State of Tennessee v. Ronnie Michael Cauthern ( 2008 )

FILED
IN THE TENNESSEE COURT OF CRIMINAL APPEALS
AT JACKSON March 24, 2008
JULY 1996 SESSION
Cecil Crowson, Jr.
Appellate Court Clerk
STATE OF TENNESSEE, )
)
Appellee, ) C.C.A. NO. 02C01-9506-CC-00164
)
VS. ) GIBSON COUNTY (TRANSFERRED
) FROM MONTGOMERY COUNTY)
)
RONNIE MICHAEL CAUTHERN, ) HONORABLE DICK JERMAN, JR.
)
Appellant. ) (Sentencing-Death Penalty)
For the Appellant For the Appellee
Hugh Reid Poland, Jr. Charles W . Burson
408 Franklin Street Attorney General and Reporter
Clarksville, TN 37040 450 James Robertson Pkwy.
Nashville, TN 37243-0493
Robert T. Bateman John P. Cauley
221 South Third Street Assistant Attorney General
Clarksville, TN 37040 450 James Robertson Pkwy.
Nashville, TN 37243-0493
Clayburn Peeples
District Attorney General
109 E. First Street
Trenton, TN 38382
John Carney
District Attorney General
204 Franklin Street, Suite 200
Clarksville, TN 37040
Steve Garrett
Assistant District Attorney General
204 Franklin Street, Suite 200
Clarksville, TN 37040
OPINION FILED: ______________________________
DEATH PENALTY AFFIRMED
DAVID H. W ELLES
JUDGE
OPINION
The original trial of this case took place in Montgomery County. Judge John
H. Peay presided over the trial of the appellant and his co-defendant, Brett
Patterson, which resulted in two convictions for felony murder, one conviction for first
degree burglary, and one conviction for aggravated rape for each defendant. The
jury sentenced the appellant to death. The appellant’s co-defendant received a life
sentence. On direct appeal to the Supreme Court, the appellant’s convictions were
affirmed, but the death penalty was set aside and the case was remanded for a new
sentencing hearing. State v. Cauthern, 778 S.W .2d 39 (Tenn. 1989). On remand,
Judge Peay granted the appellant’s motion to transfer the case out of Montgomery
County. The new sentencing hearing was held in Gibson County.
Upon the sentencing hearing in Gibson County, the appellant received one life
sentence and one death sentence for his two murder convictions. As to the death
sentence, the jury found one aggravating circumstance, that the murder was
especially heinous, atrocious, or cruel in that it involved torture or serious physical
abuse beyond that necessary to produce death. See T.C.A. § 39-13-204(i)(5). The
jury further found that the aggravating circumstance outweighed the evidence of
mitigating circumstances beyond a reasonable doubt.
In this appeal, the appellant raises numerous issues attacking the validity of
the death sentence imposed. Having reviewed the various claims, we find no
reversible error and thus affirm the judgment of the trial court.
BACKGROUND
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Because this appeal pertains only to the new sentencing hearing that was
ordered by the Supreme Court, the evidence introduced primarily addresses the
applicability of the aggravating and mitigating circumstances. In short, the appellant
and his co-defendant, Brett Patterson, broke into the residence of Patrick and
Rosemary Smith with the apparent intention of stealing money. Once inside the
house, however, the two men strangled Mr. Smith and raped and strangled his wife.
They also stole several items from the Smiths’ residence, including a purse, credit
cards, checks, clothing, and jewelry. The two individuals were ultimately
apprehended when the police received a tip from an acquaintance of the two
defendants. For a more detailed description of the crimes, see State v. Cauthern,
778 S.W .2d 39 (Tenn. 1989), and State v. Brett Patterson, No. 88-245-3,
Montgomery County (Tenn. Crim. App., Nashville, Dec. 8, 1989). The death
sentence imposed on remand pertained to the killing of Mrs. Smith.
Upon answering a call on January 9, 1987, of a possible burglary in progress,
Officer John Robert Nichols of the Clarksville Police Department arrived at the
Smiths’ residence in Clarksville, Tennessee. The back door of the house appeared
to have been kicked open and the window on the door was shattered. Officer
Nichols testified that the basement of the house looked ransacked. When he went
upstairs to further inspect the premises, he found the nude body of a woman lying
on the floor in the first bedroom he came upon. A scarf was tied around the
woman’s neck with a vase entwined within the scarf as sort of a tourniquet. In the
back bedroom, he found the body of a man kneeling against the bed with his face
on the mattress. Officer Nichols testified that the discoloration around the man’s
neck indicated that he might have been strangled. Officer Nichols further testified
that the room was in disarray: the bed frame was broken, the mattress was lying on
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the floor, and furniture had been moved.
Dr. Charles Harlan, Chief Medical Examiner for the State of Tennessee,
performed the autopsies on the two victims. He concluded that both victims died as
a result of ligature strangulations. He opined that the victims could have died three
to six minutes after the initiation of the strangulation, but that they may have been
rendered unconscious as quickly as thirty seconds into the acts. Dr. Harlan testified
that probably more than eleven pounds per square inch of pressure was applied to
Mr. Smith’s neck, thereby causing death by halting the blood supply to the brain. Dr.
Harlan found multiple abrasions, lacerations, and contusions on the male victim’s
neck, lower lip, and left great toe. Some of the abrasions on the neck, he indicated,
could have been caused by the victim’s finger nails as he grabbed at his neck.
Based upon the fracture of the thyroid cartilage in Mrs. Smith’s neck, Dr. Harlan
concluded that a force greater than thirty-four pounds per square inch caused her
death. Dr. Harlan could not determine, however, whether either victim suffered
repeated strangulations.
Detective Erle Crockarell of the Clarksville Police Department videotaped the
crime scene. The tape, minus portions which were not relevant to the aggravating
circumstance, was shown to the jury with the sound turned off. The defense
objected to the showing of those segments depicting the officers moving the bodies
in order to examine their undersides. The court, noting the objection, opined that
those scenes were relevant to the establishment of the lone aggravator. The
following is a summation of the portion of the tape that was shown:
The officer walks through the opened back door, which has a
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shattered window. One of the officers is shown dusting the outline of
a shoe print on the door near the knob. The basement looks in
disarray: desk drawers opened and papers strewn about, closets
opened. Upstairs, the furniture drawers in the living room are opened
and various things are spread about the floor. There is a hammer on
the floor in one of the sitting rooms and a microwave on the coffee
table. The house appears to be rather neat in other respects.
In the hallway leading to the bedrooms, there are what appear to
be labels from the tops of beverage bottles. In the first bedroom on the
right, a woman’s nude body is lying face down on the floor with a scarf
tied around her neck. A vase is entwined within the scarf. A nightgown
and undergarments are lying on the floor near the body. Also on the
floor are flowers that appear to have come from the vase. The drawers
on the dresser are opened, the closet door is opened and items are
thrown about, and the bed cover is disheveled.
In the back bedroom, a man’s body is shown kneeling against the
bed with his face on the mattress. His body is wrapped in the bed
cover. This bedroom also appears to be in disarray: the bed frame is
off its hinges and the mattress is lying flush against the floor, the
dresser and desk drawers and the closet doors are opened, and items
are strewn about the floor. The camera captures a close-up on the
man’s hands and feet, which are bluish in color.
The officers remove the covers from the man and flip his body
over. The skin on the front of his body is blue. Around his neck are
abrasion marks, and his lips are bloodied. There is a blood stain on the
bed where his face was lying. The video shows the officers examining
the man’s arms and legs, and also shows close-ups of his face and
neck. The video then shows the officers cutting the vase out of the
scarf and removing the scarf from around the woman’s neck. The
officers flip over the woman as well, and her skin and lips also have a
bluish tint. W hile the officers are moving the bodies, it is obvious that
rigor mortis has already occurred.
After the video was shown to the jury, Detective Crockarell elaborated as to
what he observed. He stated that the lock mechanism on the back door was broken.
Also, the phone line on the outside of the house was cut. Two bottle caps from
“Bartles and James” wine coolers were found on the floor in the hallway next to the
front bedroom. In the back bedroom, on each side of the bed, they noticed
eyeglasses on the nightstands and house slippers on the floor. Two buttons from
the nightgown in the front bedroom were torn off; one was found on the floor and the
other on the bed. They noticed a semi-clear liquid in the front bedroom on the bed
cover and on the floor next to the woman. After they removed the scarf, they
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determined that it was indented about 1/8 inch into the woman’s neck. He also
testified that the width of the strangulation mark around the man’s neck was about
1/16 inch wide. Detective Crockarell stated that they found the appellant’s name on
a piece of paper inside the residence.
Detective Crockarell further testified that on January 11 or 12, 1987, he
received instructions to go to 112 Faith Drive in Clarksville for a development in the
case. The building at this address was a duplex, one side being 112 Faith Drive and
the other 114 Faith Drive. Upon arrival, Detective Crockarell observed from a
distance the appellant, Brett Patterson and another individual working on a grey
Camaro in the yard (the Detective stated that he had dealings with the appellant
prior to this encounter). After about twenty minutes, Detective Crockarell and
another officer detained the three men until a search warrant was obtained. They
checked the men for weapons and secured the area so no one could leave. During
the pat-down for weapons, they found a .38 caliber handgun inside the car.
Detective Steve Poston of the Clarksville Police Department executed the
search warrant on the Faith Drive residences. 112 Faith Drive was in Brett
Patterson’s name and 114 was in Eric Barbee’s name. Detective Poston testified
that the wall between 112 and 114 Faith Drive had been knocked out, creating a
walkway through the two residences. In the Camaro, they found checks, credit
cards, and photo IDs bearing the victims’ names, tools, the appellant’s black leather
jacket with some of the Smiths’ credit cards and $150 in cash in the pocket, a
stocking cap, black gloves, and 880 military cord. Inside the residence at 112 Faith
Drive, the officers found two ski masks, black gloves, a grey Members’ Only jacket
with 880 military cord in the pocket, a .45 automatic handgun, a black purse
containing Mrs. Smith’s vehicle registration, Mr. Smith’s receipt book with a receipt
made out to the appellant, and the Smiths’ car and house keys. Inside 114, they
found a tote bag with a flashlight and a cold weather military mask.
Sergeant Charles Denton interviewed the appellant two times after the
murders. The first interview on January 12, 1987, was an oral interview which was
reduced to writing by the Sergeant afterwards. The appellant apparently refused to
give a written statement. As the appellant answered the Sergeant’s questions, the
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Sergeant wrote the answers on a piece of paper. Sergeant Denton testified that he
advised the appellant of his Miranda rights and that the appellant waived the same.
