State v. Jordan

IN THE SUPREME COURT OF TENNESSEE

AT JACKSON

June 4, 2010 Session Heard at Nashville

STATE OF TENNESSEE v. DAVID LYNN JORDAN

Direct Appeal from the Court of Criminal Appeals

Circuit Court for Madison County

No. 05-431 Roy B. Morgan, Jr., Judge

_______________________________________

No. W2007-01272-SC-DDT-DD - Filed September 22, 2010

The defendant was convicted by a jury of the first degree murders of Renee Jordan, Jerry

Hopper, and David Gordon, and the attempted first degree murders of James Goff and Larry

Taylor, as well as leaving the scene of an accident. The jury sentenced the defendant to death

for each of the first degree murders. The trial court sentenced the defendant to twenty-five

years for each of the attempted murders, to be served consecutively, and to thirty days for the

misdemeanor. On appeal, we hold (1) the trial court erred in ruling pursuant to Tennessee

Rule of Evidence 615 that persons attending the guilt/innocence phase of the trial could not

testify at the sentencing hearing; (2) the trial court’s ruling regarding witness sequestration

did not violate the defendant’s right to a public trial; (3) the trial court erred in allowing an

expert to incorporate hearsay testimony within his opinion without a limiting instruction; (4)

the trial court did not err in permitting a victim’s fiancée to offer victim impact testimony;

(5) the prosecution engaged in improper argument during the sentencing hearing; (6) the trial

court did not err in its instructions to the jury on the felony murder aggravating circumstance;

(7) the various aggravating factors charged were not duplicative; (8) each of the death

sentences satisfies our statutory mandatory review; and (9) the cumulative errors in this case

do not entitle the defendant to relief. As to the remaining issues raised by the defendant, we

agree with the Court of Criminal Appeals’s conclusions and attach as an appendix to this

opinion the relevant portions of that court’s decision. The defendant’s convictions and

sentences are affirmed.

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

Court of Criminal Appeals Affirmed

C ORNELIA A. C LARK, J., delivered the opinion of the Court, in which J ANICE M. H OLDER,

C.J., and G ARY R. W ADE, W ILLIAM C. K OCH, J R., and S HARON G. L EE, JJ., joined.

George Morton Googe, District Public Defender, Jackson, Tennessee, and Lloyd Tatum,

Henderson, Tennessee, for the appellant, David Lynn Jordan.

Robert E. Cooper, Jr., Attorney General and Reporter; Michael E. Moore, Solicitor General;

James E. Gaylord, Asst. Attorney General; James G. Woodall, District Attorney General; Al

Earls and Jody S. Pickens, Asst. District Attorneys General, for the appellee, State of

Tennessee.

OPINION

FACTS 1

This case arises from a shooting incident on January 11, 2005, at the Tennessee

Department of Transportation (TDOT) facility in Jackson, where David Lynn Jordan

(“Defendant”) killed three people: Renee Jordan, his thirty-one-year-old wife who was

employed at TDOT; Jerry Hopper, an employee of the Tennessee Division of Forestry

who was at the TDOT office; and David Gordon, a motorist Defendant ran off the road en

route to the TDOT garage. Defendant also shot and injured two other TDOT employees,

James Goff and Larry Taylor.

State’s Proof

The State’s theory at trial was that Defendant first threatened and then decided to

murder his wife because he believed she was having an affair with a co-worker, Johnny

Emerson, and because she told him she wanted a divorce.

Johnny Emerson testified that he was employed as a mechanic at the TDOT garage

where Mrs. Jordan worked. Emerson explained that he and Mrs. Jordan were “just real

good friends,” but acknowledged that their relationship had developed “[a] little bit”

beyond a co-worker relationship. Physically, their relationship was limited to hugging

and kissing. Emerson said that Mrs. Jordan had been talking about getting a divorce. On

one occasion, Defendant telephoned Emerson at home regarding his relationship with

Mrs. Jordan. Defendant told Emerson that he was “too old” for Mrs. Jordan and that he

“needed [his] ass whooped.” Emerson agreed with Defendant that he “didn’t have no

business doing what [he] did.” Defendant also contacted Emerson’s wife on numerous

occasions. At some point prior to January 11, 2005, Emerson informed Mrs. Jordan that

he was not going to divorce his wife. Emerson testified that he was not at work on

January 11, 2005, because he was on medical leave.

1

We have incorporated with only minor revisions the Court of Criminal Appeals’s comprehensive statement

of the proof adduced in this case.

2

Linda Sesson Taylor, an attorney in Jackson, testified that Mrs. Jordan hired her on

December 14, 2004, to represent her in divorce proceedings against Defendant. She said

she initially prepared the necessary documents for a contested divorce, and Mrs. Jordan

told her she would have the money to pay her fee after the Christmas holiday. Taylor said

she also prepared the paperwork to obtain a restraining order against Defendant, and Mrs.

Jordan had an appointment scheduled for January 12, 2005.2 Taylor identified a page out

of her phone message book indicating that Mrs. Jordan had called her office on

January 11, 2005, at 9:56 a.m. wanting to know how much Taylor charged for an

uncontested divorce.

Kevin Deberry, the next-door neighbor of Defendant and Mrs. Jordan, testified that

Mrs. Jordan called him on the night of January 10, 2005, and was upset with Defendant.

About an hour later, Defendant came to Deberry’s house and asked Deberry to take Mrs.

Jordan’s dog to their house and get his house key, but Deberry refused to do so.

Defendant then told Deberry if he did not take Mrs. Jordan’s dog to her, he “was gonna

take it over there and shoot it in the driveway.” As Defendant turned to walk away,

Deberry noticed what he believed to be a “snub-nose .38” in Defendant’s back pocket.

Defendant then turned around and told Deberry that he “better watch [his] back, you

never kn[o]w which way the bullets are gonna fly.” Deberry called Mrs. Jordan and told

her to take her child and leave the house because Defendant was on his way over there.

Mrs. Jordan told Deberry that Defendant had left some threatening voice mails on her

phone. Defendant later called Deberry and apologized. The two men talked “for awhile”

and Deberry offered Defendant a drink. Defendant declined but called back later and

accepted Deberry’s offer of alcohol. Deberry said that he took a half-gallon bottle of

vodka to Defendant’s house at about 1:00 a.m. and put it in the freezer. Although

Defendant and his children were still up when he arrived, Deberry did not stay and

returned home.

Kenneth Evans, Mrs. Jordan’s cousin, testified that he was aware that Defendant

and Mrs. Jordan were having marital problems and, on January 10, 2005, Mrs. Jordan

called and told him that “she was about to have a nervous breakdown, and she was scared

of [Defendant], that he was calling threatening her.” Mrs. Jordan told Evans that

Defendant “was on his way out to the house and that he said . . . it didn’t matter how

many lawyers she had and how much money she had, that what he had for her wasn’t

going to do her any good.” Evans advised Mrs. Jordan to leave the house and go to the

police department, but she refused to do so, saying that Defendant had “had run-ins with

the police department before. He would shoot me there whether the police was there or

2

On direct examination, Ms. Taylor testified that Mrs. Jordan’s appointment was scheduled for January 11,

2005, but, on cross-examination, after reviewing her statement, she agreed that the appointment was for

January 12.

3

not, and he would probably shoot them, too.” Evans then told her to come to his house,

which she did. After she arrived, they took Mrs. Jordan’s three-year-old daughter to Mrs.

Jordan’s mother’s house. Evans later hid Mrs. Jordan’s car at a friend’s house, and they

returned to Evans’ home around 10:30 p.m.

The following morning, January 11, 2005, Mrs. Jordan and Evans, a TDOT

“[p]arts runner,” went to work. Mrs. Jordan worked in the office of the TDOT garage,

which was commonly referred to as “the crow’s nest.” That morning, Evans was in the

crow’s nest with Mrs. Jordan until approximately 11:10 a.m., when he left to go pick up

some parts. Ricky Simpson and James Goff were in the office with Mrs. Jordan when he

left.

Vernon L. Stockton, Sr. testified that on January 11, 2005, he was employed as an

equipment mechanic at the TDOT garage which was located in the same building as the

crow’s nest where Mrs. Jordan worked. He said he knew that Mrs. Jordan and Defendant

were having marital problems. Between 9:30 and 10:00 a.m. on the morning of January

11, Mrs. Jordan handed Stockton her portable phone when it rang and asked him to

answer it. Stockton recognized the caller’s voice as that of Defendant. Defendant asked

to speak to Mrs. Jordan, but Stockton told him that she was in the restroom because she

did not want to talk to him. Stockton said he later left TDOT to pick up some parts and

was not present when the shooting occurred.

Sonny Grimm testified that he was riding in a Ford pickup while Paul Forsythe

was driving it westbound on Lower Brownsville Road on January 11, 2005. The two men

worked for Ralph’s Trailers and were on their way to pick up some starter fluid for a

backhoe. A green car was traveling in front of them. As they approached Anglin Lane,

Grimm saw Defendant, who was driving a red pickup truck, run a stop sign and strike the

green car, knocking it off the road. Grimm wrote down the license plate number of

Defendant’s vehicle; he said that Defendant continued traveling toward the TDOT

garage. Grimm, Forsythe, and the driver of the green car followed Defendant to the

garage. There, Grimm saw people running everywhere. Forsythe gave the driver of the

green car the license plate number of the red pickup truck. Defendant came out of the

garage and told the driver of the green car, “You better leave.” The driver responded,

“I’m not going [any]where.” Defendant said, “yes, you are, too,” reached inside his truck,

pulled out a rifle, and shot the driver.

Paul Forsythe testified that, on the morning of January 11, 2005, he and Sonny

Grimm were traveling west on Lower Brownsville Road behind a green car when they

saw a red Mazda pickup truck come down Anglin Lane, run a stop sign, and strike the

green car, knocking it off the road. Forsythe followed the truck to get its license plate

number for the driver of the green car. Because he was driving, Forsythe called out the

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license number to Grimm, who wrote it down. The pickup truck then ran a four-way stop

and turned into the main entrance of TDOT. Forsythe called 911 and pulled into the

TDOT parking lot. The green car then pulled up, the driver got out, and Forsythe gave

the driver, David Gordon, the tag number of the pickup truck. As Gordon was walking

back to his car, Defendant came out of the TDOT building and told Gordon to leave.

When Gordon said, “I’m not going [any]where,” Defendant said, “You will” and then

reached inside his truck and pulled out a long gun. Gordon threw his hands up in the air

and told Defendant, “Please don’t shoot. Wait a minute.” However, Defendant started

shooting, and Forsythe and Grimm fled the scene.

Randy Joe Perry, a TDOT employee, testified that on January 11, 2005, Defendant

came to the TDOT garage and pushed Perry out of his way as he approached the steps

leading up to the crow’s nest where Mrs. Jordan worked. David Pickard, another TDOT

employee who was standing near Perry, said, “Who was that son-of-a-bitch?” Defendant,

who had his right hand in his coat pocket, turned around and gave Perry and Pickard a

“hard look” before going upstairs to the crow’s nest. Perry then heard three or four

gunshots and, looking through the window in the crow’s nest, saw Defendant pointing a

gun at Jerry Hopper who was sitting in a chair. Perry heard another gunshot and saw

Hopper slump over. Hearing more gunshots, Perry ran and got behind his truck. Shortly

thereafter, Defendant calmly walked outside to his vehicle. Perry next noticed a man get

out of another vehicle and walk toward Defendant. Defendant reached inside his truck

and retrieved a rifle. The man who had been walking toward Defendant stopped and

raised his hands. A few seconds later, Defendant fired several shots at the man. Perry

described the shots as coming from a “fully automatic” and so quick that he could not

count them. The man Defendant shot “went out of sight down behind the vehicle.”

Defendant walked over to the fallen man, shot again, “and then he turned and just calmly

walked back towards his truck, put the rifle in his truck, just eased in there and drove off

just as easy” toward the front gate.

David Thomas Pickard testified that he was standing near the stairs with Randy

Perry and other employees when Defendant came in the garage and shoved him and Perry

backwards as he walked past the group of men. Pickard responded by saying, “Who does

that crazy son-of-a-bitch think he is?” Defendant, who smelled of alcohol, turned around

and got in Pickard’s face “like he wanted to whoop [him].” Defendant then proceeded

upstairs to the crow’s nest where Mrs. Jordan was facing the window. Pickard saw

Defendant shoot Mrs. Jordan and described the shooting: “The first time it went ‘Pow’

and she went like this and come back and he went ‘Pow, Pow, Pow,’ like that.” Pickard

ran out of the garage to his office located across from the garage. After instructing the

employees in his office to lock the door, Pickard went back outside and saw Defendant,

pistol in hand, exit the garage and go to his truck and retrieve a rifle. Pickard went back

inside the office and, a few minutes later, saw Defendant leave in his truck. Pickard then

went to the crow’s nest where he saw Mrs. Jordan and Jerry Hopper lying on the floor.

5

He said he looked at Mrs. Jordan and knew she was dead, but Hopper was still alive and a

man was trying to resuscitate him. Outside in the parking lot, Pickard saw another man

lying on the ground. He said the man was not dead at that time, but he “was turning real

yellow-looking and blood was everywhere.”

James Goff testified that he was in the crow’s nest with Mrs. Jordan, Larry Taylor,

and Jerry Hopper when Defendant came in, raised his shirt, and pulled out what appeared

to be a nine-millimeter pistol. Mrs. Jordan had her back to the door, and Defendant called

out her name. Mrs. Jordan turned around, and Defendant started shooting. Goff stated

that Defendant was about 6 feet away. Defendant shot Mrs. Jordan in the chest and fired

additional shots, including what appeared to be a shot to the forehead. Defendant then

shot Hopper. Taylor dove under a desk, and Defendant shot Goff in the leg, the right side

of the neck, the arm, and the stomach. Although he did not see Taylor being shot, Goff

heard two more shots and heard Taylor grunt. As Defendant was leaving the crow’s nest,

Goff heard him mutter, “I love you, Renee.”

After Defendant left the room, Goff got up and asked Taylor about his condition.

He saw Hopper lying on the floor “in bad shape” and Mrs. Jordan was dead. Goff was

then able to make his way to the main office for help. He said he was hospitalized for

three days as a result of his injuries.

Larry Taylor testified that he was ending a telephone call inside the crow’s nest

when Defendant entered the room, stood there “for a moment or so,” pulled his coat back,

brandished a weapon, and took a “police stance.” Defendant then called Mrs. Jordan by

name and, when she turned to face him, shot her. One gunshot struck her in the stomach

area. She fell back in a chair, and Defendant fired two additional shots, with the second

shot striking her torso “a little higher up” and the third shot striking her in the head. Mrs.

Jordan fell to the floor, and Taylor could tell that she was dead. Taylor dove under a desk

for protection, heard more gunshots, and saw Goff fall. He then heard more gunshots and

felt pain in his legs. Taylor heard the door close, and Goff asked him if he was all right

before leaving the room. Taylor then got up and saw Hopper on the floor on his knees

with his face in his hands and saw Mrs. Jordan on the floor with her face in a pool of

blood. He called 911 and was trying to assist Hopper when he heard the door open and

saw Defendant with “a rifle-type gun.” Taylor looked Defendant “square in the eye” and

stood back up, holding both his hands in front of him. He asked Defendant if he could

leave, and, after a brief pause, Defendant said, “Yeah, you can go out now.” After Taylor

got downstairs, he heard gunshots in rapid succession and hurriedly went out the door.

He saw Goff, who was “kind of delirious” and holding a towel to his neck, and told

another employee, Alvin Harris, to drive Goff to the hospital in the parts truck. Taylor

then got in his car and drove himself to the hospital where he was treated for the gunshot

wounds to his legs.

6

Freddie Ellison, a reserve sheriff’s deputy and a mechanic at TDOT, testified that

when he returned to the garage from his lunch break around 11:30 a.m., people were

running out of the garage. He then observed Defendant, whom he had known for

approximately twenty years, walk out the roll-up doors of the garage. Ellison asked

Defendant what he was doing. Defendant raised his right hand and Ellison saw two semi-

automatic handguns. Defendant said, “Go on. Back off. Just go on. Back off.”

Defendant had his hand on one of the guns. Ellison retreated to the back of the building

where he observed David Gordon pull up in a green car. Gordon announced that “[t]he

guy in the red pickup truck has run over me,” and Ellison advised Gordon to “back off”

because Defendant had a gun. Gordon refused, stating that he had the police on the way.

