State v. Hugueley

IN THE SUPREME COURT OF TENNESSEE

AT JACKSON

November 9, 2005 Session

STATE OF TENNESSEE v. STEPHEN LYNN HUGUELEY

Automatic Appeal from the Court of Criminal Appeals

Circuit Court for Hardeman County

No. 6665 Jon Kerry Blackwood, Judge

No. W2004-00057-SC-DDT-DD - Filed March 15, 2006

Defendant, Stephen Lynn Hugueley, was convicted by a jury of one count of first degree

premeditated murder. During the penalty phase of the trial, the jury found four aggravating

circumstances: (1) Defendant was previously convicted of one or more felonies whose statutory

elements involved the use of violence to the person; (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) Defendant committed the murder while he was in a place of lawful confinement;

and (4) the victim was a corrections employee. See Tenn. Code Ann. § 39-13-204(i)(2), (5), (8), (9)

(Supp. 1999). Additionally, the jury determined that the evidence of these aggravating circumstances

outweighed the evidence of mitigating circumstances beyond a reasonable doubt. Id. at (g)(1). The

jury thereupon sentenced Defendant to death. The Court of Criminal Appeals affirmed the

conviction and the death sentence.

After the case was docketed in this Court, we entered an order identifying several issues for

oral argument.1 We now hold as follows: (1) the trial court did not commit reversible error in

concluding that Defendant failed to establish purposeful discrimination by the prosecution in its

exercise of peremptory challenges in violation of Batson v. Kentucky and J.E.B. v. Alabama ex rel.

T.B.; (2) the trial court did not commit reversible error in refusing to dismiss prospective juror

Watkins for cause; and (3) the death sentence is valid under this Court’s mandatory review pursuant

to Tennessee Code Annotated section 39-13-206(c)(1) (2003). We agree with the Court of Criminal

Appeals’ conclusions with respect to the remaining issues, the relevant portions of which are

included in the appendix to this opinion. Accordingly, the Court of Criminal Appeals’ judgment is

affirmed.

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

1

“Prior to the setting of oral argument, the Court shall review the record and briefs and consider all errors

assigned. The Court may enter an order designating those issues it wishes addressed at oral argument.” Tenn. Sup. Ct.

R. 12.2.

CORNELIA A. CLARK, J., delivered the opinion of the court, in which WILLIAM M. BARKER, CJ., AND

E. RILEY ANDERSON , AND JANICE M. HOLDER , JJ., joined. ADOLPHO A. BIRCH , JR., J., filed a

concurring and dissenting opinion.

F. Michie Gibson, Jr. and T. J. Cross-Jones, Nashville, Tennessee, for the appellant, Stephen Lynn

Hugueley.

Paul G. Summers, Attorney General and Reporter; Michael E. Moore, Solicitor General; Michelle

Chapman McIntyre and Michael Markham, Assistant Attorneys General; Elizabeth T. Rice, District

Attorney General; Terry D. Dycus and Colin Campbell, Assistant District Attorneys General, for the

appellee, State of Tennessee.

OPINION

FACTUAL BACKGROUND

GUILT PHASE

The evidence adduced at Defendant’s trial established that, on January 17, 2002, Defendant

was an inmate at the Hardeman County Correctional Facility, where he was housed in the “F” pod.

That day, correctional counselor Delbert Steed entered the “F” pod in order to counsel inmates. Mr.

Steed was sitting at a table when Defendant approached from behind and began stabbing Mr. Steed

with a homemade weapon. Defendant stabbed Mr. Steed a total of thirty-six times. Defendant did

not cease stabbing the victim until the handle of his homemade weapon broke off. Once Defendant

was unable to continue using his weapon, he lay down on the floor of the pod and permitted other

correctional officers to restrain and remove him. The victim was recovered with the sharpened

portion of the weapon still embedded in his back, and he was transported to the infirmary.

Mary Harris testified that she was working in the control room from which she could view

the activity occurring in the pod. She observed Defendant approach the victim from behind and

begin stabbing him. Upon witnessing Defendant’s attack on Mr. Steed, she called for assistance.

Another female officer opened the door to the pod and told Defendant to stop. At that, Defendant

rose and started toward the officer “with the knife drawn back like he was going to stab her.” The

officer closed the door, and Defendant returned to the victim, recommencing his attack. Ms. Harris

testified further that Officer Donald Watkins entered the pod and told Defendant to stop. According

to Ms. Harris, Defendant stabbed the victim once or twice more and then stopped when the handle

on the weapon broke. At that point, Defendant allowed himself to be taken into custody.

Donald Watkins testified that he is a Senior Correctional Officer at the Hardeman County

Correctional Facility. He responded to Ms. Harris’ call for assistance. As he looked through the

door into the pod, he saw Defendant kneeling down next to the victim. When he saw Defendant stab

the victim with a homemade weapon, he entered the pod shouting, “Drop your weapon! Drop your

weapon!” Mr. Watkins stated that Defendant complied immediately and lay face down on the floor.

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Mr. Watkins called for medical assistance, and when he heard the victim making a groaning noise

“like he was in pain,” Mr. Watkins tried to reassure the victim that help was coming.

Pursuant to his employment by the Tennessee Department of Correction as an Internal Affairs

Investigator, Mr. Joseph Vernon reported to the crime scene where he collected evidence and took

photographs. Mr. Vernon was present when the murder weapon was removed from Mr. Steed’s

body. He described the weapon as a “quarter inch rod that ha[d] been sharpened to a very fine point”

on one end. Mr. Vernon stated that the point was “razor sharp.” The weapon measured

approximately eleven inches long. The handle of the weapon was a “Magic Marker” pen.

Mr. Don Dunaway, also an Internal Affairs Investigator with the Tennessee Department of

Correction, interviewed Defendant after the killing. After being informed of his rights and agreeing

to waive them, Defendant gave Mr. Dunaway a lengthy statement in which he described his intense

dislike of the victim. Mr. Dunaway testified about the statement. Additionally, an audio tape of

Defendant’s statement was played for the jury, and a transcript of the tape was provided. Defendant

described numerous conflicts and confrontations that he had had with Mr. Steed in his capacity as

a correctional officer. Defendant claimed that Mr. Steed had threatened to write him up and told

Defendant that he was “friends with these gangs around here! They like me! They love me! . . . you

ain’t nothing!”

Defendant killed the victim on a Thursday. Defendant told Mr. Dunaway that he began

thinking about killing the victim on the previous Monday. On that day, he got his weapon but then

decided to “just . . . leave it alone.” Defendant described to Mr. Dunaway what then occurred on

Thursday, while Mr. Steed was in the pod:

I started to walk up and say something to him, and one of the little gang members that

he talked to a lot there, run up and set down at the table and started talkin’ to him.

And I stood over to the side for a few minutes, and he looked at me, and he just

shook his head . . . just turned around and faced the other direction. And I said,

“F[--]k this!” And I went to the house, and got my damn knife and packed my

property up real quick . . . throwed my s[--]t in a box and un-done my TV, and set it

over to the side, and went and killed his ass! It was that plain and simple.

Defendant admitted to Mr. Dunaway that he intended to kill the victim by stabbing “the most vital

organs first . . . the heart and the lung.”

Mr. Dunaway testified that in May of 2003, Defendant wrote a letter to the district attorney.

Mr. Dunaway obtained this letter and subsequently verified with Defendant that he had written and

signed it. This letter was admitted into evidence and states, in pertinent part, the following: “I did

with malicious intent premeditatedly murder Delbert Steed, and as indicated in my statement to

Internal Affairs, I have no regret or remorse for this crime and I fully intended to kill others that day

but was unable to do so because the handle on my weapon broke.”

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Dr. O’Brian Clary Smith testified as an expert in the field of forensic pathology about the

autopsy to the victim. Dr. Smith removed the murder weapon from the victim’s back. He stated that

the victim’s cause of death was “[m]ultiple stab wounds, thirty-six.” Twelve of these wounds were

lethal. Dr. Smith testified that there were ten wounds to the victim’s chest area, three of which were

fatal. There were fourteen wounds to the victim’s back area, nine of which were fatal. Additionally,

there was one wound to the victim’s abdomen and eleven wounds to the victim’s left arm.

Defendant testified at trial. He stated about his attack on the victim:

I was stabbing Counselor Steed. He was laying on the floor, stomach down.

I was trying to drive it plumb through and hit the concrete below him. That was my

intentions. I heard the door pop behind me. I turned around and it was the Watkins

guy that testified yesterday, and a little girl named Perry. When I seen them, I took

one and a half steps toward them. At that time, I still had the weapon in my hand.

And they said, “He’s got a knife,” and slammed the door.

And they stood outside the door while I stabbed the man while he was laying

on the floor, face down, I stabbed him about eight more times trying to run it plumb

through him. They didn’t come in until when I drawed back going to hit him again,

I didn’t see nothing but a piece of pen, Magic Marker sticking out of my hand. . . .

At that point, Defendant threw the weapon handle away and lay down on the floor. Defendant also

testified about a grievance he had filed in which he set forth various complaints about the victim and

the victim’s supervisor. He explained that he had made numerous cell change requests and requests

to be placed in the anger management program, “all in an effort to get away from Counselor Steed”

and the unit manager. Defendant stated that the victim “had a smart ass mouth” which was the

source of their “problem.” Defendant continued: “He had a habit of shooting his mouth off to

inmates, threatening them, and I wasn’t going to stand for it in any way, shape or form.”