Furthermore, the appellant reviewed what the Sergeant wrote and signed the
statement. The following is a summation of that statement, which was read into
evidence by Sergeant Denton:
The appellant indicated that he first knew about the property
taken in the burglary when Patterson told him. He said he read about
the burglary in the paper but didn’t know whose names were on the
checks and credit cards. The appellant stated that he didn’t see the
checks or credit cards in the trunk of the Camaro until the morning of
January 12. He said he knew nothing about a VCR. The appellant told
the officer he did not break into the Smiths’ house or tell anyone any
information about the Smiths’ house. He further stated that he knew
Patterson broke into the house. Patterson told him he broke in the
house, but didn’t mention anything about any murders. The appellant
stated that Patterson didn’t give him anything from the robbery. Joe
Denning was with Patterson on the night of the 8th. The appellant
mentioned he owned a Toyota. He stated he did not know who
committed the robbery at the Hornbuckle 66, but indicated that Denning
and Patterson committed the burglary of the Smiths’ place. (Defense
counsel objected to the reference of the Hornbuckle robbery, but the
objection was overruled). The appellant said he knew the stolen items
were in the trunk of the Camaro when the police came to 112 Faith on
January 12. He stated he did not own a mason’s hammer. The
appellant further stated that he did not tell Patterson about a robbery at
the Hornbuckle 66.
The second interview, which was conducted on January 13, 1987, was taped
by Sergeant Denton. Officer Joe Griffy was also present during the interview. After
the appellant was advised of his rights, he indicated to the officers that his attorney
told him not to talk unless he was present. The officers informed the appellant he
could waive his rights and talk nonetheless, and the appellant said, “O.K.” During
the initial appeal of this cause, however, the tape recording of the statement was
lost. A transcription of the tape recording exists, and this was read into evidence by
Sergeant Denton during the hearing on remand.1 The following is a summation of
1
In reversing the death sentence and rem anding the case to the trial court, the Suprem e Court
concluded that the adm ission of part of this statem ent by the appellant was not harm less error.
Consequently, only the adm issible section was read into evidence by Sergeant Denton. Initially,
Sergeant Denton read the transcript of the statem ent which deleted any reference to Brett
Patterson. Because, however, this trial pertained to sentencing only, and the guilt of both the
appellant and Patterson had already been determ ined, the court allowed the Sergeant to return to
the witness stand and relate to the jury the unedited portions of the transcript referring to
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that transcript:
The appellant stated that Mrs. Smith told him to come by the
house about 10:30 or 11:00 p.m. that night. He and Brett Patterson
rode in the Camaro to the Smiths’ residence. She told him to go to the
back door, but it was locked. W hen the appellant started to leave,
Patterson tried to kick the door, but it still wouldn’t open. Patterson
broke the window on the door and reached in and opened the door
from the inside. He walked in and looked around with a flashlight. The
appellant was still outside when Patterson came back out and cut the
phone lines on the outside of the house.
They went upstairs to the back bedroom where the Smiths were
sleeping. Mr. Smith sat up and yelled, “who is it?” Patterson grabbed
Mr. Smith, flipped him over, and put a pillow over his head. Mr. Smith
was yelling and Mrs. Smith tried to get out of the bed. The appellant
told Mrs. Smith to go hide in the closet in the front bedroom. Patterson
and Mr. Smith were fighting. The appellant tried to use the phone but
didn’t realize it was out. He went downstairs and when he came back
up, Mr. Smith was dead. Patterson grabbed Mrs. Smith as she was
coming back down the hallway and they went in the front bedroom.
The appellant said Mrs. Smith took her clothes off voluntarily. She and
Patterson did something in the bedroom and she came out and told the
appellant she was sorry. The appellant said he did not rape her.
Patterson took a rope out of his pocket and went to the back
bedroom and tied it around Mr. Smith’s neck. Patterson then came to
the front bedroom and was going to choke Mrs. Smith. The appellant
asked him not to, but he did it anyway. He tied a scarf around her neck
but she was still alive so he put a ball or something in the scarf and
twisted it around her neck. They left the house, but the appellant said
they didn’t take anything.
The entire incident took place in less than thirty minutes. They
used wire cutters from the appellant’s tool box to cut the telephone
wires. The appellant said he saw Mrs. Smith the night before about
7:00 p.m. He said she was at the Faith Drive residence and then they
went out to eat. The appellant claimed he had been seeing Mrs. Smith
off and on for some time and had sex with her twice before. He stated
that he had done some work on the Smiths’ Mercedes. Mrs. Smith
would bring it by his place and drop it off; he never picked it up at their
place.
The appellant stated he did not wear gloves or a ski mask the
night of the murders. The appellant stated that Mrs. Smith consented
to having sex with Patterson that night. She took her clothes off in front
of them and laid down on the bed in the center bedroom. She told the
appellant she was sorry, but she didn’t ask about her husband. The
Patterson.
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appellant said that Patterson drank two wine coolers. The appellant
stated that he did not rape Mrs. Smith. He further stated that he didn’t
remove anything from the house but that he didn’t know if Patterson did
or not.
The appellant admitted that he knew that credit cards and a grey
Members’ Only jacket were taken. He said he did not know if a VCR
was taken. The appellant denied taking a watch and ring from the
house but stated that he gave a watch and ring to “Jackie” (Jaqueline
Pigue) the next day. He also denied going to the Smiths’ house to steal
anything; he went there because Mrs. Smith invited him. The appellant
stated that nothing in the house was disturbed when he left, i.e.,
dresser drawers or closet doors were not opened.
The appellant stated they took a purse from the house.
Patterson brought a short rope with him, but the appellant denied
having any rope. The appellant also denied touching either of the
victims. The appellant stated Mr. Smith was not supposed to be there.
The appellant also stated that Mrs. Smith told him she was going to get
rid of her husband no matter what it took. The appellant said he didn’t
strangle either victim.
The appellant stated he had been to the Smiths’ once before to
pick up a check but never went inside the house. The appellant knew
the Smiths for no more than a year. Both of them had been to his place
before. He saw them once every two or three months. Mrs. Smith
didn’t offer any resistance that night; she gave sex willingly to both of
them (even though earlier in his statement he denied having sex with
her). While Patterson strangled Mr. Smith, the appellant was hiding
Mrs. Smith in the closet and running out of the house. He went to the
car to leave. He heard her scream so he came back inside.
The appellant doesn’t know why he followed Patterson into the
house after he broke the back door, but he admitted he could have run
away. Since Patterson drove the Camaro that night, the appellant did
not have the keys. He saw Patterson and Mr. Smith fighting and he ran
to the phone near the kitchen. The appellant stated his fingerprints
should be on the phone. When they left the house, the appellant stated
that Patterson told him the Smiths were dead. He didn’t call the police
because he knew he would be a prime suspect. The appellant said he
considered himself an accessory to murder.
Karen Rivetna, Mrs. Smith’s sister, testified that she witnessed the appellant
help Mr. Smith connect a VCR to a television in the basement of the Smiths’ house.
She also testified that she once rode with the Smiths to the appellant’s place in order
to drop off one of their cars on which the appellant was going to work. In addition,
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Ms. Rivetna identified for the court Mrs. Smith’s watch and wedding ring, as well as
Mr. Smith’s grey Members’ Only jacket.
Jaqueline Pigue testified that she and the appellant dated for a while back in
1987. She stated that she had been seeing the appellant for about a month before
the murders occurred. She also stated that she met Brett Patterson about two
weeks before the murders. Ms. Pigue testified that she got off work around 9:30
p.m. the night of the murders, and met the appellant and Patterson at a local Arby’s
before heading to her night job as bartender at RockVegas. She indicated that the
two men appeared to be on acid because “[t]hey weren’t being the same as they
always were. Usually, they were very happy go-lucky. They were being very solemn
and being very quiet.” She also testified that the appellant told her he had taken acid
earlier in the week. According to Ms. Pigue, Patterson left in the Camaro before the
appellant and her; she and the appellant left in her car. The appellant was wearing
a black leather jacket and boots when she saw him that night.
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Ms. Pigue testified that the day after the murders the appellant gave her a
watch and wedding ring to hold for him so they would not get lost. The appellant told
her that someone owed him money and he was keeping the watch and ring as
collateral. He also told her that he was moving out of town. Ms. Pigue testified that
the appellant was in a “happy go-lucky” type of mood when he gave her the watch
and ring. He did not mention anything about the murders. Ms. Pigue further testified
that she saw the appellant’s photo associated with a news report about the Smith
murders on the following Monday night. She was taken aback because she did not
believe the appellant could do such a thing. After talking with her parents the next
morning, Ms. Pigue gave to the police the items which which the appellant had given
her.
Ms. Pigue also testified that the appellant had written her two letters about a
month after his conviction. She only read the first one, but she destroyed both of
them. The one she read did not mention anything about the crimes or his conviction;
the appellant just asked how she was doing. She mentioned that there were “smiley
faces” on the letter.
Joseph Frederick Denning, a high school friend of the appellant’s, testified that
about a week before the murders, the appellant inquired about buying a handgun.
Denning took the appellant and Patterson to Nashville to purchase a .45 handgun
from an acquaintance of his. The appellant gave Denning $50.00, which Denning
gave to his acquaintance, and the acquaintance was going to come to Clarksville on
January 10, 1987, to collect the remaining $200.00. Denning also testified that the
appellant bought a .38 caliber handgun from him the previous year.
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Denning testified that the appellant and Patterson came to his residence
around 3:00 a.m. on January 9, 1987. He stated that both men were dressed nicely,
and he said the appellant was hyperactive. The appellant told Denning that his
girlfriend bought him the clothes he was wearing. The men asked Denning to go out
with them, but Denning told them he was going to sleep. Denning further testified
that the appellant was at his place the next morning when he awoke. The two of
them then drove over and picked up Patterson. Denning testified that on the way
back to his place, the appellant showed him some credit cards, a checkbook, a
watch and ring, and asked him if he knew how to use stolen credit cards. Denning
stated that the Smiths’ name was on the credit cards. The appellant told him he was
going to give the watch and ring to his girlfriend. Denning testified that Patterson
told him something to the effect that he and the appellant already killed two people
and killing one more would not matter.
Denning testified that the appellant again came to his place January 10, 1987.
The appellant showed Denning a newspaper article about the murders and said “he
was involved with the killings and that he was going to be famous and that they
wouldn’t catch him alive if they tried to catch him.” The appellant told him that he
tied a scarf around Mrs. Smith’s neck, but since he did not have enough strength to
kill her, he used a vase to help tighten the scarf. The appellant also told Denning
that he raped the woman and poured “Bartles and James” wine coolers all over her.
The appellant informed Denning that he cut the phone lines on the outside of the
house, broke the window in the back door, and went upstairs and shined a flashlight
in the Smiths’ faces. The appellant said he tried to kill Mrs. Smith but could not, so
he gathered stuff to steal and put it next to the back door. Denning testified that the
appellant told him he and Patterson had rope, a penlight, and guns with them during
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the crimes. Denning also testified that he saw ski masks and gloves at Patterson’s
residence.
Denning stated that the appellant was acting “real excited” about the murders
and about being famous. Denning testified that Patterson said “he had to finish the
job [strangling Mrs. Smith] for Ronnie because Ronnie . . . didn’t have the strength
to do it.” Patterson also told Denning that he killed Mr. Smith. Finally, Denning
testified that he was offered immunity on other unrelated matters in exchange for his
testimony in this case.