Ellison then heard “automatic” gunfire and called the Madison County Sheriff’s

Department for assistance. He and Willie Martin left TDOT and went “out on 223.” He

saw Defendant leave in his red pickup truck, driving normally and headed toward

Jackson.

Shortly thereafter, Ellison observed an unmarked police unit and advised dispatch

to instruct the unit to follow Defendant. Ellison then returned to the TDOT garage and

saw David Gordon on the ground. Gordon had been shot multiple times. Inside the

crow’s nest, Ellison discovered “blood all over the floor” and saw Mrs. Jordan lying on

the floor with multiple gunshot wounds. He described Mrs. Jordan as being “shot all to

pieces,” including being shot in the forehead. Jerry Hopper had been shot several times in

the chest.

Alvin Harris, a “store clerk” at TDOT who picked up and delivered parts, testified

that he heard gunshots and went to the garage where he encountered Goff who was

holding his throat and bleeding. He also saw Taylor who was “real panicky” and pointed

to his legs when Harris asked him if he was hurt. Taylor told Harris that Defendant had

shot Mrs. Jordan and that she was “gone.” Because Goff was losing a lot of blood and

Harris feared death was imminent, Harris decided to drive Goff to the hospital rather than

wait for the ambulance.

Darrell Vaulx, a TDOT mechanic, testified that as he was leaving the shop on

January 11, 2005, he saw Defendant, Mrs. Jordan, Hopper, and Taylor through the glass

window in the crow’s nest. Defendant pointed a gun at Mrs. Jordan, and she fell. Vaulx

heard two more gunshots and saw Defendant turn toward the men in the crow’s nest.

Vaulx said he and other employees ran outside to the parking lot where Vaulx saw

Defendant’s red Mazda pickup truck. Vaulx then saw Defendant come outside and

calmly walk to his truck. Thinking that Defendant was leaving, Vaulx ran inside to the

crow’s nest where he found Mrs. Jordan on the floor with three gunshot wounds to the

head. Someone yelled, “He’s coming back,” and Vaulx ran back outside to the parking

lot and noticed that Defendant’s truck was still there. He then heard a noise that sounded

7

like an airgun or a rifle. After someone said Defendant was getting in his truck and

leaving, Vaulx went back inside and found Hopper who was “breathing just a little bit”

and “[s]quirming” like he was in pain. Vaulx administered CPR to Hopper until the

paramedics arrived.

George Washington Bond, a TDOT employee who worked in the car wash room in

the garage, testified that he heard “three pops,” looked out the window in the garage door,

and saw Defendant standing over “the victim.” Defendant then looked at Bond and shook

his head, which Bond interpreted to mean “[d]on’t get involved.” Bond saw what

appeared to be the grip of a gun in Defendant’s hand. Defendant then walked into the

garage and went to the crow’s nest. Bond saw Defendant pointing a long gun toward

where Mrs. Jordan sat. Bond then ran to another building and did not return to the

garage. On cross-examination, Bond acknowledged that he did not see Defendant shoot

“the victim.” 3

Barbara Surratt, Mrs. Jordan’s mother-in-law from a previous marriage, testified

that, even after Mrs. Jordan and her son divorced, she remained “very close” with Mrs.

Jordan. During the early part of 2005, Mrs. Jordan was staying with Surratt at her home

on Old Pinson Road. On January 11, 2005, at approximately 1:30 a.m., Surratt received a

telephone call from Defendant. Defendant told her that he knew Mrs. Jordan was not

there and asked her to tell Mrs. Jordan “happy birthday” the next time she saw her.

Surratt stated that Mrs. Jordan’s birthday was not until February. Around 11:30 a.m.,

Surratt telephoned Mrs. Jordan at work and, during their conversation, heard an “ungodly

racket, loud noises” and a sound like “a chair go across the room.” She screamed Mrs.

Jordan’s name, but got no answer. After it became quiet, Surratt heard Defendant say,

“Renee. Renee. I hate you.”

Jackson Police Sergeant Mike Thomas testified that he was on patrol in an

unmarked cruiser on Vann Drive when he received a call about the shooting at the TDOT

garage. En route to the scene, Sergeant Thomas was advised that the suspect had a

machine gun. Before reaching the TDOT garage, he observed a red Mazda pickup truck

matching the description of the suspect’s vehicle and began pursuit of the truck. The

truck ran a stop sign. Shortly thereafter, a marked patrol unit, driven by Sergeant Sain,

passed the truck on Anglin Lane. Sergeant Sain turned his cruiser around and joined the

pursuit. Another unmarked unit, driven by Captain Priddy, joined the pursuit after the

suspect’s vehicle forced Captain Priddy’s vehicle off the road. Officer Maxwell placed

his patrol cruiser in position to do a partial roadblock. The suspect’s vehicle hit Officer

3

Although Bond did not identify “the victim” by name, the context of his testimony indicates that he was

referring to David Gordon.

8

Maxwell’s car, and Sergeant Thomas pulled in behind it to block it from leaving. The

suspect, identified as Defendant, was taken into custody. A search of Defendant’s person

revealed a loaded .45 caliber pistol and a loaded nine-millimeter pistol. Inside

Defendant’s truck, the officers discovered a rifle and a shotgun.

Officer Ted Maxwell of the Jackson Police Department testified that he responded

to a call concerning the shooting at the TDOT garage. En route to the scene, he

encountered Defendant, driving a red pickup truck, followed by two police units. Officer

Maxwell said he was traveling north on Anglin Lane, and Defendant was traveling south.

Ultimately, Maxwell managed to stop Defendant by ramming the front of his vehicle.

Defendant got out of his vehicle, and Maxwell noticed a gun in the small of his back

under his belt. Sergeants Sain and Thomas placed Defendant on the ground and removed

two handguns from him that Maxwell identified as an Intra Arm Star .45-caliber semi-

automatic with a clip containing six live rounds and one live round inside the chamber,

and an Intra Arm Star nine-millimeter semi-automatic with a clip containing two live

rounds and one live round in the chamber. Maxwell said that eight .45-caliber and

nineteen nine-millimeter rounds were recovered from Defendant’s pockets.

Tennessee Highway Patrol Sergeant Johnny Briley testified that he initially

received a call regarding a hit-and-run accident on Lower Brownsville Road at Anglin

Lane involving a red Mazda pickup truck. While proceeding to that location, he received

another call about the shooting at the TDOT garage. He received information that there

were multiple victims involved. Before he reached the TDOT garage, he observed that

the suspect vehicle had been pulled over by Jackson police officers. He stopped at the

scene. Sergeant Briley said that he had known Mrs. Jordan and her family for thirty years

and also knew Defendant. As Defendant stood up, he told Sergeant Briley, “She fucked

me over, Johnny.” Sergeant Briley responded, “No, she didn’t, David.” Sergeant Briley,

who was standing within a foot of Defendant, detected an odor of alcohol on Defendant’s

person. Defendant was subsequently placed in the backseat of a police car.

Jackson Police Officer Rodney Anderson testified that, en route to the scene of the

shooting, he received a call that the suspect was headed down Anglin Lane. Officer

Anderson turned onto Anglin Lane where he observed a vehicle matching the description

of the suspect’s vehicle between two patrol cars. The driver of the vehicle, Defendant,

was taken into custody and placed in the backseat of Officer Greer’s marked police unit.

As Officers Greer and Anderson were transporting Defendant to the Criminal Justice

Complex, Defendant spontaneously told them that:

he could have cut the police in half with his weapon, that he had full auto.

He stated that his wife’s dead and she’s full of holes. He stated she drove

him crazy . . . by fucking around on him, and he advised that he shot her

9

with her brother’s gun. He also stated that he feels sorry for his daughters,

and that Mrs. Jordan wouldn’t be fucking around on anybody else.

Defendant also said that the other people “just got in the way” and asked how many

people were hurt. Defendant also said that his wife “hurt him and tore his heart out” and

that he had been “going crazy” for a month. Officer Anderson said that Defendant

smelled of alcohol.

Investigator Jeff Shepherd of the Jackson Police Department testified that, as part

of his investigation, he retrieved and recorded voice mail messages left on Mrs. Jordan’s

cell phone. The audiotape of the messages was entered into evidence and played for the

jury; a transcript of the messages was also provided. The messages included one left at

10:48 p.m. on January 10, 2005, stating “You’re the only asshole on the face of this earth

that I truly hate”; one left at 2:11 a.m. on January 11, 2005, stating “I’ll see you at work,

bitch”; one left at 2:17 a.m. on January 11, 2005, stating “I hope you go to work

tomorrow, bitch, ‘cause you’ll be there one day. It may not be tomorrow, but I will catch

up with your raggedy ass. Your day is coming.”; and one left at 2:19 a.m. on January 11,

2005, stating “You home wreckin’, low life, sorry mother fuckin’ bitch. Your ass is

gonna pay.” Additionally, Investigator Shepherd was involved in the booking process of

Defendant, during which Defendant asked him if Mrs. Jordan was “real bad messed up.”

Defendant started crying and told Shepherd that most people probably thought he was

crazy, but he was not crazy, he was “driven to crazy.” Defendant also said that the assault

rifle he used in the shooting belonged to his brother-in-law, Dale Robinson.4

Trent Harris, a paramedic at Jackson-Madison County General Hospital, testified

that he and Corey Shumate, an emergency medical technician, responded to the scene at

the TDOT garage, arriving at 11:39 a.m. They first attended David Gordon, who was

lying on his back in the parking lot and appeared to have gunshot wounds to the upper

right and upper left portion of his abdomen. Gordon was not breathing but had a faint

pulse. Harris intubated Gordon and immediately began transportation to the hospital. En

route, Gordon lost a pulse and CPR was initiated. Upon their arrival at the hospital,

Gordon’s care was transferred to the hospital’s trauma team.

Dr. Herbert Lee Sutton, a trauma surgeon at Jackson-Madison County General

Hospital, testified that he tried to save David Gordon’s life once he arrived at the hospital.

Dr. Sutton was able to regain a heartbeat on Gordon and performed surgery to try to stop

the bleeding in his abdomen and perineum. Dr. Sutton described what he saw when he

4

The record reflects that Investigator Shepherd referred to Defendant’s brother-in-law as Dale “Robinson.”

However, Mrs. Jordan’s father’s last name is “Roberson” according to the record.

10

surgically opened Gordon’s abdomen: “[T]he blast injury from what he was shot with

had almost morselized his intestines. It was like soup. And I’m quite sure even if I had

stopped him from bleeding and he had regained everything, he probably wouldn’t have

had any small intestine left from what I could see.” Despite all of Dr. Sutton’s lifesaving

procedures, Gordon died at 12:47 p.m.

Dr. Sutton testified that he also treated James Goff on January 11, 2005, for

multiple gunshot wounds which he described as wounds to the left arm, abdomen, left

thigh, and neck. The gunshot wound to the neck “went anterior to the trachea and the

carotid vessels which are the main vessels that go[] to his brain.” The bullet did not hit

any major arteries or veins. Dr. Sutton stated that Goff remained hospitalized until

January 13, 2005.

Eric Leath, a paramedic with the Medical Center EMS, testified that he was also

dispatched to the TDOT garage. Upon his arrival, he was directed inside to an office

where he observed a man lying on the floor on his back and a woman lying inside the

door to the left. The woman had “a massive . . . injury to her head that had blood tissue

lying all around, pooled around her head” and had no signs of life. The other victim,

Jerry Hopper, was very pale and had “some gasping or . . . agona[l], gasping-type breaths,

just very shallow, slow.” Hopper had a faint carotid pulse. Leath inserted a breathing

tube, but Hopper was unresponsive. A Jackson police officer offered assistance to Leath

and began CPR. Hopper was then moved to an ambulance and transported to the

hospital. Upon arrival at the hospital, Hopper exhibited no signs of life.

Dr. David James testified that he treated Jerry Hopper, who had two gunshot

wounds to his abdomen. Upon Hopper’s arrival at the hospital, he was not breathing and

all attempts at resuscitation were unsuccessful. Hopper was pronounced dead at 12:34

p.m. Dr. James also treated Larry Taylor at the Jackson-Madison County General

Hospital. Taylor had suffered gunshot wounds to both of his upper legs.

Dr. Tony R. Emison, the medical examiner and coroner for Madison County,

testified that he requested autopsies on the bodies of the three deceased victims. The

bodies were sent to the state medical examiner’s office in Nashville.

Dr. Staci Turner testified that she performed the autopsy on Mrs. Jordan. Dr.

Turner found that Mrs. Jordan had been shot eleven times, resulting in wounds to the

head, torso, and right leg. Dr. Turner found injuries to the scalp, the skull, the bones of

the face, the brain, multiple ribs, the right lung, the diaphragm, the liver, the right kidney,

the stomach, the small intestine, the urinary bladder, and the uterus. Dr. Turner recovered

multiple bullets, bullet jackets, bullet cores and white plastic disk fragments during the

11

autopsy. The gunshot wound to Mrs. Jordan’s forehead was fired from a handgun within

a foot of the body.

Dr. Turner discovered a visible bullet in a partial exit wound in the back of Mrs.

Jordan’s head. She recovered the bullet and the jacket that had separated from the bullet.

The bullet was identified as a Black Talon-type bullet, one fired from a handgun. She

described the bullet as having a bullet core and a jacket, “and when it enters the body, the

jacket usually opens and forms sharp points that look like talons.” Other fragments

discovered in Mrs. Jordan’s body were identified as coming from a high-powered assault

rifle. Dr. Turner described the wounds associated with the bullets fired from the assault

rifle: “They went through multiple ribs on the right side of the body, through the right

lung, through the diaphragm . . . , through the liver and the kidney and into the spinal

column and then lodged in the muscle of the back with some fragments scattered

throughout the organs.” Two notes were found in the victim’s clothing, both addressed to

Mrs. Jordan. One note was signed, “Your faithful faithful worried David.” The second

note was signed, “Your forgiving husband, David Lynn Jordan.” Dr. Turner concluded

that the cause of Mrs. Jordan’s death was multiple gunshot wounds.

Dr. Amy R. McMaster testified that she performed the autopsy on Jerry Hopper.

Hopper had suffered multiple gunshot wounds and had multiple abrasions and lacerations

resulting from these wounds. Dr. McMaster discovered a gunshot wound to the right

wrist and two gunshot wounds to the right side of his abdomen. She recovered two

projectiles from Hopper’s body. The projectiles were large caliber deformed hollow point

bullets, which were consistent with those fired from a nine-millimeter weapon. Dr.

McMaster concluded that the cause of Jerry Hopper’s death was multiple gunshot

wounds.

Dr. McMaster testified that she also performed the autopsy on David Gordon.

Gordon had multiple gunshot wounds and injuries associated with the wounds. Although

no exact number of wounds could be determined, Gordon had been shot at least thirteen

times. He had wounds to his right thigh, right forearm, right lower abdomen, right and

left sides of the torso, buttocks, and left hip. The projectiles recovered from these

wounds were consistent with a 7.62 millimeter round. Dr. McMaster concluded that the

cause of Gordon’s death was multiple gunshot wounds.

Sergeant Mike Turner of the Jackson Police Department testified that he collected

evidence from the red Mazda pickup truck. Among the items he recovered were: a

loaded Norinco SKS 7.62 assault rifle with twenty-six rounds in the magazine and one in

the chamber; a black bag containing a large quantity of assorted ammunition; a loaded

Mossberg twelve-gauge shotgun with two rounds in the magazine and one in the

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chamber; loose ammunition; a 7.62 magazine with fourteen rounds of ammunition; two

spent 7.62 casings; and a .38 special caliber Winchester spent casing.

Agent Cathy Ferguson of the Tennessee Bureau of Investigation (TBI) testified

that, on January 11, 2005, she was employed as a violent crimes investigator with the

Jackson Police Department. She said she responded to the scene at the TDOT garage and

was directed to the crow’s nest area where she found Mrs. Jordan lying in a large pool of

blood that contained brain matter. Realizing that she could not help Mrs. Jordan,

Ferguson assisted with the CPR on Jerry Hopper. Ferguson subsequently recovered

evidence found inside the crow’s nest and outside the garage, including nine-millimeter

and 7.62 shell casings, bullet fragments, and a note on which Grimm had written

Defendant’s license tag number. She said that fifteen 7.62 shell casings were recovered

from the exterior crime scene and four from inside the crow’s nest. Nine nine-millimeter

shell casings and one live nine-millimeter round were found inside the crow’s nest.

