State v. Faulkner

IN THE SUPREME COURT OF TENNESSEE

AT JACKSON

November 10, 2004 Session

STATE OF TENNESSEE v. ROBERT FAULKNER

Automatic Appeal from the Court of Criminal Appeals

Criminal Court for Shelby County

No. 99-07635 Chris Craft, Judge

No. W2001-02614-SC-DDT-DD - Filed January 28, 2005

The defendant, Robert Faulkner, was convicted of the first degree premeditated murder of his wife,

Shirley Faulkner. The jury imposed a sentence of death based upon the aggravating circumstance

that the defendant was previously convicted of one or more violent felonies. See Tenn. Code Ann.

§ 39-13-204(i)(2) (1997). The Court of Criminal Appeals affirmed. On automatic appeal under

Tennessee Code Annotated section 39-13-206(a)(1) (2003), we designated the following issues for

oral argument:1 1) whether the trial court improperly excluded testimony at the guilt phase regarding

Faulkner’s “diminished capacity”; 2) whether the trial court committed harmful error in its

instructions defining “intentionally” and “knowingly”; 3) whether the failure of the verdict form to

recite that the jury found the aggravating circumstance “beyond a reasonable doubt” rendered the

verdict invalid; and 4) whether the sentence of death is disproportionate or invalid under the

mandatory review of Tennessee Code Annotated section 39-13-206(c)(1) (2003). Having carefully

reviewed these issues and the issue of photographic evidence raised by Faulkner, we find no merit

to his arguments. Accordingly, we affirm the judgment of the Court of Criminal Appeals.

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

JANICE M. HOLDER, J., delivered the opinion of the court, in which FRANK F. DROWOTA , III, C.J.,

and E. RILEY ANDERSON , and WILLIAM M. BARKER, JJ., joined. ADOLPHO A. BIRCH , JR., J. filed a

concurring and dissenting opinion.

Robert C. Brooks, Memphis, Tennessee, for the appellant, Robert Faulkner.

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. R.

Sup. Ct. 12.2.

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

Fulks, Assistant Attorney General; William L. Gibbons, District Attorney General; and Phillip

Gerald Harris and Jennifer Nichols, Assistant District Attorneys General, for the appellee, State of

Tennessee.

OPINION

FACTUAL BACKGROUND

At the guilt phase of the trial, the State’s proof showed that the defendant, Robert Faulkner,

and the victim, Shirley Faulkner, married in September 1998 and separated in December 1998.

Faulkner moved in with his grandmother while the victim continued to live at her house in Memphis.

On January 18, 1999, the victim filed a complaint with the Memphis Police Department alleging that

on the previous night Faulkner struck her with his fist, held an ashtray over her head, and threatened

to kill her. According to the victim, who suspected that Faulkner had been high on cocaine, Faulkner

also called her several times on the morning of January 18, again threatening to kill her. The officer

who took the report testified that the victim was nervous and shaking and that her left temple was

swollen. On January 19, the victim visited a physician, who treated her for trauma to the left side

of her face. The victim reported to the physician that she had been hit in the face on Sunday, which

was January 17.

At approximately 11:00 p.m. on January 21, the victim clocked out from her shift as a cashier

at a grocery store. Before leaving, she purchased groceries. Although the victim’s supervisor

testified that the victim appeared normal when she left, a security guard who escorted the victim to

her car described her as shaking and crying. The victim told the guard that she was afraid to go

home because her husband might be waiting there. The victim refused the guard’s offer to escort

her home and left by herself. That same night, the victim’s son-in-law, Andre King, decided to

check on the victim because a tornado watch was in effect for Memphis. When Mr. King arrived

shortly after midnight, he noticed that the lights were on in the victim’s house but that no car was

in the driveway. Mr. King waited outside for approximately thirty minutes and then left.

The next day, January 22, the victim’s friend, Joe Ann Stewart, learned that the victim had

not reported for work at her second job as a housekeeper for an apartment complex. Ms. Stewart

called the victim’s daughter, Twyla King, and asked her to meet Ms. Stewart at the victim’s house.

Ms. Stewart also contacted the police. Two officers arrived and used Ms. King’s key to enter the

house, which showed no signs of forced entry. The officers observed bags of groceries in the

doorway of the kitchen. The lights were on in the library and the kitchen, and the television was on

in the den. However, the victim’s bedroom at the back of the house was dark, and the door was

closed. When the officers entered the bedroom, they discovered the victim’s body which was badly

beaten about the head and lying face up on the floor.

Dr. O’Brien Cleary Smith, the Shelby County Medical Examiner, testified that the trauma

to the victim was entirely focused on her head. The victim suffered at least thirteen blows to her

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head, most of them to her face. She had numerous bruises and tears to the skin and fractures of the

facial bones. The injuries produced bruising of the brain, and some of the bone fragments cut into

the base of her brain. The victim’s facial bones were so fragmented that Dr. Smith could not count

the fractures or determine the sequence of the blows. The victim’s upper denture plate had been split

in half. One piece was found on the floor; the other was still in her mouth. In addition, after

inhaling her own blood, the victim’s efforts to breathe caused a red frothy foam to obstruct her

airway. The victim also swallowed over a pint of blood. Dr. Smith testified that the victim must

have been alive, although not necessarily conscious, to have swallowed that amount of blood.

