State v. Carter

IN THE SUPREME COURT OF TENNESSEE

AT JACKSON

April 8, 2003 Session

STATE OF TENNESSEE v. PRESTON CARTER

Automatic Appeal from the Court of Criminal Appeals

Criminal Court for Shelby County

No. 93-09760 and 93-09761 Jon Kerry Blackwood, Judge

No. W2000-02204-SC-DDT-DD - Filed September 18, 2003

The appeal in this capital case arises from the resentencing of Preston Carter, who originally pleaded

guilty and was sentenced to death in 1995 for the felony murders of Thomas and Tensia Jackson.

On appeal, this Court reversed the death sentences because the jury had used an outdated verdict

form containing the incorrect burden of proof. See State v. Carter, 988 S.W.2d 145 (Tenn. 1999).

Following a resentencing hearing, the jury again imposed a sentence of death on both counts, and

the Court of Criminal Appeals affirmed. On automatic appeal under Tennessee Code Annotated

section 39-13-206(a)(1), we designated the following issues for oral argument:1 (1) whether the trial

court abused its discretion in admitting photographs of the victims’ bodies; (2) whether the trial court

committed reversible error in excluding certain mitigating evidence; (3) whether the admission of

victim impact evidence violated the constitutional provisions against ex post facto laws; and (4) all

other issues mandated by Tennessee Code Annotated section 39-13-206(c)(1). Having carefully

reviewed these issues, we hold that none warrants reversal of the sentences of death. Accordingly,

we affirm the Court of Criminal Appeals.

Tenn. Code Ann. § 39-13-206(a)(1) (1991 & Supp. 1993);

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

dissenting opinion.

James A. Simmons and Thomas F. Bloom, Nashville, Tennessee, for the appellant, Preston Carter.

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

Elizabeth T. Ryan, Assistant Attorney General, for the appellee, State of Tennessee.

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“Prior to the setting of oral argument, the Co urt 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.

OPINION

FACTUAL BACKGROUND

During the early morning hours of May 28, 1993, Carter, accompanied by Darnell Ivory and

Louis Anderson, went to a Memphis apartment complex where Thomas and Tensia Jackson resided

with their young daughter, Tierney.2 The three men were under the mistaken belief that the

Jacksons’ apartment was the residence of a drug dealer whom they intended to rob. Carter and

Anderson knocked on the door of the Jacksons’ apartment. Mr. Jackson came to the door but did

not open it. Carter and Anderson asked Mr. Jackson “if he [had] anything.” Mr. Jackson replied that

he did not know what they were talking about, and he refused to open the door. The men quickly

realized they had the wrong apartment. Nevertheless, after handing a sawed-off shotgun to

Anderson, Carter kicked in the apartment door.

Carter and Anderson entered the Jacksons’ apartment and demanded money. Mr. Jackson

was told to call for his wife to “come out” and was forced into a closet. As Carter searched the

apartment for money or drugs, Anderson raped Mrs. Jackson. According to Carter, Mr. Jackson

came at him in an apparent attempt to defend his family. Carter admitted, however, that he shot Mr.

Jackson while Mr. Jackson was crouching in his daughter’s bedroom closet. Carter shot him at

point-blank range with the sawed-off shotgun. Mr. Jackson’s brain was literally blown out of his

skull, and he died instantly. Next, Carter found Mrs. Jackson in the bathroom. She was clad only

in a t-shirt, and she was screaming, “Please don’t shoot me. I’ll do anything. Please don’t shoot.”

Ignoring her pleas to live, Carter shot Mrs. Jackson at close range as she lay on the bathroom floor.

The shotgun pellets entered her left eye, and her brain exploded. She also died instantly.