TBI Agent Scott Lott testified that he and other agents executed a search warrant

at Defendant’s house on January 11, 2005. Among the items recovered were: a

Thompson Center Firearms .50 caliber muzzle loader, a Montgomery Ward 30/30 rifle, a

Remington 20-gauge pump shotgun, a Remington 30.06 rifle, a Remington Caliber .243

rifle, a Ruger .22-caliber rifle, a Savage Firearms .22-caliber rifle, a Ruger .44 magnum

rifle, a Springfield .410-gauge shotgun, a Pioneer 750 .22-caliber rifle, a Bauer Firearms

.25-caliber automatic handgun, a .38 Special revolver, five live rounds of Winchester .38

Special ammunition, and a trigger group assembly.

TBI Agent Shelly Betts, accepted by the trial court as an expert in ballistics,

testified that she examined evidence collected in this matter, including a 12-gauge

shotgun, a Norinco SKS rifle, a Star .45-caliber semi-automatic pistol, and an Inter Arms

Star nine-millimeter semi-automatic pistol. She said that the safety feature functions on

the SKS rifle had been converted to fire in fully automatic mode, rather than the semi-

automatic mode, which was how it had been manufactured to function. She explained

that several modifications had been made to the rifle’s trigger housing assembly, causing

the weapon to fire continuously once the trigger was pulled. Agent Betts tested several

cartridge cases recovered from the crime scene and determined that they had been fired

from the SKS rifle. Additionally, she tested nine-millimeter cartridge cases recovered

from the interior crime scene and determined that they had been fired from the Star nine-

millimeter pistol. She examined bullet fragments recovered from David Gordon’s right

thigh and determined that one had “conclusively been fired through the barrel of the SKS

rifle.” Agent Betts further determined that some of the fragments recovered from

Gordon’s right hip and abdomen had been fired through the barrel of the SKS rifle. She

also examined nine-millimeter projectiles recovered from Jerry Hopper’s back and pelvis

and determined they had been fired from the Star nine-millimeter pistol. Her examination

13

of the nine-millimeter projectiles recovered from Renee Jordan’s leg and uterus revealed

they had been fired from the Star nine-millimeter pistol. Agent Betts said that the nine-

millimeter projectile recovered from Mrs. Jordan’s brain had “probably” been fired from

the Star pistol. Fragments recovered from Mrs. Jordan’s liver and chest were

conclusively identified to the SKS rifle. Agent Betts explained that the 7.62 rounds found

in the bodies of Mrs. Jordan and David Gordon were hollow point bullets, meaning that

as soon as they struck the skin they fragmented into numerous pieces. She examined the

7.62 magazine found inside Defendant’s truck and described it as “an SKS-type

detachable magazine that would function in this SKS rifle, and it holds approximately 31

rounds.”

Madison County Sheriff’s Department Sergeant Chad Lowery testified that, shortly

after Defendant was apprehended, he went to Defendant’s home to check on the welfare

of any children who may have been at the home, but no children were present when he

arrived. Sergeant Lowery discovered a loaded pistol on top of the refrigerator and saw

several other weapons in the home. On the kitchen counter, Sergeant Lowery observed a

handwritten note, which stated: “Renee got what she deserved. Bitch. I’m sorry. I love

you. Thanks for being so good to me. Love you Shelby, Sydney, Deanna. Thanks, Mom

and Dad. You did all you could.” On cross-examination, Sergeant Lowery

acknowledged that, during Defendant’s apprehension, he “smelled alcohol, or what [he]

thought to be alcohol” on Defendant.

Defense Proof

Jackson Police Investigator Tyreece Miller testified that he interviewed Defendant

at approximately 3:35 p.m. on the day of the shooting. Defendant waived his right to an

attorney and volunteered to speak with Investigator Miller. During their conversation,

Defendant asked how many people he had shot and if Mrs. Jordan was dead. Defendant

provided a urine sample and consented to give a blood sample which was drawn at

approximately 9:50 p.m. Defendant said he had consumed approximately five shots of

vodka but “was not under the influence.” Defendant also provided the following

statement to Investigator Miller:

I’ve been married to Renee Jordan for five years. She has a son

named Tyler Surratt. He is my stepson. She has a daughter named Sydney

Jordan. She is my daughter also by Renee. I have three others by two other

women who are my former wives. Back in the summer 2002, Renee’s son

Tyler molested my daughter, Shelby Jordan. He was 10 years old and she

was 8 years old at the time. [Department of Children’s Services] was

involved, and Tyler had to go to counseling. On December the 11th, 2004,

Tyler was in Lindsey’s bedroom. He was lying on his back and he had

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something in his hand. He was playing with Lindsey. He was trying to let

her get whatever it was out of his hand, but he had a tight grip on it. She

was reaching for it. He would let her grab his hand, and then he would pull

her across his body. He didn’t know it, but I was watching him. It looked

like he was pulling her across his penis. I saw him do this three times

before I stopped him. I went in the room. I cursed him. I told him that I

was going to stick my foot up his ass if he ever touched one of my

daughters again. I left and went deer hunting. When I got back, Renee was

on the phone with some man. My mother showed up, and Renee left and

never came back home. We did spend Christmas Eve, New Year’s Eve and

this past Sunday night together.

Back in September 2004, Renee started having an affair with Johnny

Emerson. He works in a building where she works. He works in the shop

and Renee works in the office. . . . I found out about their affair in October.

She admitted to it and I forgave her. This morning I woke up and had no

intentions of hurting Renee.

She called me from work. I was at home. She was acting like a

bitch. I had been begging and bending over backwards to make this work

up to this point. She unexpectedly told me that me and my daughters from

another marriage have until the first of February to get out of her house.

She said that she was going to see her lawyer tomorrow and she was going

to have me evicted. . . . Renee hung up on me before I had a chance to say a

word. This made my blood boil. I started loading my guns. I loaded my

12-gauge shotgun, a Star .45 caliber semi-automatic handgun and an SKS

fully automatic rifle with a folding stock. I put a 33-round clip in it. I left a

note on the counter stating that if something happens to me, I love my

mother, father and four daughters. I didn’t know if I was going to do

anything to Renee or not. I was thinking more of killing myself.

I got in my 1991 Mazda truck, red, and I was going to Renee’s

workplace at TDOT. On the way there I broad-sided a green four-door

vehicle. I was going down Anglin Lane. I was driving fast and couldn’t

stop soon enough. I T-boned the green car that was going down Lower

Brownsville Road. I didn’t stop. I went on up to TDOT. I pulled up to

where Renee works. I left the 12-gauge and the SKS in the truck. I had the

.45 in a holster on my hip, the nine-millimeter was in my back.

I walked in the office. Renee said, “What the fuck are you doing

here?” She was sitting in the chair at her desk. I didn’t say a word to her. I

15

pulled out the .45 and I shot her in the leg. I shot her in the leg because I

wanted her to look at me. She hollered. The guy that was sitting in the

corner got up and came at me. I shot him and he fell to the floor. I think he

was James Goff, but I’m not sure. I heard him moaning. Larry Taylor was

in the office. I patted him on the back with the pistol and told him that he

needed to get out of there. He left. I looked back at Renee, and she was

already dead I think. I can’t remember if I had shot her more than just in

the leg. I remember the last time that I shot her was in the top of the head

with the .45. I didn’t want to shoot her in the face.

I walked back out to my truck and I saw the guy in the green car that

I had hit. He was parked behind me. I got in the truck. He was pointing

his finger and coming at me. I grabbed the SKS and I fired it at him. He

went to the ground. I don’t remember going back to the office with the

SKS, but if there was a shell casing there, I must have fired it in the office.

I got in my truck and left. I had intentions of killing myself when I got back

home, but the police hit me head on.

I have made this statement openly and freely. I have not been

promised anything, and I have not been threatened in any way. I am sorry

that this happened. Renee didn’t deserve to die.

TBI Special Agent John W. Harrison testified that he analyzed the urine and blood

samples submitted by Defendant. The result of the blood sample, taken at 9:50 p.m., was

“no alcohol present.” Agent Harrison agreed that if a person consumed five shots of

vodka in the early morning hours but did not give a blood sample until 9:50 p.m., the

alcohol could have metabolized by that time. He explained that if a person consumed five

shots rapidly within an hour, the person’s blood-alcohol level would be approximately

.10%, but about five hours later, the level would be down to 0. The result of the urine

sample, taken at 3:35 p.m., was .17%. However, Harrison said not much significance

should be attached to that result because it did not indicate how much Defendant had had

to drink. He acknowledged that all the urine sample really revealed was that, sometime

prior to the collection of the sample, there had been alcohol in Defendant’s bloodstream.

Pursuant to the TBI’s normal operating procedure, the samples were preserved “for a

period of time and then destroyed.”

TBI Agent Kelly Hopkins testified that she performed a drug screen on the urine

and blood samples submitted by Defendant. The urine sample was positive for

Citalopram, an antidepressant, and benzodiazepines, which include antidepressant and

anti-anxiety medications, such as Xanax. The blood sample was positive for Citalopram

but negative for benzodiazepine. Agent Hopkins explained that, after a drug is ingested,

16

it first goes into the person’s bloodstream and is later metabolized in the urine. She said

that the blood sample was destroyed on January 3, 2006.

Officer Tikal Greer of the Jackson Police Department testified that when he and

Officer Anderson transported Defendant to the Criminal Justice Complex, he noticed a

strong odor of alcohol on Defendant’s person. Defendant told the officers that “his wife

was dead, full of holes” and that she had driven him crazy by “fucking around on him.”

Defendant also said that “he hated [that] people got in the way” and that his wife “got a

taste of his .45 and her brother’s gun.” Once they arrived at the Criminal Justice

Complex, Defendant admitted “to killing or hurting four people.”

Sergeant Marneina Murphy of the Madison County Sheriff’s Department testified

that she supervised Defendant’s booking process at the jail. She estimated that she was

around the defendant for thirty minutes to one hour and described his demeanor as “more

confused, maybe not focusing, probably dazed a little bit.” She acknowledged that

another officer asked Defendant the questions on the intake questionnaire.

Dr. Dennis Wilson, a clinical psychologist, testified that he evaluated Defendant,

meeting with him on four different occasions beginning on October 12, 2005, for a total

of eleven hours. He conducted clinical interviews, IQ testing, and some brief personality

testing. Dr. Wilson determined that Defendant was competent to stand trial and that a

defense of insanity was not available. However, in Dr. Wilson’s professional opinion,

Defendant “lacked substantial capacity when the crimes were committed,” meaning

Defendant was “unable to exercise restraint or judgment” and “unable to reflect or

premeditate.”

In formulating his opinion, Dr. Wilson discovered that Defendant was brought up

in a stable family. His parents were good parents and were active in the community. Dr.

Wilson opined that Defendant was determined to set up a loving, stable environment for

his children whom he clearly loved. Dr. Wilson also noted that Defendant had been

divorced twice and suffered from depression and anxiety. He was prescribed Prozac in

his early twenties. Defendant began self-medicating with alcohol and drugs, including

methamphetamine and crack cocaine. In 1986, Defendant was injured in a car accident.

He had a broken back and ribs and injuries to his knee, ankle, and pelvis. He developed

chronic headaches and various pains. Beginning in 1996, he was prescribed narcotic

medications, including hydrocodone, oxycodone, Vicodin, Lortab, and Darvocet. In

2000, Defendant was prescribed Xanax, an anti-anxiety medication, and Ambien, for

insomnia. Defendant, at various times, was given other medications for depression and

agitation.

17

At the time of his marriage to Mrs. Jordan in 2000, Defendant had stopped using

illegal drugs and “became a regular moderate beer drinker” that “would qualify for a

diagnosis of alcoholism.” Their daughter Sydney was born in late 2001. At this time,

Defendant’s previous wife was using drugs and neglecting their two daughters.

Defendant and Mrs. Jordan began trying to get custody of Shelby and Lindsey. Their

marriage began to deteriorate, however.

The couple attended marriage counseling. In September 2004, they got custody of

Shelby and Lindsey. Later, Mrs. Jordan told Defendant that she desired other male

companionship and, in October 2004, she started going to bars, staying out late, and

coming home intoxicated. Mrs. Jordan also told Defendant about her relationship with a

male co-worker and said she wanted to have sex with this co-worker. Divorce was

imminent, and Defendant’s family structure was crumbling. During this time, Mrs.

Jordan continued her intimate relationship with Defendant but also shared the details of

her encounters with other men with him. Defendant was confused and upset about her

extramarital activities. Defendant’s doctor doubled his dose of Xanax on January 4,

2005. Mrs. Jordan then gave Defendant a deadline of February 1 for him and his two

daughters to move out of the house. Dr. Wilson opined that this was the end of whatever

was left of Defendant’s dream of creating a happy home for his children.

Dr. Wilson further testified that on the date of the shooting, Defendant drank

alcohol and had not slept for three days. His world had collapsed, and he could no longer

control his behavior. Defendant started talking to himself. People observing Defendant

after the shooting described him as being “out of it.” Defendant expressed remorse over

the incident and cooperated with the authorities. Dr. Wilson concluded:

[Defendant] has a major depressive disorder, recurrent episodes. It was

moderate over his lifespan. He had generalized anxiety disorder, alcohol

abuse and a borderline personality disorder. This is by definition someone

who has a hard time maintaining interpersonal relationships, dealing with

problems, coping with stress. He just never was any good with any of that

stuff. At the time of the crime, it is my opinion that he was intoxicated with

alcohol, and it is my opinion, I believe, that he was also intoxicated with

anxiolytics which was the Xanax. These two drugs, alcohol and the Xanax,

potentiate each other, and anything can happen if you take both of those

things together. . . . [T]hey sort of multiply each other. They can easily do

brain damage.

...

18

[D]issociative disorder is when . . . [t]here’s a disruption in the

usually integrated functions of consciousness, memory or perception of the

environment. That’s from the Diagnostic & Statistical Manual.

...

You also have symptoms of what we call derealization. That’s as if

you’re detached and you’re an outside observer. It’s like you’re watching

someone else do it.

...

I don’t think he was in control of his faculties when all this

happened. I don’t know if it was from the stress, from the depression, the

anxiety, the dissociation, the intoxication, or, most likely a combination of

all of the above.

Dr. Wilson opined that Defendant was substantially impaired to the extent that he was

unable to form premeditation.

Asked on cross-examination if Defendant was in control at the time of the

shooting, Dr. Wilson said that Defendant “was in control sometime before the crime and

he became in control again after the crime, but during the crime he was not. I’m not sure.

It’s a gray area, a gradual change. I just don’t know.” Dr. Wilson opined that Defendant

was not capable of forming intent at the time of the shooting. He said that Defendant

“knew the difference between right and wrong. He was not insane. He was just

incapacitated.” Dr. Wilson explained that Defendant’s “behavior was inconsistent and

out of control. He was in and out of consciousness there. He knew some things,

remembered some things and not others, but I don’t think he was at all in control the

whole time.”

Rebuttal Proof

In rebuttal, the State recalled Investigator Tyreece Miller. Miller reiterated that, at

the time Defendant gave his statement, Defendant said he had been drinking but was not

under the influence of any drugs or alcohol. He said that Defendant walked steadily, was

able to answer the questions he asked, and was “very coherent.” Miller said that

Defendant did not appear to be under the influence of drugs or alcohol. Defendant

consented to give a urine sample but initially refused to provide a blood sample because

he did not like needles.

19

Following the department’s standard operating procedures, Miller wrote down

Defendant’s statement as he talked and allowed him to review it before he signed it.

Asked if Defendant made any additional comments that were not included in his

statement, Miller said Defendant told him, “Today is Renee’s father’s birthday. I guess I

gave him a hell of a birthday present.” According to the driver’s license belonging to

Mrs. Jordan’s father, his date of birth was January 11, 1932. Miller asked Defendant if he

could include the birthday present comment in the statement, but Defendant said, “I don’t

want that in there.” Defendant also told Miller, “[Mrs. Jordan] was in a pool of blood the

last time that [he] shot her.”

On cross-examination, Investigator Miller said that Defendant signed a waiver of

his rights at 3:50 p.m. and signed his statement at 5:35 p.m. Defendant eventually gave

his consent for a blood sample at 9:50 p.m. Miller acknowledged that a Breathalyzer test

was not performed on Defendant and that Defendant told him he was taking medication.

Miller said that although the police department had video equipment, he did not have it

brought to the Criminal Justice Center to videotape Defendant’s interview because it was

against departmental policy and not standard operating procedure. Miller said he was not

aware of the availability of any video equipment in the booking area of the Criminal

Justice Center.