On cross-examination, Defendant stated, “In the world I live in, you die for disrespect. It

should apply to both employee and inmate.” He explained that he had made the murder weapon

from a piece of metal removed from a laundry cart. He used sandpaper from a belt sander to sharpen

the point. He stated that he would not have quit stabbing the victim if the handle of the weapon had

not broken off. He admitted that he aimed for the victim’s vital organs.

Defendant acknowledged that his actions in killing the victim were both intentional and

premeditated. He also acknowledged that during his conversations with defense counsel he had

consistently maintained that he wanted the death penalty.

Upon considering this proof, the jury returned a verdict of guilty on Defendant’s charge of

first degree premeditated murder.

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PENALTY PHASE

During the penalty phase of Defendant’s trial, the State introduced by stipulation three

certified judgments of conviction against Defendant. These judgments established that Defendant

was convicted in 1986 of first degree murder; in 1992 of first degree murder; and in 1998 of attempt

to commit first degree murder.

Dr. Smith testified and described the instant murder weapon as one that would cause pain “on

a living, awake individual.” He stated that the manner of death in this case would qualify as

“overkill.” Dr. Smith explained that the term “overkill” was used in forensic pathology to mean that

“there was excessive injury done to the body far in excess of what would be necessary to cause

death.”

Willie Leroy Steed, the victim’s older brother, testified about all of the assistance that the

victim had provided to their family members prior to his murder. Mr. Steed stated that their brother,

Paul, who is handicapped, had been able to live unassisted prior to the murder. After the murder,

because the victim was no longer able to help with Paul’s needs, Paul had to move to a supervised

facility. Their sister, Barbara, was also adversely affected by the murder, having since become “very

nervous,” a condition for which she requires medical help. She also now requires the use of a

walking cane. Their sister, Onita, suffered a “nervous breakdown” as a result of the murder and has

visions of the victim at night. Their sister, Margaret, suffered a heart attack after the murder and was

subsequently moved to a nursing home. On cross-examination, Mr. Steed acknowledged that he and

another brother, as executors of the victim’s estate, had filed a lawsuit against “CCA2 and Hardeman

County” alleging negligence with regard to the victim’s death.

In a colloquy with the court, Defendant waived his right to present any mitigating evidence.

At the close of proof, the trial court instructed the jury on four statutory aggravating

circumstances as follows:3

Tennessee law provides that no sentence of death or sentence of

imprisonment for life without possibility of parole shall be imposed by a jury but

upon a unanimous finding that the state has proven beyond a reasonable doubt the

existence of one (1) or more of the statutory aggravating circumstances, which shall

be limited to the following:

[(2) the defendant was previously convicted of one (1) or more felonies, other than

the present charge, the statutory elements of which involve the use of violence to the

2

W e take judicial notice of the fact that the Hardeman County Correctional Facility is managed by Corrections

Corporation of America.

3

The trial court’s instructions to the jury were not transcribed. This Court is relying upon the written

instructions included with the jury’s verdict form contained in the technical record.

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person. The state is relying upon the crime(s) of murder & att. [sic] murder, which

is (are) a felony involving the use of violence to the person[;]

[(5) The murder was especially heinous, atrocious, or cruel in that it involved torture

or serious physical abuse beyond that necessary to produce death[;]

[(8) The murder was committed by the defendant while [he] was in lawful custody

or in a place of lawful confinement[;]

[(9) The murder was committed against any law enforcement officer, corrections

official, corrections employee, engaged in the performance of official duties.

“HEINOUS” means grossly wicked or reprehensible, abominable; odious; vile.

“ATROCIOUS” means extremely evil or cruel; monstrous; exceptionally bad;

abominable.

See Tenn. Code Ann. § 39-13-204(i)(2), (5), (8), (9) (Supp. 1999). As to mitigating circumstances,

the trial court instructed the jury as follows:

Tennessee law provides that in arriving at the punishment, the jury shall

consider as previously indicated, any mitigating circumstances raised by the proof[.]

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.

The defendant does not have the burden of proving a mitigating circumstance.

If there is some evidence that a mitigating circumstance exists, then the burden of

proof is upon the state to prove, beyond a reasonable doubt, that the aggravating

circumstance or circumstances outweigh any mitigating circumstance or

circumstances.

There is no requirement of jury unanimity as to any particular mitigating

circumstance, or that you agree on the same mitigating circumstance.

See id. at (e)(1).

Following deliberations, the jury found that the State had proven all four aggravating

circumstances beyond a reasonable doubt. The jury further determined that the aggravating

circumstances outweighed any mitigating circumstances beyond a reasonable doubt. The jury

sentenced Defendant to death for his first degree premeditated murder of Delbert Steed.

On appeal, the Court of Criminal Appeals affirmed Defendant’s conviction and death

sentence. Defendant’s appeal was then automatically docketed in this Court.

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ANALYSIS

I. Jury Selection Issues

A. Batson Claims

1. Allegedly Race-based Peremptory Challenges

We first address Defendant’s contention that his constitutional rights were violated by the

prosecution’s exercise of peremptory challenges to certain potential jurors. Defendant asserts in his

appellate brief that the State struck eight jurors on the basis of their race in violation of his equal

protection rights under Batson v. Kentucky, 476 U.S. 79 (1986). The State responds that no

violation occurred because the basis of each challenge was race-neutral.

In Batson, the United States Supreme Court held that “the Equal Protection Clause [of the

United States Constitution] forbids the prosecutor to challenge potential jurors solely on account of

their race . . . .” Id. at 89. The Court crafted a three-pronged analysis for determining whether the

suspect challenges were impermissibly based on the potential juror’s race. At the outset, the

defendant must establish a prima facie case of purposeful discrimination.4 In doing so, the defendant

may rely “solely on evidence concerning the prosecutor’s exercise of peremptory challenges at the

defendant’s trial.” Id. at 96. That is, the defendant need not prove a past pattern of racially

discriminatory jury selection practices by the prosecution. Id. at 92-93; cf. Swain v. Alabama, 380

U.S. 202, 223 (1965), overruled in part by Batson, 476 U.S. at 91-92 (recognizing that an inference

of purposeful discrimination may be raised on proof that the prosecution struck qualified blacks “in

case after case, whatever the circumstances, whatever the crime and whoever the defendant or the

victim may be. . .”). Once the defendant makes out a prima facie case, the State has the burden of

producing a neutral explanation for its challenge. Batson, 476 U.S. at 97. This explanation must

be a clear and reasonably specific account of the prosecutor’s legitimate reasons for exercising the

challenge. Id. at 98 n.20. However, the race or gender neutral explanation need not be persuasive,

or even plausible. Purkett v. Elem, 514 U.S. 765, 767-68 (1995). “’Unless a discriminatory intent

is inherent in the prosecutor’s explanation, the reason offered will be deemed race neutral.’” Id. at

768 (quoting Hernandez v. New York, 500 U.S. 352, 360 (1991) (plurality opinion)). If a race-

neutral explanation is provided, the trial court must then determine, from all of the circumstances,

whether the defendant has established purposeful discrimination. Batson, 476 U.S. at 98. The trial

court may not simply accept a proffered race-neutral reason at face value but must examine the

prosecutor’s challenges in context to ensure that the reason is not merely pretextual. See Miller-El

v. Dretke, __ U.S. __, 125 S. Ct. 2317 (2005) (“Miller-El II”). In that case, the Court reiterated that

“the rule in Batson provides an opportunity to the prosecutor to give the reason for striking the juror,

and it requires the judge to assess the plausibility of that reason in light of all evidence with a bearing

4

The Supreme Court subsequently ruled that the State may also lodge a Batson objection upon perceived

discriminatory peremptory challenges by the defendant. See Georgia v. McCollum, 505 U.S. 42, 59 (1992). W e refer

here to the objecting party as “defendant” for ease of reading.

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on it.” Id. at 2331. If the trial court determines that the proffered reason is merely pretextual and

that a racial motive is in fact behind the challenge, the juror may not be excluded. Woodson v.

Porter Brown Limestone Co., 916 S.W.2d 896, 903 (Tenn. 1996).

As this Court has noted in the past, “determination of the prosecutor’s discriminatory intent

or lack thereof turns largely on the evaluation of the prosecutor’s credibility, of which the attorney’s

demeanor is often the best evidence.” State v. Smith, 893 S.W.2d 908, 914 (Tenn. 1994). We

accord a trial court’s findings in this regard great deference and will not set them aside unless clearly

erroneous. Woodson, 916 S.W.2d at 906; see also Batson, 476 U.S. at 98 n.21 (“Since the trial

judge’s findings in [this] context . . . largely will turn on evaluation of credibility, a reviewing court

ordinarily should give those findings great deference.”). For this reason, “[t]he trial judge must

carefully articulate specific reasons for each finding on the record, i.e., whether a prima facie case

has been established; whether a neutral explanation has been given; and whether the totality of the

circumstances support a finding of purposeful discrimination.” Woodson, 916 S.W.2d at 906.

