in this

Court.

The defendant raised numerous issues in this Court, but after carefully

examining the entire record and the law, including the thorough opinion of the

Court of Criminal Appeals and the briefs of the defendant and the State, this

Court, on November 21, 1996, entered an Order limiting review and setting the

cause for oral argument4 at the February 1997 term of Court in Nashville. See

Tenn. S. Ct. R. 12.5

For the reasons explained below, we have determined that none of the

alleged errors affirmatively appear to have affected the sentence imposed.

Moreover, the evidence supports the jury’s findings as to aggravating and

mitigating circumstances, and the sentence of death is not disproportionate or

arbitrary. Accordingly, the defendant’s sentence of death by electrocution is

affirmed.

3
"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 Crim inal Appe als. The affirma nce of th e convic tion and the senten ce of de ath
shall be automatically reviewed by the Tennessee Supreme Court. Upon the affirmance by the
Cou rt of C rim inal A ppe als, th e cler k sh all doc ket th e cas e in the Sup rem e Co urt an d the cas e sha ll
procee d in acco rdance with the T ennes see R ules of A ppellate P rocedu re.”

4
This ca se was originally argue d before this Cou rt with Justic e Penn y J. W hite participa ting.
Review was limited and the case reargued before this Court with Justice Janice H. Holder
participating.

5
Tennessee Supreme Court Rule 12 provides in pertinent part as follows: “Prior to the
setting of oral argument, the Court shall review the record and briefs and c onsider all errors
assigned. The Court may enter an order designating those issues it will review. Selection of such
issues will be base d on the c riteria of T.R .A.P. 11(a ).”

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 FACTUAL BACKGROUND

The defendant, Henry Eugene Hodges, entered a guilty plea and was

convicted of premeditated first-degree murder. Thereafter, the penalty phase of

the trial commenced. The State presented proof of the circumstances of the

offense through the testimony of Trina Brown, the defendant's fifteen-year-old

girlfriend. Brown testified that one week before the murder she and the twenty-

four-year-old defendant, who were living with the defendant's brother in Smyrna,

Tennessee, decided to move to Florida. To get money for the move, Hodges, a

male homosexual prostitute, told Brown that he would rob and kill the next person

who propositioned him. Hodges discussed with Brown how the crimes would be

carried out. Hodges repeated these statements on May 14, 1990, the day of this

murder.

On the night of May 14, Brown and Hodges went to Centennial Park in

Nashville. When the victim, Ronald Bassett, approached, Hodges talked with him,

and they left together in the victim’s vehicle and went to the victim’s residence at

3133A, Parthenon Avenue, across from Centennial Park. Ten or fifteen minutes

later, Hodges returned to the park on foot, and along with Brown, drove back to

the victim’s residence in his own car. Hodges told Brown to lie down in the

backseat of the car so no one could see her. W hen they arrived at the victim’s

residence, Hodges told Brown to wait in the car. After an unspecified period of

time, Hodges returned to the car, wearing gloves, and asked Brown to come into

the house. Brown testified that when she arrived, Bassett was lying face down on

the bed in his bedroom with a pillow over his head. Hodges had bound his feet

together with duct tape and had handcuffed his hands. While

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Bassett lay helplessly, Brown and the defendant ransacked the house searching

for items of value. After obtaining the personal identification number for the

victim’s automatic teller card, Brown and the defendant "took a break," drank a

coke, and discussed whether to kill Bassett. Brown testified that she told Hodges

to kill Bassett to prevent their arrest. Hodges then went into the bedroom and,

ignoring the victim's pleas not to kill him, strangled Bassett to death with a nylon

rope. Brown testified that she heard Bassett moan and make a choking sound

and that it took about five minutes for Bassett to die.

In an attempt to remove any fingerprints, the defendant wiped off various

items in the residence. After turning the air conditioner in Bassett’s bedroom on

high to prevent discovery of the body, Hodges and Brown left the victim's

residence, taking the victim's automobile and several items of personal property,

including jewelry, a gun, and a VCR. After using Bassett's automatic teller card to

withdraw the twenty-four-hour maximum of four hundred dollars from his account,

the pair returned to the house of the defendant's brother and went to bed. The

next day, having learned that the victim's body had been discovered, Brown and

the defendant abandoned the victim's car in rural Rutherford County and drove to

Georgia in their own car. They were eventually arrested in North Carolina. Items

of the victim's personal property were found in their possession at this time. Also,

the defendant’s fingerprints were found on items inside Bassett’s home, and

Brown had been photographed withdrawing money with Bassett’s automatic teller

card.