Dr. Daryl Matthews, a forensic psychiatrist, testified that he evaluated Defendant

on April 24, 2006. Dr. Matthews spent approximately six hours with Defendant, during

which he conducted a psychiatric interview and a mental status evaluation. As a result of

his examination of Defendant, Dr. Matthews did not find a severe mental disorder and

said, “I don’t believe [Defendant] has ever had a severe mental disorder.” Dr. Matthews

concluded that Defendant “was able at the time of the offense . . . to act intentionally and

to act with premeditation.” He added that Defendant was able to conform his behavior to

the requirements of the law.

In reaching his determination that Defendant had the capacity to premeditate, Dr.

Matthews said he reviewed, among other things, the note Defendant wrote, the recorded

messages Defendant left on Mrs. Jordan’s cellular telephone, the statements of various

witnesses at the scene, and the police reports. The messages Defendant left on Mrs.

Jordan’s phone included sarcastic comments about her obtaining a restraining order and

statements such as: “I hope you go to work tomorrow, bitch, ‘cause you’ll be there one

day. It may not be tomorrow, but I will catch up with your raggedy ass. Your day is

coming” and “Your ass is gonna pay.” Dr. Matthews disagreed with Dr. Wilson that

Defendant was dissociated at the time of the shooting, saying that dissociation is very

common, mostly pertains to memory, and has nothing to do with intent or premeditation.

20

Among the witness statements Dr. Matthews reviewed was that of Paul Forsythe,

which Dr. Matthews recited:

The driver of the red truck told the driver of the green car to get out of here.

The driver of the green car said, “No, you hit me.” The driver of the red

truck folded the seat forward on the truck and he said, “You will.” He

pulled out a black rifle with a silencer or something on the end of the barrel.

He fired at the driver of the green car.

Dr. Matthews also recited from the statement of George W. Bond, Sr.: “The man with the

gun was white. He looked up and saw me and shook his head as if to tell me he didn’t

want me involved.” Dr. Matthews said that Defendant’s statement to Sergeant Johnny

Briley, “Renee fucked me over, Johnny,” showed that Defendant recognized Briley and

indicated the “intactness of his mental capacity.” Dr. Matthews read from the statement

of Freddie Ellison: “When I saw [Defendant], he had a gun and was trying to hide it. I

said, ‘David, what are you doing?’ He said, ‘Just go on.’ I said, ‘What’s the matter? He

said, ‘Just go on.’” Dr. Matthews said that Defendant’s ability to recognize someone he

knew at the scene, Freddie Ellison, implied that he “had the ability in memory to keep in

mind people that he knew, and most importantly . . . he had the ability not to . . . shoot

Mr. Ellison.” Dr. Matthews concluded that Defendant was making choices and able to

control himself at the time of the shooting.

Verdicts

The jury convicted Defendant of the first degree premeditated murder of Renee

Jordan, the first degree premeditated murder of Jerry Hopper, the first degree felony

murder of Jerry Hopper, the first degree premeditated murder of David Gordon, the first

degree felony murder of David Gordon, the attempted first degree murder of James Goff,

the aggravated assault of James Goff, the attempted first degree murder of Larry Taylor,

the aggravated assault of Larry Taylor, and leaving the scene of an accident. The trial

court merged the convictions for the felony murder and premeditated murder of Jerry

Hopper into a single conviction for first degree murder and, similarly, merged the

convictions for the felony murder and premeditated murder of David Gordon into a single

conviction for first degree murder. The court also merged the two aggravated assault

convictions with the two attempted first degree murder convictions.

Penalty Phase

Donald Roberson, Renee Jordan’s father, testified that she was the youngest of his

three children; his only daughter; and his last living child. One son died of cystic fibrosis

when he was seven years old, and the other son died at age thirty-three. Roberson related

21

that Renee’s daughter, Sydney, was four years old at the time of her mother’s death and

that he and his wife currently had custody of her. He said that Sydney still asks for her

mother. Since Renee’s death, Roberson has experienced “attacks, anxiety and

depression.” Roberson added that Renee was murdered on his birthday, and he is no

longer able to celebrate his birthday.

Robert E. Lee Gordon, Jr., David Gordon’s older brother, testified that he and

David had two other brothers, both of whom were deceased at the time of David’s death.

Gordon, Jr. explained the impact of the death of his last remaining brother on him and his

family. He said that he has difficulty sleeping and that his brother’s death is “all I think

about, the way he died.” One of David’s sons was in college and the other in high school,

but both gave up on school as a result of their father’s death. Gordon, Jr. said he had

buried two brothers and his mother in the past two years. He related that David was a

hard worker, a good father, and “very well respected . . . a fine man.”

Shane Gordon, the eighteen-year-old son of David Gordon, testified that he was a

junior in high school when his father was killed. He said that he thought about his

father’s death “all the time and it gets me down. . . . It’s just something that’s hard to deal

with.” He said that his father was a hard worker and was kind to everyone.

Renee Dawson testified that David Gordon was her fiancé and best friend. On the

date of his murder, Ms. Dawson and Gordon had a lunch date planned. The couple had

moved into a new home together on Thanksgiving Day, but Ms. Dawson was unable to

keep the home after Gordon’s death. Ms. Dawson stated, “I would say that my life is

empty and my life ended that day as well.”

Emma Hopper, the wife of Jerry Hopper, testified that they had been married

twenty-nine years. She explained that losing her husband was like “losing half of

myself.” Mr. Hopper worked for the Tennessee Division of Forestry and had been a state

employee for twenty-eight years. At the time of his murder, Mr. Hopper had been making

plans for retirement. Mrs. Hopper explained that the couple planned on spending more

time with their young granddaughter, who was eighteen months old at the time of Mr.

Hopper’s death. She said that she had not been able to spend a single night in their home

since his death and had been living with her daughter and her family. Mrs. Hopper

testified that her granddaughter still asks, “Where is my papaw?”

Misty Ellis, the daughter of Jerry Hopper, testified that she had worked with

victims of crimes in the past. She described her experience dealing with her father’s

death as an “[a]bsolute nightmare.” Ellis said that it was “just torture” to know that one

day she would have to explain to her daughter why her grandfather was no longer here.

22

TBI Agent Cathy Ferguson identified photographs of the victims. Exhibit 179 was

a photograph of James Goff depicting the bullet wound to his abdomen. Exhibit 180 was

a photograph of James Goff depicting the bullet wound to his neck. Exhibits 181 and 182

were photographs of Larry Taylor depicting the gunshot wounds to his legs. The

photographs of Goff and Taylor were taken at the emergency room. Exhibit 183 was a

photograph depicting Renee Jordan as she was found in the crow’s nest at the TDOT

garage.

Dr. Amy McMaster testified that Dr. Staci Turner performed the autopsy on Renee

Jordan. Identifying exhibit 184 as a photograph depicting a gunshot wound to Mrs.

Jordan’s forehead, Dr. McMaster stated that the wound was inflicted from a “close

range.” She explained that it was “a close range wound because there’s soot,” or burnt

gunpowder, on the skin surrounding the wound. She said that the wound to the forehead

was a fatal wound. The autopsy further revealed a gunshot wound to the back of Mrs.

Jordan’s head, which went through her head and exited on her face. Exhibit 185 was a

photograph depicting the gunshot wound to the back of the head. Dr. McMaster stated

that this wound also would have been fatal. Dr. McMaster also identified nine entrance

wounds on Mrs. Jordan’s torso. She stated that there was significant injury to the

abdominal area, which was a potentially fatal wound. Dr. McMaster said that this wound

would have been painful. She explained, “in general terms, the body has about 30

seconds’ worth of reserve of oxygen in the brain. So assuming your heart stops

immediately, you’ve got about 30 seconds left of oxygen in your brain that will allow you

to remain conscious.” She affirmed that, during this time, one could experience pain.

She added that, depending on other factors such as adrenaline, this time period could be

longer. Dr. McMaster additionally stated that the wounds to Mrs. Jordan’s body were

from two different caliber bullets and agreed that the wounds were “beyond that which

was necessary to inflict death.” On cross-examination, she admitted that there was no

indication in the autopsy report of post-mortem wounds.

Regarding the autopsy of Jerry Hopper, Dr. McMaster testified that he had two

gunshot wounds to his abdomen, which injured segments of bowel and also segments of

the aorta. Dr. McMaster stated that these wounds would not have been immediately fatal

but would have been painful. Hopper also sustained a gunshot wound to his right wrist.

Dr. McMaster was unable to determine the order in which the wounds were inflicted.

Dr. McMaster testified that she performed the autopsy on David Gordon. Gordon

had “at least 13 entrance wounds” which were inflicted from the front, the side, and the

back of the body. Gordon sustained injury to his bowel area, specifically, the natal cleft.

The wounds sustained to the buttocks and natal cleft could be consistent with Gordon

being face-down on the pavement. She opined that the number of wounds were more

23

than that necessary to cause death. She added that the wounds would have been painful

and that Gordon would have eventually lost consciousness.

In mitigation, Defendant presented the following testimony. Larry Jordan,

Defendant’s younger brother, testified that, during their childhood, he and Defendant

played ball and went fishing and hunting. Their father was their Little League coach.

Jordan stated that he would be devastated if his brother was sentenced to death. He added

that, if his brother received a sentence of life without parole, he would maintain his

relationship with him. Jordan testified that Defendant has a close relationship with his

four daughters.

Suzie Silas, a guidance counselor at Malesus Elementary School, testified that

Defendant had obtained custody of Shelby and Lindsey, his daughters from a previous

marriage. She characterized Defendant as a concerned parent and said that he regularly

checked on his children. After Defendant was incarcerated, Lindsey wrote a letter

expressing her desire to spend a day with Defendant because “I miss my daddy very

much.” Ms. Silas also received a letter from Defendant after his incarceration, thanking

her for helping his children.

Michael Lee Merriwether testified that he met Defendant while incarcerated at the

Criminal Justice Complex. He stated that he and Defendant often read Christian

literature. Merriwether added that it was a benefit to him to have this interaction with

Defendant. He opined that Defendant has the ability to do some good while in jail,

including ministering to others.

Cheryl Fisher testified that she dated Defendant before his marriage to Renee

Jordan. They remained friends after their romantic relationship ended. She opined that,

if Defendant received a sentence of life, his children would benefit. She explained that

Defendant was a very good father and that his children idolized him. Ms. Fisher related

how Defendant’s children were having difficulty rationalizing the potential punishment of

death.

Madison County Deputy Andre Denice Hays, a jailer at the Criminal Justice

Complex, testified that she had frequent contact with Defendant and described him as

quiet and polite. Deputy Hays opined that Defendant would make a good prisoner and

would be able to serve a sentence of life without parole without being a risk to any

prisoner, guard, or other human being.

Sergeant Neina Murphy, also assigned to the Criminal Justice Complex, testified

that she had not had any problems with Defendant since his incarceration. She affirmed

that Defendant had not demonstrated to her that he would be a threat to any prisoner,

24

guard, or other human being. She added that she would be disturbed if Defendant

received the death penalty.

Madison County Deputy Jason Walker, a jailer at the Criminal Justice Complex,

testified that Defendant often mentioned his family. Deputy Walker stated that

Defendant’s demeanor was pleasant, he never complained, and he did what he was told to

do. He described Defendant as one of the better inmates. Deputy Walker opined that

Defendant would make a good prisoner in the penitentiary and would not be a threat to

other individuals.

Deanna Jordan, Defendant’s oldest daughter, testified that she was a junior at

Freed-Hardeman University. She said that she had three sisters, Lindsey, Shelby, and

Sydney, and that they all loved their father and knew that he loved them. She stated that,

while her father will not be able to walk her down the aisle, she would like for him to be

able to meet his grandchildren some day. She stated that she wanted Defendant to have a

part in their lives, even if it was just visitation.

Dr. Dennis W. Wilson made a PowerPoint presentation to demonstrate the

psychological point of view of the mitigating factors. He explained that Defendant

started life in a stable and loving family but later suffered from depression, anxiety, and

insomnia. He stated that Defendant began using drugs and alcohol. Dr. Wilson spoke of

Defendant’s two failed marriages before marrying Renee. He mentioned Defendant’s

four children. He described Defendant’s health problems and prescription medications.

Dr. Wilson testified regarding the disintegration of Defendant’s marriage to Mrs. Jordan.

He said Defendant took too much Xanax, drank vodka, lost control, and “fell apart.”

Dr. Wilson also described Defendant’s remorse expressed very soon after the

incident. He verified Defendant’s status as a model prisoner. He added that Defendant

was fully aware that he will spend the rest of his life in prison. Dr. Wilson opined that the

structured setting of incarceration was good for Defendant because the stressors of every

day life were gone. Defendant had adjusted well to the environment. Dr. Wilson added

that Defendant had been a loving and active father.

Dr. Wilson provided his opinion as a clinical psychologist:

[Defendant] was under a lot of stress. He has a long history of not being

able to deal with stress or change, and he was disturbed at the time of this

crime.

And t[o]o, he was impaired also due to that chronic depression and

anxiety, plus the intoxication. He just wasn’t used to drinking that much.

25

He took the Xanax in an attempt to try to sleep or calm down. He wasn’t

trying to get intoxicated, but the net effect was that he became impaired.

...

Confinement is -- No one will ever have to worry about him doing

something like this ever again, and even inside the prison system, he’s

likely to have a calming effect. . . . And importantly, he will be punished

for what he did.

Gary Morris, the pastor of Bemis United Methodist Church, testified that

Defendant’s parents were members of his congregation. Since the incident, Morris had

visited Defendant at the jail between thirty-five and fifty times. He recalled that, the day

after Defendant’s arrest, Defendant appeared dazed and confused. Defendant was very

tearful and emotional and asked Morris to attend Mrs. Jordan’s funeral. Morris stated

that Defendant had expressed his repentance and remorse. He added that it would be

devastating to the family if Defendant received a sentence of death.

At the close of the proof, the trial court instructed the jury on the following

statutory aggravating circumstances:

Number 1: The Defendant knowingly created a great risk of death to

two or more persons other than the victim murdered during the act of

murder. That aggravating circumstance could possibly apply to Count 1, 2

or 3.5

Number 2: The murder was especially heinous, atrocious or cruel in

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

produce death. Counts 1, 4 or 5 possibly.6

Number 3: The murder was committed for the purpose of avoiding,

interfering with or preventing a lawful arrest or prosecution of the

Defendant or another. Consideration of Counts 2, 3, 4 and 5.

5

Count One referred to the premeditated murder of Mrs. Jordan, Count Two referred to the premeditated

murder of Mr. Hopper, and Count Three referred to the felony murder of Mr. Hopper.

6

Count Four referred to the premeditated murder of Mr. Gordon, and Count Five referred to the felony

murder of Mr. Gordon.

26

Number 4: The murder was knowingly committed, solicited, directed

or aided by the Defendant while the Defendant had a substantial role in

committing or attempting to commit first degree murder. Knowingly means

that a person acts knowingly with respect to the conduct or to circumstances

surrounding the conduct when the person is aware of the nature of the

conduct or that the circumstances exist. A person acts knowingly with

respect to a result of the person’s conduct when the person is aware that the

conduct is reasonably certain to cause the result. The requirement of

knowingly is also established if it is shown that the Defendant acted

intentionally.

Intentionally means that a person acts intentionally with respect to

the nature of the conduct or to a result of the conduct when it is the person’s

conscious objective or desire to engage in the conduct or cause the results.

That one is for consideration on Counts 1 through 5.

Number 5: The Defendant committed mass murder which is defined

as the murder of three or more persons, whether committed during a single

criminal episode or at different times within a 48-month period. For

consideration of Counts 1 through 5.

Number 6: The Defendant knowingly mutilated the body of the

victim after death. For consideration in Count 1.

See generally Tenn. Code Ann. § 39-13-204(i)(3), (5), (6), (7), (12), (13) (2003). The

trial court additionally instructed the jury as to applicable mitigating circumstances as

follows:

Tennessee law provides that in arriving at the punishment, the jury shall

consider . . . any mitigating circumstances raised by the evidence which

shall include but are not limited to the following:

Number 1: The murder was committed while the Defendant was

under the influence of extreme mental or emotional disturbance.

Number 2: The capacity of the Defendant 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 to the crime but

which substantially affected his judgment.

27

Number 3: The Defendant has adjusted well to the structure of prison

life.