James Phillips Andrews, a roommate of Joe Denning in January of 1987,
testified that he met the appellant about a month before the murders. He stated that
the appellant and Brett Patterson stopped by their place every other day or so to
visit. Andrews testified that the appellant and Patterson came by his residence
during the early morning hours of January 9, 1987, but that they did not stay long.
Andrews further testified that the appellant came to his residence later that
same evening. The appellant, Denning and Andrews were sitting around watching
television when a report about reward money for the Smith murders was broadcast.
Andrews mentioned to the others he wish he knew who killed the couple so he could
get the money. The appellant told Andrews and Denning that he was the one. The
appellant told them some of the details about the incident, how they broke into the
house of this couple for which he had done some work, went to the master bedroom,
told the woman to get into the closet, strangled the man, and then raped the woman.
The appellant stated that he stole a VCR (which the appellant said he gave to his
father), credit cards, and a wedding ring. Andrews also testified that the appellant
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informed him he wore gloves during the incident. Andrews testified that the
appellant acted “proud” about what he did; “[t]o him, it was like a great trophy.”
Andrews admitted that in his statement to the police, he referred more to “they” or
“them” rather than “he” when relating what the appellant had told him in regards to
Patterson and his involvement in the incident. Finally, Andrews stated that the
appellant threatened to kill him if he repeated anything the appellant told him.
Charles Tracy, a teacher at the Department of Correction, testified on behalf
of the appellant. He testified that the appellant was one of his aides, and that the
appellant obtained his GED while in prison. According to Tracy, the appellant works
well with people, has good communication skills, is acceptable to supervision, and
maintains good personal hygiene. Tracy testified that the appellant tutors others in
gaining their GED and assists in grading papers. A letter of appreciation to the
appellant signed by Tracy was introduced into evidence.
The appellant testified on his own behalf. He stated that he was born on
September 5, 1967, and adopted and raised by his maternal grandmother and step
grandfather. He never saw his natural father and only remembers seeing his natural
mother several times. He testified that he did not learn until age fifteen that his
grandmother adopted him. The appellant dropped out of school in the eleventh
grade to help care for his grandmother, who suffered from Parkinson’s disease, so
his step grandfather could work outside the home. The appellant testified that he
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worked on automobiles as a hobby, and was employed in a garage until age
eighteen.
The appellant was married and divorced, and has a son from that marriage.
His son, eight at the time of resentencing, visits the appellant in prison every three
months or so. The appellant testified that he has remarried since he has been
incarcerated. He received his GED in 1991, and also obtained certification as a
legal assistant/paralegal in 1989, both while in prison. The appellant described his
duties as a teacher’s aide, and testified about a letter of appreciation from the
teacher and from a correctional officer, and approving remarks by the review board.
The appellant introduced greeting cards which he creates and sells in prison.
Finally, the appellant testified that he corresponds regularly with doctors, health
department officials, insurance companies, and rental agencies concerning his
grandmother’s condition and situation.
Before the appellant rested, the trial judge informed the jury that Brett
Patterson received a life sentence for his two first degree murder convictions.
SUFFICIENCY OF THE EVIDENCE 2
The appellant argues that the evidence introduced at the re-sentencing
hearing was insufficient to satisfy the application of the sole aggravating
2
As an initial m atter, the state argues that several issues raised on appeal have been waived
because the appellant failed to tim ely object, T.R.A.P. 36(a), State v. Killebrew, 760 S.W .2d 228,
235 (Tenn. Crim . App. 1988), or raise the issue in the m otion for new trial, T.R.A.P. 3(e), State v.
Baker, 785 S.W .2d 132, 135 (Tenn. Crim . App. 1989). Because of the qualitative difference
between death and other sentences, however, our Suprem e Court has norm ally considered the
m erits of an issue even if the appellant did not contem poraneously object to the error or raise the
issue in the m otion for new trial. See State v. Bigbee, 885 S.W .2d 797, 805 (Tenn. 1994); State v.
Duncan, 698 S.W .2d 63, 67-68 (Tenn. 1985); State v. Strouth, 620 S.W .2d 467, 471 (Tenn.
1981). Accordingly, we will consider these issues on their m erits.
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circumstance, that the murder was especially heinous, atrocious, or cruel.
Specifically, the appellant relies on two factors in support of his argument: (1)
evidence that the victim lost consciousness thirty seconds into the act, and (2) the
fact that the appellant was not the one who actually killed the victim. The state
argues in response that the evidence fully supports the jury’s verdict. The fact that
Patterson received a lesser sentence, according to the state, does not weigh into the
sufficiency determination.
(1). The evidence presented during the re-sentencing hearing in this case
shows that the two victims died as a result of ligature strangulation. The force of
pressure applied to the neck of Mr. Smith was probably greater than eleven pounds
per square inch, while the force applied to Mrs. Smith’s neck equaled thirty-four
pounds or more. Dr. Harlan testified that as a result of the strangulation, the thyroid
cartilage surrounding the larynx in Mrs. Smith’s neck was fractured. The flow of both
blood and oxygen to the head ceased. Dr. Harlan testified that she did not die
instantaneously, but rather within three to six minutes. Dr. Harlan testified further
that she could have fallen unconscious within thirty seconds, but possibly later, after
the initiation of the force to her neck. According to Dr. Harlan, several small
abrasions on Mrs. Smith’s neck, indicative of fingernail scratches, suggest that she
possibly attempted to relieve the pressure being applied.
The testimony also suggests that the victim was raped before the
strangulation. Though the appellant initially mentioned in his statement to the police
that only Patterson raped Mrs. Smith, he later told the officers that he too had sex
with Mrs. Smith that night. Moreover, the testimony of both Denning and Andrews
indicates that the appellant told both of these witnesses he did in fact rape Mrs.
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Smith. Dr. Harlan testified that he found a white sticky substance on the victim’s
body, but he did not determine exactly what it was. There is also testimony
suggesting that the appellant and Patterson poured wine coolers over Mrs. Smith’s
body after the rapes. Furthermore, the rapes apparently occurred shortly after the
strangulation of her husband. The couple was abruptly awakened in the middle of
the night. Mrs. Smith started screaming, so the appellant “hid her” in the closet of
the front bedroom, while his co-defendant fought with and strangled her husband in
the master bedroom. Mrs. Smith was then raped and strangled to death.
The appellant argues that the evidence implying that the victim lost
consciousness as early as thirty seconds into the ordeal is insufficient to support a
finding of the sole aggravating circumstance. In addition, this Court has a statutory
obligation to determine whether the jury’s verdict is supported by the evidence. See
Tenn. Code Ann. section 39-13-206(c)(1)(B). As is commonly recognized, the jury’s
verdict, approved by the trial court, accredits the testimony of the witnesses for the
State and resolves all conflicts in favor of the State’s theory. State v. Hatchett, 560
S.W.2d 627, 630 (Tenn. 1978); State v. Grace, 493 S.W.2d 474, 476 (Tenn. 1973).
On appeal, “the state is entitled to the strongest legitimate view of the trial evidence
and all reasonable inferences which may be drawn therefrom.” State v. Cabbage,
571 S.W .2d 832, 835 (Tenn. 1978). This Court does not reweigh or reevaluate the
evidence. Id. The jury’s finding, therefore, will only be disturbed if, after a
consideration of the evidence in the light most favorable to the State, a rational trier
of fact could not have found the existence of the aggravating circumstance beyond
a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 99 S. Ct. 2781 (1979);
State v. W illiams, 657 S.W.2d 405, 410 (Tenn. 1983).
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Tennessee Code Annotated section 39-13-204(i)(5) provides that the death
penalty may be imposed if the jury finds the State has proven beyond a reasonable
doubt 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.”3 In State
v. Hodges, No. 01C01-9212-CR-00382 (Tenn. Crim. App., May 18, 1995), a panel
of this Court held that “[s]trangulation alone does not establish the heinous,
atrocious, or cruel aggravating factor.” Slip op. at 15. Accordingly, there must be
evidence of some torture or serious physical abuse above and beyond the nature of
the strangulation in order to justify the heinous, atrocious, or cruel aggravator. See
id. “Torture” has been defined as “the infliction of severe physical or mental pain
upon the victim while he or she remains alive and conscious.” State v. W illiams, 690
S.W .2d 517, 529 (Tenn. 1985). “Serious physical abuse beyond that necessary to
produce death” means just that; there must be serious physical, not mental, abuse,
i.e., “an act that is ‘excessive’ or which makes ‘improper use of a thing,’ or which
uses a thing ‘in a manner contrary to the natural or legal rules for its use.’” State v.
Odom, 928 S.W .2d 18, 26 (Tenn. 1996) (quoting Black’s Law Dictionary 11 (6th ed.
1990)).
3
The State notes, with which we agree, that although the trial court erroneously instructed the
jury under the new language rather than the old language of the especially heinous, atrocious, or
cruel aggravating circum stance (because of the date of the offense), the error was harm less as
the instruction inured to the benefit of the appellant. See State v. Thom pson, 03C01-9406-CR-
00198 (Tenn. Crim . App. Jan. 24, 1996), perm . app. denied, concurring in results only, (Tenn. July
1, 1996).
Furtherm ore, the 1989 am endm ents to the death penalty statute m andate that the jury
m ust find that the aggravating circum stances outweigh the m itigating circum stances “beyond a
reasonable doubt” before it can im pose the death penalty. Tenn. Code Ann. § 39-13-203 (Supp.
1989). Prior to the am endm ents, however, the jury sim ply had to find that the aggravating
circum stances outweighed the m itigating circum stances. § 39-13-203 (1982). In the case before
us, the trial judge erroneously instructed the jury under the new law rather than the law in
existence at the tim e of the offense. See § 39-11-112. See also State v. Sm ith, 893 S.W .2d 908,
919 (Tenn. 1994); State v. Brim m er, 876 S.W .2d 75, 82 (Tenn. 1994). Since, however, the
am endm ents to the statute create a higher burden of proof, and thus inure to the benefit of the
appellant, we believe any error com m itted by the trial judge was m erely harm less. See, e.g.,
State v. Thom pson, No. 03C01-9406-CR-00198, Dickson County (Tenn. Crim . App. Jan. 24,
1996), perm . app. denied, concurring in results only, (Tenn. 1996).
-18-
In the recent case of Odom, the jury sentenced the appellant to death upon
a finding of the heinous, atrocious, or cruel aggravator, among others, for the
conviction of murder during the perpetration of rape. Odom, 928 S.W .2d at 20-21.
The elderly victim was accosted in her car by the appellant, raped, and stabbed
several times in the heart, lung, and liver. Odom, 928 S.W .2d at 22. She died as
a result of internal bleeding which occurred from the stab wounds. Id. In ruling that
the evidence was not sufficient to support the finding of the especially heinous,
atrocious, or cruel aggravator, the Supreme Court held that “rape (penile
penetration) does not ordinarily constitute ‘torture’ or ‘serious physical abuse’ within
the meaning of [this aggravating circumstance].” Odom, 928 S.W .2d at 26
(emphasis added). The Court further noted that the stab wounds did not evidence
torture or serious physical abuse beyond that necessary to produce death. Id.