Dr. Smith concluded that the cause of death was blunt trauma to the head. He found no

defensive injuries on the victim’s body or any evidence that she had tried to escape the beating.

Blood stains indicated that her head had moved after the beating began but her arms had not. Based

on blood-splatter evidence indicating that the attack occurred while the victim was lying on the floor,

Dr. Smith opined that the victim had been stunned or rendered unconscious by an initial blow or

blows to the back of the head and may have felt nothing after she was first struck. Because the

victim’s blood had clotted before the end of the attack, Dr. Smith concluded that the beating had

lasted six minutes, the minimum time necessary for clotting.

The crime scene unit of the Memphis Police Department discovered blood in the victim’s

bedroom, in the foyer next to the bedroom, and in the hallway running the entire length of the house.

Blood was smeared on the handles of two grocery bags, in the kitchen doorway, and on the inside

and outside knobs of the front door. Officers found a broken handle from a skillet on the bed near

the victim’s body. The rest of the skillet was never located. The victim’s car was also missing and

was discovered the day after the murder near the residence of Faulkner’s sister. Blood stains were

found inside the car.

On Sunday morning, January 24, Faulkner went to the fugitive office of the Shelby County

Sheriff’s Department and announced that he wanted to turn himself in for killing his wife on

Thursday. Faulkner was transferred to Sergeant William Ashton of the Memphis Police Department.

According to Sergeant Ashton, Faulkner was “very calm and very rational” during the interview.

After informing Faulkner of his Fifth Amendment rights and receiving a written waiver, Sergeant

Ashton asked Faulkner if he went by any other names. Faulkner replied, “Yes, Skillet.” He then

grinned and said, “That’s what I hit her with, too.” Faulkner stated that the incident occurred around

12:00 to 12:30 a.m. on the night of January 21 and 22. He said that he hit his wife with a frying pan

and a metal horseshoe. Faulkner claimed that his wife had called him at lunchtime on January 21

and asked him to meet her at her house that evening. Faulkner described what happened:

My conversation with my wife was reconciling, and she had on her

mind divorce. She said she just wanted the divorce, and I asked her

why didn’t she just call me on the phone and tell me that. I said, you

didn’t have to make me walk all the way from Shasta Street in the

rain just to tell me you wanted a divorce. I sat back down on the bed

and explained to her that I had enough problems already over my

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head and had to bury my brother on Monday. Everything I’ve tried

to do since being out has just collapsed. I’ve lost my job, I’ve lost my

wife, I was subject to being sent back to the penitentiary because I

can’t be without a job for 30 days. And you called me back here to

discuss a divorce, and I only came to reconcile and ask we set aside

our differences and go to my brother’s funeral together. And she

responded she was going, but she wasn’t going with me.

***

So as we were finishing our conversation that was turning into an

argument, I proceeded to walk from her bedroom to the front door as

I was leaving. She walked behind me and asked me not to come back

while I was standing in the hallway and everything just exploded.

And I pushed her back off me and grabbed the two items that I seen,

and I struck her repeatedly across the head.

Faulkner estimated that he struck his wife between seven and eight times. He acknowledged that

the victim fell to the floor after the second blow and that he continued to hit her while she was on

the floor. After the attack, Faulkner put the murder weapons in a bag and drove away in the victim’s

car. He threw the murder weapons and his bloody clothes into a flooded viaduct and then parked

the car where it was later found. He slept in empty houses instead of returning to his grandmother’s

house. Faulkner concluded his statement by professing, “I loved my wife with all my heart. I never

meant to take her life. Everything that I had ever tried to do right turned out wrong. Under all the

pressure, stress and strain, I made a wrong decision. I only like to say that I’m sorry.” Faulkner

requested that he be placed on suicide watch in jail.

Faulkner’s proof at the guilt phase consisted in part of testimony showing that the security

guard who had escorted the victim from the grocery store to her car did not know Faulkner as the

guard had claimed and that the guard had been fired for carrying an unauthorized weapon. Evidence

was introduced that Faulkner had lost his job on January 3 and that Jimmy Osby, a close friend

whom Faulkner called his “brother,” had committed suicide on January 21. A Shelby County jailer

testified that Faulkner was placed on suicide precaution on January 24.

Based upon the above evidence, the jury convicted Faulkner of first degree premeditated

murder. A sentencing hearing was conducted to determine punishment.

At the penalty phase, the State presented proof that in March 1976 Faulkner was convicted

of assault with intent to commit first degree murder, assault with intent to commit robbery, and

assault with intent to commit voluntary manslaughter. Evidence also showed that Faulkner was

convicted of four robberies in September 1984 and second degree murder in October 1984.