Testifying for the State at the sentencing hearing, Dr. Charles Harlan, the

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chief medical examiner for Metropolitan Nashville and Davidson County,

confirmed that Bassett had died from ligature strangulation. Dr. Harlan opined

that Bassett would have remained alive and conscious for at least three and

perhaps as long as five minutes during the strangulation. Harlan also found

abrasions on the victim's wrists consistent with handcuffs.

The State proved that the defendant had been convicted of armed robbery,

attempted kidnaping and robbery in Hamilton County in 1984. The State also

established that the defendant had been convicted of murder in Fulton County,

Georgia, in July 1990. The record reveals that the Georgia killing occurred when

the defendant and Brown arrived in Atlanta after murdering Bassett. Hodges

made arrangements with a man to engage in homosexual acts for an agreed

price. Hodges accompanied the man to his motel room, but when the man was

unable to pay the agreed price, Hodges murdered him.

In mitigation, the defendant testified6 and also presented the testimony of

his mother, his brothers and Dr. Barry Nurcombe, a child psychiatrist. This proof

showed that the defendant was the next to youngest of his mother's five sons. His

mother and father were not married. His father was actually married to another

woman, but engaged in what one of the witnesses described as an "irregular

union" with the defendant’s mother for eighteen years. The defendant's father

abused the defendant’s mother and was strict with the defendant’s brothers, three

6
The defendant testified only about his personal history, particularly his alleged sexual
abuse at age twelve. In this pre-Cazes procee ding, the trial co urt correc tly limited the Sta te to
questions concerning personal history and did not allow cross-examination on the circumstances of
the offen se. See State v. Cazes, 875 S.W .2d 253, 264-267 (Ten n. 1994).

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of whom were the children of another man. The defendant, however, was his

father's favorite and was spoiled. Financial difficulties forced the family to move

about frequently, and defendant's father supported the family only sporadically.

The defense introduced proof to show that Hodges seemed normal until he

was twelve years old. At that time, he began to associate with older boys, sniff

glue and gasoline, be truant from school, and run away from home. He also

engaged in sexual activities with his younger brother and attempted sexual

activities with a female cousin. He became involved with the juvenile authorities

and was confined to a juvenile facility in Chattanooga.

Through his mitigation proof, the defendant attempted to establish that a

catalyst and major contributing cause of his delinquent and later criminal behavior

was his rape and sexual abuse by a stranger when he was twelve years old.

According to the defendant, he accepted a stranger’s offer of a ride home when

he was playing a short distance from his home on Fessler’s Lane in Nashville.

Rather than driving Hodges home, the stranger drove Hodges to his home and

raped him. Fearing rejection by his homophobic father and driven by guilt, the

defendant told no one of this incident until he was arrested in 1990.

Dr. Nurcombe testified that, while the defendant suffered from an antisocial

personality disorder, low self-esteem, and substance (marijuana) abuse, the killing

was motivated by a subconscious desire for revenge for the sexual abuse inflicted

on him when he was twelve, coupled with Hodges’ fear that his family might

discover that he was engaged in homosexual prostitution since Brown had told

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Hodge's sister-in-law shortly before the killing that he was a homosexual

prostitute. The defense also introduced testimony that Brown dominated and

manipulated the defendant.

In rebuttal the State called Dr. James Kyser, a forensic psychiatrist, and Dr.

Leonard Morgan, a clinical psychologist. Both had examined the defendant and

concluded that he suffered from an antisocial personality disorder. They

described persons with this disorder as having “no conscience,” being “self

centered,” being “notoriously dishonest and untruthful,” and having “very little

regard for the feelings of others and . . . willing to use any means to get what they

want, no matter who it hurts.” While acknowledging the complicated factors

involved in antisocial personality disorders, the State’s experts discounted the

singular importance of the one incident of alleged sexual abuse in causing the

defendant's actions. Dr. Morgan concluded that the defendant "was in complete

control of his behavior" and not suffering from mental illness or emotional

disturbance.

Based on the evidence presented, the jury determined that the State had

proven the existence of three aggravating circumstances beyond a reasonable

doubt: (1) “[t]he defendant was previously convicted of one or more felonies, other

than the present charge whose statutory elements involve the use of violence to

the person;” (2) “[t]he murder was especially heinous, atrocious or cruel in that it

involved torture or serious physical abuse beyond that necessary to produce

death;” and (3) “[t]he murder was committed while the defendant was engaged in

committing, or was an accomplice in the commission of, or attempting to commit,

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or fleeing after committing a robbery.” Tenn. Code Ann. § 39-13-204(I)(2); (I)(5)

and (I)(7) (1991 Repl.). In addition, the jury found that the aggravating

circumstances outweighed the mitigating circumstances7 beyond a reasonable

doubt and, as a result, sentenced the defendant to death by electrocution. The

trial court entered a judgment in accordance with the jury’s verdict and the Court

of Criminal Appeals affirmed. After reviewing the record and considering the

errors alleged by the defendant, we affirm the judgment of the trial court and Court

of Criminal Appeals.