Number 4: The Defendant has expressed remorse, has accepted

responsibility for his actions and is willing to accept punishment for his

crimes.

Number 5: The Defendant has a loving and supportive family.

Number 6: Any other mitigating factor which is raised by the

evidence produced by either the prosecution or defense at either the guilt or

sentencing hearing. That is, you shall consider any aspect of the

Defendant’s character or record or any aspect of the circumstances of the

offense favorable to the Defendant which is supported by the evidence.

See generally Tenn. Code Ann. § 39-13-204(j)(2), (8), (9). After receiving further

instructions from the court, the jurors retired from open court to begin their deliberations

at 8:05 a.m. They returned with their verdict at 3:30 p.m.

As to the first degree murder of Renee Jordan, the jury returned a verdict of death,

finding that the State had proven the following statutory aggravating circumstances

beyond a reasonable doubt:

Number 1: That the Defendant knowingly created a great risk of

death to two or more persons other than the victim murdered during the act

of murder.

2: The murder was especially heinous, atrocious or cruel [in] that it

involved torture or serious physical abuse beyond that necessary to produce

death.

4: The murder was knowingly committed, solicited, directed or aided

by the Defendant while the Defendant had a substantial role in [committing]

or attempting to commit that first degree murder.

...

5: The Defendant committed mass murder which is defined as the

murder of three or more persons, whether committed during a single

criminal episode or at different times within a 48-month period.

28

And 6: The Defendant knowingly mutilated the body of the victim

after death.

The jury further found that these aggravating circumstances outweighed any mitigating

circumstances beyond a reasonable doubt.

As to the first degree murder of Jerry Hopper, the jury returned with a verdict of

death, finding that the State had proven the following statutory aggravating circumstances

beyond a reasonable doubt:

1: The Defendant knowingly created a great risk of death to two or

more persons other than the victim murdered during the act of murder.

3: The murder was committed for the purpose of avoiding,

interfering with or preventing a lawful arrest or prosecution of the

Defendant or another.

4: The murder was knowingly committed, solicited, directed or aided

by the Defendant while the Defendant had a substantial role in committing

or attempting to commit first degree murder.

...

5: The Defendant committed mass murder which is defined as the

murder of three or more persons, whether committed during a single

criminal episode or at different time[s] within a 48-month period.

The jury further found that these aggravating circumstances outweighed any mitigating

circumstances beyond a reasonable doubt.

As to the first degree murder of David Gordon, the jury returned with its verdict of

death, finding that the State had proven the following statutory aggravating circumstances

beyond a reasonable doubt:

2: The murder was especially heinous, atrocious or cruel in that it

involved torture or serious physical abuse beyond that necessary to produce

death.

3: The murder was committed for the purpose of avoiding,

interfering with or preventing a lawful arrest or prosecution of the

Defendant or another.

29

4: The murder was knowingly committed, solicited, directed or aided

by the Defendant while the Defendant had a substantial role in committing

or attempting to commit first degree murder.

...

5: The Defendant committed mass murder which is defined as . . .

[the murder of] three or more persons, whether committed during a single

criminal episode or at different times within a 48-month period.

The jury further found that these aggravating circumstances outweighed any mitigating

circumstances beyond a reasonable doubt.

A sentencing hearing on the noncapital offenses was held at a later date. At the

conclusion of that hearing, the trial court imposed a twenty-five-year sentence for each of

the attempted first degree murder convictions (Counts 6 and 8); a six-year sentence for

each aggravated assault conviction (Counts 7 and 9); and a thirty-day sentence for leaving

the scene of an accident (Count 10). The trial court merged Counts 6 and 7 and Counts 8

and 9. The court ordered that the two twenty-five-year sentences be served consecutively

to each other for an effective sentence of fifty years.7

On direct appeal, the Court of Criminal Appeals affirmed Defendant’s convictions

and sentences.

ANALYSIS

I. Application of Tennessee Rule of Evidence 615

in Capital Trials

Prior to trial, the defense filed a motion requesting the trial court to allow “those

persons who are friends and/or family of Defendant that will only be testifying at the

sentencing hearing, be allowed to remain in the Courtroom for the entire trial.” The State

opposed the motion on the basis of Tennessee’s rule of witness sequestration, see Tenn.

R. Evid. 615, and asserted that the defense had not demonstrated that the presence of any

of Defendant’s friends or family members were essential to the presentation of his

defense. Tennessee Rule of Evidence 615, often referred to simply as “the rule,” provides

as follows:

7

The thirty-day misdemeanor sentence was ordered to be served concurrently with “all counts.”

30

Exclusion of witnesses. – At the request of a party the court shall order

witnesses, including rebuttal witnesses, excluded at trial or other

adjudicatory hearing. In the court’s discretion, the requested sequestration

may be effective before voir dire, but in any event shall be effective before

opening statements. The court shall order all persons not to disclose by any

means to excluded witnesses any live trial testimony or exhibits created in

the courtroom by a witness. This rule does not authorize exclusion of (1) a

party who is a natural person, or (2) a person designated by counsel for a

party that is not a natural person, or (3) a person whose presence is shown

by a party to be essential to the presentation of the party’s cause. This rule

does not forbid testimony of a witness called at the rebuttal stage of a

hearing if, in the court’s discretion, counsel is genuinely surprised and

demonstrates a need for rebuttal testimony from an unsequestered witness.

Tenn. R. Evid. 615. The trial court denied the defense motion after a hearing on the basis

that there was “no authority” supporting the motion, explaining that Rule 615 and the

statute governing capital sentencing, Tenn. Code Ann. § 39-13-204(c), “specifically

name[] those persons who may be excluded from the general rule of sequestration.”

Those persons are “members, or . . . representatives of the victim’s family.” Tenn. Code

Ann. § 39-13-204(c).

Approximately one month later, the defense filed a “renewed and amended”

motion to allow Defendant’s family to remain in the courtroom during the trial. The

defense reiterated that Defendant’s family members would not be called as witnesses

during the guilt/innocence phase of the trial, but would be called only if a sentencing

phase was necessary. The defense pointed out that relevant mitigating evidence was

admissible in a capital sentencing hearing even if in conflict with Tennessee’s Rules of

Evidence. See id. The State opposed the motion. After a hearing, the trial court denied

the motion, stating that Defendant “failed to establish that the presence of the Defendant’s

family was essential to his defense and that therefore the requirements of Tennessee Rule

of Evidence 615 were not met.”

At trial, the rule was requested and imposed. The trial court instructed “[e]veryone

that is a witness in this case, unless they have been predesignated by the State and defense

to remain in, . . . you are to remain outside.” In accordance with the trial court’s pre-trial

rulings and imposition of the rule, Defendant’s younger brother Larry and his eldest

daughter Deanna elected not to attend the trial; they were subsequently allowed to testify

at the sentencing hearing. Defendant’s parents chose to remain in the courtroom during

31

the trial and therefore were not permitted to testify at the sentencing hearing.8 The

defense informed the trial court during the sentencing hearing that, “had they testified,

they would have indicated that they love their son, that they would be devastated at a

sentence of death and basically just other things about the family relationship.”

On appeal, the Court of Criminal Appeals determined that Defendant was not

entitled to relief on this basis. The applicability of Tennessee Rule of Evidence 615 to

capital sentencing trials is an issue of first impression before this Court.

A. Standard of Review

We review a trial court’s decisions about the admissibility of evidence for an abuse

of discretion. State v. Banks, 271 S.W.3d 90, 116 (Tenn. 2008). “Reviewing courts will

find an abuse of discretion only when the trial court applied incorrect legal standards,

reached an illogical conclusion, based its decision on a clearly erroneous assessment of

the evidence, or employed reasoning that causes an injustice to the complaining party.”

Id. (citing Konvalinka v. Chattanooga-Hamilton County Hosp. Auth., 249 S.W.3d 346,

358 (Tenn. 2008)).

B. The Rule

Tennessee Rule of Evidence 615 codifies the long-established practice of

sequestering witnesses during a trial so that they may not hear one another testify prior to

testifying themselves. Witness sequestration “is a concept integrally related to the notion

that both parties to an adversarial proceeding are entitled to a fair hearing in the interests

of justice.” Webb v. State, 766 S.W.2d 236, 239 (Tex. Crim. App. 1989). According to

one source, “[t]he history of the rule is traceable to the Biblical story of Susanna,” Carlile

v. Texas, 451 S.W.2d 511, 512 (Tex. Crim. App. 1970), and this Court has also dated the

practice “from the days of Daniel,” Nelson v. State, 32 Tenn. (1 Swan) 237, 257 (1852).9

Indeed, this Court recognized many years ago that witnesses have been sequestered

“[s]ince probably the beginning of time in the trial of cases.” Nance v. State, 358 S.W.2d

327, 329 (Tenn. 1962).

8

Defense counsel informed the trial court that Larry and Deanna Jordan “were not present at the trial . . .

because of the rule. They were excluded and would have been available and happy and wanted to be able

to attend the whole trial.” As to Defendant’s parents, defense counsel stated that they “chose to be able to

attend the trial.”

9

The story of the falsely-accused Susanna, who is saved from execution by Daniel’s skillful cross-

examination of her accusers, appears in the Book of Daniel in the Old Testament. See

http://www.internationalstandardbible.com/S/susanna-the-history-of.html (last visited Sept. 14, 2010).

32

The rule serves significant goals. First, preventing witnesses from hearing other

witnesses testify before they, themselves, do “exercises a restraint on witnesses ‘tailoring’

their testimony to that of earlier witnesses.” Geders v. United States, 425 U.S. 80, 87

(1976). Second, sequestering witnesses “aids in detecting testimony that is less than

candid.” Id. Third, “[s]equestering a witness over a recess called before testimony is

completed serves . . . [to] prevent[] improper attempts to influence the testimony in light

of the testimony already given.” Id. See also Nance, 358 S.W.2d at 329 (observing that

the rule of sequestering witnesses “is designed to detect falsehood as well as to prevent

any witness from coloring his, or her, testimony either purposely or through influence by

talking to other witnesses and hearing them talk”); Nelson, 32 Tenn. at 257 (“The practice

of examining the witnesses separate and apart from each other, at the request of either

party, is invaluable, in many cases, for the ascertainment of truth and the detection of

falsehood.”); State v. Warren, 437 So.2d 836, 839 (La. 1983) (“The purpose of

sequestration is to assure that a witness will testify from his own knowledge of the case

without being influenced by the testimony of prior witnesses, and to strengthen the role of

cross-examination in developing the facts.”). In short, the underlying purpose of

sequestering witnesses is to preserve the credibility of their testimony in its pre-trial

condition. Thus, a potential witness’s violation of the rule should generally be considered

in terms of the witness’s credibility rather than in terms of his or her competency. See

Williams v. State, 523 S.W.2d 377, 380 (Ark. 1975) (“[A] violation by a witness of the

rule of sequestration of witnesses, through no fault of, or complicity with, the party

calling him, should go to the credibility, rather than the competency of the witness.”);

Navarrete v. State, 656 S.E.2d 814, 820 (Ga. 2008) (“A violation of the rule of

sequestration generally does not affect the admissibility of the testimony, but may impact

on the credibility of the offending witness.”).

Our current Rule 615 sets forth several specific exceptions to its application. First,

parties who are natural persons may not be excluded from the courtroom while witnesses

are testifying. Second, if a party is not a natural person but is, for instance, a corporation,

the party’s counsel may designate a natural person who may not be sequestered. Or, if the

State is a party, the prosecuting attorney may designate a crime victim, a crime victim’s

relative, or an investigating officer as immune from sequestration. Tenn. R. Evid. 615

advisory comm’n cmts to 1997 amend. Third, “a person whose presence is shown by a

party to be essential to the presentation of the party’s cause” may not be excluded from

the trial. Tenn. R. Evid. 615. The Advisory Commission Comments to Rule 615 explain

that an example of this third exception “might be an expert witness a lawyer needs to help

the lawyer understand opposing testimony” and add that “an expert witness who is to

learn facts only through hearing testimony in court [also] could be allowed to sit in the

courtroom under this [exception].” Indeed, this Court has previously recognized that

33

the dangers Rule 615 is intended to prevent generally do not arise with

regard to expert witnesses in any proceeding. In fact, the rules of evidence

provide that an expert witness may testify and base an opinion on evidence

or facts made known to the expert at or before a hearing and the facts need

not be admissible at trial. Moreover, an expert witness often may need to

hear the substance of the testimony of other witnesses in order to formulate

an opinion or respond to the opinions of other expert witnesses. In short,

allowing an expert witness to remain in the courtroom as an “essential

person” generally does not create the risk that the expert will alter or change

factual testimony based on what is heard in the courtroom.

State v. Bane, 57 S.W.3d 411, 423 (Tenn. 2001) (citation omitted).

These exceptions to the general rule of sequestration illustrate the tensions

between the underlying purpose of the rule and other, equally significant concerns. Thus,

a party to the litigation will not be prevented from hearing testimony, even if he or she

plans to testify and even though a party has the most incentive to tailor his or her

testimony. Also, a witness who is expected to offer expert opinion testimony about facts

testified to, as opposed to testimony about the facts themselves, is acknowledged to be

outside the scope of the rule. Both exceptions make clear that the rule does not establish

a concrete line which may never be crossed. Rather, as with other rules of evidence, there

is latitude within which a trial court is expected to exercise its discretion. That discretion

should be exercised with the aim of protecting the goals of the rule and should take into

account the risk that the witness for which an exception is sought “will alter or change

factual testimony based on what is heard in the courtroom.” Id.; see also State v. Hill,

590 N.W.2d 187, 189 (N.D. 1999) (recognizing that sequestration’s concern that a

witness will otherwise tailor his or her testimony “‘is justified . . . where “fact” or

“occurrence” witnesses are called to testify’”) (quoting United States v. Bramlet, 820 F.2d

851, 855 (7th Cir. 1987)).

C. Sanctions for Violations of the Rule

The case before us is unusual because, prior to trial, the defense sought and

obtained an advisory ruling on the right of family members to testify during sentencing if

they attended the guilt/innocence phase. More frequently, the rule is tested when a party

seeks to call to the witness stand a person who has remained in the courtroom after the

rule was invoked. In criminal prosecutions, the trial court’s response typically results in

one of two appellate issues: (1) the defense complains that the trial court permitted a

prosecution witness to testify despite his or her violation of the rule; and/or (2) the

defense complains that the trial court did not allow a defense witness to testify because he

34

or she violated the rule. See Webb, 766 S.W.2d at 239-40. In this case, we consider the

second of these issues.

Initially, we recognize that the defense in this case did not actually call

Defendant’s parents to the stand during the sentencing hearing. The State argues to this

Court that, accordingly, the trial court did not actually “exclude” their testimony. We are

not persuaded. The defense twice raised and attempted to resolve this issue in its favor

prior to trial. The trial court ruled against the defense both times. The issue was thus

adequately preserved. It was not incumbent upon the defense to risk displeasing the trial

court by calling witnesses that the trial court had already ruled would not be allowed to

testify. The effect of the trial court’s two pre-trial rulings was to require Defendant to

choose which family members could support him by their presence during his trial,

knowing that the testimony of any family member who attended the guilt/innocence phase

would be excluded at the sentencing phase of the trial. Ultimately, Defendant elected to

have his parents remain in the courtroom during the trial, thus forfeiting their testimony at

sentencing. He elected to forfeit the presence of his brother and oldest daughter at trial so

that they could testify during sentencing. The question before us is whether the trial court

erred in its pre-trial rulings, and we proceed with our analysis as if the defense had called

Defendant’s parents to the stand during the penalty phase and as if the trial court refused

to permit them to testify as a sanction for violating the rule by remaining in the courtroom

during the guilt/innocence phase.

Tennessee Rule of Evidence 615 does not set forth any particular sanctions that

should be imposed for its violation. Accordingly, trial courts have significant discretion

when deciding how best to deal with its violation. See, e.g., State v. Upchurch, 620

S.W.2d 540, 543 (Tenn. Crim. App. 1981) (“[W]hether to allow or not allow the

testimony of a witness who has violated the rule is within the discretion of the trial

court.”); Jones v. State, 548 S.W.2d 329, 332 (Tenn. Crim. App. 1976) (recognizing that

“it remains a matter of the Trial Judge’s discretion as to whether the witness who violated

the rule will be permitted to testify”). This discretion should be exercised in light of both

the policies at issue as well as the particular facts and circumstances of the case.