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Paulette Sutton, a forensic serologist and blood-stain expert, testified that based on her

analysis of blood-stain patterns, the victim had collapsed fairly quickly but that the attack continued

for six minutes. Sutton theorized that the victim’s arms had not moved because Faulkner was

straddling her during part of the assault, not because she was unconscious.

The final witness for the State was the victim’s daughter, Twyla King. Ms. King testified

that she had two brothers: Musenda Spencer, age twenty-one, and Jamil Spencer, age seventeen.

Musenda was a freshman in college at the time of the murder. Because of the loss of his mother’s

financial support, Musenda now had to work while attending school. Jamil had “problems” and was

incarcerated at the time of the murder. Taking custody of her younger brother affected Ms. King

emotionally and financially. Ms. King testified that she and her husband had three daughters. The

oldest daughter had been very close to her grandmother, suffered emotionally because of the murder,

and was in counseling at the time of the trial. Ms. King concluded by stating that she missed her

mother’s emotional support.

In mitigation, the defense presented two witnesses. The first witness was Dr. Fred Steinberg,

a forensic and clinical psychologist who had interviewed and tested Faulkner for twelve hours. Dr.

Steinberg opined that Faulkner was not malingering. Dr. Steinberg testified that Faulkner had

experienced a very rough childhood. He was neglected and abused. Both his parents were

alcoholics, and one of them abused drugs. Faulkner lived with foster parents at times. Dr. Steinberg

testified that Faulkner suffered from chronic substance abuse. According to Dr. Steinberg, on the

night of the murder Faulkner’s predisposition toward impulsive behavior was made significantly

worse by a number of stressors: his attempt to establish himself outside of prison, his difficult

relationship with his wife, the loss of his job in early January, his grandmother’s hospitalization in

early January due to Alzheimer’s disease, his friend’s suicide the day before the murder, and his

frequent use of cocaine. Dr. Steinberg defined “stressor” as a life change that impacts an individual

and has an effect upon his psychological and physiological condition. Dr. Steinberg stated that

Faulkner had the ability to form intent but that he could not suppress his emotions and that his ability

to “cap” his behavior was diminished. Conceding that Faulkner had no mental disease or defect and

was sane and competent, Dr. Steinberg diagnosed him as having mixed personality features and

exhibiting paranoid thinking typical of cocaine usage. On cross-examination, the State elicited

information concerning Faulkner’s record of fighting with fellow inmates, possessing weapons, and

threatening officers while incarcerated.

The second witness was Patricia McNealy, a counselor at an alcohol and chemical abuse

center, who had worked with Faulkner beginning in November 1998 when he tested positive for

cocaine while on parole. McNealy testified that Faulkner attended classes twice a week. She had

noticed the stress in his life and observed that Faulkner began using cocaine again after losing his

job in early January 1999. Around January 20, Faulkner called McNealy to tell her that he would

not attend his next group session because his “brother” had committed suicide. Faulkner admitted

during the call to McNealy that he had been using cocaine.

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Based upon this proof, the jury found that the State had proven the statutory aggravating

circumstance that the “defendant was previously convicted of one (1) or more felonies, other than

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

Ann. § 39-13-204(i)(2) (1997).2 The jury further found that the State had proven beyond a

reasonable doubt that the statutory aggravating circumstance outweighed any mitigating

circumstances. As a result, the jury sentenced Faulkner to death for the murder of Shirley Faulkner.

ANALYSIS

Testimony Regarding “Diminished Capacity”

Faulkner sought to introduce the testimony of Dr. Steinberg and Patricia McNealy during the

guilt phase to establish “diminished capacity.”3 At a jury-out hearing, Dr. Steinberg testified that

Faulkner had experienced significant, multiple stressors at the time of the offense ranging from loss

of job to marital problems. He also suffered from exacerbation of a drug problem. His grandmother

was hospitalized. His best friend, whom he felt was like a brother, had committed suicide. All of

these stressors occurred within a short period of time. According to Dr. Steinberg, these stressors

in combination affected Faulkner’s “predisposed tendency to have a short fuse.” However, Dr.

Steinberg found no indication that Faulkner suffered from a mental disease or defect at the time of

the offense. In short, Dr. Steinberg believed that Faulkner was capable of forming intent but that his

ability to suppress his emotions was impaired. McNealy would have testified about Faulkner’s drug

dependency. Defense counsel described her testimony as “dovetailing” with Dr. Steinberg’s

testimony because she would be relating one of the stressors affecting Faulkner. The trial court ruled

that Dr. Steinberg’s testimony was inadmissible at the guilt phase under State v. Hall, 958 S.W.2d

679 (Tenn. 1997), because Dr. Steinberg could not testify that Faulkner was incapable of forming

intent as a result of a mental disease or defect. The trial court also excluded McNealy’s testimony,

finding that its admissibility depended on the admissibility of Dr. Steinberg’s testimony.