I.

JURY INSTRUCTIONS - MITIGATION

In this case, the defendant contends that he is entitled to a new sentencing

hearing because the trial court’s instructions on mitigating circumstances:

(1) erroneously informed the jury that their duty to consider mitigating

circumstances was discretionary and conditional upon their being proven;

(2) failed to adequately state defendant’s requested mitigating circumstances; and

(3) inappropriately distinguished between statutory and nonstatutory mitigating

circumstances in violation of Tenn. Code Ann. § 39-13-204(e). The State

responds that any error in the trial court’s charge was harmless.

7
The jury was instructed to consider the following mitigating circumstances:
(1) History of childhood.
(2) Victim of child sex abuse.
(3) Mental illness or mental or emotional disturbance.
(4) D om inanc e by an othe r pers on an d/or im ma turity.
(5) Drug abuse.
(6) Any other aspect of the defendant’s background or character or the circumstances of the
offens e which yo u believe re duces the defe ndant’s b lame -worthine ss.

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 We emphasize at the outset, however, that none of the alleged errors are

of constitutional magnitude. This Court previously has held that jury instructions

on specific non-statutory mitigating circumstances are not constitutionally

mandated. State v. Odom, 928 S.w.2d 18, 30 (Tenn. 1996); State v. Hutchison,

899 S.W.2d 161, 173-74 (Tenn. 1994). Therefore, the right to such instructions,

as well as the form and content of the instructions, derives solely from the statute.

Second, it is not violative of the federal constitution to require a defendant to prove

mitigating circumstances by a preponderance of the evidence. Walton v. Arizona,

497 U.S. 639, 649-51, 110 S.Ct. 3047, 3055-56, 111 L.Ed.2d 511 (1990). Thus,

assuming that the trial court erred by instructing the jury to consider those

“proven” mitigating circumstances, the error is statutory only. Therefore, the

question for consideration in this case as to each allegation of error is whether the

trial court’s failure to strictly adhere to the statute constitutes error which

affirmatively appears to have affected the verdict. Tenn. R. Crim. P. 52(a).

To resolve that question, we must scrutinize the statute and our recent

decision in Odom which interpreted the statute. We begin our analysis with Tenn.

Code Ann. § 39-13-204(e)(1) (1991 Repl. & 1996 Supp.), which, as amended in

1989, provides as follows:

After closing arguments in the sentencing hearing, the
trial judge shall include in the instructions for the jury to
weigh and consider any of the statutory aggravating
circumstances set forth in subsection (i) which may be
raised by the evidence at either the guilt or sentencing
hearing, or both. The trial judge shall also include in
the instructions for the jury to weigh and consider any
mitigating circumstances raised by the evidence at
either the guilt or sentencing hearing or both which
shall include, but not be limited to, those circumstances
set forth in subsection (j). No distinction shall be made

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 between mitigating circumstances as set forth in
subsection (j) and those otherwise raised by the
evidence which are specifically requested by either the
state or the defense to be instructed to the jury. 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.

(Emphasis added.)

Recently, in Odom, supra, this Court interpreted that statute to require jury

instructions on non-statutory mitigating circumstances raised by the evidence and

proffered by a defendant as having mitigating value. In addition, we stated that

instructions on nonstatutory mitigating circumstances must not be fact specific and

imply to the jury that the judge had made a finding of fact. Instead, we stated that

instructions on nonstatutory mitigating circumstances must be “drafted so that

when they are considered by the jury, the statutory mitigating circumstances are

indistinguishable from the non-statutory mitigating circumstances.” Id. at 32.

Finally, in Odom, we interpreted the “no distinction” portion of the statute as

precluding the trial judge from revealing to the jury that a request was made and

from identifying the party making the request. Id.

Generally, in determining whether instructions are erroneous, this Court

must review the charge in its entirety and read it as a whole. State v. Stephenson,

878 S.W.2d 530, 555 (Tenn. 1994). A charge should be considered prejudicially

erroneous if it fails to fairly submit the legal issues or if it misleads the jury as to

the applicable law. State v. Forbes, 918 S.W.2d 431, 447 (Tenn. Crim. App.