As the State asserts, Mrs. Smith suffered mental torture when she was forcibly
removed from her bed while screaming in the middle of the night, hidden in a closet
while her husband was dead or dying, and subsequently raped. The evidence,
though not directly showing that Mrs. Smith knew the exact fate of her spouse,
supports the strong assumption that she heard what was happening and knew her
husband was in dire circumstances. The video shown to the jury clearly depicts that
a profound struggle occurred between the assailants and Mr. Smith; the bed covers
were strewn about the room, Mr. Smith was kneeling against the bed, fingernail
scratch marks were found on his neck, and the bed frame was broken away from the
headboard and the mattress was lying on the floor. In his statement to the police,
the appellant said that as Patterson left the master bedroom after killing Mr. Smith,
he grabbed Mrs. Smith as she was coming back down the hallway. The jury could
easily have concluded that she was going to check on her husband after she heard
-19-
the struggle.
It clearly appears from the record that the strangulation occurred after the
rapes and while the victim was conscious. Even though Odom states that rape does
not ordinarily constitute torture or serious physical abuse, we find that the facts of the
case sub judice more distinctly demonstrate their existence. In Odom, the victim
was raped once. Here, the victim was raped twice, and by two different individuals.
Moreover, the rapes were not committed upon the initial criminal confrontation. In
Odom, the rape ensued almost immediately after the victim was accosted. Mrs.
Smith was not raped until after she was placed in a closet where she apparently
heard the attack on her husband. And after the rapes occurred, the assailants
further tortured and ridiculed Mrs. Smith by pouring two bottles of wine coolers over
her naked body.
Mrs. Smith remained conscious for at least thirty seconds while she was being
strangled after she had been twice raped. The abrasions on her neck indicate that
she tried, unsuccessfully, to release the pressure from around her neck. Although
Dr. Harlan testified that he was uncertain from the medical evidence whether a break
occurred in the strangulation process, other testimony suggests that when the initial
attempt to strangle proved futile, an apparent second, more successful, attempt to
strangle Mrs. Smith was made using a tourniquet device. As Joseph Denning
testified, the appellant told him he made the first attempt to strangle Mrs. Smith.
According to Denning’s testimony, the appellant lacked the strength to kill her, so
Patterson had to complete the act using the vase in the scarf. The abrasions on
Mrs. Smith’s neck indicate that she was conscious during a portion of the struggle.
It appears from the record that Mrs. Smith was forced to endure not only the severe
-20-
physical pain of the strangulation, but the grueling mental pain as well of not knowing
when and if the assailants would continue what probably appeared to her as
repeated acts of strangulation and torture.
Case law states that a strangulation, in and of itself, is not sufficient to
establish the heinous, atrocious, or cruel aggravating circumstance. See Hodges,
slip op. at 15. Nor does a rape, standing alone, satisfy this aggravator. See Odom,
928 S.W .2d at 26. However, we believe that the strangulation, combined with the
two rapes and the evidence surrounding this entire criminal episode, does support
the jury’s finding of the especially heinous, atrocious, or cruel aggravating
circumstance in this case.
W e believe our conclusion is further buttressed by another distinction between
this case and Odom. In Odom, the appellant was convicted of felony murder in the
perpetration of rape. The appellant in the present case was convicted of felony
murder in the perpetration of first degree burglary. The Court in Odom, holding that
a rape does not ordinarily constitute torture, stated that to hold otherwise would
permit every murder committed in the perpetration of a rape to be automatically
classified as a death-eligible offense. In essence, another Middlebrooks-type
duplication problem would ensue. Accordingly, the Court’s reasoning suggests that
its statement about rape was necessitated because the appellant stood convicted
of felony murder in the perpetration of a rape. Because the appellant before us was
not convicted of murder in the perpetration of a rape, we are satisfied that our
holding does not create the constitutional infraction intimated by the Supreme Court.
(2). The appellant claims that because the testimony demonstrates that
-21-
Patterson actually killed Mrs. Smith, there is insufficient evidence to sustain the jury’s
finding of the especially heinous, atrocious, or cruel aggravator. The Supreme
Court, in State v. Branam, 855 S.W .2d 563, 570 (Tenn. 1993), outlined the
controlling law addressing the appellant’s claim:
In Edmund v. Florida, 458 U.S. 782, 789, 102 S. Ct. 3368, 3372, 73
L. Ed. 2d 1140 (1982), the United States Supreme Court held that death
is a disproportionate penalty and, therefore, constitutes cruel and
unusual punishment under the Eighth Amendment, where it is imposed
against a defendant “solely for participation in a robbery in which
another robber takes life,” without proof that the defendant himself
attempted or intended to kill, or intended that lethal force be used. This
constitutional standard was refined by the Court in Tison v. Arizona,
481 U.S. 137, 158, 107 S. Ct. 1676, 1688, 95 L. Ed. 2d 127 (1987), in
which it was held that the Eighth Amendment does not prohibit the
death penalty in the case of a defendant whose participation in a felony
that results in murder is major and whose mental state at the time is
one of reckless indifference to the value of human life -- even though
the proof fails to show intent to kill.
See also T.C.A. § 39-11-407 (“it is no defense that . . . (2) The person for whose
conduct the defendant is criminally responsible has been acquitted, has not been
prosecuted or convicted, has been convicted of a different offense or different type
or class of offense, or is immune from prosecution.”)
Even though there is some testimony which suggests that Patterson was the
one who ultimately strangled Mrs. Smith to death, the testimony also shows that the
appellant attempted to strangle the victim but simply did not have enough strength
to bring the task to the intended conclusion. This does not substantially reduce his
culpability. Thus the appellant’s claim in this respect must fail.
CONSTITUTIONALITY OF THE ESPECIALLY HEINOUS, ATROCIOUS, OR
CRUEL AGGRAVATOR
Next, the appellant contends that the language of the aggravating
circumstance found in Tennessee Code Annotated section 39-13-204(i)(5) is too
vague to satisfy constitutional standards. This aggravating circumstance can be
imposed in the death penalty context if the jury determines beyond a reasonable
-22-
doubt 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.” Id.
Furthermore, the appellant claims the definitions of the terms in the statute given by
the trial court are themselves too vague as well. The Supreme Court recently
addressed this issue in Odom. The Court upheld the validity of the aggravating
circumstance under constitutional attacks. See Odom, 928 S.W .2d at 25-26.
Accordingly, the appellant’s issue is without merit.
SENTENCE OF LIFE WITHOUT POSSIBILITY OF PAROLE
The appellant also argues that the trial court should have instructed the jury
it could consider life without the possibility of parole as an alternative sentence. The
appellant relies upon Tennessee Code Annotated sections 39-13-204(k) and 39-11-
112 in support of his argument. The State contends that because the offenses in
this case were committed prior to the amendment providing life without the possibility
of parole, the appellant was properly sentenced under the old language. Moreover,
the State asserts the appellant should be prevented from raising this issue on appeal
when he requested the trial court not to inform the jury of the new sentencing option.
Section 39-13-204(k) was amended in 1993, and that amendment provides
in pertinent part:
If the trial court, or any other court with jurisdiction to do so, orders that
a defendant convicted of first degree murder (whether the sentence is
death, imprisonment for life without the possibility of parole or
imprisonment for life) be granted a new trial, either as to guilt or
punishment or both, the new trial shall include the possible
punishments of death, imprisonment for life without the possibility of
parole or imprisonment for life.
See also § 39-13-202(c) (1993) (creating penalty of life without possibility of parole).
According to the appellant, because he was granted a new sentencing hearing, this
-23-
section of the code states that he shall receive the benefit of an instruction on life
without the possibility of parole. The State, on the other hand, argues that section
16 of chapter 473 of the Public Acts of 1993 provides that this new sentencing option
shall only apply to offenses committed on or after July 1, 1993. According to the
State, since the offenses in this case occurred in 1987, the trial court was not
authorized under this section of the code to instruct the jury on life without the
possibility of parole as an available sentence.
Alternatively, the appellant cites to Tennessee Code Annotated section 39-11-
112 as authority in support of his argument. This section states:
W henever any penal statute or penal legislative act of the state is
repealed or amended by a subsequent legislative act, any offense, as
defined by the statute or act being repealed or amended, committed
while such statute or act was in full force and effect shall be prosecuted
under the act or statute in effect at the time of the commission of the
offense. Except as provided under the provisions of § 40-35-117, in the
-24-
event the subsequent act provides for a lesser penalty, any punishment
imposed shall be in accordance with the subsequent act.4
The appellant argues that because the 1993 amendments to the death penalty
statute provide for the sentencing alternative of life without the possibility of parole,
which could arguably be considered a lesser penalty, the trial judge should have
instructed the jury on this option as mandated by the above-quoted statute.
Contrary to the appellant’s claim, however, we are convinced that the trial
judge ruled correctly in this case. As this Court announced in State ex. rel. Stewart
v. McW herter, 857 S.W .2d 875, 877 (Tenn. Crim. App. 1992), perm. to appeal
denied, id., (Tenn. 1993), “[t]he criminal savings statute [§ 39-11-112] has never
been interpreted to apply to convictions and sentences which were already received
when a subsequent act or amendment provided for a lesser penalty.” Furthermore,
the effective date section of the life without parole act mandates that the entire new
act, not solely subsection (k) dealing with new trials, shall apply only to offenses
committed after July 1, 1993. Furthermore, the Supreme Court in this case ordered
the new sentencing hearing in 1989, well before the amendments creating life
without the possibility of parole were enacted. Given the precise language of the act,
we do not believe the legislature intended for the new sentencing option to
encompass those crimes committed before July 1, 1993. Accordingly, this issue is
without merit.
PROSECUTORIAL MISCONDUCT
4
§ 40-35-117 outlines the applicable dates of the Crim inal Sentencing Reform Act of 1989. For
exam ple, an offense com m itted prior to July 1, 1982 shall be prosecuted under the prior law,
regardless of sentencing considerations.
-25-
The appellant claims the death penalty should be reversed because certain
remarks made by the prosecutor during closing arguments violated his constitutional
rights. Specifically, the appellant contends the prosecutor engaged in inappropriate
name-calling, and improperly encouraged the jury to “do its duty” for the sake of
deterrence. The State argues that the remarks were in response to the appellant’s
argument and were in accordance with the court’s instructions on the law. Even if
the statements were inappropriate, the State asserts that they were rather brief and
of little significance, and therefore any error was harmless.