Shortly before 4:00 a.m., three of Mr. Jackson’s co-workers arrived at the Jacksons’

apartment to pick him up for work at a local bakery. Among the co-workers were Mrs. Jackson’s

brother, Derrick Lott, and Thomas Jackson’s brother, Kenneth Jackson. They found the front door

to the Jacksons’ apartment kicked in and the master bedroom ransacked. Mr. Lott discovered the

Jacksons’ daughter lying in a pool of blood in the closet with her dead father. The child had not been

physically injured.

On the evening of May 28, 1993, the date of the double homicide, Carter was arrested. He

gave a statement to police admitting that he shot Mr. and Mrs. Jackson. The sawed-off shotgun

Carter used was found in his apartment, and he admitted using this weapon to shoot the two victims.

In addition to proof regarding the circumstances of the murders, the State introduced

evidence at the resentencing hearing that Carter had previously been convicted of aggravated robbery

with a shotgun.

2

The name of the Jacksons’ daughter is sometimes spelled “Tyranny” in the record. There is also some

uncertainty as to the child’s age at the time of the murders. She was either two or three years old.

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The State also presented victim impact evidence from two witnesses. Betty Mister, Tensia

Jackson’s mother, testified that she and her husband have custody of the Jacksons’ daughter. Ms.

Mister stated that Tierney misses her parents very much and wishes she could share her

accomplishments with them. Ms. Mister explained that Thomas and Tensia Jackson had been high

school sweethearts and that Mr. Jackson was “like a son of mine.” Tensia and her mother shared a

very close relationship. Ms. Mister told how Tensia, Ms. Mister’s firstborn child, helped to care for

her three younger siblings. Tensia Jackson’s siblings were deeply affected by her death. According

to Ms. Mister, Tensia was extremely close to her brother, Derrick Lott, and Tensia’s death “tears him

apart.” Ms. Mister said that the Jacksons’ deaths created a void, especially at family gatherings and

holidays. She concluded, “You know, they are missing very much in our lives.”

Kenneth Jackson, the second victim impact witness, was the older brother of Thomas

Jackson. He had worked with his brother at the bakery, and they had carpooled to work each

morning. Kenneth Jackson was present when the bodies of Thomas and Tensia Jackson were

discovered. He testified that Thomas and Tensia “were just in love with each other.” He described

Thomas as a beautiful, good-hearted man who had never been to jail or to “a club.” According to

Kenneth Jackson, Thomas’s main priority had been his wife and his daughter.

In mitigation, Carter presented the testimony of Dr. Joseph Charles Angelillo, a clinical

psychologist. Dr. Angelillo interviewed Carter prior to the re-sentencing hearing, reviewed

background materials such as Carter’s school records and interviews with Carter’s friends and

family, and administered three tests to Carter. Dr. Angelillo testified that the first test, the Wechsler

Adult Intelligence Scale, revealed that Carter had a full scale I.Q. of 78, which was described as

being in the “borderline range.” Scores below the “borderline” indicate mild retardation. The

second test, the Woodstock Johnson Test of Achievement, measures a person’s current knowledge.

This test showed Carter’s proficiency in mathematical calculations at grade level 7.3, in applied

mathematics at grade 5.8, in verbal encoding at grade 7.6, and in reading comprehension at grade

11, with a broad scale reading score at the seventh grade level. The third test, the Millon Clinical

Multiaxial Inventory, Third Edition, a personality test, showed that Carter has “generalized anxiety

disorder” and obsessive-compulsive personality traits. This test also showed that Carter has

histrionic personality features, typified by a dramatic and shallow personality and difficulty

empathizing with others. According to this test, Carter also possesses schizotypal personality

features characteristic of persons who prefer solitude and exhibit eccentric behavior and beliefs. On

cross-examination, Dr. Angelillo conceded that Carter is not mentally retarded.

The next witness was Carter, who testified that he had gone through the eighth grade in

school and that at the time of resentencing he was twenty-nine years of age and had three children

– two boys, eight and seven years old, and a girl, aged nine. He stated that he married in March of

2000 and that his wife visits him in prison on a weekly basis. Carter testified that he had been

drinking alcohol and using marijuana all day prior to the double homicide and that he retrieved the

sawed-off shotgun from his apartment when he, Anderson, and Ivory decided to commit a robbery.