1995); Graham v. State, 547 S.W.2d 531 (Tenn. 1977). The United States

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Supreme Court has observed that in evaluating claims of error in jury instructions,

courts must remember that

[j]urors do not sit in solitary isolation booths parsing
instructions for subtle shades of meaning in the same
way that lawyers might. Differences among them in
interpretation of instructions may be thrashed out in the
deliberative process, with commonsense
understanding of the instructions in the light of all that
has taken place at the trial likely to prevail over
technical hairsplitting.

Boyde v. California, 494 U.S. 370, 380-81, 110 S.Ct. 1190, 1198, 108 L.Ed.2d

316 (1990); see also State v. Van Tran, 864 S.W.2d 465, 479 (Tenn. 1993).

Applying that standard to the instructions in this case, a majority of this Court has

concluded that none of the assigned errors affirmatively appear to have affected

the verdict.

A. Erroneous Burden of Proof

At the conclusion of the sentencing hearing, Judge Kurtz charged the jury,

in pertinent part, as follows:

***

The evidence and arguments in this hearing
have been completed, and it is my duty now to instruct
you as to the law, the law applicable to this case as
stated in these instructions; and it is your duty to
carefully consider all of them.

The order in which these instructions are given
is no indication of their relative importance. You
should not single out one or more of them to the
exclusion of another or others, but should consider
each one in light of and in harmony with the others.

***

In arriving at the punishment, you, the jury, shall consider, as

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heretofore indicated, any proven mitigating circumstances, which
shall include the following:

Any mitigating factor which is raised by the evidence
produced by either the prosecution or the defense at the sentencing
hearing; that is, you shall consider any aspect of the Defendant’s
character or record or any aspect of the circumstances of the
offense favorable to the Defendant, which is supported by the
evidence.

In determining mitigating factors, you are to consider the
above. In addition, the defense has submitted the following issues
for your consideration. They are to be considered, if you believe
they have been proven and are mitigating or favorable to the
Defendant or reduce his blameworthiness.

(1) History of childhood;

(2) Victim of child sex abuse;

(3) Mental illness or mental or emotional disturbance;

(4) Dominance by another person and/or immaturity;

(5) Drug abuse;

(6) Any other aspect of the Defendant’s background or
character or the circumstances of the offense, which you
believe reduces the Defendant’s blameworthiness.

As to a determination of mitigating circumstances, you may
deliberate as a -- as a body about mitigating circumstances; but you
are not required to reach a unanimous verdict as to their existence
or weight, nor are you to gauge whether their existence is shown
beyond a reasonable doubt.

Instead, when you consider mitigating circumstances, each of
you must decide for yourself whether mitigating circumstances may
exist and, if so, how much weight each deserves. If you conclude
that any evidence supports a mitigating circumstance, then you
should consider that mitigating circumstance to be established and
then determine the weight to which it is entitled.

In considering aggravating and mitigating circumstances, you
must not weigh the two in a mechanical fashion. Do not merely
compare the number of circumstances in aggravation to the number
in mitigation, or arbitrarily assign different weights to be given the
factors. Instead, you should personally determine the convincing
force of each circumstance.

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 You may find that the State has proved multiple aggravating
circumstances, and that only one mitigating circumstances --
circumstance exists, and still find that life is appropriate, due to the
convincing force of the single mitigating circumstance.

(Emphasis added.)

The defendant first asserts that the instruction is erroneous because it

charges the jury to consider only “proven” mitigating circumstances. While

acknowledging that the trial court’s use of the term “proven” was not appropriate

under the statute, the State, nonetheless, argues that the error was harmless.

We agree with the defendant’s contention that the trial court erred by

including the term “proven” in the jury charge. The statute requires jurors to

consider those statutory or nonstatutory mitigating circumstances which have

been “raised by the evidence.” Tenn. Code Ann. §39-13-204(e)(1) (1991 Repl. &

Supp. 1996). The statute does not impose a burden of proof as to mitigating

circumstances. Therefore, to comply precisely with the statute, the trial court

should have only instructed the jury to consider those statutory and nonstatutory

mitigating circumstances which had been “raised by the evidence.”

Nevertheless, read in context and as a whole, it is clear that the jury charge

given in this case fairly informed the jury of the legal issues and the applicable

law. The erroneous term “proven” was clarified by the trial court’s subsequent

instructions to the jury advising it to consider as mitigating any circumstance

“raised” or “supported” by the evidence. In addition, the trial court advised the jury

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that “[i]f you conclude that any evidence supports a mitigating circumstance, then

you should consider that mitigating circumstance to be established. . . .” Further

clarification of the term was provided when the trial court told the jury that as to

mitigating circumstances, it was “not required to reach a unanimous verdict. . .nor

are you to gauge whether their existence is shown beyond a reasonable doubt.”