As is commonly recognized, closing arguments are an important tool for the
parties during the trial process. Consequently, the attorneys are usually given wide
latitude in the scope of their arguments, see State v. Bigbee, 885 S.W .2d 797, 809
(Tenn. 1994), and trial judges in turn are accorded wide discretion in their control of
those arguments, see State v. Zirkle, 910 S.W.2d 874, 888 (Tenn. Crim. App.),
perm. to appeal denied, id., (Tenn. 1995). Such scope and discretion, however, is
not completely unfettered. The test for determining whether the prosecuting attorney
committed reversible misconduct in the argument is “whether the improper conduct
could have affected the verdict to the prejudice of the defendant.” Harrington v.
State, 385 S.W .2d 758, 759 (Tenn. 1965). The following factors have been
recognized to aid the Court in this determination: 1) the conduct complained of,
viewed in light of the facts and circumstances of the case; 2) the curative measures
undertaken by the court and the prosecutor; 3) the intent of the prosecutor in making
the improper statement; 4) the cumulative effect of the improper conduct and any
other errors in the record; and 5) the relative strength or weakness of the case.
State v. Buck, 670 S.W .2d 600, 609 (Tenn. 1984); Judge v. State, 539 S.W .2d 340,
344 (Tenn. Crim. App. 1976).
-26-
The following is a recitation of the relevant portion of the State’s rebuttal
argument at issue here:
Yes, we are asking for the death penalty. W hy? W hy should
Ronnie Cauthern die? I once heard an interpretation of the Lord’s
Prayer. “Deliver us from evil,” originally translated and actually read,
“Deliver us from the evil one” -- far more personally, far more graphic,
and far more intense -- the evil one.
In the 1960's, the Rolling Stones came out with a song. The
refrain after each chorus was, “Pleased to meet you. Hope you guess
my name.” And, I suggest to you it was a song about the evil one
appearing in person throughout the ages in many different guises. Mr.
Poland says civilized society -- in civilized society, we don’t kill. But in
civilized society, we must address -- we must stand up to, we must
confront the realities of our daily existence and our daily survival not
only of ourselves but of our children and their children.
It came to dawn on me after I thought about, “Pleased to meet
you, hope you guess my name” -- that on January 8th and January 9th,
1987, the evil one descended upon Patrick and Rosemary Smith, and
the evil one is smart, the evil one is skilled, the evil one is wily, and the
evil one is manipulative. A simple little demonstration of that, ladies
and gentlemen, is this. The evil one appeared today and produced
greeting cards -- “Merry Christmas,” “Happy Holidays.”
But on January the 8th, 1987, the evil one appeared at the door
of 351 Hampshire Drive, a home not unlike yours in a neighborhood not
unlike yours --the evil one appeared there in disguise --a mask, a black
jacket, a pistol, strangling rope, and the evil one is capable of taking
advantage of what was available inside their house.
Yes, whether you like it or not --whether you volunteered or not,
you were engaged in the ultimate battle in everyday combat with the
evil one, and he’s not going to go away. He appeared in Minnesota in
the form of Jeffrey Dahlmer[sic]. He appeared in Union, South
Carolina, and on January the 9th, he appeared in the door of Patrick
and Rosemary Smith. You cannot negotiate with the evil one, ladies
and gentlemen. You cannot deal in good faith with the evil one. You
-27-
have got to destroy and destroy, or he and his benefactors will destroy
you. He’ll destroy us. He’ll destroy our children.
The evil one took the name of Ronnie Cauthern on that day.
That was his name, and he’s beyond redemption. He’s beyond
rehabilitation. There is no treatment for this individual posing in a mask
and taking human form. There is no treatment for this person. This
person has been around through the ages and will appear again. You
cannot cure him. Don’t try to save him. Engage him in combat and
destroy him. Do your duty. When you open that paper and you find
that the State has carried out your instruction, you will have scaled the
ramparts at least one time, and you will have been a part of bringing
back peace and tranquility in your community and in our community,
and you will send a message to the evil one. You will send a message
that we stand ready --armed, and ready to fight for all in the world, for
everything that you believe in, for the sanctity of your home, the
blessing of seeing your children reach adulthood and have your
grandchildren, and you will take that step and leave a legacy to your
children that they someday will not have to grapple with what the
Smiths had to deal with and what Karen Rivetna and her mother have
to deal with.
“Holiday Greetings@ --a time for loved ones to get together.
Horrible chaos has been reaped and racked on this family. I’m asking
you to do your duty. Stand tall. Thank you.
The appellant contends that references to him as the “evil one” were highly
inappropriate. The appellant further argues he was prejudiced when the prosecutor
compared him to the devil, Jeffrey Dahmer, and Susan Smith. Closing arguments
must be temperate, must be based upon evidence introduced during trial, and must
be pertinent to the issues being tried. Coker v. State, 911 S.W .2d 357, 368 (Tenn.
Crim. App.), perm. to appeal denied, id., (Tenn. 1995); State v. Tyson, 603 S.W .2d
748, 754 (Tenn. Crim. App. 1980). Remarks during argument comparing the
appellant to other people and biblical figures are irrelevant and patently improper.
See State v. Bates, 804 S.W .2d 868, 881 (Tenn. 1991). Moreover, it appears to be
well established in Tennessee that references to biblical passages or religious law
-28-
during a criminal trial are also inappropriate. See State v. Stephenson, 878 S.W .2d
530, 541 (Tenn. 1994); Kirkendoll v. State, 281 S.W .2d 243, 254 (Tenn. 1955).
As the appellant suggests, the predominate theme in the State’s final
argument appears not only to be couched in terms of religion, but also appeals to
deterrence. W hile the federal constitution does not preclude the sentencing jury in
a capital case from considering the future dangerousness of a particular appellant
where such is a relevant factor under the sentencing statute, see Spaziano v.
Florida, 468 U.S. 447, 104 S. Ct. 3154, 82 L. Ed. 2d 340 (1984); California v. Ramos,
463 U.S. 992, 103 S. Ct. 3446, 77 L. Ed. 2d 1171 (1983); Jurek v. Texas, 428 U.S.
262, 96 S. Ct. 2950, 49 L. Ed. 2d 929 (1976), Tennessee courts have held that general
deterrence is not an appropriate argument during sentencing, see State v. Irick, 762
S.W .2d 121, 131 (Tenn. 1988). See also State v. Bates, 804 S.W .2d 868, 882
(Tenn. 1991). An argument based upon deterrence is usually considered irrelevant
and unrelated to any mitigating or aggravating circumstance, unless the argument
relates to either the State’s or appellant’s theory of the case. Bates, 804 S.W .2d at
882. As this Court has held, however, “the prosecutor [does] not engage in
misconduct by commenting that the jury [is] ‘the voice for this community.’” State v.
Dalton, No. 02C01-9408-CR-00291, Davidson County, slip op. at 3 (Tenn. Crim.
App., July 11, 1995). The State “must [nonetheless] refrain from argument designed
to inflame the jury.” Coker v. State, 911 S.W.2d 357, 368 (Tenn. Crim. App. 1995).
See also State v. Zirkle, 910 S.W .2d 874, 888 (Tenn. Crim. App. 1995) (citing
Harrington v. State, 385 S.W.2d 758 (Tenn. 1965)).
-29-
The State argues that the comments were made in rebuttal to the appellant’s
statement that a civilized society does not kill. The State also claims that its
reference to the evil one was in accordance with the court’s definition of “atrocious:
extremely evil or cruel.” According to the State, the prosecutor was simply trying to
satisfy the aggravating circumstance.
The prosecutor intended obviously to impress upon the jury that the appellant
is an evil person who deserves the death penalty. The State’s position in the trial,
however, was obvious as well when it filed notice of intent to seek the death penalty.
The prosecutor told the jury to do its duty. This is arguably no different than the
prosecutor asking the jury to return a guilty verdict. Accordingly, it appears to us that
the prosecutor was simply reiterating the State’s position that the nature of the
crimes warranted an extreme punishment. Of course, references to the evil one, the
devil and other notorious criminals are not relevant to the facts and circumstances
of this case and are thus improper. Insinuations regarding deterrence are also
improper. The appellant, however, did not object to this line of argument and the
court thus took no curative measures.5
After examining the above-quoted remarks in light of the entire closing
argument, the facts and circumstances surrounding the case, and the overall
strength of the State’s case, however, we cannot say that the improper comments
5
Earlier in this prosecutor’s argum ent, however, the appellant did voice an objection. The
prosecutor m ade several statem ents concerning the circum stances of the crim e, which the
appellant claim ed were outside the scope of his rem arks in closing and thus not proper m atters
for rebuttal. The prosecutor stated he would m ake his argum ent relevant to appellant’s rem arks,
and the court allowed him to proceed.
-30-
made during the State’s rebuttal argument affected the verdict to the prejudice of the
appellant. Accordingly, this issue is without merit.
ADMISSION OF THE VIDEOTAPE
The appellant claims that the trial judge abused his discretion by allowing into
evidence a videotape depicting the crime scene. Specifically, the appellant argues
that those segments of the tape showing the officers turning the bodies over onto
their backs in order to obtain an anterior view were highly inflammatory and
irrelevant. The appellant places great weight upon the fact that the original trial
judge redacted from the jury’s view during the guilt phase of the trial those scenes
depicting the moving of the bodies. In response, the State argues that the video was
relevant to show the heinous, atrocious, or cruel nature of the crime.
The admissibility of relevant videotapes of the crime scene and victims has
long been within the sound discretion of the trial judge, and his or her ruling on
admissibility will not be disturbed on appeal absent a clear showing of an abuse of
that discretion. State v. Banks, 564 S.W .2d 947, 949 (Tenn. 1978). See also, State
v. Bigbee, 885 S.W .2d 797, 807 (Tenn. 1994); State v. Van Tran, 864 S.W .2d 465,
477 (Tenn. 1993). Moreover, the recent trend is to vest more discretion in the trial
judge's rulings on admissibility. See Banks, 564 S.W .2d at 949; State v. Bailey, No.
01C01-9403-CC-00105, Dickson County (Tenn. Crim. App., Nashville, July 20,
1995); perm. to appeal denied, id., (Tenn. 1996).
Evidence is relevant if it has "any tendency to make the existence of any fact
that is of consequence to the determination of the action more probable or less
probable than it would be without the evidence." Tenn. R. Evid. 401. However,
-31-
relevant evidence "may be excluded if its probative value is substantially outweighed
by the danger of unfair prejudice, confusion of the issues, or misleading the jury."
Tenn. R. Evid. 403. Along these lines, the trial court should be guided by the
following matters in determining the admissibility of relevant videotape evidence: the
accuracy and clarity of the video and its value as evidence; whether the video
depicts the body as it was found; the adequacy of testimonial evidence in relating the
facts to the jury; and the need for the evidence to establish a prima facie case of guilt
or to rebut the defendant's contentions. Banks, 564 S.W .2d at 951.
Prior to the sentencing hearing on remand, the trial judge heard arguments
regarding the admission of the videotape and ruled that the probative value of the
evidence in regards to the aggravating factor outweighed any unfair prejudicial
effect. The court also ordered that the sound be turned off so as to avoid any
improper influence from the comments of the officers. See State v. Van Tran, 864
S.W .2d 465, 477 (Tenn. 1993). The segments of the videotape at issue in this
appeal deal with the camera shots of the victims. Those portions showing the
general layout of the house and the evidence of the burglary, while arguably
irrelevant for purposes of sentencing, are not at issue.