He admitted killing Mr. and Mrs. Jackson, but he asserted that he did not intend to kill anyone when

he first went to the apartment. Carter conceded, however, that he knew very soon after he arrived

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at the Jacksons’ residence that he was at the wrong apartment but that he nonetheless decided to rob

the victims.

Carter stated that he did not know why he murdered the Jacksons, and he asked for

forgiveness from the victims’ families. Carter testified that he had changed since his former days

of “just drinking and using drugs and taking things that I wanted.” As a result, Carter legally

changed his name to “Akil Jahi.” “Akil,” he explained, means “one who uses reason,” and “Jahi”

means “dignity.” Carter testified that his years in prison taught him “[h]ow precious life is,” how

to “respect other people and respect authority,” and “how to love and [have] compassion toward

people.” He thinks about the Jacksons all the time, and he asked to be permitted to help others avoid

doing what he had done. He has had no disciplinary problems while on death row and missed

passing the G.E.D. exam by a single point. He writes poetry and participates in twice-weekly

Christian worship services. On cross-examination, Carter admitted that he had been convicted of

breaking into and burglarizing a vehicle in 1991 and that he was on probation for a theft conviction

when he murdered the Jacksons.

Two employees of the Riverbend Maximum Security Institution, where Carter is on death

row, also testified. Brenda K. Morrison, the Inmate Relations Coordinator, testified that Carter poses

no disciplinary problems. According to Ms. Morrison, Carter achieved the least restrictive security

rating in the shortest possible time. Ms. Morrison described Carter as being “very helpful.” In her

opinion, Carter “would not have a problem fitting in with the general [prison] population [if a

sentence of life were returned].” The second witness, Cheryl Donaldson, a counselor for death row

inmates, had daily interaction with Carter for over four years when he worked in an area near her

office. Ms. Donaldson testified that Carter never exhibited any violent tendencies and she found him

to be trustworthy.

The final mitigation witness was the Reverend Melita Padilla, an ordained United Methodist

minister. Ms. Padilla began visiting Carter in 1996 when she was a student at Vanderbilt Divinity

School. She visited Carter in prison on a regular basis as part of a program for visitation with death

row prisoners. Carter initiated the visitation by placing his name on a list of inmates wishing to

receive religious visitors. Ms. Padilla testified that she saw Carter grow as a person, both spiritually

and intellectually, during their acquaintance. She read into evidence a letter that Carter had written

to her.

Based on this proof, the jury found that the State had proven beyond a reasonable doubt the

following two aggravating circumstances applicable to the murders of both Thomas and Tensia

Jackson: “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” and “The murder

was especially heinous, atrocious, or cruel in that it involved torture or serious physical abuse beyond

that necessary to produce death.” Tenn. Code Ann. § 39-13-204(i)(2), (5) (1991 & Supp. 1993). In

addition, the jury found that the State had proven that the aggravating circumstances outweighed any

mitigating circumstances beyond a reasonable doubt. As a result, the jury sentenced Carter to death

on both counts.

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PHOTOGRAPHS OF VICTIMS’ BODIES

Three color photographs of the victims’ bodies at the crime scene were admitted into

evidence at the resentencing hearing. Two of these photographs were also admitted at the first

sentencing hearing. The first photograph shows Mr. Jackson crouched in a closet and covered with

blood. There is a large wound in his head through which part of his brain protrudes. The second

photograph shows Mrs. Jackson lying in a pool of blood on the bathroom floor between the wall and

the commode. The wound to her left eye is visible. The third photograph, which was admitted only

at the resentencing hearing, shows Mrs. Jackson lying on the bathroom floor in a pool of blood.

Unlike the second photograph, it shows Mrs. Jackson unclothed from the waist down.