Though the term “proven” should not be used because the statute contains

no burden of proof and because the term is potentially misleading, in this case,

the trial court’s further explanations eliminated any potential confusion, and the

error does not affirmatively appear to have affected the verdict. We do not agree

with the defense contention that the error can not be harmless because the

charge is contradictory. Though we agree with the dissent that the trial court’s use

of the term “proven” was not appropriate, it was given contextual meaning by the

subsequent explanatory instructions which fairly informed the jury to consider any

mitigating circumstances “raised by the evidence.” Therefore, the error was

harmless and this issue is without merit.

Relying upon the Tennessee Pattern Jury Instructions and certain general

statutory provisions, the defense, during oral argument before this Court, asserted

that the trial court should have instructed the jury that the State has the burden to

disprove any mitigating circumstances beyond a reasonable doubt. First of all,

Tenn Code Ann. § 39-11-201(a)(3) (1991 Repl.)8 and § 39-11-203(d) (1991

8
That statute provides as follows: “(a) No person may be convicted of an offense unless
each of the following is proven beyond a reasonable doubt. (3) The negation of any defense to an
offense defin ed in th is title if a dm issib le evid enc e is intr odu ced supp orting the d efen se.” ( Em pha sis
added .)

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Repl.)9 do not support the defendant’s claim. These are general statutes which

govern the prosecution of criminal offenses. They have no application in the

context of a capital sentencing proceeding which is controlled by Tenn. Code.

Ann. § 39-13-204 (1991 Repl). It is an elementary principle of statutory

construction that a specific statute on a particular subject will prevail over a

general statute. State v. Black, 897 S.W.2d 680, 683 (Tenn. 1995). There is no

provision in the capital sentencing scheme to support the defendant’s claim that

the State must disprove mitigating circumstances beyond a reasonable doubt.

Indeed, it is difficult to imagine how the State could meet such a burden. Jurors

individually consider mitigating circumstances and need not unanimously agree to

any certain one. Accepting the defendant’s argument would impose upon the

State the untenable task of disproving the existence of each mitigating

circumstance to twelve different individuals. This duty has not been imposed by

statute and we refuse to judicially impose it.

Moreover, the defendant’s reliance upon §7.04(d) of the Tennessee Pattern

Jury Instructions is misplaced. As we have previously stated, pattern jury

instructions are not officially approved by this Court or by the General Assembly

and should be used only after careful analysis. They are merely patterns or

suggestions. While previously printed forms may be convenient, they must be

revised or supplemented if necessary in order to fully and accurately conform to

applicable law. State v. Martin, 702 S.W.2d 560, n. 4 (Tenn. 1985). To the

9
That statute provides as follows: “(d) If the issue of the existence of a defense is submitted
to the jury, the court shall instruct the jury that any reasonable doubt on the issue requires the
defendant to be acquitted.”

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extent that §7.04(d)10 purports to require that the jury be instructed that the State

must disprove mitigating circumstances, it does not conform to applicable law and

is hereby expressly disapproved. This issue is without merit.

B. Specificity of Instructions

At an appropriate time in the sentencing hearing, the defendant submitted

the following proposed jury instructions with respect to nonstatutory mitigating

circumstances.

1. The defendant had a disturbed childhood due to the irregular
nature of the relationship of his parents, the conflicts that existed
between them, and the financial hardships experienced by the
family.

2. The defendant’s psychological and social development was
severely impacted by the trauma of being abducted and
homosexually raped at the age of 12, an experience which he was
afraid to reveal to others for fear that he would be blamed and
rejected;

3. The after effects of the trauma, in combination with a genetic
predisposition to alcoholism, led to the defendant’s becoming drug
and alcohol-dependent during his adolescence;

4. The defendant’s drug and alcohol dependency, in combination
with the psychological impairments resulting from his disturbed
childhood and preadolescent sexual abuse, contributed to the
defendant’s becoming truant from school and to his delinquent, and
later criminal, behavior;

5. As a result of his disturbed childhood and preadolescent sexual
abuse, the defendant developed a severe conflict regarding his
sexual identity which he felt compelled to keep secret from his
family;

10
The pertinent portion of that pattern instruction provides as follows: “The defendant does
not have the burd en of pro ving a m itigating circum stance . If there is so me e vidence that a
mitigating circumstance exists, then the burden of proof is upon the state to prove, beyond a
reason able dou bt that the m itigating circum stance does n ot exist. ” 7 T.P.I.-Crim. § 7.04(d) (West
4th ed. 1995) (emph asis added).

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 6. When the defendant’s sexual conflicts were revealed to his family
he suffered a mental and emotional disturbance.