Both victims were found lying face down. Mr. Smith’s body was wrapped in
the covers kneeling against and on the bed, and Mrs. Smith’s body was nude on the
floor. The video shows close-ups of both victims as they were found. The video
then shows the officers removing the covers from around Mr. Smith’s body, turning
his body onto his back, and examining his neck, arms and legs. The video zooms
in on the wounds around his neck and face. Likewise, the video shows the officers
removing the scarf from around Mrs. Smith’s neck and flipping her body over. Again,
-32-
the video zooms in on the wounds around her neck and face.
Both bodies exhibit a bluish tint to the skin and lips, as well as the effects of
lividity and rigor mortis. W hile the appellant may be correct to argue that these
postmortem features are irrelevant to any aspect of the heinous, atrocious, or cruel
aggravator, the nature of the various wounds to the neck do appear relevant. Each
victim was strangled with a different object, and thus received different types of
strangulation marks around the neck. Moreover, as the expert testimony
demonstrated, the pictures of what are probably fingernail scratches indicate that the
victims attempted to free the pressure from around their necks. Because of the
position in which the victims were found, it was necessary for the officers to turn the
bodies over to examine the wounds to the neck. As the forensic pathologist stated,
the bluish color of the skin, i.e. cyanosis, is a natural consequence of this type of
killing. The stiffness of the bodies resulting from the rigor mortis is also common
after death, and not in and of itself so inflammatory. See State v. Bigbee, 885
S.W .2d 797, 807 (Tenn. 1994). As the trial court noted, though the condition of the
bodies is not pleasant by any means, it is “not so gruesome as to . . . shock the
conscience of the Court or of the jury.”
W e believe the videos were relevant to the jury’s determination of whether the
murders were especially heinous, atrocious or cruel. W e conclude that the probative
value of the videotape outweighs any unfair prejudicial effect, and the trial judge
therefore acted appropriately. Contrary to the appellant’s argument, the fact that the
judge on remand allowed more of the video to be shown than did the original trial
judge is irrelevant to this Court’s inquiry into the issue. The original judge’s ruling
was based in part on showing the video during the guilt phase of the trial rather than
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the sentencing phase. This issue is without merit.
EVIDENCE OF UNRELATED CRIMES
The appellant also argues that reversible error occurred when the State
introduced evidence concerning a different robbery for which the appellant had been
tried and acquitted. In response, the State argues the appellant has waived the
issue because he permitted the introduction of the evidence and denied the court’s
offer of a curative instruction.
The appellant was originally indicted on eight counts in this case. Three of
those charges pertained to crimes unrelated to the incident at the Smiths’ residence,
and they were severed from the indictment. The appellant was subsequently tried
and acquitted on those three counts. Prior to the resentencing hearing, the trial
judge granted the appellant’s motion to keep the separate charges from the jury and
warned the State that a mistrial could follow if evidence of them surfaced.
During the State’s proof in the hearing, the State asked Detective Charles
Denton to read one of the appellant’s statements into evidence. This statement was
obtained during the first interview with the appellant on January 12, 1987. The
appellant objected to the introduction of this statement because it was not a verbatim
recording of the conversation between the officer and the appellant, but rather
consisted of Detective Denton’s annotations from the interview. The court overruled
the objection and allowed the jury to review copies of the statement while the officer
read it aloud on the stand. The following question and answer appear in this
statement: “Question - Do you know who committed the armed robbery at the
Hornbuckle 66? Answer - No.” This reference was to one of the three charges on
-34-
which the appellant was acquitted. After this portion of the statement was read, the
appellant voiced another objection. The court informed the witness not to read one
further question in the statement pertaining to the Hornbuckle robbery. The
appellant, however, moved for a mistrial because the jury was in fact reading along
with the officer and could see the next question: “Question - Do you know if Joe
commit [sic] the burglary - robbery with Pat? Answer - I think so.” The court
overruled the motion for mistrial, and the following exchange occurred: “Court - W hat
instruction do you suggest I give? . . . [Appellant’s counsel] - W e’ll just stand on the
Motion for Mistrial.”
This situation is quite similar to that in State v. Smith, 893 S.W .2d 908 (Tenn.
1994). In Smith, one of the State’s witnesses made reference to the defendant’s
prior jail time. The defendant moved for a mistrial, which the court denied. The
court, however, gave the jury a curative instruction to disregard the statement and
not to consider it for any purpose. Id. at 923. The Supreme Court held that it must
assume the jury followed the trial court’s instruction. Id. Moreover, the Court noted
that given the record as a whole in that capital case, the statement, though improper,
could not have prejudicially affected the jury. Id. (citing T.R.A.P. 36(b)). Likewise,
in State v. Harris, 839 S.W .2d 54, 72 (Tenn. 1992) (citing T.R.A.P. 36(b)), the
Supreme Court, in considering the effect of statements concerning prior criminal
activity on the jury’s verdict in a capital case, stated that the admission of the
evidence was harmless beyond a reasonable doubt when viewed in context of the
entire record. See also State v. Baker, 751 S.W .2d 154, 164 (Tenn. Crim. App.
1987); State v. Lawson, 695 S.W.2d 202, 204 (Tenn. Crim. App. 1985).
The decisions in the above-cited cases were based in part upon the appellate
-35-
court’s assumption that the jury obeyed the trial court’s curative instruction pertaining
to the inadmissible evidence. In the case at hand, the trial court gave no curative
instruction. However, as the State notes, the appellant refused to entertain the trial
court’s offer to give such an instruction. The decisions in the above-cited opinions
also relied upon the rationale of T.R.A.P. 36(b): “A final judgment from which relief
is available and otherwise appropriate shall not be set aside unless, considering the
whole record, error involving a substantial right more probably than not affected the
judgment or would result in prejudice to the judicial process.” The first part of that
same rule states, in pertinent part, that “Nothing in this rule shall be construed as
requiring relief be granted to a party responsible for an error or who failed to take
whatever action was reasonably available to prevent or nullify the harmful effect of
an error.” T.R.A.P. 36(a).
Accordingly, although the trial court seemed willing to entertain a request for
an instruction, the appellant refused to recommend an instruction and decided
instead to stand on his motion for mistrial. The record indicates that the appellant
also had an opportunity to review the statement before it was introduced, and did not
object to the improper references.6 We believe Rule 36(a) controls our decision
here. Moreover, considering the whole record as mandated by 36(b), we find the
error to be harmless beyond a reasonable doubt. The improper statements were
brief, and given the context in which they were made, added no “‘new dimension to
the jurors’ view of [the appellant]’”. State v. Harris, 839 S.W .2d 54, 72 (Tenn. 1992)
(quoting State v. Carter, 714 S.W .2d 241, 247-48 (Tenn. 1986)). The statements do
not associate the appellant with any other criminal activity or legal proceedings.
6
The appellant objected to the introduction of the statem ent, but his objection was grounded
upon som ething other than the reference to the prior acquittal; he objected because the statem ent was
not an exact transcript of the interview which was conducted.
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Furthermore, before the hearing, the trial judge stated that a mistrial could be
warranted if any improper evidence concerning the prior acquittals were introduced.
Since he overruled the appellant’s motion, the judge must have been satisfied that
no prejudice resulted from these improper statements. W e agree. This issue,
therefore, is without merit.
ADMISSION OF TRANSCRIPT OF RECORDED STATEMENT
Next, the appellant contends it was reversible error for the trial court to allow
a transcript of a tape-recorded statement into evidence when the State was unable
to produce the original recording. The State argues that the original has been lost
and that the transcript was properly admitted under the exception to the best
evidence rule.
The evidence at issue here consists of a transcript of a tape-recorded
interview between the appellant and Detectives Denton and Griffy. On the initial
direct appeal of this case, the Supreme Court reversed the death penalty based
upon the improper introduction of a portion of the interview. In accordance with the
Supreme Court’s opinion, that portion of the statement was not introduced during the
hearing on remand. On remand, a redacted transcript was read into evidence which
omitted any mention of Brett Patterson. As part of his complaint, the appellant
argues that he was “forced into the untenable position” of subsequently having to
introduce the unredacted portions of the statement which referred to Patterson’s
involvement.
Prior to the introduction of the transcript into evidence, there was some
discussion among the parties and the judge concerning the whereabouts of the
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original taped recording. Apparently, the tape was lost or misplaced by the Supreme
Court sometime during the prior proceedings. The trial judge made the following
ruling:
All right. And, the Tennessee Supreme Court’s already seen it. It’s
been authenticated by the Trial Court in Montgomery County and the
Tennessee Supreme Court. I’m going to let them read that portion
which the Supreme Court said was admissible . . . As an officer of the
Court, I’m saying that [the state] properly has this transcribed from the
original tapes, and over your objection and after noting your exception,
I’m going to allow its admission . . . It’s just that the tape is now gone
and has been lost by the Tennessee Supreme Court . . . and I’m
assuming that this transcript . . . is proper.
According to the record before the Court, the transcript of the recorded
interview was authenticated and introduced during the original trial of this case. See
also State v. Cauthern, 778 S.W .2d 39, 41 (Tenn. 1989). During that trial, the trial
judge ordered the State to redact those portions of the statement that referred to
Patterson before the statement was introduced. Moreover, the trial judge on remand
acknowledged the fact that the taped recording has been lost. Rule 1004 of the
Tennessee Rules of Evidence provides that other evidence of the original recording
is admissible if the original has been lost or destroyed. Accordingly, the introduction
of the transcript was proper.
Neither is there any merit to the appellant’s claim that he was prejudiced by
the introduction of both the redacted and unredacted transcripts. The appellant
seems to suggest that the evidence of the redacted statement placed undue
emphasis on his involvement in the crimes. The trial judge, however, allowed the
witness to take the stand again and read the unredacted portions into evidence. Any
harm caused by the redacted statement, therefore, was cured by the additional
evidence. Accordingly, this issue is without merit.
-38-
NONSTATUTORY MITIGATING CIRCUMSTANCES
The appellant claims the trial judge should have instructed the jury it could
consider as mitigating factors the fact that the appellant’s co-defendant received a
life sentence, and that the appellant has been a model prisoner and has helped
others inside and outside the prison. The State argues that neither the state nor
federal constitution require the judge to instruct the jury on nonstatutory mitigating
circumstances.
The trial judge instructed the jury concerning the following statutory mitigating
circumstances: 1) the appellant has no significant criminal history; 2) the murder was
committed while the appellant was under the influence of extreme mental or
emotional disturbance; 3) the youth of the appellant at the time of the crime; 4) the
capacity of the appellant to appreciate the wrongfulness of his conduct or to conform
his 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
as a matter of law but which substantially affected his judgment through the
ingestion of drugs; and 5) any other mitigating evidence which is raised by the
evidence. The judge also instructed the jury on the following nonstatutory
circumstances: 1) the appellant was an enterprising young man at the time of the
crime; 2) the appellant has a minor child; and 3) the appellant is married. The trial
judge refused, however, to instruct the jury that Patterson received a life sentence,
the appellant has been a model prisoner, and the appellant has helped others while
in prison.