In Hall, the Court held that if general relevancy standards and evidentiary rules are satisfied,

“psychiatric evidence that the defendant lacks the capacity, because of mental disease or defect, to

form the requisite culpable mental state to commit the offense charged is admissible under

Tennessee law.” Id. at 689 (emphasis added). The Court cautioned against referring to such

evidence as proof of “diminished capacity.” Id. at 690. Instead, such evidence should be presented

as relevant to negate the existence of the culpable mental state. The Court distinguished “mental

disease or defect” from “emotional state or mental condition”:

[W]e emphasize that the psychiatric testimony must demonstrate that

the defendant’s inability to form the requisite culpable mental state

2

The State also relied on the aggravating circumstance that the murder was especially heinous, atrocious, or

cruel in that it involved torture. See Tenn. Code Ann. § 39-13-204(i)(5) (1997). However, the jury did not find this

aggravating circumstance.

3

As discussed above, both Dr. Steinberg and M cNealy testified at the sentencing hearing.

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was the product of a mental disease or defect, not just a particular

emotional state or mental condition. It is the showing of lack of

capacity to form the requisite culpable mental intent that is central to

evaluating the admissibility of expert psychiatric testimony on the

issue.

Id. at 690 (emphasis in original).

Dr. Steinberg’s testimony was not offered to show that Faulkner lacked the capacity to form

the requisite intent because of a mental disease or defect. His proposed testimony, therefore, did not

meet the prerequisites of Hall. Accordingly, we conclude that the trial court properly excluded the

testimony of both Dr. Steinberg and Patricia McNealy during the guilt phase.

Instructions Defining “Intentionally” and “Knowingly”

In its instruction on the elements of first degree premeditated murder, the trial court informed

the jury 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 result.” Cf. Tenn. Code Ann. § 39-11-106(a)(18) (1997). Regarding the elements of second

degree murder, the trial court instructed the jury that,

“Knowingly” means that a person acts knowingly with respect to the

conduct or to the 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.

Cf. id. at (a)(20). Relying on State v. Page, 81 S.W.3d 781 (Tenn. Crim. App. 2002), Faulkner

argues that the trial court erred by failing to limit the definitions of “intentionally” and “knowingly”

to the result-of-conduct language since murder is a crime defined only by its result.

In Page, the fifteen-year-old defendant was indicted for and convicted of second degree

murder. The victim was killed as a result of being struck in the head once by the defendant with a

baseball bat. The trial court instructed the jury that

A person acts “knowingly” if that person acts with an awareness:

(1) that his conduct is of a particular nature; or

(2) that a particular circumstance exists; or

(3) that the conduct was reasonably certain to cause the result.

Id. at 786. The Court of Criminal Appeals held that the instruction on the knowing mens rea element

of second degree murder, a result-of-conduct offense, erroneously lessened the State’s burden of

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proof by allowing the jury to convict based only upon awareness of the nature of the conduct or

circumstances surrounding the conduct. Id. at 788. The State conceded on appeal that the

instruction was erroneous but asserted that the error was harmless. The Court of Criminal Appeals

applied a constitutional harmless error analysis and concluded that the error was not harmless beyond

a reasonable doubt. The court recognized that mens rea was the central disputed issue at trial. Id.

at 789-90. Moreover, in closing argument, the State specifically and improperly relied upon the

defendant’s awareness of the nature of the conduct and circumstances surrounding the conduct rather

than the defendant’s awareness of the result of his conduct. Id. The court noted in dicta that the

“intentional” culpable mental state of first degree premeditated murder relates to the result of

conduct. As it did for the other homicide offenses, the court suggested a jury charge for first degree

premeditated murder, that deviated from the pattern jury instruction by limiting the definition to the

result of conduct. Id. at 789 n.2.

The State contends that Faulkner has waived the issue because he did not object at trial and

did not raise the issue in his motions for a new trial. An erroneous or inaccurate jury charge, as

opposed to an incomplete jury charge, may be raised for the first time in a motion for a new trial and

is not waived by the failure to make a contemporaneous objection. See State v. Lynn, 924 S.W.2d

892, 898-99 (Tenn. 1996) (citing Tenn. R. Crim. P. 30(b)). Therefore, contrary to the State’s

assertion, Faulkner’s failure to object at trial does not result in waiver. We conclude, however, that

the issue is waived because Faulkner did not raise it in any of his three motions for a new trial. See

Tenn. R. App. P. 3(e). The decision in Page was released while Faulkner’s case was pending on

appeal. The timing of the decision in Page does not relieve Faulkner of the requirement of raising

the issue in the motion for a new trial. Cf. Page, 81 S.W.3d at 787-88 n.1 (noting that the issue was

raised for the first time in the motion for a new trial).