The possible sanctions available to a trial judge are numerous. The most severe

sanctions include a declaration of mistrial or “a ruling for or against a party on a

particular issue.” Neil P. Cohen et al., Tennessee Law of Evidence, § 615[11][b] (5th ed.

2005). Either of these sanctions “should be used only in egregious cases,” however,

“perhaps involving intentional violations of the rule for the purpose of creating perjured

testimony.” Id. A third potential significant sanction is to hold in contempt the witness

who deliberately violates the rule, because imposition of the rule results from a court

order. Id.

35

At the other end of the spectrum, less severe remedies include allowing the

offender to testify but subjecting her to cross-examination about her violation, the

testimony she heard, and the impact it may have had on her testimony. State v. Anthony,

836 S.W.2d 600, 605 (Tenn. Crim. App. 1992). Additionally, the jury may “be instructed

to consider the violation of the sequestration order in assessing [the credibility of] the

witnesses’ testimony.” Id.

Of course, another frequently-used sanction, and the one utilized in effect by the

trial court in this case, is exclusion of the witness. Generally, this remedy is well within

the court’s discretion. In the unique arena of criminal prosecutions, however, this

particular sanction risks conflict with a defendant’s fundamental constitutional right to

call witnesses and present a defense. See, e.g., Wright v. State, 473 So.2d 1277, 1280

(Fla. 1985) (recognizing that exclusion of a criminal defendant’s witness for violating the

rule “implicates the defendant’s sixth amendment right to present witnesses in his own

behalf”); Commonwealth v. Scott, 436 A.2d 161, 163 (Pa. 1981) (recognizing that

excluding a criminal defense witness for offending the rule could “constitute a violation

of his fundamental constitutional rights to compulsory process for obtaining witnesses in

his favor and to a fair trial”); Webb, 766 S.W.2d at 240. This remedy is therefore

disfavored in this category of cases. See, e.g., United States v. Torbert, 496 F.2d 154,

158 (9th Cir. 1974) (“[B]ecause of the availability of alternative sanctions to enforce the

order [of sequestration], and because of the constitutionally based right of the defendant

to relevant testimony in his favor, it is ordinarily an abuse of discretion to disqualify a

witness unless the defendant or his counsel have somehow cooperated in the violation of

the order.” (citations omitted)); United States v. Schaefer, 299 F.2d 625, 631 (7th Cir.

1962) (“Sequestration of witnesses is a great aid in eliciting the truth, but disqualification

of the offending witness absent particular circumstances is too harsh a penalty on the

innocent litigant”); Robinson v. Tennessee, 340 F.Supp. 82, 86 (E.D. Tenn. 1972), aff’d

474 F.2d 1273 (6th Cir. 1973) (“A court . . . should have no discretion to exclude the

testimony of a witness violating an exclusion rule where the testimony of the witness was

material to the case and where such violation was without fault on the part of a party or

his counsel.”); Benn v. United States, 801 A.2d 132, 141 (D.C. 2002) (recognizing that “a

witness who has violated a sequestration order may be excluded from the witness stand

only under extreme and exceptional circumstances”); State v. Burdge, 664 P.2d 1076,

1084 (Ore. 1983) (holding that “exclusion of a witness in a criminal case is too grave a

sanction where the violation of the [sequestration] order was not intentional and not

procured by a connivance of counsel or for some improper motive.”); Scott, 436 A.2d at

163 (“Because of the availability of alternative sanctions to enforce a sequestration order

and because of the fundamental constitutional basis for an accused’s right to present

relevant testimony in his favor, it ordinarily would be an abuse of discretion to disqualify

a witness unless either the accused or his counsel has somehow cooperated in the

violation of the order.”); State v. Burke, 522 A.2d 725, 729 (R.I. 1987) (“Unless violation

36

of the sequestration order is due to the consent, connivance, procurement or knowledge of

the defendant or his counsel, a trial justice should not deprive a criminal defendant of his

right to present testimony [but should instead] consider alternative sanctions . . . such as

the issuance of a cautionary instruction to the jury or in some instances a contempt

proceeding against the witness.” (citations omitted)); Williams, 523 S.W.2d at 380 (“The

power to exclude the testimony of a witness who has violated the rule should be rarely

exercised.); In re KC v. State, 92 P.3d 805, 808 (Wyo. 2004) (“Exclusion should be

allowed only when it is necessary to preserve the integrity of the fact finding process.”).

Indeed, the Supreme Court has recognized that

[i]f a witness disobeys the order of withdrawal, while he may be proceeded

against for contempt and his testimony is open to comment to the jury by

reason of his conduct, he is not thereby disqualified, and the weight of

authority is that he cannot be excluded on that ground merely, although the

right to exclude under particular circumstances may be supported as within

the sound discretion of the trial court.

Holder v. United States, 150 U.S. 91, 92 (1893); see also Smith v. State, 72 Tenn. 428,

430 (1880) (recognizing that “the right of excluding the witness for disobedience to the

[sequestration] order is in the discretion of the Court, a discretion rarely exercised” and

that “if the witness remain in Court, in disobedience of the order of separation, his

testimony, on that ground alone, cannot be excluded, but is a matter for observation on his

evidence”).

Several courts have pondered the “particular circumstances” referred to in Holder

that may support exclusion. In Schaefer, the federal Court of Appeals for the Seventh

Circuit interpreted Holder as meaning that a trial court “may not disqualify the witness

merely because he disobeys the rule but that this alternative is available if particular

circumstances are shown. . . . [W]e interpret these particular circumstances to mean some

indication the witness was in court with ‘the consent, connivance, procurement or

knowledge of the appellant or his counsel.’” 299 F.2d at 631 (quoting Holstein v. Grier,

262 S.W.2d 954, 955 (Tex. Ct. Civ. App. 1953)). In Braswell v. Wainright, 463 F.2d

1148 (5th Cir. 1972), the United States Court of Appeals for the Fifth Circuit considered a

habeas corpus proceeding by a defendant who had been convicted of aggravated assault

in a Florida state court. During the trial, the defense called a witness who had been

present in the courtroom, despite invocation of the rule. The trial court sustained the

prosecution’s objection on the basis of the rule. The federal appellate court held that the

trial court thereby erred because it “arbitrarily excluded [the witness] upon no other basis

than that he violated the rule.” Id. at 1156. The court emphasized that, when facing a

challenge to a defense witness under the rule, a trial court must take into account the

“particular circumstances” of the case and “weigh the exclusion of the witness against the

37

defendant’s [federal constitutional] right to obtain witnesses in his behalf.” Id. at 1155.

Where the witness is vital to the defense, the trial court may order exclusion only on the

basis of “some overriding policy consideration” or where the defendant makes a valid

waiver of his sixth amendment right to call witnesses on his behalf. Id. at 1156.

Similarly, in Webb, the Texas Court of Criminal Appeals considered the direct

appeal of a defendant convicted of aggravated robbery and sentenced to fifty-five years.

The defense called Elaine Adams to the stand in an effort to rebut a prosecution witness.

The prosecution objected on the basis that she had been in the courtroom in violation of

the rule. The trial court sustained the objection “[s]olely on the basis that the ‘rule’ had

been invoked and violated.” Webb, 766 S.W.2d at 239. After observing that “[t]he

question of what ‘particular circumstances’ may serve to support exclusion of a witness is

broad only in the abstract factual context of a case,” id. at 241, the court determined that a

trial court faced with this issue must first consider the reason for the violation and the

significance of the witness’s testimony to the defendant’s case, id. at 242. The court

formulated the following test for balancing the policies served by the rule against a

defendant’s constitutional right to call witnesses:

Where the “particular and extraordinary circumstances” show neither the

defendant nor his counsel have consented, procured, connived or have

knowledge of a witness or potential witness who is in violation of the

sequestration rule, and the testimony of the witness is crucial to the defense,

it is an abuse of discretion exercised by the trial court to disqualify the

witness.

Application of the standard must necessarily be on a case-by-case

basis, weighing or balancing the interests of both the State and the accused

in a fair proceeding. Thus, in the exercise of sound judicial discretion a

court must consider alternatives available to it and then choose among

them. Other sanctions, such as a cautionary instruction or a contempt

proceeding, are less pervasive options when an order has been violated.

The trial court must consider both the benefit and detriment flowing from

the order of disqualification. A detriment of disqualification will always be

the loss to the accused of the proffered testimony; evaluating this loss will

require considering the relative strength of the testimony, the importance or

“crucial” nature of the issue upon which it is offered, and the extent to

which it is cumulative of other evidence in the case. In contrast, the

benefits of disqualification include avoiding the risk that the party

proffering the testimony either intentionally or negligently violated the rule

through the actions of accused, counsel or witness; or that the witness’s

testimony will be tainted by exposure to other testimony or discussion.

38

This is not to say that the test is exclusive; other “particular or

extraordinary circumstances” may well exist, given the facts of each case.

However, the rationale for the test remains constant: given the

constitutional rights of an accused, disqualification of an offending witness

absent particular and articulable circumstances is too harsh a penalty to

impose upon a defendant who is without a verdict and chooses to exercise

his right to call witnesses in his behalf.

Id. at 244 (citation omitted). See also, e.g., Burdge, 664 P.2d at 1085 (“Refusal to allow

defense witnesses to testify for violation of an . . . order [of sequestration] should be

imposed only when necessary to preserve the ‘integrity of the fact-finding process’ and

requires that the competing interests be closely examined.” (quoting Berger v. California,

393 U.S. 314, 315 (1969))); Commonwealth v. Smith, 346 A.2d 757, 760 (Pa. 1975)

(“The selection of a remedy for the violation of a sequestration order is within the sound

discretion of the trial court. In exercising its discretion, the trial court should consider the

seriousness of the violation, its impact on the testimony of the witness, and its probable

impact on the outcome of the trial.” (citations omitted)).

We recognize that this case does not involve any question regarding the

circumstances under which Defendant’s parents were in “violation” of the rule. Rather, it

appears that they made a decision to respect the trial court’s pretrial rulings and attended

their son’s trial with the knowledge that they would therefore not be allowed to testify

during the sentencing hearing. There is, accordingly, no issue of bad faith, collusion, etc.,

here.10 These cases are instructive, nonetheless, as indicative of the factors a trial court

should consider before excluding a defense witness in a criminal trial for violating the

rule. Automatic exclusion of an accused’s witness who has been present during

testimony in violation of the rule, with no consideration given to the impact of the

proffered testimony or other relevant circumstances, risks error.

D. Admissibility of Evidence in Capital Sentencing Trials

Because this is a capital case, Tennessee Rule of Evidence 615 is not the only

provision we must consider in reviewing the trial court’s rulings on Defendant’s pretrial

motions concerning witness sequestration. Tennessee Code Annotated section 39-13-

204(c) governs the admission of evidence in capital sentencing trials and provides as

follows:

10

To the extent a party’s lawyer encourages a witness to violate the rule, a trial court would be justified in

suspecting that the violation was committed for the express purpose of altering the witness’s testimony.

That, of course, is the precise outcome intended to be avoided by imposition of the rule, and such behavior

justifies a severe sanction.

39

In the sentencing proceeding, evidence may be presented as to any

matter that the court deems relevant to the punishment and may include, but

not be limited to, the nature and circumstances of the crime; the defendant’s

character, background history, and physical condition; any evidence tending

to establish or rebut the aggravating circumstances enumerated in

subsection (i); and any evidence tending to establish or rebut any mitigating

factors. Any such evidence which the court deems to have probative value

on the issue of punishment may be received regardless of its admissibility

under the rules of evidence; provided, that the defendant is accorded a fair

opportunity to rebut any hearsay statements so admitted. However, this

subsection (c) shall not be construed to authorize the introduction of any

evidence secured in violation of the constitution of the United States or the

constitution of Tennessee. . . . The court shall permit a member or members,

or a representative or representatives of the victim’s family to testify at the

sentencing hearing about the victim and about the impact of the murder on

the family of the victim and other relevant persons. Such evidence may be

considered by the jury in determining which sentence to impose. The court

shall permit members or representatives of the victim’s family to attend the

trial, and those persons shall not be excluded because the person or persons

shall testify during the sentencing proceeding as to the impact of the

offense.

Tenn. Code Ann. § 39-13-204(c) (2003) (emphasis added). This Court has emphasized

that this statute “‘expressly exempts evidence adduced in capital sentencing proceedings

from the usual evidentiary rules.’” State v. Sims, 45 S.W.3d 1, 13 (Tenn. 2001) (quoting

State v. Odom, 928 S.W.2d 18, 28 (Tenn. 1996)). And, we have previously concluded

that

in general, [section] 39-13-204(c) should be interpreted to allow trial judges

wider discretion than would normally be allowed under the Tennessee

Rules of Evidence in ruling on the admissibility of evidence at a capital

sentencing hearing. The Rules of Evidence should not be applied to

preclude introduction of otherwise reliable evidence that is relevant to the

issue of punishment, as it relates to mitigating or aggravating circumstances,

the nature and circumstances of the particular crime, or the character and

background of the individual defendant. As our case history reveals,

however, the discretion allowed judges and attorneys during sentencing in

first degree murder cases is not unfettered. Our constitutional standards

require inquiry into the reliability, relevance, value, and prejudicial effect

of sentencing evidence to preserve fundamental fairness and protect the

rights of both the defendant and the victim’s family. The rules of evidence

40

can in some instances be helpful guides in reaching these determinations of

admissibility. Trial judges are not, however, required to adhere strictly to

the rules of evidence. These rules are too restrictive and unwieldy in the

arena of capital sentencing.

Id. at 14 (emphases added); see also State v. Reid, 213 S.W.3d 792, 817 (Tenn. 2006)

(“The rules of evidence . . . do not limit the admissibility of evidence in a capital

sentencing proceeding.”); State v. Austin, 87 S.W.3d 447, 459 (Tenn. 2002) (“The Rules

of Evidence should not be applied to preclude the admission of relevant evidence in a

capital sentencing hearing.”). Thus, we have held that, in a capital sentencing hearing,

the question is not whether a particular item of proof is admissible pursuant to the

Tennessee Rules of Evidence, “but instead whether that evidence was reliable and

relevant to one of the aggravating or mitigating circumstances.” Reid, 213 S.W.3d at

817. These cases make clear that, in a capital sentencing proceeding, trial courts must

carefully evaluate any and all proffered mitigation evidence, utilizing any applicable

Rules of Evidence only as guidelines rather than as mandatory strictures. A rigid

adherence to Rule 615, or any other particular Rule of Evidence, is contraindicated by

section 39-13-204(c).

E. Intersection of the Rule and Capital Sentencing

Only rarely have courts specifically addressed the intersection of the rule and a

capital defendant’s right to present mitigation proof. In Dutton v. Brown, 812 F.2d 593

(10th Cir. 1987) (en banc), the United States Court of Appeals for the Tenth Circuit

considered a habeas corpus action by a defendant who had been convicted in Oklahoma

of first degree murder and sentenced to death. The same jury considered both the

defendant’s guilt and sentence in separate proceedings. Sequestration was ordered at the

beginning of trial. During the sentencing phase, the defense called the defendant’s

mother. The trial court “sua sponte, prohibited [her] from testifying because she had

attended the trial.” Id. at 595. The defendant’s attempts to obtain relief through direct

appeal and post-conviction proceedings were unsuccessful.

In granting habeas corpus relief on the defendant’s sentence, the Court of Appeals

stressed that the defendant’s mother’s testimony “would have been relevant mitigating

evidence and its exclusion impeded the jury’s ability to consider relevant aspects of [the

defendant’s] character.” Id. at 601. The mitigating evidence about which she would have

testified included “family background, medical history and education.” Id. The

defendant’s trial counsel indicated that the defendant’s mother “would have told the jury

that her son was ‘immature,’ was a ‘slow learner,’ did not ‘think real well,’ was ‘not very

smart,’ and was a ‘follower.’” Id.

41

In conducting its analysis, the appellate court stressed the unique nature of the

death penalty and the constitutional requirement “that the sentencer ‘not be precluded

from considering, as a mitigating factor, any aspect of a defendant’s character or record

and any of the circumstances of the offense that the defendant proffers as a basis for a

sentence less than death.’” Id. at 600 (quoting Lockett v. Ohio, 438 U.S. 586, 604

(1978)). The court also recognized the Supreme Court’s holding that a trial court’s

exclusion of relevant mitigating evidence may “‘impede[] the sentencing jury’s ability to

carry out its task of considering all relevant facets of the character and record of the

individual offender.’” Id. at 601 (quoting Skipper v. South Carolina, 476 U.S. 1, 8

(1986)). And, while the court recognized that “Oklahoma’s rule of sequestration is a

valid and important state rule,” id., it held that “the state trial judge erred by refusing to

permit counsel the opportunity to present this evidence to the sentencing jury,” id. at 599.