In the first appeal, the Court of Criminal Appeals held that the trial court did not abuse its

discretion in admitting the first two photographs. Although the issue was raised in this Court in the

first appeal, we did not address the issue. In the appeal of Carter’s resentencing, the Court of

Criminal Appeals held that, under the doctrine of the “law of the case,” the appeal was governed by

its prior ruling upholding the trial court’s admission of the first two photographs. The Court of

Criminal Appeals held that the third photograph was admissible as evidence of the circumstances

of the crimes. The court noted that the third photograph was not unfairly prejudicial because the

portion of the photograph showing the unclothed part of Mrs. Jackson’s body was obscured by

shadow.

Carter argues that the photographs were unfairly prejudicial to him because they are

gruesome and graphic and have marginal evidentiary value. Carter further contends that the

photographs should not have been admitted because they were cumulative to evidence conveyed

through the testimony of witnesses. Finally, Carter asserts that an exception to the law of the case

doctrine applies because the prior ruling of the Court of Criminal Appeals upholding the trial court’s

admission of the first two photographs was clearly erroneous.

Under the doctrine of the law of the case, when an initial appeal results in a remand to the

trial court, the decision of the appellate court establishes the law of the case, which must be followed

upon remand by the trial court and by an appellate court on a second appeal. See State v. Jefferson,

31 S.W.3d 558, 561 (Tenn. 2000) (citing Memphis Publ’g Co. v. Tenn. Petroleum Underground

Storage Tank Bd., 975 S.W.2d 303, 306 (Tenn. 1998)). However, an issue decided in a prior appeal

may be reconsidered if: (1) the evidence offered at the hearing on remand was substantially different

from the evidence at the first proceeding; (2) the prior ruling was clearly erroneous and would result

in a manifest injustice if allowed to stand; or (3) the prior decision is contrary to a change in the

controlling law occurring between the first and second appeal. See id.

In the first appeal, this Court neither addressed nor decided by implication the issue of the

admission of the photographs. Therefore, the Court of Criminal Appeals properly applied the law

of the case doctrine in upholding the trial court’s admission of the first two photographs, even though

this Court reversed and remanded for a new sentencing hearing on another ground. Cf. Ladd v.

Honda Motor Co., 939 S.W.2d 83, 91 (Tenn. Ct. App. 1996) (holding that law of the case doctrine

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does not apply to intermediate appellate court opinions that have been reversed and vacated). As

explained below, Carter has failed to show that the prior ruling of the Court of Criminal Appeals was

clearly erroneous. Therefore, the Court of Criminal Appeals did not err in applying the law of the

case doctrine to the issue of the admissibility of the first two photographs. Because this Court

previously did not consider the admissibility of the photographs and did not decide the issue by

implication, the law of the case doctrine does not control our review of the issue.

Tennessee courts have consistently followed a policy of liberality in the admission of

photographs in both civil and criminal cases. See State v. Banks, 564 S.W.2d 947, 949 (Tenn.

1978). The general rule, announced in Banks, is that photographs of a murder victim’s body are

admissible if they are “relevant to the issues on trial, notwithstanding their gruesome and horrifying

character.” Id. at 950-51. In addition, the admissibility of evidence at the resentencing hearing in

this case is governed primarily by Tennessee Code Annotated section 39-13-204(c) (1991 & Supp.

1993), which provides:

In the sentencing proceeding, evidence may be presented as to any

matter that the court deems relevant to the punishment and may

include, but not be limited to, the nature and circumstances of the

crime; the defendant’s character, background history, and physical

condition; any evidence tending to establish or rebut the aggravating

circumstances enumerated in subsection (i); and any evidence tending

to establish or rebut any mitigating factors. Any such evidence which

the court deems to have probative value on the issue of punishment

may be received regardless of its admissibility under the rules of

evidence; provided, that the defendant is accorded a fair opportunity

to rebut any hearsay statements so admitted. However, this

subsection shall not be construed to authorize the introduction of any

evidence secured in violation of the constitution of the United States

or the constitution of Tennessee.