Because the issue is waived, it may be considered only if plain error exists. Rule 52(b) of

the Tennessee Rules of Criminal Procedure provides that “[a]n error which has affected the

substantial rights of an accused may be noticed at any time, even though not raised in the motion for

a new trial or assigned as error on appeal, in the discretion of the appellate court where necessary to

do substantial justice.” When deciding whether plain error exists, appellate courts consider five

factors:

(a) the record must clearly establish what occurred in the trial court;

(b) a clear and unequivocal rule of law must have been breached; (c)

a substantial right of the accused must have 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.”

State v. Smith, 24 S.W.3d 274, 282 (Tenn. 2000). The presence of all five factors must be

established, and consideration of all the factors is not necessary when it is clear from the record that

at least one of the factors cannot be established. Id. at 283. Moreover, the error must be of such a

great magnitude that it probably changed the outcome of the trial. Id.

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The State contends that there has been no breach of any clear and unequivocal rule of law,

nor has any substantial right of the accused been adversely affected. The law is well-settled in

Tennessee “that a defendant has a right to a correct and complete charge of the law so that each issue

of fact raised by the evidence will be submitted to the jury upon proper instructions.” State v. Farner,

66 S.W.3d 188, 204 (Tenn. 2001). The law requires that all of the elements of each offense be

described and defined in connection with that offense. State v. Cravens, 764 S.W.2d 754, 756

(Tenn. 1989). An instruction should be considered prejudicially erroneous only if the jury charge,

when read as a whole, fails to fairly submit the legal issues or misleads the jury as to the applicable

law. State v. Vann, 976 S.W.2d 93, 101 (Tenn. 1998).

We have not previously addressed the holding in Page. We agree that a proper instruction

defining “knowingly” or “intentionally” does not include the nature-of-conduct and circumstances-

surrounding-conduct language because second degree murder and first degree premeditated murder

are result-of-conduct offenses. We are not convinced, however, that the inclusion of such language

is an error of constitutional dimension when the instruction also includes the correct result-of-

conduct definition.

Noting that Tennessee’s criminal code is similar to the code adopted in Texas, Page cited

Cook v. State, 884 S.W.2d 485 (Tex. Crim. App. 1994), the seminal case in Texas on this issue.

Without analyzing the basis for the error, the majority in Cook held that the trial court erred in

refusing the defendant’s request to limit the definitions of the applicable mental states for the

homicide to the result of the defendant’s conduct. 884 S.W.2d at 491. The majority in Cook

remanded the case for a harmless error determination, citing for guidance cases that do not apply a

constitutional harmless error standard. Four members of the en banc court dissented, concluding that

the charge, when read as a whole, stated the applicable law in a manner that was not reasonably

likely to mislead the jury into convicting the defendant because they thought he engaged in conduct

that ultimately caused the victim’s death. Id. at 496.

Our research has revealed few decisions from other states concerning this issue. In State v.

Rothacher, 901 P.2d 82, 86 (Mont. 1995), the Montana Supreme Court held that an instruction that

does not properly narrow the definition of the mental state element to the result of the conduct is

“clearly contrary to the plain language in the homicide statute” and therefore erroneous. Finding that

the error was harmless beyond a reasonable doubt, the court reasoned:

The potential prejudice from [the instruction] could occur where a

defendant acted purposefully, but intended no harm. However, there

were no facts presented in this case from which an argument could be

made that when Rothacher struck his victim in the face and kicked

him in the head while he was [lying] on the ground, he intended no

harm. Therefore, [the instruction] was, at worst, superfluous.

Id. at 87.

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In State v. Austin, 710 A.2d 732, 739 (Conn. 1998), the Connecticut Supreme Court held that

the trial court improperly instructed the jury on the entire definition of the mental state element when

only the result-of-conduct definition applied. Applying a non-constitutional harmless error standard,

the court found that the error was harmless because 1) the entire charge eliminated any possible risk

of confusion, and 2) the factual issues mitigated against the possibility of jury confusion. Regarding

the second factor, the court stated:

The defendant admitted that he pulled the trigger and shot the victim.

Counsel for both parties agreed that the sole issue in dispute was the

defendant’s mental state. Under the circumstances, “[i]t strains

reason to believe that the jury could have [understood] the challenged

instruction as not requiring that the state prove beyond a reasonable

doubt that the defendant intended to kill [the victim].”

Id. (citation omitted).

We have found no authority supporting the conclusion in Page that the erroneous instruction

lessened the State’s burden of proof. Moreover, the conclusion is inconsistent with Page’s

application of harmless error analysis. See Sullivan v. Louisiana, 508 U.S. 275, 280 (1993) (holding

that an instructional error that lessens the burden of proof is considered structural and not subject to

harmless error analysis). The superfluous language in the “knowingly” definition did not lessen the

burden of proof because it did not relieve the State of proving beyond a reasonable doubt that the

defendant acted knowingly.

Page also described the instructional error as a misstatement of an element. 81 S.W.3d at

789. The misstatement of an element in jury instructions is subject to constitutional harmless error

analysis. Pope v. Illinois, 481 U.S. 497, 501-03 (1987). In Page, however, an element was misstated

only to the extent that the erroneous instruction defined the entire scope of the mental state element

when only the result-of-conduct definition applied. In our view, the inclusion of such surplusage

falls short of being a “misstatement of an element,” as that term is used in constitutional analysis.