The Court emphasized that “evidentiary rules ‘may not be applied mechanistically’”

during the penalty phase of a capital case, id. at 601 (quoting Green v. Georgia, 442 U.S.

95, 97 (1979) (per curiam)), and offered the following guidance:

Assuming the exclusion order properly applied to the sentencing

proceeding, the trial court had the discretion to select means other than the

exclusion of [the defendant’s mother’s] testimony to enforce the

sequestration order. For example, it could have allowed [her] to testify, and

then instructed the jury that she was present during the guilt proceeding.

That approach would have permitted the jury to assess the witness’s

credibility while, at the same time, allowed [the defendant] to present

crucial mitigating evidence.

Id.

In a separate concurring opinion, Judge Moore emphasized the trial court’s

discretion under Oklahoma law to admit or exclude the testimony of a witness who did

not abide by an order of sequestration, and chastised the trial court because it “made no

effort to exercise this discretion, despite the knowledge that [the defendant’s mother] was

a vital witness.” Id. at 603 (Moore, J., concurring). Judge Moore further observed that,

“[e]ven through the Oklahoma rule is valid and important, its application to this case

worked a result which was beyond the underlying purpose of the rule itself” and “was

mechanistic and constitutionally unsupportable.” Id. at 604.

In rendering its decision, the Dutton court relied on Wright v. State, 473 So.2d

1277 (Fla. 1985). Id. at 602. In Wright, the Florida Supreme Court considered a case in

which the defendant denied his involvement in the victim’s murder. He was nonetheless

convicted and sentenced to death. After the close of the proof in the guilt phase of the

trial, the defense sought to introduce “newly discovered testimony” by a witness “who

42

had listened to portions of the trial testimony, followed newspaper accounts of the trial,

and discussed testimony with various persons attending the trial.” Id. at 1279. Her

testimony would have corroborated the defendant’s. The trial judge refused to reopen

proof on the basis that her testimony would violate the rule of sequestration.

The Florida Supreme Court held that “the trial judge erred in failing to exercise his

discretion to determine whether exclusion was warranted under the circumstances, and,

instead, applied the sequestration rule as a strict rule of law.” Id. at 1280. The Court

emphasized that the rule of sequestration “must not be enforced in such a manner that it

produces injustice” and that “enforcement of the rule against a defendant seeking to

introduce the testimony of a witness who has heard testimony in violation of the rule

implicates the defendant’s sixth amendment right to present witnesses in his own behalf.”

Id. The Court offered the following guidance:

Before it excludes testimony on the ground that the sequestration rule was

violated, the trial court must determine that the witness’s testimony was

affected by other witnesses’ testimony to the extent that it substantially

differed from what it would have been had the witness not heard the

testimony. Because of the sixth amendment ramifications, the court must

carefully apply this test before it excludes any material testimony offered by

a defendant in a criminal case, and should also consider whether the

violation of the rule of sequestration was intentional or inadvertent and

whether it involved bad faith on the part of the witness, a party, or counsel.

Id.; see also Cobb v. State, 260 S.E.2d 60, 70-71 (Ga. 1979) (holding that trial court

abused its discretion in disqualifying capital defendant’s wife from testifying in

presentence hearing because she was present at trial, where no evidence that her violation

of the rule was willful and where testimony she heard was not material to punishment).

These cases, as well as those we have referred to in the preceding section on Rule

615, make clear that a trial court should not automatically or arbitrarily exclude a defense

witness from a capital sentencing trial simply on the basis that the rule was invoked at the

beginning of trial and the witness nevertheless remained in the courtroom. Rather, the

court should exercise its discretion and consider all relevant circumstances. Those

circumstances may include, but are not limited to: (1) the reasons for the proffered

witness’s presence during the trial in contravention of the sequestration order; (2) any

complicity of the defendant and/or his counsel in the violation of a sequestration order;

(3) the relevance of the proffered witness’s testimony; (4) the relationship, if any,

between the proffered witness’s proposed testimony and the testimony he or she heard in

violation of the rule; (5) the potential impact on the proffered witness’s testimony by

proof heard in violation of the rule; (6) the extent to which the proffered testimony is

43

cumulative; (7) the efficacy of less drastic remedies; (8) the policies favoring admission

of the witness’s testimony; and (9) the extent to which allowing the witness to testify will

contravene the purposes served by the rule. To reiterate, the trial court must “inquir[e]

into the reliability, relevance, value, and prejudicial effect of sentencing evidence to

preserve fundamental fairness and protect the rights of both the defendant and the

victim’s family.” Sims, 45 S.W.3d at 14. In conducting this evaluation, the trial court

should place on the record its analysis and the reasons for its ruling. In no event should a

trial court automatically or mechanically rely on Tennessee Rule of Evidence 615 to

exclude mitigation proof from a capital sentencing trial on the basis that the witness was

present during the guilt/innocence phase of the trial. See Reid, 213 S.W.3d at 817 (in

determining whether to admit or exclude evidence at a capital sentencing hearing, the test

is whether the evidence is “reliable and relevant to one of the aggravating or mitigating

circumstances”).

In this case, the trial court twice applied Rule 615 in a strict manner and, in so

doing, prevented Defendant from offering his parents’ mitigation testimony at sentencing.

We hold that, in denying Defendant’s motions seeking relief from the rigid application of

Rule 615 to the sentencing proceeding, the trial court applied an incorrect legal standard

and thereby committed error.11 See Benn, 801 A.2d at 141 (trial court abused its

discretion because it “did not engage in the analysis that is legally required before the

‘draconian’ sanction of exclusion may properly be imposed”). As set forth above,

Tennessee Code Annotated section 39-13-204(c) provides that a trial court may admit any

proof it “deems to have probative value on the issue of punishment . . . regardless of its

admissibility under the rules of evidence.” Accordingly, before excluding Defendant’s

parents’ mitigation testimony on the basis of Rule 615, the trial court should first have

evaluated its probative value. The trial court did not engage in this analysis, and thereby

erred. Moreover, to the extent the trial court may have engaged in the appropriate

analysis, we hold that it reached the wrong result. Clearly, Defendant’s parents wanted to

attend their son’s trial out of parental concern rather than in an effort to tailor their

testimony; there was no collusion with counsel or Defendant in a clandestine attempt to

11

In addition to arguing that the trial court abused its discretion in its strict application of Rule 615, the

defense also argues that the capital sentencing statute violates equal protection and the separation of powers

doctrines because it specifically exempts persons related to the victim from the rule, but not those persons

related to the defendant. Because we have determined that the trial court abused its discretion with respect

to its Rule 615 rulings, it is not necessary that we address these alternative allegations of constitutional error.

See Owens v. State, 908 S.W.2d 923, 926 (Tenn. 1995) (“If issues in a case can be resolved on non-

constitutional grounds, courts should avoid deciding constitutional issues.”). Moreover, this Court has

previously rejected the argument that -304(c) violates separation of powers principles because it specifically

permits members of the victims’ families to both attend the guilt phase of a capital trial and subsequently

testify during the sentencing proceeding. See State v. Odom, 137 S.W.3d 572, 602-04 (Tenn. 2004)

(appendix).

44

circumvent the rule; their testimony was relevant to mitigation; there was little risk that

anything Defendant’s parents heard during the trial would have altered their testimony;

the trial court could have instead instructed the jury to take into consideration that

Defendant’s parents were present during trial when assessing their credibility; and

allowing them to testify would not have contravened the underlying purpose of the rule.

F. Exclusion of Testimony was Error

Our capital sentencing scheme permits a jury to impose the death penalty only

upon adequate proof of certain enumerated aggravating factors. Mitigation proof is not

so limited, however. Rather, the jury is required to consider any mitigating circumstances

that are raised by the proof at either the guilt or sentencing hearing. Tenn. Code Ann. §

39-13-204(j), (j)(9) (2003). Specific examples of mitigating circumstances are set forth in

the statute:

(1) The defendant has no significant history of prior criminal activity;

(2) The murder was committed while the defendant was under the influence

of extreme mental or emotional disturbance;

(3) The victim was a participant in the defendant’s conduct or consented to

the act;

(4) The murder was committed under circumstances that the defendant

reasonably believed to provide a moral justification for the defendant’s

conduct;

(5) The defendant was an accomplice in the murder committed by another

person and the defendant’s participation was relatively minor;

(6) The defendant acted under extreme duress or under the substantial

domination of another person;

(7) The youth or advanced age of the defendant at the time of the crime;

(8) The capacity of the defendant to appreciate the wrongfulness of the

defendant’s conduct or to conform the defendant’s conduct to the

requirements of the law was substantially impaired as a result of mental

disease or defect or intoxication, which was insufficient to establish a

defense to the crime but which substantially affected the defendant’s

judgment[.]

45

Tenn. Code Ann. § 39-13-204(j). Further, the United States Supreme Court has declared

that the federal constitution requires the jury in a capital case be allowed to consider

mitigating evidence, including “any aspect of a defendant’s character or record and any of

the circumstances of the offense that the defendant proffers as a basis for a sentence less

than death.” Lockett, 438 U.S. at 604; see also Tenn. Code Ann. § 39-13-204(j)(9)

(mandating that the jury consider as mitigating circumstances “[a]ny other mitigating

factor which is raised by the evidence produced by either the prosecution or defense at

either the guilt or sentencing hearing”). And, this Court has recognized “that article I, §§

8 and 16 of the Tennessee Constitution require that the jury not be prevented from

hearing evidence about the defendant’s background, record, and character, and any

circumstances about the offense that may mitigate against the death penalty.” State v.

Stout, 46 S.W.3d 689, 704 (Tenn. 2001). This Court has previously recognized the

probative value of a capital defendant’s family members’ testimony about their

relationship with the defendant. See, e.g., State v. Thacker, 164 S.W.3d 208, 224 (Tenn.

2005) (“Testimony concerning the defendant’s estranged relationship with his parents

was relevant as mitigating evidence.”); State v. Cauthern, 967 S.W.2d 726, 738-39 (Tenn.

1998) (holding that trial court erred in excluding letter to defendant from young son

expressing love and support).

Defendant’s parents should have been allowed to testify at the sentencing hearing

in spite of their attendance at Defendant’s trial, and we hold that the trial court erred in

excluding this mitigation testimony. We must, therefore, determine the result of this

error. “[T]he exclusion of mitigating evidence potentially undermines the reliability of

the sentencing determination, and is an error of constitutional magnitude. Thus, the

burden is on the State to prove that the error did not affect the verdict and, therefore, was

harmless beyond a reasonable doubt.” Id. at 739 (citing Skipper, 476 U.S. at 4;

Satterwhite v. Texas, 486 U.S. 249, 258 (1988); Chapman v. California, 386 U.S. 18, 24

(1967)).

G. Constitutional Harmless Error

This Court has previously considered cases in which the trial court erroneously

excluded mitigation evidence and found the error to be harmless beyond a reasonable

doubt where the substance of the excluded evidence was nevertheless before the jury. For

instance, in Thacker, the defense sought to introduce evidence about the defendant’s

strained relationship with his parents. The trial court prevented the defense from asking

one witness about statements the defendant had made to her about his upbringing.

However, another witness was permitted to testify that the defendant’s parents were

absent from the trial by their own choice. This same witness also explained that the

defendant had had little contact with his mother as a child, and that his father had sent

him to live with his grandparents after remarrying. This Court ruled that the testimony

46

from the one witness was sufficient to render harmless beyond a reasonable doubt the trial

court’s erroneous exclusion of the other witness’s testimony. Thacker, 164 S.W.3d at

225.

Similarly, we ruled in Cauthern that the trial court’s erroneous exclusion of the

defendant’s son’s letter was harmless beyond a reasonable doubt because the defendant

testified that his young son visited him every few months, a photograph of the defendant’s

son was admitted, and the trial court “instructed the jury that it could consider the fact that

the defendant has a minor son as a non-statutory mitigating factor.” 967 S.W.2d at 739.

See also State v. Rimmer, 250 S.W.3d 12, 24-25 (Tenn. 2008) (although trial court

erroneously excluded mitigation testimony on basis of hearsay, error was harmless

beyond a reasonable doubt because essence of excluded testimony was otherwise

presented to jury); Austin, 87 S.W.3d at 459 (trial court erroneously refused to admit

hearsay evidence, but harmless beyond a reasonable doubt because essence of hearsay

was admitted through other testimony); cf. Stout, 46 S.W.3d at 704-05 (trial court erred in

ruling proposed mitigation proof inadmissible, but harmless beyond a reasonable doubt

because of low probative value and jury rejected similar evidence during guilt phase).

As set forth above, the defense anticipated that Defendant’s parents would have

testified “that they love their son . . . and basically just other things about the family

relationship.” Although we are sensitive to the significance which a jury may attach to

the failure of a defendant’s parents to testify in mitigation, our close and careful review of

the record in this case convinces us beyond a reasonable doubt that the absence of

Defendant’s parents’ testimony at sentencing was harmless.

During the guilt/innocence phase of the trial, Dr. Wilson testified about

Defendant’s relationship with his parents:

[Defendant] had a stable family life, a loving father, loving mother. They

were both active in the community, good parents, no abuse. . . .

Environment was very stable. It was actually a two-parent family, which is

kind of unusual these days. They were married for a long period of time.

They raised their children correctly. . . . The family was involved in the

community, as I said. Father was a Little League coach. Mother worked in

a daycare. They were both above reproach. There’s no alcoholism, no

mental illness in the family, no kind of abuse.

From this I hypothesized that the Defendant was raised in a stable,

nurturing environment . . . [and] he went on with the rest of his life in an

attempt to recreate what he had had as a child . . . .

47

Dr. Wilson testified again at the sentencing hearing and reiterated that Defendant “has the

support and love of his family and friends.” Dr. Wilson stated that he had interviewed

Defendant’s parents and that both of them were in the courtroom. He also opined that it

“absolutely would be devastating to them” if Defendant received the death penalty.

Additionally, Defendant’s younger brother Larry Jordan testified. He explained

that their father was in the courtroom and was in poor health, suffering from cancer and

diabetes, and that he had suffered a stroke approximately a year earlier. Mr. Jordan also

pointed out where their mother was sitting next to their father, and identified numerous

family photographs in which Defendant was shown at various stages of his life with his

brothers and/or parents.

Gary Morris, the pastor of Bemis United Methodist Church, also testified that he

knew Defendant’s parents as congregants of his church, and noted their presence in the

courtroom. Mr. Morris explained that Defendant’s parents brought Defendant’s children

to church with them. Mr. Morris echoed that a death sentence would be “devastating” to

Defendant’s family.

Considered in its entirety, this proof provided the jury with a portrait of

Defendant’s parents as loving and supportive, and who would be devastated by their son

being sentenced to death. Thus, the jury was presented with the “essence” of the

excluded testimony. And, while the jury should have been given the opportunity to hear

this proof directly from Defendant’s parents, we are convinced beyond a reasonable doubt

that the jury’s verdicts of death would have been the same even had this testimony been

allowed. The jury applied multiple aggravating circumstances as to each victim. While

the defense elicited a considerable amount of evidence in support of mitigating

circumstances, the State both challenged much of this proof and also adduced

overwhelming evidence in support of aggravating factors. Accordingly, we hold that

Defendant is not entitled to relief on the basis that his parents did not testify in mitigation

at the sentencing trial.

II. Denial of Public Trial

In a related issue, the defense contends that the trial court’s strict application of

Rule 615, such that his family members had to choose between attending his trial or

testifying in mitigation in the event Defendant was convicted, compromised his right to a

public trial because two family members were not able to attend the guilt/innocence phase

in order to preserve their rights to testify during the penalty phase. See Cohen, supra, at §

615[10] (“Since the accused in Tennessee is entitled to a ‘speedy and public trial,’ the

prosecution’s use of Rule 615 to exclude a member of the public theoretically conflicts

48

with the accused’s right to a public trial.”) (footnote omitted). On the facts of this case,

we disagree.

The right to a public trial is guaranteed by both our federal and state constitutions.

See U.S. Const. amend. VI; Tenn. Const. art. I, § 9. The right is not absolute, however.