In this case, defense counsel objected at trial to the State’s peremptory challenge of five

potential jurors: Ms. Ida Ferguson, Mr. Everette Woods, Ms. Phyllis McKinnie, Ms. Willie Heard,

and Ms. Helen Pruitt. The record indicates that all of these persons are African-American;

Defendant is Caucasian.5 Before this Court, Defendant alleges that the prosecution improperly

excluded eight African-American venire persons,6 adding Mr. Johnny Hudson, Ms. Gertrude Gibbs,

and Ms. Linda Pirtle. Defendant’s argument as to these additional three venire persons is waived

because Defendant failed to object to the State’s challenges to these three persons in a timely fashion.

See State v. Peck, 719 S.W.2d 553, 555 (Tenn. Crim. App. 1986). This Court is not bound to grant

relief to a party who fails to take “whatever action was reasonably available to prevent or nullify the

harmful effect of an error.” Tenn. R. App. P. 36(a). In this case, Defendant had the opportunity at

trial to object to each and every one of the State’s peremptory challenges, thereby giving the trial

court the opportunity to assess the constitutionality of the State’s choices. Defendant did not do so

with respect to Mr. Hudson, Ms. Gibbs, and Ms. Pirtle. Accordingly, he will not now be heard to

complain about the State’s challenges to these three venire persons. See State v. Johnson, 980

S.W.2d 414, 419 (Tenn. Crim. App. 1998). We will, therefore, limit our examination of Defendant’s

race-based Batson claim to the five venire persons previously named.

Ida Ferguson

During voir dire questioning by the State, Ms. Ferguson acknowledged that she had a

religious belief against the death penalty, but stated she could “follow the law.” She acknowledged

having stated on her jury questionnaire that she felt a sentence of life without parole was “adequate”

and that she would not want to consider the death penalty, but reiterated that she “ha[d] to obey the

5

Defendant’s race is indicated in the Report of Trial Judge in Capital Cases prepared and submitted by the trial

court pursuant to Tennessee Supreme Court Rule 12.1.

6

In Powers v. Ohio, 499 U.S. 400, 415-16 (1991), the Supreme Court determined that the defendant and the

excluded juror need not be of the same race in order for there to be an equal protection claim.

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laws of the land.” In response to subsequent questions by defense counsel, Ms. Ferguson stated that

she “would have to have very hard evidence to consider” imposing either life in prison with no

opportunity for parole or the death penalty. The State thereafter used one of its peremptory

challenges to remove Ms. Ferguson from the panel. Upon defense counsel’s Batson objection, the

prosecutor referred to Ms. Ferguson’s response in the jury questionnaire to the question, “do you

have any personal, moral or religious beliefs against imposition of the death penalty?” According

to the prosecutor, Ms. Ferguson had answered, “yes,” with the explanation that she believed that a

“life sentence without parole is adequate, vengeance is mine said the Lord.” The prosecutor

maintained that “the State is striking her based upon the answer to that question.” The trial court

thereupon overruled defense counsel’s Batson objection.

Everette Woods

The State asked Mr. Woods during voir dire if he believed in the death penalty. Mr. Woods

responded that he did not believe in it. He stated further, however, that he could follow the law and

sign the death warrant if Defendant was guilty. After the State peremptorily challenged Mr. Woods,

defense counsel lodged a Batson objection. The prosecutor responded that Mr. Woods had indicated

on his jury questionnaire that he did not believe in the death penalty. Defense counsel claimed that

Mr. Woods had been rehabilitated during voir dire. The trial court stated nothing on the record but

excused Mr. Woods.

Phyllis McKinnie

Defense counsel objected to the State’s challenge of Ms. McKinnie, stating that she was the

sixth African-American struck by the State. The State had lodged five peremptory challenges prior

to challenging Ms. McKinnie. The State referred to Ms. McKinnie’s statement on her questionnaire

that she “just [does not] want to be a part of putting any person to death because it could turn out to

be an innocent person after you have put him or her to death.” The prosecutor also averred that “all

six of the individuals [he] struck [had] indicated on the back of their jury questionnaires they would

have a problem with the death penalty.” Defense counsel claimed that Ms. McKinnie had been

rehabilitated. The trial court found that the State had established a racially neutral reason for its

challenge and overruled the objection.

Willie Heard

The State next challenged Ms. Heard, stating that she had indicated on her questionnaire that

she had personal, moral, or religious beliefs against the death penalty, and that she did not like it but

could not stop it. Defense counsel responded,

this is their seventh black juror and it’s their sixth woman that they have struck. She,

like the others, went through and said she could listen to all three sentencing phases

just like the others but we feel at this point in time you’ve got seven black jurors that

have been stricken from the record.

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The trial court then stated, “The Court finds that there is a racially neutral reason for the challenge

but you might be careful about rehabilitating. The Court will look at it a little closer next time.”

Helen Pruitt

On defense counsel’s Batson objection to the State’s challenge of Ms. Pruitt, the prosecutor

stated,

This is the one I challenged because when I was questioning her, Judge, her

eyes, she looked like she was going to cry to the point that I backed off asking her

questions because she was sitting on the far side over there and I really felt that she

was about to break out in tears and I backed off and I noticed when she was going

into the jury box she got teary-eyed again and was shaking her head no. That’s the

reason.

Defense counsel replied, “Your Honor, we just want for the record that’s the eighth African-

American person and it’s the seventh African-American woman stricken.” The prosecutor retorted

that they “still have four7 on there,” and the trial court ruled that the State’s reason for challenging

Ms. Pruitt was “not racially motivated.”

The State lodged no further peremptory challenges. The Report of Trial Judge in Capital

Cases, filed by the trial court pursuant to Tennessee Supreme Court Rule 12.1 (“the Rule 12

Report”), indicates that seven of the twelve jurors that decided Defendant’s case were white.

As noted previously, this Court has instructed trial courts that, when making a determination

regarding a Batson objection, they “must carefully articulate specific reasons for each finding on the

record, i.e., whether a prima facie case has been established; whether a neutral explanation has been

given; and whether the totality of the circumstances support a finding of purposeful discrimination.”

Woodson, 916 S.W.2d at 906. Thus, we are initially constrained to point out that the trial court’s

findings on Defendant’s Batson objections at trial are barely adequate to permit our review. After

each of defense counsel’s objections, the trial court failed to make a specific finding that a prima

facie case of purposeful discrimination had been made. Nevertheless, the prosecutor’s response to

each objection clearly implies that the trial court expected the State to proffer its reasons for

challenging the subject venire person. That is, after each Batson objection by defense counsel, the

trial court indicated in some fashion that the second prong of the Batson analysis was called into

play. Thus, we assume that the trial court determined that, as to each of these five venire persons,

Defendant had made out a prima facie case of impermissible discrimination. See Woodson, 916

S.W.2d at 905 (even where trial court made no explicit finding that the objecting party had made out

a prima facie case, it was appropriate to conclude that the trial court had done so because

“[o]therwise, the court would not have required [the striker] to explain the challenge”). Nor did the

7

The record does not indicate whether the prosecutor was referring to four women, four African-American

persons, or four African-American women.

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trial court offer much commentary on the State’s proffered reasons for its strikes, or render detailed

findings about its reasons for overruling each of Defendant’s Batson claims. We are especially

concerned about the trial court’s failure to make specific findings in light of the United States

Supreme Court’s recent decision in Miller-El II. Although decided after the trial of this case, Miller-

El II demonstrates the importance of a complete record and comprehensive findings by the trial

court.

In Miller-El II, the United States Supreme Court expounded on the methodology used to

assess a Batson claim. In that case, the defendant was tried and convicted on a capital murder charge

and sentenced to death. 125 S. Ct. at 2322. During jury selection, the prosecution used peremptory

strikes against ten qualified African-American venire men. Id. The defendant argued, and the Court

agreed, that the prosecution’s challenges were racially motivated. Id. at 2340. In analyzing the

defendant’s claim, the Court engaged in an exhaustive and fact-intensive inquiry, relying upon not

only the transcript of the voir dire, but the completed juror questionnaires and the juror cards utilized

by the prosecution.8

As it examined the extensive evidence before it, the Court noted numerous factors indicative

of the prosecution’s impermissible motive in challenging the black venire members. Initially, the

Court pointed to the fact that the prosecution had peremptorily struck ten of the eleven, or 91%, of

the eligible African-American venire members. Id. at 2325. What it found “[m]ore powerful than

these bare statistics,” however, were the results of “side-by-side comparisons of some black venire

panelists who were struck and white panelists allowed to serve.” Id. In making these comparisons,

the Court determined that, “[i]f a prosecutor’s proffered reason for striking a black panelist applies

just as well to an otherwise-similar nonblack who is permitted to serve, that is evidence tending to

prove purposeful discrimination to be considered at Batson’s third step.” Id. Thus, “disparate

treatment” of potential jurors who responded similarly to similar questions may be indicative of

impermissible discrimination where the only significant difference between the persons is their race.

