State v. Henry Eugene Hodges ( 1997 )

IN THE SUPREME COURT OF TENNESSEE
AT NASHVILLE
STATE OF TENNESSEE, ) FOR PUBLICATION
)
Appellee, ) FILED:
)
v. ) DAVIDSON COUNTY
)
HENRY EUGENE HODGES, ) HON. WALTER C. KURTZ, JUDGE
)
FILED Appellant. ) NO. 01-S-01-9505-CR-00080
April 28, 1997 DISSENTING OPINION
Cecil W. Crowson
Appellate Court Clerk I dissent because I cannot agree with the majority of my
colleagues in holding that the erroneous jury instructions
constituted harmless error. To the contrary, I conclude that the
instructions were indeed harmful and more probably than not
affected the jury’s verdict.
In instructing the jury, the trial court committed two
errors. First, the trial court instructed the jury that the
mitigating circumstances had to be “proven.” Second, the court
identified the defendant as the party who had submitted certain
nonstatutory mitigating issues for the jury’s consideration.
In State v. Odom, we held that the trial court must
initially determine whether the evidence proffered is relevant to
mitigation. State v. Odom, 928 S.W.2d 18, 31 (Tenn. 1996). If the
trial court concludes that a circumstance is mitigating in nature,
it must then determine whether the mitigating circumstance was
raised by the evidence. Id. If found to be raised by the evidence
and if the defendant specifically requests an instruction on that
circumstance, the trial court, as mandated by Tenn. Code Ann. § 39-
13-204(e)(1), must include the mitigating circumstance in the jury
instructions.
In reviewing the trial court’s instructions in the case
under submission, it is abundantly clear to me that the trial court
did not make the requisite determinations. By instructing the jury
that a mitigating circumstance must be “proven,” the trial court,
in effect, restricted the jury’s consideration of the nonstatutory
mitigating factors that may have been raised by the evidence: that
is, the instructions were likely to lead a juror to conclude that
he or she should not consider such mitigating circumstances unless
“proven.”
Tennessee Code Annotated § 39-13-204(e)(1) provides: "No
distinction shall be made between mitigating circumstances as set
forth in subsection (j) and those otherwise raised by the evidence
which are specifically requested . . . to be instructed to the
jury." Instructions must be drafted so that the statutory
mitigating circumstances are indistinguishable from the
nonstatutory mitigating circumstances. Odom, 928 S.W.2d at 32.
As to mitigating circumstances, the trial court
instructed the jury as follows:
In arriving at the punishment, you,
the jury, shall consider, as
heretofore indicated, any proven
mitigating circumstances which shall
include the following . . . any
aspect of the Defendant's character
or record or any aspect of the
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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 defense or reduce
his blameworthiness. (Emphasis
added).
I find this instruction contrary to the legislative imperative. As
this Court expressed in Odom,
the legislature intended this
language as a mandate to the trial
court to place all mitigating
circumstances--statutory and
nonstatutory--on equal footing
before the jury. . . . [T]he trial
court is prohibited from revealing
to the jury that a request was made,
nor should the trial judge identify
the party(ies) making the request.
Only strict adherence to the letter
and the spirit of the statute will
permit the sentencing procedure to
attain that degree of integrity that
is legislatively intended.
Odom, 928 S.W.2d at 31-32 (emphasis added). These jury
instructions clearly did not conform to the requirements of the
statute. To reiterate, from my review of the record in this case,
I conclude that such errors were harmful and more probably than not
affected the jury’s verdict. Accordingly, I would reverse the
sentence of death and remand this cause for a new sentencing
hearing.
ADOLPHO A. BIRCH, JR., Chief Justice
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