Accordingly, any evidence relevant to the circumstances of the murder, the aggravating

circumstances relied upon by the State, or the mitigating circumstances is admissible if such

evidence has probative value in the determination of punishment. See State v. Teague, 897 S.W.2d

248, 250 (Tenn. 1995). This statute does not require, however, that the rules of evidence be

completely disregarded. The trial court retains its traditional role in controlling the introduction of

evidence, and it may continue to use the rules of evidence to guide its decisions regarding

admissibility of evidence in capital sentencing proceedings. See State v. Sims, 45 S.W.3d 1, 14

(Tenn. 2001).

We conclude that the three photographs at issue are relevant as background information

because they accurately depict the nature and circumstances of the crimes. The introduction of

background information regarding the nature and circumstances of the crime is especially important

in cases such as the one before us in which the defendant pleaded guilty. In such cases, the

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sentencing jury does not have the benefit of proof normally introduced in the guilt phase of the trial.

In this procedural posture, the parties are “entitled to offer evidence relating to the circumstances of

the crime so that the sentencing jury will have essential background information ‘to ensure that the

jury acts from a base of knowledge in sentencing the defendant.’” State v. Adkins, 725 S.W.2d 660,

663 (Tenn. 1987) (quoting State v. Teague, 680 S.W.2d 785, 788 (Tenn. 1984)).

We conclude that the photographs are also relevant for the purpose of establishing the

“heinous, atrocious, or cruel” aggravating circumstance for both murders. See Tenn. Code Ann.

§ 39-13-204(i)(5) (1991 & Supp. 1993). The (i)(5) circumstance states: “The murder was especially

heinous, atrocious, or cruel in that it involved torture or serious physical abuse beyond that necessary

to produce death.” Id. This Court has repeatedly held that photographs relevant to proving the

aggravating circumstance that the murder was especially heinous, atrocious, or cruel are admissible

in the penalty phase. See State v. Hall, 976 S.W.2d 121, 162 (Tenn. 1998) (appendix); State v.

Porterfield, 746 S.W.2d 441, 450 (Tenn. 1988); State v. McNish, 727 S.W.2d 490, 495 (Tenn. 1987).

We have held that the anticipation of physical harm to oneself is torturous. See Carter, 988 S.W.2d

at 150; State v. Nesbit, 978 S.W.2d 872, 886-87 (Tenn. 1998); State v. Hodges, 944 S.W.2d 346, 358

(Tenn.), cert. denied, 522 U.S. 999 (1997). The contested photographs aid in establishing that the

victims suffered torture in the form of severe mental anguish. The jury could infer from these

photographs that both victims anticipated physical harm. Mental torture also occurs when a victim

hears or anticipates the harm or killing of a spouse and is helpless to assist. See Carter, 988 S.W.2d

at 150-51. The jury could reasonably infer from the testimony that Mr. Jackson knew or strongly

suspected that his wife was being raped and that he was prevented from helping her. The photograph

showing Mrs. Jackson’s partially nude body corroborates her rape and is therefore also probative on

the question of mental torture. Likewise, the photograph showing Mr. Jackson’s body in the closet

corroborates testimony that the couple was separated during the violent attack. The jury could

reasonably infer from the testimony and the photographs that Mrs. Jackson was likewise helpless to

assist her husband and that she heard the shot that killed him while in fear for her own life.