See Waller v. Georgia, 467 U.S. 39, 45 (1984). As recognized by the Rhode Island

Supreme Court,

although rooted in the reaction to the abuses of the secret proceedings of the

English Star Chamber, [the right to a public trial] is not usually viewed as

imposing “a rigid, inflexible straitjacket” upon a trial justice’s conduct of a

trial. Rather has it generally been recognized as being subject to a court’s

inherent power to regulate admission to the courtroom and to restrict

attendance at the trial as conditions and circumstances may reasonably

demand in order to preserve order and decorum, or to protect the rights of

the parties and the witnesses, or generally to further the administration of

justice.

State v. Mancini, 274 A.2d 742, 747 (R.I. 1971). See also State v. Lawrence, 167

N.W.2d 912, 914 (Iowa 1969) (observing that the right to a public trial “has generally

been viewed as a right subject to the inherent power of the court to limit attendance as the

conditions and circumstances reasonably require for the preservation of order and

decorum in the courtroom, and to reasonably protect the rights of parties and witnesses”).

Our own Court of Criminal Appeals has recognized that the right to a public trial

serves as a guarantee that the accused will be “fairly dealt with and not

unjustly condemned.”

The presence of citizens in the courtroom safeguards the accused

against (a) the court being used as an instrument of persecution, (b) the

abuse of judicial power and discretion, and (c) potentially perjurious and

abusive testimony. In addition, the public’s presence may induce unknown

witnesses to come forward with evidence relevant to the issues in

controversy or facts which can be used to impeach a witness, encourage the

trial participants to perform their respective duties conscientiously, and

afford the citizens in the community an opportunity to observe the criminal

justice system in progress, determine whether the system is functioning

adequately, and express these findings in the form of public opinion.

49

State v. Sams, 802 S.W.2d 635, 638 (Tenn. Crim. App. 1990) (quoting Estes v. Texas,

381 U.S. 532, 538-39 (1965)) (footnotes omitted). The sequestration of individual

witnesses pursuant to the rule does not threaten any of these interests. Indeed, witnesses

sequestered pursuant to the rule “are no longer considered members of the general public

for purposes of exclusion from the courtroom during criminal proceedings.” Tharp v.

State, 763 A.2d 151, 160 (Md. 2000). Thus, “it is clear that sequestration of witnesses in

the ordinary case does not violate a right to a public trial.” Cohen, supra, at § 6.15[10].

See also State v. Worthen, 100 N.W. 330, 331 (Iowa 1904) (holding that sequestration of

criminal defendant’s witnesses did not infringe upon his constitutional right to a public

trial).

In this case, the trial court excluded from Defendant’s trial only those persons who

would be witnesses. Although we have held that the trial court erred in its rigid

application of Rule 615 to Defendant’s sentencing hearing, the trial court’s error did not

violate Defendant’s right to a public trial. Defendant has cited us to no case law standing

for the proposition that a trial court who errs in applying a sequestration order thereby

necessarily violates a defendant’s right to a public trial, and we have found none.

Defendant is not entitled to relief on this basis.

III. Denial of Requested Limiting Instruction Regarding

Dr. Matthews’s Opinion Testimony

During his testimony in rebuttal during the guilt/innocence phase of Defendant’s

trial, the State’s witness Dr. Daryl Matthews stated that, in forming his expert opinion

about Defendant’s mental status, he “relied a great deal on the statements of the various

people who were at the scene.” One of the statements he referred to was a transcript of

the call that TDOT mechanic and reserve sheriff’s deputy Freddie Ellison placed to the

sheriff’s department, in which Ellison told the dispatcher that he knew Defendant and that

Defendant had told him “to go on” and “back off.” From this, Dr. Matthews inferred that

Defendant “had a lot of capacity to choose who he was going to shoot and who he wasn’t

going to shoot.” In additional support of this conclusion, Dr. Matthews referred to

Officer Anderson’s report that quoted Defendant as stating that he did not want to shoot

the police; to Mr. Bond’s statement that Defendant “looked up and saw me and shook his

head as if to tell me he didn’t want me involved”; and to Mr. Leach’s statement that,

when Defendant drove up to the garage and got out of his truck, Defendant walked past

Leach and nodded at him.

Dr. Matthews also quoted from Paul Forsythe’s statement about Defendant’s

interaction with Mr. Gordon. Forsythe had described the “driver of the red truck” as

“fold[ing] the seat forward on the truck” and then “pull[ing] out a black rifle with a

silencer or something on the end of the barrel.” Defense counsel objected and requested

50

the trial court to instruct the jury that there was no proof in the record that the gun with

which Defendant shot Mr. Gordon was equipped with a silencer. The trial court refused

on the basis that Forsythe’s statement did not claim definitively that the gun had a

silencer, but merely reflected that he thought he saw something that looked like one. The

court also told defense counsel that “the jury will be told they’ve got to look to the basis

. . . of the expert’s opinion, how he formed his opinion, what he relied on.”

Later, Dr. Matthews quoted from a statement by Jerry Reynolds, reciting that,

when Reynolds told James Ricky Simpson that Defendant had “just killed Renee,”

Simpson responded, “That son of a bitch called up there this morning . . . .” Defense

counsel objected to this testimony on the basis that it was hearsay. The court told the

prosecution to “move along” and instructed the jury to disregard “the last statements

made.”

Dr. Matthews also quoted from Defendant’s statement as reported by Investigator

Miller. Investigator Miller reported that Defendant “continued to make statements to me

and ask questions such as: ‘How much time do you think I’ll get for this? I don’t want to

rot in prison. I should have killed myself when the police stopped me. I hope I get the

death penalty.”

After Dr. Matthews’ testimony was concluded, defense counsel addressed the trial

court about the proposed jury instructions and requested that the jury be instructed not to

consider the hearsay contained in Dr. Matthews’s expert testimony as substantive

evidence. The court responded that it intended to charge Tennessee Pattern Jury

Instruction 42.02, emphasizing that portion of the instruction which informs the jury that

it is to evaluate expert testimony based upon its “judgment about whether the witness’s

background or training and experience is sufficient for the witness to give the expert

opinion” and that it had to “also decide whether the witness’s opinions were based on

sound reasons, judgment and information.” Defense counsel stated that this instruction

was not adequate and reiterated that the jury should also be instructed that “the hearsay is

not substantive evidence and it should not be used as proof of the underlying facts that the

expert is basing his opinion on.” The trial court did not issue the requested limiting

instruction.

In its brief to this Court, the State concedes that the trial court erred in not giving

the requested instruction, but contends that the error is harmless. We address this issue

both with respect to any impact on the guilt/innocence phase of Defendant’s trial, and

also with respect to any impact on the sentencing phase of Defendant’s trial.

Tennessee Rule of Evidence 703 sets forth the evidentiary parameters for the

grounds on which expert witnesses base their opinions. The Advisory Commission

51

Comments to Tennessee Rule of Evidence 703 provide that “[i]f the bases of expert

testimony are not independently admissible, the trial judge should either prohibit the jury

from hearing the foundation testimony or should deliver a cautionary instruction.” Where

an expert witness is referring to hearsay statements not otherwise admissible, then, the

trial court should instruct the jury that the hearsay statements are to be used only for

evaluating the expert witness’s testimony and should not be relied on as substantive

evidence. The trial court erred by not issuing the requested limiting instruction.

However, the trial court’s error entitles Defendant to a reversal of his convictions

only if the failure to give the limiting instruction “more probably than not affected the

judgment or would result in prejudice to the judicial process.” Tenn. R. App. P. 36(b).

The “crucial consideration” in this inquiry “is what impact the error may reasonably be

taken to have had on the jury’s decision-making.” State v. Rodriguez, 254 S.W.3d 361,

372 (Tenn. 2008). With one possible exception, we have no trouble concluding that there

was no impact on the jury’s deliberations resulting from the trial court’s failure to instruct

the jury that it could not consider as substantive evidence the otherwise inadmissible

hearsay included in Dr. Matthews’s testimony because the hearsay added very little to

what was already before the jury from other testimony.12

We are troubled, however, by Dr. Matthews’s rebuttal testimony about

Defendant’s statements to Investigator Miller, including “I don’t want to rot in prison. I

should have killed myself when the police stopped me. I hope I get the death penalty.”

Dr. Matthews characterized Defendant’s statements as

concern about the future, wondering about his – his penalty, knowing that

what he did was a crime, knowing something was going to happen,

knowing what the possible penalties are, knowing he could get the death

12

We note that some of the hearsay to which Dr. Matthews referred was, in fact, admissible pursuant to an

exception to the general rule disallowing hearsay. For instance, Ellison’s phone call to the sheriff’s

department was admissible as an “excited utterance,” see Tenn. R. Evid. 803(2), and was, indeed, admitted

during the State’s case-in-chief without objection. Defendant’s statements were admissible as admissions.

See Tenn. R. Evid. 803(1.2). A limiting instruction is not necessary where the hearsay to which the expert

is referring is otherwise admissible. See Tenn. R. Evid. 703 advisory comm’n cmts.

However, Dr. Matthews’s reference to Forsythe’s statement, obtained during an interview, involved

inadmissible hearsay. The defense’s complaint about this testimony is limited to the mention of a silencer.

However, since witnesses testified that they heard gunshots, it is highly unlikely that the statement had any

effect on the jury. Similarly, the report about Simpson’s statement appears to have been inadmissible

hearsay. The trial court instructed the jury to disregard the statement, however, and the jury is presumed to

have followed the trial court’s instruction. State v. Young, 196 S.W.3d 85, 111 (Tenn. 2006). Additionally,

the proof already showed that Defendant had acknowledged other persons at the TDOT facility and had

called Mrs. Jordan earlier.

52

penalty, choosing, is it better to rot in jail or get the death penalty. At that

moment, he was reflecting about that and decided on the death penalty.

This testimony was offered to rebut the defense’s expert testimony that Defendant was

incapable of premeditation and intent at the time he shot the victims.

Even relevant and otherwise admissible evidence may be excluded “if its probative

value is substantially outweighed by the danger of unfair prejudice.” Tenn. R. Evid. 403;

see also State v. Banks, 564 S.W.2d 947, 951 (Tenn. 1978). However, the defense did not

make a contemporaneous objection to this testimony or request that the jury be instructed

to disregard it. Any error in the admission of this testimony has therefore been waived.

State v. Hines, 758 S.W.2d 515, 519 (Tenn. 1988) (defendant not entitled to relief from

death sentence on basis that his statement that he wanted death penalty was admitted

during guilt phase and no objection was lodged). Nevertheless, we recognize that

admitting into evidence a defendant’s declarations about desiring the death penalty may

create a risk that the jury will subsequently rely on the defendant’s statements when

deciding punishment. Accordingly, the admission of such statements should occur only

after careful weighing, and the trial court should consider providing a limiting instruction

to ensure that the jury does not utilize the declarations as a non-statutory aggravating

circumstance.

While it may have been preferable for Defendant’s declarations to have been

excluded or accompanied by a limiting instruction, we are persuaded beyond any doubt

that their admission had no impact on the jury’s decisions to convict Defendant and

subsequently to sentence him to death for each of the murders he committed. The State

did not rely on this evidence during any of its closing arguments. Moreover, the proof in

this case, both as to Defendant’s guilt and as to the valid aggravating circumstances, was

simply overwhelming. The trial court instructed the jury correctly about the elements of

the crimes and the jury’s responsibilities with respect to determining whether to convict

Defendant of those crimes. The trial court also informed the jury that it could sentence

Defendant to death only upon its finding one or more aggravating circumstance for each

victim, and finding that the aggravating circumstance(s) outweighed the mitigating

circumstances beyond a reasonable doubt. The jury was in no way informed that it could

consider Defendant’s statements about his punishment in either determining his guilt or in

imposing sentence. Accordingly, we hold that Defendant is not entitled to relief on this

basis.

IV. Victim Impact Witnesses

Defendant raises two complaints about the victim impact testimony in this case.

First, he asserts that Renee Dawson should not have been allowed to testify about the

impact of David Gordon’s death because she was his fiancée rather than a family

53

member. Second, he asserts that an “excessive” number of witnesses testified about the

impact of David Gordon’s murder. In addition to Ms. Dawson, the victim’s older brother

and his eldest son testified, for a total of three victim impact witnesses. The State

disagrees that any error was committed in this regard.

Tennessee Code Annotated section 39-13-204(c) provides in pertinent part that the

trial court

shall permit a member or members, or a representative or representatives of

the victim’s family to testify at the sentencing hearing about the victim and

about the impact of the murder on the family of the victim and other

relevant persons. Such evidence may be considered by the jury in

determining which sentence to impose.

Tenn. Code Ann. § 39-13-204(c). The statute does not place any restriction on the

number of witnesses who may testify about the murder’s impact. This Court has

recognized, however, that the admissibility of victim impact evidence is subject to limits.

State v. Nesbit, 978 S.W.2d 872, 891 (Tenn. 1998). Thus, victim impact evidence should

be excluded if it “threatens to render the trial fundamentally unfair or [if it] poses a

danger of unfair prejudice.” Id. (citing Payne v. Tennessee, 501 U.S. 808, 836 (1991)).

Moreover, within these parameters,

victim impact evidence should be limited to information designed to show

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

the individual who has been killed, the contemporaneous and prospective

circumstances surrounding the individual’s death, and how those

circumstances financially, emotionally, psychologically or physically

impacted upon members of the victim’s immediate family.

Id. (footnote omitted).

We reject Defendant’s assertion that Renee Dawson should not have been allowed

to testify because of her status as the victim’s fiancée. Defendant contends that there “is

no provision in the [capital sentencing] statute for a friend of the victim to testify.” We

do not read the statute so narrowly, however. First, even before passage of the language

at issue, we recognized in Nesbit that victim impact evidence was permissible under both

the federal and state constitutions. Id. at 888-90. Accordingly, as we stated in State v.

McKinney, the capital sentencing statute “does not expressly restrict or limit the

introduction of other types of victim impact evidence authorized by law developed in our

prior cases.” 74 S.W.3d 291, 309 (Tenn. 2002). Rather, the limits on such evidence are

qualitative rather than based on genetic or institutional relationships. Second, the statute

54

expressly allows for a “representative” of the victim’s family to testify. A blood or

marital relationship is not a prerequisite for such status. Third, we think that there is a

valid distinction to be made between a “friend” and a fiancée with whom the victim had

purchased a house and with whom the victim was residing at the time of his murder.13 Cf.

State v. Young, 196 S.W.3d 85, 109-11 (Tenn. 2006) (holding error to admit testimony by

victim’s professor about the debilitating effects of the murder on an academic department

and testimony by the victim’s mother about the impact of the murder on victim’s “army of

friends”). Finally, as did the Court of Criminal Appeals, we note that the Victim’s Bill of

Rights contemplates that a person residing with a deceased victim may exercise the

victim’s rights. See Tenn. Code Ann. § 40-38-302(4)(A)(iii)(b) (2003). Accordingly, we

hold that it was not error for the trial court to permit Ms. Dawson to testify solely on the

basis of her status as the victim’s fiancée. See Thomas v. Commonwealth, 559 S.E.2d

652, 661-663 (Va. 2002) (statute defining victim as spouse, parent, sibling or legal

guardian did not preclude fiancée from giving victim impact testimony at capital trial).

Having held that the trial court did not err in permitting Ms. Dawson to testify, we

also hold that the combination of her testimony with that of Mr. Gordon’s brother and

son, whose testimony was brief and limited to appropriate topics, was not cumulative or

unduly prejudicial, and that its probative value was not substantially outweighed by its

prejudicial impact. Defendant is not entitled to relief on this issue.

V. Prosecution’s Closing Arguments

The defense complains that, during closing argument in the sentencing phase of his

trial, the prosecution misled the jury about its responsibility in sentencing Defendant;

belittled Defendant’s mitigation proof; and made inappropriate references to an “angel of

death.” Initially, we stress that it is incumbent upon defense counsel to object

contemporaneously whenever it deems the prosecution to be making improper argument.

A contemporaneous objection provides the trial court with an opportunity to assess the

State’s argument and to caution the prosecution and issue a curative instruction to the jury

if necessary.14 Additionally, defense counsel’s failure to object contemporaneously will

constitute a waiver of the issue on appeal. See Tenn. R. App. P. 36(a) (providing that an

appellate court need not grant relief where party failed to take reasonably available action

to prevent or nullify an error); see also State v. Stephenson, 195 S.W.3d 574, 601 (Tenn.

13

We emphasize that we do not decide in this case whether or under what circumstances a murder victim’s

“friend” may offer victim-impact testimony. The admissibili

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