Another factor indicative of the prosecution’s improper motive was its “disparate

questioning” of the venire members, depending upon the member’s race. The Court found that, for

94% of the white members, the prosecutors gave a “bland description” of the death penalty before

asking for individual feelings on the subject. Id. at 2334. Only 47% of the African-American venire

members heard the “bland” description, with the remaining 53% hearing what the Court described

as a “graphic script.” Id. The Court appeared to agree with the defendant that the prosecution used

this tactic in an attempt to “prompt some expression of hesitation to consider the death penalty and

thus to elicit plausibly neutral grounds for a peremptory strike of a potential juror subjected to it, if

not a strike for cause.” Id. at 2333. A second form of disparate questioning involved what the Court

8

The record in this case does not contain the juror questionnaires or the juror cards used by either party. The

record does contain a transcript of the voir dire and the written peremptory challenges filed by each party. The record

also contains the Rule 12 Report which contains some information about the jury.

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described as “trickery.” Id. at 2337. The Court elucidated:

The prosecutors asked members of the panel how low a sentence they would consider

imposing for murder. Most potential jurors were first told that Texas law provided

for a minimum term of five years, but some members of the panel were not, and if

a panel member then insisted on a minimum above five years, the prosecutor would

suppress his normal preference for tough jurors and claim cause to strike.

Id. The State conceded that the manipulative questioning was used to create cause to strike, but

claimed that the five-year information was omitted not on the basis of race, but on stated opposition

to or ambivalence about the death penalty. Id. The Court found, however, that, while all African-

American panel members who had expressed opposition to or ambivalence about the death penalty

were asked the trick question, “most white panel members who expressed similar opposition or

ambivalence were not subjected to it.” Id. The Court then stated, “[o]nce again, the implication of

race in the prosecutors’ choice of questioning cannot be explained away.” Id. at 2338.

In addition to examining the questions asked and treatment of venire members, the Supreme

Court relied upon history: “We know that for decades leading up to the time this case was tried

prosecutors in the Dallas County office had followed a specific policy of systematically excluding

blacks from juries . . . .” Id. In the Miller-El II case, the prosecutors had marked the race of each

venire member on their juror cards and “took their cues [on jury selection] from a 20-year old

manual of tips” which included reasons for excluding minorities from jury service.9 Id. at 2339-40.

The Court concluded:

It blinks reality to deny that the State struck Fields and Warren . . . because

they were black. The strikes correlate with no fact as well as they correlate with race,

and they occurred during a selection infected by shuffling and disparate questioning

that race explains better than any race-neutral reason advanced by the State. The

State’s pretextual positions confirm [the defendant’s] claim, and the prosecutors’

own notes proclaim that the Sparling Manual’s emphasis on race was on their minds

when they considered every potential juror.

9

In finding racially motivated discrimination by the prosecution, the Court also took into account “a procedure

known in Texas as the jury shuffle.” Miller-El II, 125 S. Ct. at 2332. This procedure permits either side to “literally

reshuffle the cards bearing panel members’ names, thus rearranging the order in which members of a venire panel are

seated and reached for questioning.” Id. Panel members seated in the back are less likely to be questioned, and those

not questioned by the end of the week are dismissed. Id. at 2333. Thus, a party engaging in racially discriminatory jury

selection may shuffle the jury in an attempt to have, for instance, African-American members reseated in the back. Id.

In Miller-El II, the prosecution had shuffled the jury several times. The Court found that “no racially neutral reason has

ever been offered in this case [for the shuffling], and nothing stops the suspicion of discriminatory intent from rising to

an inference.” Id. Jury shuffling is not available in Tennessee.

-12-

The state court’s conclusion that the prosecutors’ strikes of Fields and Warren

were not racially determined is shown up as wrong to a clear and convincing degree;

the state court’s conclusion was unreasonable as well as erroneous.

Id. at 2340. The Court thereupon granted the defendant’s claim for habeas corpus relief. Id.

In contrast to Miller-El II, the sole indication of purposeful impermissible discrimination by

the State in this case is the fact that each of the peremptory challenges used by the State was

employed against an African-American venire person.10 A close examination of the record convinces

us, however, that the prosecution’s exercise of these challenges was for race-neutral reasons.

With respect to the State’s proffered reasons for its challenges, the prosecutor maintained

that, with respect to Ms. Ferguson, Mr. Woods, Ms. McKinnie, and Ms. Heard, he was challenging

each of these venire persons based upon his or her convictions about the death penalty. According

to the State, each of these persons had indicated some personal or religious disinclination to sentence

an individual to death. This is certainly a facially race-neutral reason for exercising a peremptory

challenge against a potential juror in a capital case. As to Ms. Pruitt, the prosecutor stated that he

excused her because, while he was questioning her, she looked as though she was going to cry. She

later became “teary-eyed” again and “was shaking her head no.” We are satisfied that the prosecutor

also provided a facially race-neutral reason for his challenge to this juror.

The trial court ultimately determined that, under all the circumstances, Defendant failed to

establish purposeful discrimination. “Because the core issue is the prosecutor’s discriminatory

intent, or lack thereof, the trial court’s finding ‘largely will turn on evaluation of credibility.’” State

v. Ellison, 841 S.W.2d 824, 827 (Tenn. 1992) (quoting Batson, 476 U.S. at 98 n.21). Both this Court

and the United States Supreme Court have previously recognized that “‘[t]here will seldom be much

evidence bearing on th[e] issue [of discriminatory intent], and the best evidence often will be the

demeanor of the attorney who exercises the challenge.’” Id. (quoting Hernandez v. New York, 500

U.S. 352, 365 (1991) (plurality opinion)). Obviously, we are in no position to second-guess the trial

court’s assessment of the prosecutor’s demeanor unless the record, as it did in Miller-El II, contains

clear objective indications that the prosecutor’s averments concerning his or her reasons for

challenging a juror are simply not credible. We remain cognizant of Batson’s holding that the

ultimate burden of establishing purposeful discrimination lies with the party objecting to the

peremptory challenge. 476 U.S. at 93; see also Purkett, 514 U.S. at 768 (recognizing that “the

ultimate burden of persuasion regarding racial motivation rests with, and never shifts from, the

opponent of the strike”). We must, examine, therefore, whether the record before us contains such

strong evidence of impermissible discriminatory intent by the prosecution as to render clearly

10

During the first round of peremptory challenges, the State challenged Mr. Hudson, Ms. Gibbs, and M s. Pirtle.

The State lodged a Batson objection to a peremptory challenge exercised by Defendant against, as described by the

prosecutor, “a Caucasian . . . male.” In response, defense counsel asserted that, during its initial peremptory challenges,

the State excused “three black people.” Neither the trial court nor the prosecutor commented on this description of Mr.

Hudson, Ms. Gibbs, and Ms. Pirtle. W e conclude, therefore, that each of these persons is African-American.

-13-

erroneous the trial court’s determination that Defendant failed to establish purposeful discrimination

by the prosecution in its peremptory challenges.

Taking our cue from Miller-El II, we first examine the “bare statistics” in this case regarding

jury selection. The State exercised eight of its available fifteen peremptory challenges.11 All of them

were against African-American persons. We do not know, however, how many eligible African-

American venire members were available. Defense counsel exercised sixteen peremptory

challenges, one of which was against an alternate. See Tenn. R. Crim. P. 24(e). The record indicates

that the State lodged Batson objections to two of these challenges, one of them on the basis that the

juror was white. The record indicates that at least one of the other venire persons excused by the

defense was white, but we are unable to ascertain the race of the remaining fourteen venire persons

peremptorily challenged by Defendant. The United States 2000 Census provides that 41% of the

population of the county in which Defendant was tried is black or African-American. It is reasonable

to infer, therefore, that a significant proportion of the venire panel was African-American. The Rule

12 Report further indicates that five of the eventual twelve jurors in this case were non-Caucasian.

The State had seven peremptory challenges remaining to it at the time the jury, including these five

nonwhites, was sworn. These bare statistics do not, in and of themselves, convince us that the

State’s proffered race-neutral reasons for excusing the five named persons were merely pretextual.

A close review of the transcript of the voir dire reveals no disparate treatment based on race.

All but one of the eight persons peremptorily challenged by the State had expressed some hesitation

about the death penalty.12 No other person expressed such hesitation and was left unchallenged.

That is, the State was completely successful in eliminating every potential juror who had indicated

at some point in the process that he or she had reservations about imposing the death penalty. There

is no indication in the record that any nonblack person who expressed hesitation about the death

penalty was left unchallenged by the State.

There is furthermore no indication in the record that the prosecution tailored its questions

regarding the death penalty depending on the race of the targeted venire person(s). Nor does this

Court observe any manipulative questioning by the State during voir dire which we would describe

as “trickery.” Finally, there is nothing before us to indicate that the prosecutors in Hardeman County

have ever followed a specific policy of systematically excluding African-Americans from juries.

Certainly, more thorough findings by the trial court upon Defendant’s Batson objections

would have been helpful in our review of this issue. However, our close and careful review of the

record before us convinces us that there is no basis for us to determine that the trial court erred

11

Tennessee Rule of Criminal Procedure 24(d) provides that, where the charged offense is punishable by death,

the defendant and the State are each entitled to fifteen peremptory challenges.

12

Although we have determined that Defendant waived his right to appeal the State’s exercise of peremptory

challenges to Mr. Hudson, Ms. Gibbs, and Ms. Pirtle, a review of the circumstances surrounding their dismissals is

appropriate to the comprehensive analysis set forth in Miller-El II. Each of these three persons expressed some

reservation about imposing the death penalty during voir dire.