We further conclude that the probative value of the photographs was not substantially

outweighed by the danger of unfair prejudice. We do not consider the photographs excessively

gruesome or shocking, especially in light of the graphic testimony in this case. Moreover, while the

photographs corroborate testimony presented at the sentencing hearing, the information sought to

be conveyed by the photographs, even if cumulative, is clearly admissible. See State v. Morris, 24

S.W.3d 788, 811 (Tenn. 2000) (appendix) (stating that “a relevant photograph is not rendered

inadmissible merely because it is cumulative”); see also State v. Van Tran, 864 S.W.2d 465, 477

(Tenn. 1993), cert. denied, 511 U.S. 1046 (1994) (holding that color photographs of deceased

victims at crime scene were admissible despite introduction of extensive color videotape showing

victims’ bodies as they were found); State v. Brown, 836 S.W.2d 530, 551 (Tenn. 1992) (concluding

that photographs of the victim’s body were admissible despite oral testimony “graphically”

describing victim’s injuries). Accordingly, we hold that the trial court did not abuse its discretion

in admitting the three photographs into evidence at the resentencing hearing.

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MITIGATING EVIDENCE

Ms. Padilla testified that Carter sent numerous cards, poems, and letters to her over

approximately four years and that she had brought these documents with her to court. Defense

counsel asked Ms. Padilla to pick one of the letters to read to the jury. The State objected to the

letter as hearsay. The trial court overruled this objection and allowed Ms. Padilla to read to the jury

a letter dated October 12, 1999. In the letter Carter expresses his gratitude to her for teaching him

how to love himself and others. Carter states, “God is . . . our rock that we must keep first as the

head of our everyday life.” Carter also discusses his use of the law library, conversations with

investigators, and the pastor’s possible assistance in his defense.

Defense counsel then attempted to introduce into evidence other letters and poems Carter had

sent to Ms. Padilla. Counsel argued that these additional letters and poems show Carter’s true

feelings in a way Carter would be unable to articulate through his testimony. Among the documents

that the trial court excluded were three cards, six poems, and two letters. These writings reveal

Carter’s religious feelings, his remorse, and his friendship with Ms. Padilla. For example, one small

hand-decorated card says, “We are safe and secure, for we are in the presence of God . . . for I know

whatever challenge we’re going through. [sic] He is with us, every step of the way. Peace, Akil.”

In a letter dated July 11, 1999, Carter tells Ms. Padilla that “I can’t change what happened six years

ago nor can I blame anyone but myself. I have lived a life of sin not to be that person anymore. No

matter how the outcome may be I won’t let go of my Lord’s mighty hands. Because right now my

friend, I owe Him my life.”

Although the trial court found that the additional documents were probative of Carter’s

friendship with Ms. Padilla and of Carter’s religious feelings, the court refused to admit them into

evidence because these mitigating factors had already been proven through Ms. Padilla’s testimony.

Carter argues that the trial court committed reversible error by excluding the correspondence. For

the following reasons, we hold that the trial court’s refusal to admit into evidence the proffered

correspondence between Carter and his pastor was error but that the error is harmless beyond a

reasonable doubt.

Mitigating evidence includes “any aspect of a defendant’s character or record and any of the

circumstances of the offense that the defendant proffers as a basis for a sentence less than death.”

Lockett v. Ohio, 438 U.S. 586, 604 (1978). Both the Eighth and Fourteenth Amendments to the

United States Constitution and Article I, section 16 of the Tennessee Constitution require the

sentencing body in capital cases to consider mitigating evidence. See McKoy v. North Carolina, 494

U.S. 433, 442 (1990); State v. Cauthern, 967 S.W.2d 726, 738 (Tenn. 1998); State v. Odom, 928

S.W.2d 18, 30 (Tenn. 1996); State v. Teague, 897 S.W.2d 248, 255 (Tenn. 1995). Consistent with

these constitutional dictates, Tennessee Code Annotated section 39-13-204(c) provides that evidence

tending to establish any mitigating factors is admissible in a capital sentencing hearing. Such

mitigating factors need not be specifically listed in the statute. Tennessee Code Annotated section

39-13-204(j)(9) provides for the admissibility of “any other mitigating factor which is raised by the

evidence . . . .” Tennessee Code Annotated section 39-13-204 thus provides for the liberal admission

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of mitigation evidence in the penalty phase and ensures that a jury will have as much information

as possible in making its sentencing determination.