Cf. State v. Turner, 675 S.W.2d 199, 205 (Tenn. Crim. App. 1984) (holding that inclusion of

surplusage in jury charge defining conspiracy was “plainly harmless”).

We recognize that we previously have stated that “a defendant has a constitutional right to

a correct and complete charge of the law.” State v. Teel, 793 S.W.2d 236, 249 (Tenn. 1990). This

statement was cited by the Court of Criminal Appeals in Page. 81 S.W.3d at 789. Our statement

in Teel, however, was made in the context of the omission of the definition of rape, the underlying

felony for the felony murder charge. 793 S.W.2d at 249. The failure to instruct the jury on a

material element of an offense is a constitutional error subject to harmless error analysis. See State

v. Ducker, 27 S.W.3d 889, 899 (Tenn. 2000). Not every erroneous jury instruction, however, rises

to the level of constitutional error. See Miller v. State, 54 S.W.3d 743, 746 (Tenn. 2001) (clarifying

that State v. Brown, 836 S.W.2d 530 (Tenn. 1992), “did not declare or imply that the potentially

10

confusing ‘premeditation may be formed in an instant’ instruction infringed upon a defendant’s

constitutional rights”).

Turning to the present case, we must first determine whether the inclusion of the nature-of-

conduct language in the “intentionally” definition is an error of constitutional dimension. As noted

above, the trial court instructed the jury in accordance with Tennessee Code Annotated section

39-11-106(a)(18) (1997) 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 engaged in the

conduct or cause the result.” First degree premeditated murder requires not only that the killing be

“intentional,” but also that the defendant act with a “premeditated” mental state. See Tenn. Code

Ann. § 39-13-202(a)(1) (1997). The trial court instructed the jury in pertinent part:

A premeditated act is one done after the exercise of reflection and

judgment. Premeditation means that the intent to kill must have been

formed prior to the act itself. It’s not necessary that the purpose to kill

preexist in the mind of the accused for any definite period of time.

The mental state of the accused at the time he allegedly decided to kill

must be carefully considered in order to determine whether the

accused was sufficiently free from excitement and passion as to be

capable of premeditation.

(Emphasis added); cf. id. at (d).

As the trial court instructed, “the element of premeditation requires a previously formed

intent to kill.” See State v. West, 844 S.W.2d 144, 147 (Tenn. 1992). The instructions properly

defined “intentionally” with regard to the result of the conduct. The entire charge on first degree

premeditated murder eliminated any risk of the jury applying the wrong definition. We conclude,

therefore, that the instructional error was not constitutional in nature. Furthermore, we find that the

error was harmless. The evidence overwhelmingly demonstrated that Faulkner intended the result

of his conduct. He had made prior threats to kill the victim and inflicted numerous blows during the

commission of the offense. During its closing argument, the State did not rely on the superfluous

language in the “intentionally” definition. Cf. Page, 81 S.W.3d at 789 (noting in harmless error

analysis that during closing argument the State specifically and improperly relied upon the nature

of the conduct and the circumstances surrounding the conduct). In finding that Faulkner acted with

premeditation, the jury necessarily found that his conscious objective was to cause the result of his

conduct, i.e., the victim’s death. The inclusion of the nature-of-conduct language was mere

surplusage that did not affect the outcome of the trial. See Tenn. R. Crim. P. 52(a).

Having found that the erroneous instruction defining “intentionally” was harmless, we

conclude that Faulkner is not entitled to relief under the plain error doctrine. Moreover, because

Faulkner was not convicted of second degree murder, his issue regarding the erroneous instruction

defining “knowingly” is moot.

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Verdict Form

Faulkner contends that the sentence of death was imposed in violation of the United States

and Tennessee Constitutions because the verdict form did not recite that the jury found the

aggravating circumstance “beyond a reasonable doubt.” The State argues that this issue is waived

because Faulkner did not contemporaneously object to the verdict form and did not include this issue

in any of his motions for a new trial.

The jury verdict in this case stated:

We, the jury, unanimously find the following listed statutory

aggravating circumstance or circumstances: the defendant was

previously convicted of one or more felonies other than the present

charge. The statutory elements of which involve the use of violence

to the person. We, the jury, unanimously find that the state has

proven beyond a reasonable doubt that the statutory aggravating

circumstances so listed above outweighs any mitigating

circumstances. Therefore, we, the jury, unanimously find that the

punishment for the defendant, Robert Faulkner, shall be death.

Prior to the verdict, the trial court instructed the jury on seven occasions that it was required

to consider any statutory aggravating circumstances proven beyond a reasonable doubt. The trial

court instructed the jury that the State bears the burden of proving any statutory aggravating

circumstances beyond a reasonable doubt. The trial court further instructed the jury that victim

impact evidence does not relieve the State of its burden of proving beyond a reasonable doubt the

existence of an aggravating circumstance and that the jury may not consider victim impact evidence

until it determines that the State has proven one or more statutory aggravating circumstances beyond

a reasonable doubt.