-14-

during the third step of the Batson analysis. This Court has previously recognized that a juror’s

reservations about the death penalty may constitute a legitimate explanation for the State’s exercise

of a peremptory strike. See Smith, 893 S.W.2d at 914. As to the State’s dismissal of Ms. Pruitt, we

acknowledge that “neutral explanations that are based on subjective assessments, such as the juror’s

demeanor, must be carefully scrutinized.” State v. Carroll, 34 S.W.3d 317, 320 (Tenn. Crim. App.

2000). We note, however, that defense counsel did not in any way indicate during the jury selection

process that the prosecution’s description of Ms. Pruitt’s conduct in the jury box was inaccurate. A

potential juror who verges on tears and shakes her head “no” during voir dire would, we are sure,

prompt many a trial lawyer to exercise a peremptory challenge for legitimate reasons. Thus, we are

confident that the trial court accurately assessed the prosecutor’s credibility with regard to his

explanations and properly determined that, under all the circumstances, Defendant had not

established purposeful discrimination by the State in its exercise of its peremptory challenges.

Accordingly, we hold that Defendant is not entitled to relief on this issue.

2. Allegedly Gender-based Peremptory Challenges

We turn now to Defendant’s claim that the prosecution peremptorily challenged Ms. Prewitt,

Ms. Heard, Ms. McKinnie, and Ms. Ferguson because of their gender.13 In J.E.B. v. Alabama ex rel.

T.B., 511 U.S. 127, 129 (1994), the United States Supreme Court held that “gender, like race, is an

unconstitutional proxy for juror competence and impartiality.” We analyze a party’s claim that a

peremptory challenge is impermissibly gender-based in the same manner as a claim that a challenge

is racially motivated. See id. at 144-45.

Initially, we note that Defendant first lodged a Batson objection to a peremptory challenge

by the State upon the prosecution’s removal of Ida Ferguson. By this time in the proceedings, the

State had peremptorily challenged Linda Pirtle, Gertrude Gibbs, and Johnny Hudson. Thus, the State

used three of its first four peremptory challenges to remove women from the jury. The record does

not indicate the specific basis for Defendant’s Batson claim as to Ms. Ferguson. Nor do the trial

court’s findings indicate a specific ruling as to what type of prima facie case Defendant apparently

made out. Nevertheless, the trial court determined that the State’s rejection of Ms. Ferguson was

permissible. We see nothing in the record before us to indicate that the trial court’s conclusion in

this regard was clearly erroneous.

The State peremptorily challenged four more jurors, three of them female. Thus, of a total

of eight peremptory challenges exercised by the prosecution, six were utilized against female venire

persons, or 75%. However, as to each of the four women peremptorily challenged and to which

Defendant lodged a Batson objection, the State proffered gender-neutral reasons for their removal.

The trial court obviously determined that the State’s proffered reasons were legitimate and not

merely pretextual. The record before us does not convince us that the trial court thereby erred. The

13

Because Defendant failed to object at trial to the State’s peremptory challenges to Ms. Pirtle and Ms. Gibbs,

we hold that Defendant has waived his equal protection claim as to the exclusion of these venire persons. See Tenn. R.

App. P. 36(a); Johnson, 980 S.W .2d at 419.

-15-

jury that tried Defendant included six female jurors.14 The State had seven of its peremptory

challenges remaining when the jury was empaneled. All but one of the venire persons peremptorily

challenged by the State and to which Defendant lodged a Batson objection had indicated some

disinclination to impose the death penalty. The other person, Ms. Pruitt, had exhibited a demeanor

that caused the prosecutor to doubt her ability to sit on the jury in a composed manner. In sum, we

are satisfied that the trial court’s findings on Defendant’s gender-based Batson claims are not clearly

erroneous. Accordingly, Defendant is not entitled to relief on this issue.

B. Trial Court’s Refusal to Dismiss Juror for Cause

Defendant also asserts in this appeal that the trial court erred in refusing to dismiss potential

juror Barry Watkins for cause. The State disagrees.

During the trial court’s initial questioning of the venire, Mr. Barry Watkins responded that

he knew something about the case. When asked for the source of his information, Mr. Watkins

replied that one of his brothers worked at the prison where the killing occurred. Mr. Watkins stated,

however, that the information he had obtained had not caused him to form an opinion about

Defendant’s guilt or innocence. Defense counsel subsequently requested a sequestered voir dire of

Mr. Watkins, which the trial court granted. During this additional voir dire, defense counsel asked

Mr. Watkins if he was a convicted felon. Mr. Watkins responded that he had been arrested but not

convicted. He explained that more than twenty years earlier, he had been arrested for a robbery.

While he was being held, they arrested “the guy that did it.” The charges against Mr. Watkins were

then dismissed. He was under the impression that his arrest was still “on record” because he was

not allowed to buy guns.15

Mr. Watkins stated that Mr. Donald Watkins was his half-brother. Mr. Watkins explained

that he knew his half-brother might be called as a prosecution witness, but maintained that “that’s

all I knew.” His half-brother told him that he would need to advise the court of their relationship.

When asked by the court if this relationship would affect his judgment, Mr. Watkins replied, “I can

listen to the facts and what’s been proven to me. He is my brother but he can be mistaken like

anybody else.” Mr. Watkins maintained that he would not give his relative’s testimony any more

weight or believability than that of the other witnesses. Mr. Watkins told the trial court that his

brother had not told him what his testimony would be about, or what he claimed the facts to be. Mr.

Watkins stated that he had not heard Defendant’s name until “today.”

14

W e base this conclusion on our review of the jurors’ names listed in the trial court’s order of conviction.

15

Defendant avers in this appeal that “[b]ased on Barry W atkins’s own testimony that he was not allowed to

own a gun and that an Aggravated Robbery was cleared up several years earlier, one could surmise that this juror was

in fact a convicted felon.” W hile we acknowledge that persons convicted of aggravated robbery are incompetent to serve

as jurors, see Tenn. Code Ann. § 22-1-102(a)(2) (1994), this Court is not going to “surmise” that Mr. W atkins has been

convicted of same absent any proof in the record.

-16-

Following this individual voir dire, defense counsel moved to strike Mr. Watkins for cause

on the grounds that “it’s too hard to overcome the bias of your brother testifying in the State’s case

in chief.” The trial court denied defense counsel’s request. Defendant now contends that the trial

court’s ruling resulted in a violation of his constitutional rights to a fair and impartial jury.

We are initially constrained to point out that Defendant did not raise this issue in his motion

for new trial. Accordingly, this issue has been waived. See Tenn. R. App. P. 3(e) (“[I]n all cases

tried by a jury, no issue presented for review shall be predicated upon error in the admission or

exclusion of evidence, jury instructions granted or refused, misconduct of jurors, parties or counsel,

or other action committed or occurring during the trial of the case, or other ground upon which a new

trial is sought, unless the same was specifically stated in a motion for a new trial; otherwise such

issues will be treated as waived.”). Nevertheless, because this is a capital case, and because this

issue involves Defendant’s fundamental constitutional rights to a fair and impartial jury, we choose

to address it on the merits.

Both the United States and Tennessee Constitutions guarantee criminal defendants the right

to a trial by an “impartial jury.” U.S. Const. amend. VI; Tenn. Const. art. I, § 9. “The impartial jury

guaranteed by constitutional provisions is one which is of impartial frame of mind at the beginning

of trial, is influenced only by legal and competent evidence produced during trial, and bases its

verdict upon evidence connecting defendant with the commission of the crime charged.” State v.

Lawson, 794 S.W.2d 363, 367 (Tenn. Crim. App. 1990). To protect this right, litigants have the

right to lodge a “propter affectum” challenge for cause to a potential juror on the basis that he or she

is biased or prejudiced for or against one of the parties. See Toombs v. State, 270 S.W.2d 649, 650

(Tenn. 1954); State v. Akins, 867 S.W.2d 350, 355 (Tenn. Crim. App. 1993). A propter affectum

challenge should be upheld where some bias or partiality is either actually shown to exist or is

presumed to exist from circumstances. Durham v. State, 188 S.W.2d 555, 559 (Tenn. 1945).

Circumstances justifying a presumption of bias include a juror’s willful concealment of “ulterior and

prejudicial motives” arising from his prior conviction and prior involvement as prosecuting witness

in a case very similar to the defendant’s, see id. at 559, and a juror’s failure to disclose a “very close”

familial relationship between the juror and the prosecuting attorney’s wife, see Toombs, 270 S.W.2d

at 651.

In this case, the trial court overruled defense counsel’s challenge for cause to Mr. Watkins

after both the prosecution and defense counsel had an opportunity to closely question him during a

period of sequestered voir dire and after the trial court itself probed Mr. Watkins’ impartiality. The

trial court was obviously satisfied that Mr. Watkins’ relationship would not prevent or substantially

impair the performance of his duties as a juror in accordance with his instructions and his oath. A

determination of the qualifications of a juror rests within the sound discretion of the trial court.

State v. Howell, 868 S.W.2d 238, 248 (Tenn. 1993). We find no abuse of discretion in the trial

court’s refusal to excuse juror Watkins for cause in this case.