7. The intent to commit murder was formed while the defendant was
under the influence of this mental and emotional disturbance.

8. The defendant did not wish to kill the victim and was persuaded
to commit the murder by his juvenile accomplice, Trina Brown, who
was permitted to plead guilty and receive a sentence of incarceration
in a juvenile correctional institution until she is twenty-one years of
age;

9. The defendant was an immature and emotionally dependent
person at the time of the offense, and his judgment was impaired by
alcohol and drugs; and

10. The murder of the victim in this case added to the mental and
emotional disturbance the defendant was experiencing and
contributed to the commission of the homicide in Atlanta which has
been listed as one of the statutory aggravating factors.

The trial court refused to give the instructions requested by the defense

and instead, instructed the jury as to six general categories of nonstatutory

mitigating circumstances, as follows (1) history of childhood; (2) victim of child sex

abuse; (3) mental illness or mental or emotional disturbance; (4) dominance by

another person and/or immaturity; (5) drug abuse; (6) any other aspect of the

defendant’s background or character or the circumstances of the offense, which

you believe reduces the defendant’s blameworthiness. In this Court, the

defendant claims that the trial court erred by refusing to give his requested

instructions and he contends that the instructions given were erroneous because

they lacked specificity and failed to convey the defendant’s theories of mitigation

to the jury. The State responds that the trial court fully complied with this Court’s

decision in Odom, which was rendered after the trial of this case. We agree.

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 In Odom, supra, the defendant claimed that the trial court erred by refusing

to submit to the jury his requested fact specific instructions on nonstatutory

mitigating circumstances. We rejected that claim, concluding that the fact specific

instructions advocated by the defense implied to the jury that the judge had made

findings of fact in contravention of Article VI, § 9 of the Tennessee Constitution.

Id., 928 S.W.2d at 32. W e held that specificity in the charge on nonstatutory

mitigating circumstances is inappropriate and cautioned that instructions must be

drafted “so that when they are considered by the jury, the statutory mitigating

circumstances are indistinguishable from the non-statutory mitigating

circumstances.” Id. Though not explicitly stated in Odom, the clear implication is

that instructions on nonstatutory mitigating circumstances must be phrased in

general categories similar to the statutory mitigating circumstances. 11 Finally, we

emphasized in Odom, that under the statute, a trial court has no duty, absent a

timely and proper request from the defense, to include instructions on

nonstatutory mitigating circumstances. Id., 928 S.W.2d at 31. However, when the

defense proffers a requested instruction which is overly specific, it is incumbent

11
The statutory mitigating circumstances are codified at Tenn. Code An n. §39-13-204(j(1)-
(9) (1991 Repl. & 1996 Supp.), which provides as follows:
(1) T he de fend ant h as no signif ican t histo ry of pr ior cr imin al act ivity;
(2) The murder was committed while the defendant was under the influence of
extreme mental or emotional disturbance;
(3) The victim wa s a particip ant in the de fendan t’s condu ct or con sented to the act;
(4) The murder was committed under circumstances which the defendant
reason ably believed to provide a mora l justification for the defe ndant’s c onduc t.
(5) The defendant was an accomplice in the murder committed by another person
and the defendant’s participation was relatively minor;
(6) The defendant acted under extreme duress or under the substantial domination
of another person;
(7) The youth or advanced age of the defendant at the time of the crime;
(8) T he ca pac ity of the defe nda nt to a ppre ciate the w rong fulne ss o f the d efen dan t’s
conduct or to conform the defendant’ conduct to the requirements of the law was
substantially impaired as a result of mental disease or defect or intoxication which
was insufficient to establish a defense to the crime but which substantially affected
the defendant’s judgment; and
(9) Any other mitigating factor which is raised by the evidence produced by either
the prosecution or defense at either the guilt or sentencing hearing.

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upon the trial court to revise and generalize the instruction to conform to the

evidence and the law. Id.

Applying those principles to the facts in this case, it is clear that the trial

court appropriately denied the defendant’s requested instruction. A fair reading of

the defendant’s requested instructions leaves the distinct impression that the trial

judge has made findings of fact which is impermissible under the Tennessee

Constitution. Moreover, by their specificity, the requested instructions on

nonstatutory mitigating circumstances were clearly distinguishable from the

statutory mitigating circumstances which is not permissible under the statute and

our decision in Odom. Therefore, the trial court correctly refused to give the

defendant’s proffered instructions.