Carter argues that the proffered correspondence was relevant as a “potential basis upon which

a juror could decline to impose the death penalty” and should have been admitted into evidence.

Cauthern, 967 S.W.2d at 738-39. We agree. It is well established that “the sentencer may not refuse

to consider or be precluded from considering ‘any relevant mitigating evidence.’” Skipper v. South

Carolina, 476 U.S. 1, 4 (1986) (quoting Eddings v. Oklahoma, 455 U.S. 104, 114 (1982)). The

writings that Carter sought to introduce into evidence in this case were probative of his character.

See Penry v. Lynaugh, 492 U.S. 302, 328 (1989) (holding that to ensure reliability that death is the

appropriate punishment the jury must be able to consider and give effect to any mitigating evidence

relevant to a defendant’s background and character or the circumstances of the crime). Accordingly,

we conclude that the writings that Carter sought to introduce into evidence were relevant mitigating

evidence. Thus, it was error for the trial court to exclude the proffered correspondence.

Our analysis does not end here, however. We must next consider whether this error was

harmless. The exclusion of mitigating evidence is an error of constitutional magnitude. See

Cauthern, 967 S.W.2d at 739. It is the State’s burden to prove that the error did not affect the verdict

and, therefore, was harmless beyond a reasonable doubt. See id.

In Cauthern, this Court found that the trial court’s error in refusing to admit a note written

by the defendant’s son was harmless beyond a reasonable doubt because “the essence of the excluded

evidence was presented to the jury in other forms.” Id. The Court concluded that the note in which

the defendant’s son expressed his love and support for his father was presented to the jury through

the defendant’s testimony and a photograph of the defendant with his son. Id.

In the present case, the letter read to the jury, Carter’s testimony, and the testimony of Ms.

Padilla conveyed the essence of the contents of the additional documents sought to be introduced

into evidence. The letter read to the jury reflects Carter’s faith in God and his gratitude to Ms.

Padilla for teaching him to love himself and others. Both Ms. Padilla and Carter testified concerning

Carter’s faith in God. Carter testified that since his incarceration he had learned to respect other

people, to respect authority, and to love and have compassion toward people. He testified about Ms.

Padilla’s visits and about his participation in Christian worship activities each week. He also asked

forgiveness from the victims’ families. The excluded correspondence reaffirms the letter admitted

into evidence as well as the testimony of Ms. Padilla and of Carter.

Carter argues that, unlike the excluded evidence in Cauthern, the State challenged the

substance of the testimony he sought to introduce through the excluded evidence. Carter asserts that

he was primarily relying on the changes that had occurred in his life as mitigation evidence. The

State argued that his new-found religiosity was fraudulent and self-serving. The excluded evidence

could have been used to buttress his mitigation evidence and counter the State’s argument. Carter

therefore contends that the error in excluding the additional letters, poems, and cards cannot be

harmless.

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We conclude that the content of the excluded correspondence was adequately communicated

to the jury through other evidence, including the October 12 letter, Carter’s testimony, and Ms.

Padilla’s testimony. Based on this evidence, the trial court instructed the jury that it could consider,

among other factors, “remorse,” “religious reformation,” and “spiritual development” as non-

statutory mitigating factors. The trial court’s exclusion of the proffered evidence did not foreclose

the sentencing jury’s consideration of these mitigating factors in determining Carter’s punishment.

Moreover, Carter does not claim that the excluded evidence illustrates any additional mitigating

factors. Furthermore, the excluded evidence would have had little value in rebutting the State’s

arguments challenging the assertions of Carter that he had changed and found God. Accordingly,

we hold that the error in excluding the correspondence was harmless beyond a reasonable doubt.