Defendant relies heavily on the Court of Criminal Appeals’ opinion in State v. Pamplin, 138

S.W.3d 283 (Tenn. Crim. App. 2003). In that case, the defendant was on trial for assaulting a city

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police officer and resisting arrest. One of the potential jurors was a county deputy sheriff who knew

both the assaulted officer and the defendant. The deputy had previously served as a judicial

commissioner for eight years and his sister-in-law worked for the district attorney. The deputy was

a member of the same law enforcement agency as one of the prosecution’s primary witnesses;

indeed, the deputy was a subordinate employee of that witness. The deputy reported for jury duty

in his uniform, including his badge and sidearm. The trial court denied the defendant’s challenge

to excuse the deputy from jury duty for cause. Because the defendant had exhausted all of his

peremptory challenges, the deputy remained on the jury and was subsequently elected its foreman.

On appeal, the intermediate appellate court determined that the trial court had committed

manifest error in refusing to excuse the deputy juror, finding that his “professional relationship and

interest in the case was entirely too close to that of [the State’s witness] and [the victim].” Id. at 286.

The court noted not only the relationship between the deputy and the State’s witnesses, but the nature

of the case (involving an assault on a police officer) and the fact that the deputy served on the jury

while in full uniform and wearing his sidearm. Id. The court emphasized that “the jury selection

process should endeavor to select jurors who are not only fair and impartial but are also free from

the suspicion of impartiality.” Id. at 287.

We find the Pamplin case to be readily distinguishable from Defendant’s. The combination

of factors present in the Pamplin case created an egregious set of circumstances which are simply

not present in the case before us. While we certainly agree that a close familial relationship between

a juror and a witness may give rise to a suspicion of partiality, we are reluctant to conclude that a

half-sibling connection is sufficient, in and of itself, to raise a presumption of bias so as to require

a trial court to grant a propter affectum challenge. We recognize that many ties of kinship do not

result in close relationships, and we are therefore unwilling to presume any particular level of bias

arising from the familial relationship between Mr. Watkins and the State’s witness. Rather, we agree

with Maryland’s high court on this point: “Although the relationship of a juror to one of the

witnesses may present an opportunity for prejudice, bias will not be presumed and the defendant is

not relieved of the burden of presenting facts in addition to mere relationship which would give rise

to a showing of actual prejudice.” Bristow v. State, 219 A.2d 33, 34 (Md. 1966); see also Bowman

v. State, 598 S.W.2d 809, 812 (Tenn. Crim. App. 1980) (recognizing that, when the challenged juror

disclosed her social relationship with one of the prosecuting attorneys, “[t]he burden is on the

defendant to demonstrate that the juror was in some way biased or prejudiced” because the

prosecuting attorney testified as a rebuttal witness).

In this case, Defendant has failed to present sufficient facts about juror Watkin’s relationship

with his half-brother to demonstrate either actual prejudice or that a presumption of prejudice is

justified. Juror Watkins was forthcoming about his relationship with one of the State’s witnesses.

Moreover, he obviously convinced the trial court that he could judge the evidence in a non-biased

manner and with no preconceived notion of Defendant’s guilt. There is nothing in the record before

us that convinces us that the trial court erred in reaching this conclusion.

-18-

Moreover, as this Court has previously held, “the failure to correctly exclude a juror for cause

is grounds for reversal only if the defendant exhausts all of his peremptory challenges and an

incompetent juror is forced upon him.” Howell, 868 S.W.2d at 248 (emphasis added). In this case,

Defendant did, indeed, exhaust all of his peremptory challenges, using one of them to excuse Mr.

Watkins. However, we disagree with Defendant that an incompetent juror was thereby thrust upon

him. Defendant argues that “[b]ased on the non-exclusion of . . . Barry Watkins for cause, [he] was

forced to accept at least three (3) jurors that were incompetent, biased and/or not impartial” because

they had prior knowledge of the allegations against Defendant from the media or personal

relationships. Defendant particularly targets the jury foreperson, Mr. Burrough, who acknowledged

some prior familiarity with the case from an acquaintance who worked at the Hardeman County

Correctional Facility.

Mr. Burrough answered affirmatively the trial court’s initial inquiry as to whether he had

“heard or read anything at all about this case[.]” Mr. Burrough explained that his source of

information was an acquaintance that worked at the prison. Mr. Burrough stated that the information

he had heard had not caused him to form an opinion about Defendant’s guilt or innocence and stated

further that he would be able to base his verdict on the law and evidence charged by the trial court.

Similarly, jurors Edna Blake and Eric Bolden indicated that they had each gained some information

about the case from the media and/or “hearsay at work” prior to trial. Each assured the trial court

that they had not formed an opinion about Defendant’s guilt or innocence based on what they had

heard.

Our rules of criminal procedure provide that a prospective juror may be challenged for cause

where

[t]he prospective juror’s exposure to potentially prejudicial information

makes the person unacceptable as a juror. Both the degree of exposure and the

prospective juror’s testimony as to his or her state of mind shall be considered in

determining acceptability. A prospective juror who states that he or she will be

unable to overcome preconceptions shall be subject to challenge for cause no matter

how slight the exposure. If the prospective juror has seen or heard and remembers

information that will be developed in the course of trial, or that may be inadmissible

but is not so prejudicial as to create a substantial risk that his or her judgment will be

affected, the prospective juror’s acceptability shall depend on whether the testimony

as to impartiality is believed. If the prospective juror admits to having formed an

opinion, he or she shall be subject to challenge for cause unless the examination

shows unequivocally that the prospective juror can be impartial.

Tenn. R. Crim. P. 24(b)(2). The record reveals that defense counsel made no attempt to challenge

Mr. Burrough, Ms. Blake, or Mr. Bolden for cause. Apparently, defense counsel determined that

none of these persons was so biased or prejudiced by the information they had heard prior to trial as

to justify a for-cause challenge. Yet, Defendant now contends that he was forced to accept these

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“incompetent, biased and/or not impartial” jurors because he exercised a peremptory challenge

against Mr. Watkins.

Defendant fails to explain how these jurors’ mild familiarity with the case prior to trial

rendered them incompetent as jurors. Defendant has demonstrated neither partiality on the part of

any of these jurors, nor any prejudice that he suffered as a result of any of these three persons sitting

on the jury. “Juror bias must be shown, not just suspected.” Lawson, 794 S.W.2d at 367 (citing

Smith v. Phillips, 455 U.S. 209 (1982)). We are not persuaded that any of these three jurors was

“incompetent” as required by Howell. Defendant has simply failed to demonstrate that he is entitled

to a new trial on the basis of the trial court’s refusal to dismiss Barry Watkins for cause.

Accordingly, Defendant is not entitled to relief on this issue.

II. Mandatory Review

When a defendant has been sentenced to death, we must conduct a mandatory review of the

sentencing process pursuant to Tennessee Code Annotated section 39-13-206(c)(1) (2003). That

provision of our criminal code requires us to determine whether a) the death sentence was imposed

in any arbitrary fashion; b) the evidence supports the jury’s finding of statutory aggravating

circumstances; c) the evidence supports the jury’s finding that the aggravating circumstances

outweigh any mitigating circumstances; and d) the sentence of death is excessive or disproportionate

to the penalty imposed in similar cases, considering both the nature of the crime and the defendant.

Id.

A. Imposition of Death Penalty

Initially, we find that the sentencing phase of Defendant’s trial was conducted pursuant to

the procedure established in the applicable statutory provisions and rules of criminal procedure.

Accordingly, we conclude that the death penalty was not imposed in an arbitrary fashion.

B. Sufficiency of Aggravating Circumstances

We turn now to the sufficiency of the evidence supporting the jury’s finding of statutory

aggravating circumstances. In this case, the jury determined that the State had proven beyond a

reasonable doubt four aggravating circumstances: (a) Defendant was previously convicted of one

or more felonies, other than the present charge, whose statutory elements involve the use of violence

to the person; (b) Defendant’s murder of the victim was especially heinous, atrocious, or cruel in

that it involved torture or serious physical abuse beyond that necessary to produce death; (c)

Defendant committed the murder while he was in lawful custody or in a place of lawful confinement;

and (d) the murder was committed against a corrections employee who was engaged in the

performance of official duties. See Tenn. Code Ann. § 39-13-204(i)(2), (5), (8), (9) (Supp. 1999).

We must now review the evidence supporting each of these aggravating circumstances in the light

most favorable to the State and determine whether a rational trier of fact could have found the

existence of each beyond a reasonable doubt. State v. Bane, 57 S.W.3d 411, 426 (Tenn. 2001).

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1. Prior Convictions

During the sentencing phase of Defendant’s trial, the State introduced by stipulation three

certified judgments against Defendant. These documents indicate that judgments of conviction were

entered against Defendant in 1986 for first degree murder; in 1992 for first degree murder; and in

1998 for criminal attempt to commit first degree murder. Obviously, the statutory elements of the

felony of first degree murder involve the use of violence to the person. See Tenn. Code Ann. § 39-

13-202(a). This Court has further held that the statutory elements of attempted murder involve the

use of violence to the person. State v. Cribbs, 967 S.W.2d 773, 782-83 (Tenn. 1998). Accordingly,

we hold that the evidence is sufficient to support the jury’s finding of the existence of this

aggravating circumstance. See Tenn. Code Ann. § 39-13-204(i)(2) (Supp. 1999).