The defense claims also that the revised instructions given by the trial

court, by their lack of specificity, defeated the purpose of the instructions and did

not convey to the jury a fair picture of the mitigation proof. We do not agree. As

was previously recognized, unlike lawyers, jurors do not parse jury instructions in

an attempt to find subtle shades of meaning. Jurors interpret the instructions in a

commonsense manner and in light of the evidence presented at the trial. Boyde,

494 U.S. at 380-81, 110 S.Ct. at 1198. The defense assertion ignores the reality

that these jurors had heard specific evidence during the sentencing hearing about

the defendant’s childhood, his immaturity, alleged sexual abuse, drug abuse,

mental illness and emotional disturbance, as well as the dominance by Trina

Brown. By their breadth, the instructions on nonstatutory mitigating circumstances

encompassed all the evidence presented by the defense at the sentencing

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hearing. Under this Court’s decision in Odom, trial courts have a duty to modify

proffered instructions to remove factual specificity. The trial court in this case

fulfilled that responsibility long before the Odom decision was rendered. For that

he deserves commendation, and the defendant’s claim of error is without merit.

C. Distinction Between Statutory - Nonstatutory Mitigation

Finally, the defendant claims that the trial court improperly distinguished

between statutory and nonstatutory mitigating circumstances in violation of the

statute and our decision in Odom. The only distinction error alleged is the trial

court’s preface of the charge on non-statutory mitigating circumstances with the

phrase, “the defense has submitted the following issues for your consideration.”

Without question, the phrase was improper under this Court’s subsequent

interpretation of the statute in Odom, supra, in which we stated that a “trial court is

prohibited from revealing to the jury that a request was made and from identifying

the parties making the request. Id., 928 S.W.2d at 32. However, in this case, the

error does not affirmatively appear to have affected the verdict in light of the trial

court’s prior instruction cautioning the jury that

[t]he order in which these instructions are given is no
indication of their relative importance. You should not
single out one or more of them to the exclusion of
another or others, but should consider each one in light
of and in harmony with the others.

(Emphasis added.) Therefore, the defendant’s claim that this error was prejudicial

requiring a new sentencing hearing is without merit.

II.

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 SUFFICIENCY OF EVIDENCE - AGGRAVATING CIRCUMSTANCES

Pursuant to Tenn. Code Ann. § 39-13-206(c)(1)(B) (1991 Repl.), we have

examined the evidence to determine whether it is sufficient to support the three

aggravating circumstances found by the jury. We conclude that the evidence is

clearly sufficient to support these findings.

The State introduced proof to establish that the defendant had been

previously convicted of armed robbery, attempted kidnaping and robbery in

Hamilton County in 1984. In addition, the State established that the defendant

had been convicted of murder in Fulton County, Georgia in July of 1990. This

evidence is clearly sufficient to support the jury’s finding that the “[t]he defendant

was previously convicted of one or more felonies, other than the present charge

whose statutory elements involve the use of violence to the person.” Tenn. Code

Ann. § 39-13-204(I)(2) (1991 Repl.). Moreover, we do not agree with the

defendant’s claim that the Georgia conviction for murder should not have been

admitted to establish this aggravating circumstance because the killing in that

case occurred after the offense in this case. We have previously held on

numerous occasions that so long as a defendant is convicted of a violent felony

prior to the sentencing hearing at which the previous conviction is introduced, this

aggravating circumstance is applicable. State v. Nichols, 877 S.W.2d 722, 736

(Tenn. 1994); State v. Caldwell, 671 S.W.2d 459, 464-65 (Tenn. 1984). We

decline the defendant’s invitation to overrule this precedent; therefore, this issue is

without merit.

Next, the defendant contends that the evidence presented by the State was

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insufficient, as a matter of law, to support the jury’s finding 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.” W e disagree. The trial court

correctly instructed the jury as to the definitions of the terms “heinous,” “atrocious,”

and “cruel” in accordance with this Court’s decision in State v. Williams, 690

S.W.2d 517, 529 (Tenn. 1985); see also Odom, 928 S.W.2d at 26. Also in

accordance with Williams, the trial court instructed the jury that “torture” means

“the infliction of severe physical or mental pain upon the victim while he or she

remains alive or conscious.” Id. The proof introduced by the State during the trial

clearly established torture.12

Hodges handcuffed the victim, bound his feet with duct tape and left the

victim lying on the bed with a pillow over his head. No doubt, the victim suffered

considerable mental pain as the defendant, along with Trina Brown, ransacked his

home, looking for valuable property and money. The helpless victim’s mental

pain, no doubt, increased when the defendant and Brown, took a break, and over

a coke, discussed whether or not they should kill the victim. The evidence

surrounding the murder itself shows that the victim pleaded with Hodges for his

life. Dr. Harlan testified that the killing would have taken between three to five

minutes to accomplish and that victim would have been conscious during most of

this period. Brown testified that she heard the victim moaning and making a

12
The State in this case specifically relied only upon the torture aspect of the aggravating
circumstance. Prior to the sentencing hearing in response to a defense motion to strike the
aggravating circrumstance, General Thurman stated as follows: “I’m not saying it was physical
damage beyond that necessary to cause death. The State is relying, as I said in my brief, on the
torture aspect.” Transcript Volume 12 of 18 at page 1632. Furthermore, the State argued only the
torture prong of the aggravating circumstance at the conclusion of the sentencing hearing.