The verdict form incorporated the language of Tennessee Code Annotated section

39-13-204(g)(1)(B) (1997), which provides: “We, the jury, unanimously find the following listed

statutory aggravating circumstance or circumstances. . . .” The statutory form also omits the burden

of proof for establishing aggravating circumstances.

Regardless of waiver, a similar issue was rejected by this Court recently in State v. Davidson,

121 S.W.3d 600, 619-20 (Tenn. 2003). We concluded that such an error can be distinguished from

the reversible error in the verdict form in State v. Carter, 988 S.W.2d 145, 152 (Tenn. 1999). See

Davidson, 121 S.W.3d at 620. In Carter, the wrong form was used, and the form was not merely

silent as to the burden or proof but conflicted with the trial court’s instructions regarding the burden.

Like Davidson, the language used in the verdict form in the present case was statutorily mandated,

and the trial court repeatedly and clearly instructed the jury that it must find any statutory aggravating

circumstances beyond a reasonable doubt. We conclude, therefore, that the failure of the verdict

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form to recite that the jury found the aggravating circumstance “beyond a reasonable doubt” did not

render the verdict invalid.

Mandatory Review

We are bound by statute to review the application of the death penalty to determine whether:

(A) The sentence of death was imposed in any arbitrary fashion;

(B) The evidence supports the jury’s finding of statutory aggravating

circumstance or circumstances;

(C) The evidence supports the jury’s finding that the aggravating

circumstance or 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.

Tenn. Code Ann. § 39-13-206(c)(1) (2003). Having thoroughly reviewed the record, we find no

indication that the sentence of death was imposed in an arbitrary fashion. We also conclude that the

State presented sufficient proof to support the jury’s finding that Faulkner had prior convictions for

felonies whose statutory elements involve the use of violence to the person. See Tenn. Code Ann.

§ 39-13-204(i)(2) (1997). We further hold that the evidence supports the jury’s finding that the

aggravating circumstance outweighed any mitigating circumstances beyond a reasonable doubt.

Next, we must determine whether the sentence of death in this case is disproportionate to the

penalty imposed in similar cases, considering the nature of the crime and the defendant. Tenn. Code

Ann. § 39-13-206(c)(1)(D) (2003). We are mindful of the following principles applicable to

proportionality review:

In conducting a comparative proportionality review, we begin

with the presumption that the sentence of death is proportional with

the crime of first degree murder. A sentence of death may be found

disproportionate if the case being reviewed is “plainly lacking in

circumstances consistent with those in similar cases in which the

death penalty has previously been imposed.” A sentence of death is

not disproportionate merely because the circumstances of the offense

are similar to those of another offense for which a defendant has

received a life sentence. Our inquiry, therefore, does not require a

finding that a sentence “less than death was never imposed in a case

with similar characteristics.” Our duty “is to assure that no aberrant

death sentence is affirmed.”

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State v. Hall, 976 S.W.2d 121, 135 (Tenn. 1998) (citations omitted). We have found the following

factors helpful in identifying and comparing similar cases: 1) the means and manner of death; 2) the

motivation for killing; 3) the place of death; 4) the similarity of the victims and treatment of the

victims; 5) the absence or presence of premeditation, provocation, and justification; and 6) the injury

to and effects on non-decedent victims. See State v. Bland, 958 S.W.2d 651, 667 (Tenn. 1997). In

comparing defendants, we consider the following non-exclusive factors: 1) prior criminal history;

2) age, race, and gender; 3) mental, emotional, and physical condition; 4) role in the murder; 5)

cooperation with authorities; 6) remorse; 7) knowledge of helplessness of victim; and 8) capacity

for rehabilitation. See id.

The proof in this case showed that Faulkner brutally killed his wife by hitting her in the head

and face with a skillet. Four days prior to the murder, he hit her with his fist and threatened to kill

her with an ashtray. The next day, he repeated his threat to kill her. On the night of the murder,

Faulkner went to his wife’s house and attacked her, striking her in the head with the skillet. After

two blows, the victim fell to the floor. Faulkner continued to hit her in the head and face with the

skillet and a metal horseshoe. In an attack that lasted at least six minutes, Faulkner struck his wife

at least thirteen times, completely crushing her face. The victim was alive and breathing during a

portion of the attack, although she may have been unconscious after the first few blows. After

beating his wife to death, Faulkner took her car. He threw the murder weapons and his bloody

clothes into a flooded viaduct. Several days later, Faulkner turned himself in to the police and

confessed to the murder.