In State v. Odom, the Supreme Court recently addressed the issue of
instructions on nonstatutory mitigators under the death penalty statute as amended
-39-
in 1989. Although the Court recognized that the trial court is not constitutionally
mandated to instruct the jury on nonstatutory mitigating factors, the Court did
construe the 1989 amendments, see Tenn. Code Ann. § 39-13-204(e)(1) (Supp.
1995), to require the judge to give the jury specifically requested instructions on
mitigating circumstances that are raised by the evidence. See Odom, 928 S.W .2d
at 29-30. In its discussion, however, the Court also acknowledged that under the law
as it previously existed, see § 39-13-203(e) (1982), there was no statutory provision
requiring the trial court to instruct the jury specifically on nonstatutory mitigators:
[T]he only mandatory instructions with respect to mitigating
circumstances are that those statutory circumstances which are raised
by the evidence shall be expressly charged, and the jury must be told
that they shall weigh and consider any other facts or circumstances that
are raised by the evidence that they find to be mitigating circumstances,
in making the determination of which circumstances, aggravating or
mitigating, outweigh the other.
Odom, 928 S.W .2d at 29 (quoting State v. Hartman, 703 S.W .2d 106, 118 (Tenn.
1985)). See also State v. Cazes, 875 S.W .2d 253, 268 (Tenn. 1994); State v. Smith,
857 S.W.2d 1, 15 (Tenn. 1993); State v. W right, 756 S.W.2d 669, 674 (Tenn. 1988);
State v. King, 718 S.W.2d 241, 249 (Tenn. 1986).
The trial judge in this case instructed the jury on the law governing mitigating
circumstances as amended in 1989. See Tenn. Code Ann. § 39-13-204(e)(1) (Supp.
1995).7 The judge also instructed the jury on three specific nonstatutory mitigating
factors. As discussed previously, the general provisions of § 39-11-112 and the
principles against retroactive application of statutes mandate that an offense
committed under a repealed or amended law shall be prosecuted under that law,
7
Prior to the 1989 am endm ents, the trial court was not required to inform the jury that no
distinction shall be m ade between statutory and specifically requested nonstatutory
m itigating factors. See § 39-13-203(e) (1982). The judge here instructed the jury
not to distinguish between the two types of factors. See § 39-13-204(e)(1) (Supp.
1995.).
-40-
unless the new law provides for a lesser penalty. See State v. Smith, 893 S.W .2d
908, 919 (Tenn. 1994); State v. Brimmer, 876 S.W .2d 75, 82 (Tenn. 1994). The
amendments to those sections of the death penalty statute addressing mitigating
circumstances, however, do not pertain to lesser penalties.
Accordingly, the trial judge was not compelled to instruct the jury on specific
nonstatutory mitigating factors, and should have instructed the jury under the law as
it existed at the time of the commission of the offense. However, because the
instructions on the several nonstatutory mitigating circumstances inured to the
benefit of the appellant, any errors in the trial court’s actions were harmless. See
supra note 3. Furthermore, because the prior law did not require the judge to
instruct on nonstatutory mitigating circumstances, the trial judge’s refusal to instruct
on the requested mitigating factors at issue here was proper. This issue, therefore,
is without merit.
EXCLUSION OF EVIDENCE INTRODUCED AS MITIGATION
The appellant also argues that the trial judge erred by refusing to allow into
evidence as mitigation a letter the appellant received from his son. The State
contends the trial judge did not abuse his discretion and that the letter was not
evidence of mitigation.
In the letter at issue, the appellant’s son writes how he loves his father and
that he hopes to see him again soon. The letter also describes some of the son’s
recent activities. The State objected to its introduction on the grounds that it was not
probative of any issue and was redundant of testimony already introduced. The trial
court sustained the objection. On appeal, the appellant simply asserts that the letter
-41-
is evidence of mitigation that should have been before the jury. The State, in
response, claims that the letter adds nothing to the evidence of the appellant’s son
which was already before the jury.
In State v. Odom, the Supreme Court reviewed the principles governing
mitigating evidence. While the particular facts of each case will govern the
determination of mitigating circumstances, evidence relating to the appellant’s
character or background is considered relevant and admissible as mitigation. Odom,
928 S.W.2d at 31 (citing Boyde v. California, 494 U.S. 370, 382 (1990); Penry v.
Lynaugh, 492 U.S. 302, 319 (1989)). Conversely, evidence that does not pertain to
the appellant’s character or background is not relevant and may be excluded by the
trial judge. Id. (citing Delo v. Lashey, 507 U.S. 272 (1993); Lockett v. Ohio, 438 U.S.
586, 605 n.12 (1978)).
In the case at hand, the trial judge allowed the appellant to testify that he had
a son and that he received a visit from him every three or four months. The
introduction of the letter itself, however, does not depict anything additional about the
appellant’s character. The jury was already aware that the appellant had a minor
child, and the trial judge even instructed this fact as a mitigating circumstance. W e
believe the letter is cumulative evidence which was properly excluded. “It is well
established in Tennessee that the decision to admit or exclude evidence is left to the
sound discretion of the trial judge and the judge’s decision will not be disturbed
unless it has been arbitrarily exercised.” State v. Davis, 872 S.W .2d 950, 955 (Tenn.
Crim. App.), perm. to appeal denied, id., (Tenn. 1993) (citing State v. Baker, 785
S.W .2d 132, 134 (Tenn. Crim. App. 1989); State v. Hawk, 688 S.W .2d 467, 472
(Tenn. Crim. App. 1985)). See also State v. Smith, 857 S.W .2d 1, 17 (Tenn. 1993)
-42-
(citing Lockett v. Ohio, 438 U.S. 586, 604, n.12, 98 S. Ct. 2954, 2965 n.12, 57
L. Ed. 2d 973 (1978); State v. Johnson, 632 S.W .2d 542, 548 (Tenn. 1982)) (“Under
either the constitution or the [death penalty] statute, however, the court retains its
traditional authority to exclude irrelevant evidence [in a capital sentencing hearing].”)
Accordingly, because the trial judge did not abuse his discretion or improperly keep
any mitigating evidence from the jury, this issue is without merit.
COMPETENCY OF JUROR FOREPERSON
The appellant next contends that the juror foreperson’s inability to read the
verdict form without the assistance of the trial judge effectively denied him the right
to an impartial jury. Specifically, the appellant suggests that since the foreperson
had difficulty reading the verdict form aloud in open court, she probably encountered
difficulty understanding the legal instructions contained in the written charges. The
State contends that although the foreperson experienced some trouble reading the
verdict form, there is no evidence in the record which indicates she could not
understand the spoken word of the oral charges given by the judge.
The trial judge read the charges to the jury in open court before allowing them
to retire. Once the jury returned from their deliberations, the following exchange
ensued:
THE COURT: All right. I’m going to ask you to read that for me if you
will. With regard to the first count of the indictment which alleges the
murder of Patrick Smith, what is your verdict?
MS. VALERIE CLARK: Life imprisonment. We, the jury --
THE COURT: W ill you read it -- read that for me?
MS. CLARK: W e, the jury -- okay -- what’s that?
THE COURT: Unanimously.
MS. CLARK: Unanimously determine that one --
THE COURT: Statutory.
MS. CLARK: Statutory.
-43-
THE COURT: Aggravating.
MS. CLARK: Aggravating --
THE COURT: Circumstances.
MS. CLARK: Circumstances has been proven by the State beyond a
reasonable doubt. We, the jury, therefore, find the sentence shall be
imprisonment for life.
THE COURT: And, you’ve each affixed your name to that. Is that right?
MS. CLARK: Right.
THE COURT: W ith regard to the second count of the indictment which
alleges the death of Rosemary Smith, what is your verdict?
MS. CLARK: Punishment of death.
THE COURT: W ill you read that for me, please?
MS. CLARK: W e, the jury --
THE COURT: Unanimously.
MS. CLARK: Unanimously find that the following list --
listing --
THE COURT: Statutory.
MS. CLARK: Statutory.
THE COURT: Aggravating.
MS. CLARK: Aggravating.
THE COURT: Circumstances.
MS. CLARK: Circumstances of --
THE COURT: Do you want to list this for me? Can you read that,
please?
MS. CLARK: The murder was especially human --
THE COURT: Heinous.
MS. CLARK: -- heinous --
THE COURT: Atrocious.
MS. CLARK: -- atrocious, and cruel, in that is involved --
THE COURT: Torture.
MS. CLARK: -- torture --
THE COURT: Or serious --
MS. CLARK: -- or serious physical abuse beyond that necessary to prove --
THE COURT: -- produce death.
MS. CLARK: -- produce death.
THE COURT: All right. Will you continue to read?
MS. CLARK: W e, the jury --
THE COURT: Unanimously.
MS. CLARK: -- unanimously find that the State has been proven beyond a
reasonable doubt that the circumstances are --
THE COURT: Statutory.
MS. CLARK: -- statutory --
THE COURT: Aggravating.
MS. CLARK: -- aggravating circumstance or circumstances so to list above
outweigh any other --
THE COURT: Mitigating.
MS. CLARK: -- mitigating circumstances. Therefore, we, the jury, unanimously find
that the punishment for the defendant, Ronnie --
THE COURT: Cauthern.
MS. CLARK: -- Cauthern shall be death.
THE COURT: Be seated please.
-44-
The Supreme Court dealt with this very issue in Kirkendoll v. State, 281
S.W .2d 243 (Tenn. 1955), a case wherein the death penalty was affirmed. The
Court held it was not error for the trial judge to accept a juror who could not read the
written charges given by the court. Id. at 255. The Supreme Court reasoned as
follows:
W e think though that other jurors if necessary could read this to that juror who
could not read while in the jury room. The purpose of having the written charge
before them . . . was to prevent and keep the jury from having to keep running
backward and forward into court getting the court to recharge them on various and
sundry little things that they might have forgotten. It seems to us that as long as this
written charge is in the jury room that there are others there who can read that this
would satisfy that question. Consequently this assignment must be overruled.
Id.
W e believe that the holding and reasoning in Kirkendoll is dispositive of the
issue before us here. The appellant has failed to point to anything in the record,
apart from the difficultly in the reading of the verdict form, which suggests Ms. Clark
did not understand the oral charges given by the judge. Nor has the appellant
demonstrated that he suffered any prejudice as a result of the Ms. Clark’s reading
skills. Accordingly, we conclude that this issue is without merit.
INDIVIDUAL AND SEQUESTERED VOIR DIRE
Next, the appellant claims the trial court erred when it denied the appellant’s
motion for individual and sequestered voir dire. Specifically, the appellant contends
the prospective jurors may have been aware of the facts of this case prior to the
hearing. The State contends the trial court acted appropriately.