2. Especially Heinous, Atrocious, or Cruel

The jury determined that Defendant’s murder of Steed was especially heinous, atrocious, or

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

See id. at (i)(5). This aggravating circumstance may be applied if the evidence is sufficient to

support either torture or serious physical abuse beyond that necessary to produce death. State v.

Suttles, 30 S.W.3d 252, 262 (Tenn. 2000).

This Court has defined “serious physical abuse beyond that necessary to produce death” as

follows:

The word “serious” alludes to a matter of degree. The abuse must be physical, as

opposed to mental, and it must be “beyond that” or more than what is “necessary to

produce death.” “Abuse” is defined as an act that is “excessive” or which makes

“improper use of a thing,” or which uses a thing “in a manner contrary to the natural

or legal rules for its use.”

State v. Odom, 928 S.W.2d 18, 26 (Tenn. 1996) (quoting Black’s Law Dictionary 11 (6th ed. 1990)).

The proof in this case established that Defendant stabbed Steed a total of thirty-six times. Twelve

of the wounds were fatal. Dr. Smith testified that Defendant’s infliction of so many wounds to the

victim qualified for application of the term “overkill.” He explained: “there was excessive injury

done to the body far in excess of what would be necessary to cause death.” The proof is more than

sufficient to support the jury’s finding of this aggravating circumstance.

3. Defendant in Lawful Custody

The proof at trial that Defendant was in lawful custody or in a place of lawful confinement

at the time he killed Steed is clear and uncontroverted. The evidence is therefore sufficient to

support the jury’s finding of this aggravating circumstance. See Tenn. Code Ann. § 39-13-204(i)(8)

(Supp. 1999).

-21-

4. Corrections Employee Victim

The record in this case contains a copy of the jury’s verdict form which includes the written

jury instructions provided to the jury by the trial court. These instructions informed the jury that it

could apply as an aggravating circumstance that “[t]he murder was committed against any law

enforcement officer, corrections official, corrections employee, engaged in the performance of

official duties.” The verdict form returned by the jury contains a handwritten finding by the jury that

it applied as an aggravating circumstance that “the murder was committed against any law

enforcement officer, corrections official, corrections employee, engaged in the performance of

official duties.”

The written instruction provided to the jury on this aggravating circumstance was erroneous.

Our criminal code provides that the fact-finder may consider as an aggravating circumstance that

[t]he murder was committed against any law enforcement officer, corrections

official, corrections employee, emergency medical or rescue worker, emergency

medical technician, paramedic or firefighter, who was engaged in the performance

of official duties, and the defendant knew or reasonably should have known that such

victim was a law enforcement officer, corrections official, corrections employee,

emergency medical or rescue worker, emergency medical technician, paramedic or

firefighter engaged in the performance of official duties.

Id. at (i)(9) (emphasis added). The trial court’s written instruction to the jury in this case omitted

the element requiring that Defendant knew or reasonably should have known that the victim was a

law enforcement officer, corrections official, or corrections employee engaged in the performance

of official duties.

Defendant did not raise this issue at trial, in his motion for new trial, or on appeal.

Nevertheless, this Court will review a patently incomplete instruction at a capital sentencing hearing

under the “plain error” doctrine, regardless of a defendant’s failure to raise the issue. See State v.

Stephenson, 878 S.W.2d 530, 554 (Tenn. 1994); see also State v. Hines, 758 S.W.2d 515, 523 (Tenn.

1988) (characterizing as “plain error” the trial court’s incomplete instructions on two of three

aggravating circumstances found by the jury). This Court will grant relief under the plain error

doctrine only “where necessary to do substantial justice.” Tenn. R. Crim. P. 52(b). As we have

stated previously, “the error must be of such a great magnitude that it probably changed the outcome

of the trial.” State v. Faulkner, 154 S.W.3d 48, 58 (Tenn. 2005). An appellate court will reverse for

plain error only if:

(a) the record . . . clearly establish[es] what occurred in the trial court;

(b) a clear and unequivocal rule of law [has] been breached;

(c) a substantial right of the accused [has] been adversely affected;

(d) the accused did not waive the issue for tactical reasons; and

(e) consideration of the error is “necessary to do substantial justice.”

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State v. Smith, 24 S.W.3d 274, 282 (Tenn. 2000) (quoting State v. Adkisson, 899 S.W.2d 626, 641-

42 (Tenn. Crim. App. 1994)). All five factors must be established and an appellate court need not

consider all five factors if any one factor indicates that relief is not warranted. Id. at 283.

In this case, the proof at trial was uncontroverted that Defendant knew the victim was a

corrections employee: indeed, Defendant committed the murder because of the victim’s performance

in that role. The proof at trial was further uncontroverted that Defendant knew the victim was

engaged in the performance of his official duties when Defendant brutally stabbed him to death.

Defendant told Mr. Dunaway that he approached the victim during a counseling session only to be

ignored. At that point, Defendant determined to kill the victim.

The trial court’s error in its written instruction to the jury on this aggravating circumstance

is analogous to that committed when a trial court omits from its instructions an essential element of

an offense. In State v. Garrison, 40 S.W.3d 426, 433 (Tenn. 2000), the trial court omitted from its

charge one of the mens rea elements of the indicted offense. This Court found the erroneous

instruction harmless beyond a reasonable doubt because proof of the omitted element was not

contested at trial and was essentially conceded by the defendant. Id. at 435; see also Neder v. United

States, 527 U.S. 1, 18-20 (1999) (finding trial court’s failure to instruct on an element of offense

harmless beyond a reasonable doubt where omitted element was supported by uncontroverted

evidence). The same result obtains here for the same reason: Defendant admitted his knowledge

of the victim’s employment and that the victim was engaged in official duties at the time Defendant

killed him. Thus, the instructional error did not adversely affect a substantial right of the accused.

Finally, given the nature of the proof in this case, we are convinced beyond a reasonable

doubt that the jury would have found and applied this aggravating circumstance had it received the

correct instruction. Therefore, Defendant suffered no prejudice as a result of the trial court’s error

and we need not reverse his sentence of death in order to “do substantial justice.” Defendant is

entitled to no relief on the basis of the trial court’s instructional error on this aggravating

circumstance.

C. Aggravating Circumstances Outweigh Mitigating Circumstances

After the close of the State’s proof during the sentencing phase of Defendant’s trial, and

while the jury was out, the trial court questioned Defendant about his decision regarding the

presentation of proof of mitigating circumstances. Defendant stated that he did not want his lawyers

to present any proof of mitigating circumstances. Furthermore, Defendant chose not to testify on his

own behalf during the sentencing phase. Accordingly, the defense presented no proof during the

sentencing phase of Defendant’s trial of any mitigating circumstances that might counteract the

State’s proof of aggravating circumstances. The only proof in the nature of mitigating circumstances

presented during the guilt phase of Defendant’s trial was Defendant’s testimony about how the

victim had treated him.

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We conclude that the State’s proof of aggravating circumstances outweighs any mitigating

circumstances beyond a reasonable doubt.

D. Proportionality

We turn now to our analysis of whether the sentence imposed in this case is excessive or

disproportionate to the penalty imposed in similar cases. This review identifies aberrant, arbitrary,

or capricious sentencing by determining whether the death sentence is “‘disproportionate to the

punishment imposed on others convicted of the same crime.’” State v. Bland, 958 S.W.2d 651, 662

(Tenn. 1997) (quoting Pulley v. Harris, 465 U.S. 37, 42-43 (1984)). We begin with the presumption

that a death sentence is proportional with the crime of first degree murder. State v. Hall, 976 S.W.2d

121, 135 (Tenn. 1998).

In conducting this review, we employ the precedent-seeking method of comparative

proportionality review, in which we compare this case with other cases involving similar defendants

and similar crimes. See Bland, 958 S.W.2d at 665-67. While no defendants or crimes are identical,

a death sentence is disproportionate if a case is “plainly lacking in circumstances consistent with

those in cases where the death penalty has been imposed.” Id. at 668. Our inquiry, however, does

not require a finding that “a sentence less than death was never imposed in a case with similar

characteristics.” Id. at 665. This Court has repeatedly held that the pool of cases considered by this

Court in its proportionality review includes “those first degree murder cases in which the State seeks

the death penalty, a capital sentencing hearing is held, and the sentencing jury determines whether

the sentence should be life imprisonment, life imprisonment without the possibility of parole, or

death.” State v. Reid, 164 S.W.3d 286, 316 (Tenn. 2005).

In reviewing the applicable pool of cases, we consider numerous factors regarding the

offense: 1) the means of death; (2) the manner of death; (3) the motivation for the killing; (4) the

place of death; (5) the victim’s age, physical condition, and psychological condition; (6) the absence

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

of justification; and (9) the injury to and effect upon non-decedent victims. Bland, 958 S.W.2d at

667. In addition, we consider numerous factors about the defendant: (1) prior criminal record or

activity; (2) age, race, and gender; (3) mental, emotional, and physical condition; (4) role in the

murder; (5) cooperation with authorities; (6) level of remorse; (7) knowledge of the victim’s

helplessness; and (8) potential for rehabilitation. Id.; see also Bane, 57 S.W.3d at 428-29 .