Faulkner, an African-American male, was forty-three years old at the time of the murder and

had a prior criminal history including convictions for second degree murder, assault with intent to

commit first degree murder, assault with intent to commit robbery, assault with intent to commit

voluntary manslaughter, and robbery. Mitigation testimony showed that Faulkner was subjected to

neglect and abuse as a child, that his parents were alcoholics and one used drugs, and that he was

placed in foster care. The defense presented expert testimony that, at the time of the murder,

Faulkner had a predisposition toward impulsive behavior that was made significantly worse by a

number of stressors, ranging from the loss of his job to the suicide of a close friend. The expert

testified that Faulkner had the ability to form intent but that once his emotions were aroused under

stressful circumstances he could not suppress them and his ability to “cap” his behavior was

diminished. There was some evidence that Faulkner was using crack cocaine at or about the time

of the murder.

Based upon an exhaustive review of the record and Supreme Court Rule 12 reports, we

conclude that the sentence of death imposed in this case is not excessive or disproportionate when

compared to the penalty imposed in similar cases. The sentence of death has been upheld in

numerous cases in which the victim was the defendant’s wife or girlfriend. See, e.g., State v. Suttles,

30 S.W.3d 252 (Tenn. 2000) (defendant stabbed girlfriend in Taco Bell parking lot; (i)(2) and (i)(5)

aggravating circumstances); State v. Keough, 18 S.W.3d 175 (Tenn. 2000) (defendant stabbed wife

after argument in bar and left her to bleed to death in car; (i)(2) aggravator); State v. Hall, 8 S.W.3d

593 (Tenn. 1999) (after arguing with wife, defendant beat, strangled, and drowned her; (i)(5)

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aggravator); State v. Hall, 958 S.W.2d 679 (Tenn. 1997) (angry that girlfriend was going to leave

him, defendant set fire to her car while she was inside; (i)(5) and (i)(7) (felony murder) aggravators);

State v. Smith, 868 S.W.2d 561 (Tenn. 1993) (defendant stabbed, shot and disemboweled wife; (i)(5)

and (i)(12) (mass murder) aggravators); State v. Johnson, 743 S.W.2d 154 (Tenn. 1987) (defendant

suffocated wife with plastic bag; (i)(2) and (i)(5) aggravators). The sentence of death also has been

upheld in numerous cases where the defendant fatally beat the victim in the head. See, e.g., State

v. Nichols, 877 S.W.2d 722 (Tenn. 1994) (defendant beat victim in head with a piece of lumber

during rape; (i)(2) and (i)(7) aggravators); State v. Cazes, 875 S.W.2d 253 (Tenn. 1994) (defendant

beat woman’s head to pieces with hammer and also raped her; (i)(2), (i)(5), and (i)(7) aggravators);

State v. Barber, 753 S.W.2d 659 (Tenn. 1988) (defendant beat elderly woman in head with crescent

wrench during burglary; (i)(5) and (i)(7) aggravators); State v. Porterfield, 746 S.W.2d 441 (Tenn.

1988) (defendant beat man to death by hitting him in head twenty-one times with tire iron; (i)(2),

(i)(4), and (i)(5) aggravators); State v. McNish, 727 S.W.2d 490 (Tenn. 1987) (defendant beat elderly

woman to death with a vase; (i)(5) aggravator); State v. Harbison, 704 S.W.2d 314 (Tenn. 1986)

(defendant killed woman during burglary by striking her on head with a vase; (i)(7) aggravator). In

addition to Keough, supra, juries have imposed the death penalty based solely on a finding of

aggravating circumstance (i)(2) in several other cases. See, e.g., State v. Odom, 137 S.W.3d 572

(Tenn. 2004); State v. Dellinger, 79 S.W.3d 458 (Tenn. 2002); State v. McKinney, 74 S.W.3d 291

(Tenn. 2002); State v. Chalmers, 28 S.W.3d 913 (Tenn. 2000).

We reiterate that our analysis does not require a determination of whether a given case is

subjectively “more or less” like other “death” cases or other “life” cases. Davidson, 121 S.W.3d at

623 (citation omitted). Instead, our review requires that we identify an aberrant death sentence by

determining whether the case is plainly lacking in circumstances consistent with those in similar

cases in which the death penalty previously was imposed. Id. After reviewing the cases discussed

above as well as many others not specifically cited, we are of the opinion that the sentence of death

in this case is not excessive or disproportionate to the penalty imposed in similar cases, considering

both the nature of the crime and the defendant.

CONCLUSION

In accordance with Tennessee Code Annotated section 39-13-206(c)(1) (2003) 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 of the statutory aggravating circumstance, that the evidence supports the jury’s finding that

the aggravating circumstance outweighs 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 Faulkner and conclude that they do not warrant

relief. With respect to issue of photographic evidence which was 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. Faulkner’s

conviction and sentence of death are affirmed. The sentence of death shall be carried out as provided

15

by law on the 18th day of August, 2005, unless otherwise ordered by this Court or other proper

authority. It appearing that defendant Robert Faulkner is indigent, costs of this appeal are taxed to

the State of Tennessee.

___________________________________

JANICE M. HOLDER, JUSTICE

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