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choking sound. The facts and circumstances surrounding this murder, including

the strangulation, are clearly sufficient to establish torture as that term has been

defined in State v. Williams, supra, and to support the jury’s finding that this

murder was heinous, atrocious, or cruel, in that it involved torture or serious

physical abuse beyond that necessary to produce death. Tenn. Code Ann. § 39-

13-204 (I)(5) (1991 Repl.).

Finally, the jury’s finding that “[t]he murder was committed while the

defendant was engaged in committing, or was an accomplice in the commission

of, or attempting to commit, or fleeing after committing a robbery”, Tenn. Code

Ann. § 39-13-204 (I)(7) (1991 Repl.), is clearly supported by the evidence. The

defendant entered a guilty plea to one count of especially aggravated robbery. In

addition, the State introduced proof during the sentencing hearing to establish that

the defendant had several items of personal property belonging to the victim in his

possession at the time he was arrested. The evidence is clearly sufficient to

support this aggravating circumstance.

III.

PROPORTIONALITY REVIEW

In accordance with the mandate of Tenn. Code Ann. § 39-13-

206(c)(1)(1991 Repl.), 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 findings of the statutory

aggravating circumstances; and the jury’s finding that the aggravating

circumstances outweigh mitigating circumstances beyond a reasonable doubt.

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Tenn. Code Ann. § 39-13-206(c)(1)(A)-(C)(1991 Repl.). Finally, comparative

proportionality review convinces us that the sentence of death is neither excessive

nor disproportionate to the penalty imposed in similar cases considering the

nature of the crime and the defendant. Tenn. Code Ann. § 39-13-206(c)(1)(D)

(1991 Repl.).

Our 1977 statute created a comparative proportionality review to serve as

an additional safeguard against arbitrary or capricious sentencing. Such review of

death cases insures rationality and consistency in the imposition of the death

penalty. We have studied, compared, and analyzed cases and conducted a

meaningful proportionality review as outlined in State v. Barber, 753 S.W.2d 659,

663-68 (Tenn. 1988). We have reviewed Rule 12 reports from trial judges

submitted over the past eighteen years in all criminal trials for first degree murder

in which life imprisonment or a sentence of death has been imposed. We have

made an independent, conscientious and thorough review of this case, as we

have in every other capital case that has come before this Court. As a result of

that review, we are of the opinion that the calculated and premeditated killing of

this victim warrants imposition of the death penalty. The defendant rendered the

victim helpless by binding his feet and hands and then proceeded to ransack the

victim’s home, while the terrified victim pondered his own fate. The defendant

ignored the victim’s pleas for mercy and proceeded to strangle the victim to death.

The victim remained alive and conscious for most of the three to five minutes

required for the defendant to accomplish this task. This murder places the

defendant Hodges into the class of defendants deserving capital punishment and

is not disproportionate to the sentences imposed in similar cases. See State v.

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Brimmer, 876 S.W.2d 75 (Tenn. 1994); State v. Harris, 839 S.W.2d 54 (Tenn.

1992); State v. Caughron, 855 S.W.2d 526 (Tenn. 1993); State v. West, 767

S.W.2d 387 (Tenn. 1989); State v. Thompson, 768 S.W.2d 239 (Tenn. 1989);

State v. Poe, 755 S.W.2d 41 (Tenn. 1988); State v. House, 743 S.W.2d 141

(Tenn. 1987).

CONCLUSION

We have considered the defendant’s assignments of error and determined

that none affirmatively appear to have affected the sentence imposed. With

respect to issues not specifically addressed herein, we affirm the decision of the

Court of Criminal Appeals, authored by Judge Joe B. Jones and joined in by

Judge Gary Wade. The defendant’s sentence of death by electrocution is

affirmed. The sentence of death will be carried out as provided by law on the 28

day of July, 1997, unless otherwise ordered by this Court, or other proper

authorities. Costs of this appeal are adjudged against the defendant.

_____________________________________
Frank F. Drowota, III
Justice

Concur:

Anderson, Holder, JJ.

Birch, C. J., - separate dissenting opinion.
Reid, J. - separate dissenting opinion.

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