In this case, the incarcerated Defendant armed himself with a weapon he had created

specifically to use against another human being, walked up behind the seated and unarmed victim,

a corrections counselor, and began repeatedly stabbing him, aiming initially for the victim’s vital

organs. Defendant stabbed the victim thirty-six times; twelve of the wounds were lethal. Defendant

committed the killing intentionally and with premeditation. Defendant killed the victim because

he felt the victim had “disrespected” him. The victim was fifty-seven years old. Defendant killed

Mr. Steed while he was engaged in his official duties. Defendant has expressed no remorse for the

killing; indeed, Defendant has made clear that he would commit the killing again if given the

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opportunity. Prior to the instant murder, Defendant had killed two other persons and attempted to

kill a third person. Defendant has demonstrated no potential for rehabilitation.

In State v. Taylor, 771 S.W.2d 387, 401(Tenn. 1989), this Court affirmed a sentence of death

after the defendant was convicted of the first degree murder of a prison guard. In Taylor, the

defendant was incarcerated at the Turney Center. The defendant believed he had been treated

unfairly by Corrections Officer Moore on several occasions. On the day of the killing, Officer

Moore reprimanded the defendant for failing to properly clean an area, and this incident angered the

defendant. Later that day, the defendant approached Officer Moore from behind as the officer was

talking to some inmates, grabbed him, and began stabbing him repeatedly with a prison-made knife.

Despite pleas from other inmates to cease his attack, the defendant continued to stab the officer,

brandishing his weapon at those who tried to come to Moore’s aid. The jury sentenced the defendant

to death on the basis of four aggravating circumstances: (1) the defendant had previously been

convicted of a felony that involved the use or threat of violence to the person; (2) the murder was

especially heinous, atrocious, or cruel in that it involved torture or depravity of mind; (3) the murder

was committed by the defendant while he was in lawful custody or in a place of lawful confinement;

and (4) the murder was committed against a corrections employee, who was engaged in the

performance of his duties, and the defendant knew that the victim was a corrections employee

engaged in the performance of his duties. Id. at 392. This Court upheld the death sentence. Id. at

401.

In State v. Henderson, 24 S.W.3d 307, 310 (Tenn. 2000), the defendant murdered a deputy

by shooting him in the back of the head during an escape attempt. While incarcerated, the defendant

had his girlfriend smuggle to him a handgun. The defendant then arranged for a visit to a dentist.

While awaiting treatment, the defendant pulled the handgun, threatening the dentist and his assistant.

The dentist called for help, and the deputy, who had been in the reception area, responded. The

defendant fired at the deputy, grazing him with a gunshot. The deputy fell and struck his head,

rendering him unconscious. The defendant left the treatment room, but then returned and fired a shot

into the back of the unmoving deputy’s head at point blank range, killing him. The defendant then

escaped, only to be apprehended a short time later. The defendant pled guilty to first degree

premeditated murder and waived a jury as to his sentencing. Id. at 311. The trial court subsequently

imposed the death sentence on the basis of four aggravating circumstances: (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) that the defendant committed the murder for the purpose of avoiding,

interfering with, or preventing a lawful arrest or prosecution of the defendant or another; (3) that the

defendant committed the murder while in lawful custody or in a place of lawful confinement or

during the defendant’s escape from same; and (4) the murder was committed against any law

enforcement officer who was engaged in the performance of official duties. Id. at 312. This Court

affirmed the defendant’s sentence of death. Id. at 319.

In State v. Sutton, 761 S.W.2d 763, 764 (Tenn. 1988), the defendant was convicted of the

first degree murder of a fellow inmate. The State’s proof indicated that the defendant had stabbed

the victim multiple times with a prison-made knife after the victim had sold him unsatisfactory

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marijuana. The jury found and applied three aggravating circumstances: (1) the defendant was

previously convicted of one or more felonies involving the use or threat of violence to the person;

(2) the murder was especially heinous, atrocious, or cruel in that it involved torture or depravity of

mind; and (3) the defendant committed the murder while he was in a place of lawful confinement.

Id. This Court affirmed the death sentence. Id.

This Court has upheld the death penalty in numerous cases where the sole aggravating

circumstance was the defendant’s prior conviction of a violent felony offense. See, e.g., State v.

McKinney, 74 S.W.3d 291 (Tenn. 2002) (upholding death sentence of defendant convicted of

premeditated murder for shooting and killing an off-duty police officer at night club where sole

aggravating circumstance was based on defendant’s prior conviction of aggravated robbery); State

v. Chalmers, 28 S.W.3d 913 (Tenn. 2000) (upholding death sentence of defendant convicted of

felony murder for shooting and killing victim during robbery where sole aggravating circumstance

was based on defendant’s prior convictions of attempted especially aggravated robbery and

attempted first degree murder); State v. Keough, 18 S.W.3d 175 (Tenn. 2000) (upholding death

sentence of defendant convicted of premeditated murder for stabbing and killing estranged wife

during argument where aggravating circumstance was based on defendant’s prior convictions for

assault to commit voluntary manslaughter and manslaughter); State v. Smith, 993 S.W.2d 6 (Tenn.

1999) (upholding death sentence of defendant convicted of felony murder for shooting and killing

victim during robbery where aggravating circumstance was based on defendant’s prior convictions

of robbery and first degree murder); State v. Adkins, 725 S.W.2d 660 (Tenn. 1987) (upholding death

sentence of defendant convicted of first degree murder for shooting and killing estranged girlfriend’s

friend where aggravating circumstance was based on defendant’s prior convictions of second degree

murder and aggravated assault). As this Court has frequently stated, this aggravating circumstance

is “more qualitatively persuasive and objectively reliable than other[]” aggravating circumstances.

Howell, 868 S.W.2d at 261.

This Court has also upheld numerous death sentences where the defendant stabbed to death

the victim and the jury applied the heinous, atrocious, or cruel aggravating circumstance. See, e.g.,

Reid, 164 S.W.3d at 296-97 (upholding two death sentences upon defendant’s convictions for two

premeditated murders where defendant stabbed victims to death in course of robbery, and jury

applied as aggravating circumstances defendant’s previous violent felonies, that the murders were

especially heinous, atrocious, or cruel in that they involved torture or serious physical abuse beyond

that necessary to produce death, and that the murders were committed to avoid prosecution); Suttles,

30 S.W.3d at 260 (upholding death sentence of defendant convicted of premeditated murder for

multiple stabbing death of estranged girlfriend and jury found as aggravating circumstances that the

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

beyond that necessary to cause death and that defendant was previously convicted of violent

felonies); State v. Bush, 942 S.W.2d 489 (Tenn. 1997) (upholding death sentence upon defendant’s

conviction of premeditated murder for stabbing victim forty-three times, killing her, and jury

determined the murder to have been heinous, atrocious, or cruel and committed to avoid

prosecution); State v. Hines, 919 S.W.2d 573 (Tenn. 1995) (upholding death sentence upon

defendant’s conviction of felony murder in perpetration of robbery where defendant stabbed victim

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to death in such a manner as to justify heinous, atrocious, or cruel aggravator; jury also applied prior

violent felony aggravator); State v. Payne, 791 S.W.2d 10 (Tenn. 1990) (upholding two death

sentences upon defendant’s convictions of two first degree murders where defendant stabbed mother

and young daughter multiple times and jury applied heinous, atrocious, or cruel aggravating

circumstance); State v. Jones, 789 S.W.2d 545 (Tenn. 1990) (upholding death sentence upon

defendant’s first degree murder conviction for stabbing victim multiple times during course of

robbery and jury applied prior violent felonies; heinous, atrocious, or cruel; and felony murder

aggravating circumstances); State v. Thompson, 768 S.W.2d 239 (Tenn. 1989) (upholding death

sentence upon defendant’s conviction of first degree murder for stabbing victim to death where jury

applied heinous, atrocious, or cruel aggravating circumstance together with aggravators for

committing the murder to avoid prosecution and committing the murder during a robbery or

kidnapping); State v. West, 767 S.W.2d 387, 391 (Tenn. 1989) (upholding two death sentences

where defendant involved in stabbing two victims to death, involving “torture wounds,” and jury

applied heinous, atrocious, or cruel; murder committed to avoid prosecution; and felony murder

aggravating circumstances).

CONCLUSION

In accordance with Tennessee Code Annotated section 39-13-206(c)(1) and the principles

adopted in prior decisions, we have considered the entire record in this case and conclude that the

sentence of death has not been imposed arbitrarily, that the evidence supports the jury’s finding that

the aggravating circumstances outweigh any mitigating circumstances beyond a reasonable doubt,

and that the sentence is not excessive or disproportionate.

We have reviewed all of the issues raised by Defendant and conclude that they do not warrant

relief. With respect to issues that were raised in this Court but not addressed in this opinion, we

affirm the decision of the Court of Criminal Appeals. Relevant portions of that opinion are

incorporated herein and are attached as an appendix. Defendant’s conviction and sentence of death

are affirmed. The sentence of death shall be carried out as provided by law on the 15th day of

August, 2006, unless otherwise ordered by this Court or other proper authority. It appearing that

Defendant Stephen Lynn Hugueley is indigent, costs of this appeal are taxed to the State of

Tennessee.

_________________________________

CORNELIA A. CLARK, JUSTICE

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