The appellant filed a pre-trial motion requesting permission to conduct
individual and sequestered voir dire of the prospective jurors. The trial court denied
the motion. During the voir dire, the prosecutor asked, among others, the following
-45-
questions:
Have any of you heard or read anything at all about this case?
Have any of you heard anyone express an opinion about what ought to
happen in this case?
There will be testimony that this crime occurred in Clarksville,
Tennessee. This is a case, by the way, about two Army nurses, a
husband, Patrick Smith, and his wife, Rosemary. This crime occurred
either on the night of January the 8th, 1987 or the early morning hours
of January the 9th. Mr. and Mrs. Smith -- Captain Smith and Captain
Smith were captains in the Army -- were at home asleep when two
defendants, Ronald Cauthern and another man, broke into their home,
attacking both of them, raped Mrs. Smith, garroted -- that’s a term you
may not know the meaning of right now, but if you’re chosen as a juror
you will before this case is over -- and left them both dead. Now, have
any of you ever heard anything about this fact situation?
Is there anybody here who doesn’t think they can give the defendant a
fair trial?
The prospective jurors all responded negatively to each of these questions.
Individual and sequestered voir dire is required only when there is a
“significant possibility” that the prospective jurors have been exposed to potentially
prejudicial material before the trial. State v. Howell, 868 S.W .2d 238, 247 (Tenn.
1993); State v. Harris, 839 S.W .2d 54, 65 (Tenn. 1992). The decision of whether to
grant individual and sequestered voir dire of prospective jurors lies within the sound
discretion of the trial judge, and that decision will not be overturned absent a finding
of “manifest error.” Howell, 868 S.W .2d at 247-48; Harris, 839 S.W .2d at 65.
The appellant has failed to demonstrate in the case at hand any prejudice
resulting from the trial court’s denial of his motion. All of the prospective jurors
indicated they had no knowledge of the facts or circumstances of this case. The fact
that the jury knew the appellant was already convicted of first degree murder,
-46-
contrary to the appellant’s claim, is irrelevant to this issue. The nature of the
proceedings in a capital case necessarily creates a situation where the sentencing
jury will always know the guilt determination. The fact that this was a resentencing
hearing does not present any substantial distinctions, especially when the jury was
unaware of the prior proceedings. Accordingly, we find that the trial court did not
abuse its discretion in denying the appellant’s motion.
-47-
MERCY INSTRUCTION
The appellant claims the trial court should have instructed the jury that it could
recommend mercy when rendering its sentence. The Supreme Court has
continually upheld the trial court’s decision in this respect. See State v. Bigbee, 885
S.W .2d 797, 813-14 (Tenn 1994); State v. Cazes, 875 S.W .2d 253, 269 n.6 (Tenn.
1994); State v. Hartman, 703 S.W .2d 106, 119 (Tenn. 1985); State v. Melson, 638
S.W .2d 342, 366 (Tenn. 1982). Accordingly, this issue is without merit.
EVIDENCE OF THE UNDERLYING FELONIES
The appellant also alleges that the trial court erred by denying his motion to
prevent the State from introducing evidence of the underlying burglary and rape. He
contends this evidence did not relate to either the aggravating or mitigating
circumstances and thus was improperly before the jury. In response, the State
asserts that the trial court acted appropriately.
Prior to trial, the appellant filed a motion to prevent the State from introducing
evidence of the underlying burglary and rape. The trial judge denied the motion,
stating:
This was all evidence that was originally introduced at the original
trial -- at the guilt phase of the trial, and I think the jury is entitled to all
the evidence from the guilt phase of the trial in making their
determination as to what the proper punishment is. I think that’s the
law. I don’t think that the rape itself could be an aggravating
circumstance, but evidence of the rape could go to the proof of the
aggravating circumstance that you’re alleging, and for that reason that’s
why I’m going to allow the introduction.
In his argument before the Court, the appellant seems to suggest that the
Supreme Court’s holding in State v. Middlebrooks, 840 S.W .2d 317 (Tenn. 1992)
controls this issue. Middlebrooks stands for the proposition that the State cannot
-48-
rely upon the underlying felony in support of the aggravating circumstance that the
murder was committed in the perpetration of a felony when the appellant was
convicted of felony murder. Id. at 346. In the instant case, however, the State
sought to prove the existence of only one aggravating circumstance, that the murder
was heinous, atrocious, or cruel. Thus, there is no duplication problem like that
encountered in Middlebrooks. Id.
Moreover, in State v. Cazes, 875 S.W .2d 253, 270 (Tenn. 1994), the Supreme
Court, while conducting a Middlebrooks harmless error analysis, stated: “A
sentencing jury may properly hear evidence regarding the circumstances of the
offense.” See also State v. Smith, 893 S.W .2d 908, 925 (Tenn. 1994). As the trial
court implied, the jury must be allowed to consider the circumstances surrounding
the murder in order to appropriately determine the existence of the heinous,
atrocious, or cruel aggravating circumstance. The circumstances surrounding the
murder include evidence of the separate felonies. The trial court ruled, however,
that the State could not inform the jury that the appellant had been convicted of
burglary and rape. Because we believe the trial court acted appropriately in this
regard, we find no merit to this issue.
EXCLUSION OF PROSPECTIVE JUROR
The appellant maintains that the trial judge committed reversible error by
excusing a prospective juror because of his perceived views on capital punishment.
During voir dire, a prospective juror informed the prosecutor that he did not think he
could “live with” the imposition of the death penalty. Subsequently, the judge asked
the prospective juror if he could follow the law. He responded by stating that “the
Lord makes the decision on death,” and that he did not think he could impose the
-49-
penalty. The judge thereafter excused the man from the jury.
The applicable standard for determining whether a juror was properly excused
for cause because of his beliefs on the death penalty was delineated in W ainwright
v. W itt, 469 U.S. 412, 424, 105 S. Ct. 844, 852, 83 L. Ed. 2d 841 (1985), and is as
follows: "whether the juror's views would 'prevent or substantially impair the
performance of his duties as a juror in accordance with his instructions and his
oath.'" See State v. Alley, 776 S.W .2d 506, 518 (Tenn. 1989) (Tennessee Supreme
Court adopts W ainwright standard). Furthermore, the United States Supreme Court
held that "this standard does not require that a juror's bias be proved with
'unmistakable clarity.'" Wainwright, 469 U.S. at 424, 105 S.Ct. at 852. The Court
also noted that "deference must be paid to the trial judge who sees and hears the
jurors." Id. at 426, 105 S.Ct. at 853.
W e agree that the prospective juror’s answers suggesting that he could not
impose the death penalty "would 'prevent or substantially impair the performance of
his duties as a juror in accordance with his instructions and his oath.'" Id. at 424, 105
S. Ct. at 852. See also, State v. Smith, 893 S.W.2d 908, 915-16 (Tenn. 1994).
Although this determination might not be "unmistakably clear," it need not be.
Moreover, as the United States Supreme Court has held, great deference should be
given to the trial judge, who is "left with the definite impression that a prospective
juror would be unable to faithfully and impartially apply the law." Wainwright, 469
U.S. at 426, 105 S. Ct. at 853. The trial judge's findings "shall be accorded a
presumption of correctness and the burden shall rest upon the appellant to establish
by convincing evidence that [those findings were] erroneous." State v. Alley, 776
S.W .2d 506, 518 (Tenn. 1989). The appellant has failed to meet his burden in this
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case.
The appellant also contends that excusing the prospective juror because of
his religious beliefs further interferes with the appellant's constitutional rights. Our
Supreme Court has ruled that because a juror's "'views on capital punishment may
have had a religious foundation does not necessarily transform the test mandated
by the United States Supreme Court in [W ainwright v. W itt] into religious tests for .
. . [constitutional purposes].'" State v. Jones, 789 S.W .2d 545, 547 (Tenn. 1990)
(1990) (quoting State v. Bobo, 727 S.W.2d 945, 949 (Tenn. 1987)). Accordingly, Mr.
W illiams’ opposition to the death penalty, though possibly based on religion,
appropriately rendered him unfit as a juror. The trial judge acted properly, and this
issue, therefore, is without merit.
ADMISSION OF APPELLANT’S STATEMENTS
The appellant, relying on his brief submitted during the initial direct appeal of
this case, argues that the trial court erroneously allowed the introduction of the
appellant’s statements into evidence. The Supreme Court previously addressed this
issue on the original appeal of this case. See State v. Cauthern, 778 S.W .2d 39
(Tenn. 1989). The remand of this case was based upon the Court’s determination
that a portion of the appellant’s statement was erroneously introduced. Id. at 47.
During the resentencing hearing, the trial court followed the Supreme Court’s
mandate and excluded the objectionable portions of the statement. Accordingly,
because the Supreme Court has already addressed this issue, the appellant’s
argument must fail.
CONSTITUTIONALITY OF THE DEATH PENALTY
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Finally, the appellant asserts the death penalty is cruel and unusual
punishment in violation of the state and federal constitutions. On direct appeal, the
Supreme Court rejected this argument. See State v. Cauthern, 778 S.W .2d 39, 47
(Tenn. 1989). Likewise, the Court has repeatedly upheld the constitutionality of the
death penalty in the face of similar challenges. See State v. Smith, 893 S.W .2d 908
(Tenn. 1994); State v. Brimmer, 876 S.W .2d 75 (Tenn. 1994); State v. Cazes, 875
S.W.2d 253 (Tenn. 1994); State v. Smith, 857 S.W .2d 1 (Tenn. 1993); State v.
Black, 815 S.W.2d 166 (Tenn. 1991); State v. Boyd, 797 S.W.2d 589 (Tenn. 1990);
State v. Teel, 793 S.W .2d 236 (Tenn. 1990); State v. Thompson, 768 S.W .2d 239
(Tenn. 1989). Accordingly, this argument is without merit.
CONCLUSION
After a thorough review of the issues and the record before us as mandated
by Tennessee Code Annotated section 39-13-206(b) and (c), and for the reasons
stated herein, we affirm the appellant’s sentence of death. We conclude that the
sentence was not imposed in an arbitrary fashion, the evidence supports the jury’s
finding of the aggravating circumstance, and the evidence supports the jury’s finding
that the aggravating circumstance outweighs any mitigating circumstances.
Moreover, a comparative proportionality review, considering both the circumstances
of the crime and the nature of the appellant, convinces us that the sentence of death
is neither excessive nor disproportionate to the penalty imposed in similar cases.8
8
No execution date is set in this opinion. Tennessee Code Annotated section 39-13-206(a)(1)
provides for autom atic review by the Tennessee Suprem e Court upon affirm ance of the death
penalty. If the sentence of death is upheld by the Suprem e Court on review, that court will set the
execution date.
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Accordingly, the judgment of the trial court is affirmed.
________________________________
DAVID H. W ELLES, JUDGE
CONCUR:
__________________________________
DAVID G. HAYES, JUDGE
__________________________________
CORNELIA A. CLARK, SPECIAL JUDGE
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