VICTIM IMPACT TESTIMONY

Carter challenges the admission of victim impact evidence in his case, claiming that its

admission violated the constitutional provisions prohibiting ex post facto laws. He complains that

the pertinent sentencing statute, Tennessee Code Annotated section 39-13-204(c), did not expressly

allow such testimony until 1998, five years after the murders of Thomas and Tensia Jackson had

occurred. He also argues that the principal case discussing the permissible types of victim impact

evidence, State v. Nesbit, 978 S.W.2d 872 (Tenn. 1998), was not decided at the time the crimes were

committed. We rejected a similar argument recently in State v. Reid, 91 S.W.3d 247, 280 (Tenn.

2002).

As we explained in Reid, “the Ex Post Facto Clause does not by its own terms apply to

judicial decisions.” Id.; see generally U.S. Const. art. 1, §§ 9, 10; Tenn. Const. art. I, § 11; Rogers

v. Tennessee, 532 U.S. 451, 456 (2001). Furthermore, only if an alteration of a common law

doctrine of criminal law is “‘unexpected and indefensible by reference to the law which had been

expressed prior to the conduct in issue’” will it violate due process. Reid, 91 S.W.3d at 280 (quoting

Rogers, 532 U.S. at 461). Nesbit did not change existing law nor apply a new interpretation to

Tennessee Code Annotated section 39-13-204, the capital sentencing statute that was in effect when

Mr. and Mrs. Jackson were murdered. See id. Therefore, we conclude, as we did in Reid, that

Carter’s assertion that admitting victim impact evidence constituted an ex post facto violation is

without merit.

MANDATORY REVIEW FACTORS

Tennessee Code Annotated section 39-13-206(c)(1) requires that courts reviewing a sentence

of death for first degree murder 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;

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(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.

Our review of the record confirms that the sentences in this case were not imposed in an arbitrary

fashion. We also conclude that the evidence is sufficient to support the jury’s finding that Carter was

previously convicted of a violent felony, see Tenn. Code Ann. § 39-13-204(i)(2) (1991 & Supp.

1993), and that the murders in this case were heinous, atrocious, or cruel in that they involved mental

torture, see Tenn. Code Ann. § 39-13-204(i)(5) (1991 & Supp. 1993). The proof at the resentencing

hearing revealed that on October 20, 1994, approximately three months prior to his conviction in this

case, Carter was convicted of aggravated robbery by use of a deadly weapon. This evidence is

clearly sufficient to establish that Carter was previously convicted of one or more felonies, other than

the present charge, whose statutory elements involved the use of violence to the person.3 This Court

previously determined that the evidence in this case was sufficient to support the (i)(5) aggravator.

See Carter, 988 S.W.2d at 150-51 (finding proof in the first sentencing hearing sufficient to support

aggravating circumstance (i)(5), particularly as it related to the mental torture present in this case).

The same facts upon which we relied in the initial appeal were presented at the resentencing hearing.

In addition, there has been no substantial change in the law since the previous appeal, and we do not

find our prior ruling erroneous. See State v. Jefferson, 31 S.W.3d 558, 561 (Tenn. 2000).

Accordingly, we reach the same conclusion, that the evidence is sufficient to support the (i)(5)

aggravating circumstance.

We further conclude that the evidence was sufficient to support the jury’s finding that the

aggravating circumstances outweigh the mitigating circumstances beyond a reasonable doubt. In

determining whether the evidence supports the jury’s finding, the proper standard is whether, after

reviewing the evidence in the light most favorable to the State, a rational trier of fact could have

found that the aggravating circumstance(s) outweighed the mitigating circumstance(s) beyond a

reasonable doubt. See State v. Henderson, 24 S.W.3d 307, 313 (Tenn. 2000); State v. Bland, 958

S.W.2d 651, 661 (Tenn. 1997). The evidence is sufficient to support the jury’s decision that the two

aggravating circumstances outweighed, beyond a reasonable doubt, the various mitigating

circumstances presented by Carter (e.g., remorse; rehabilitation since incarceration; lack of future

violent tendencies; opportunity to provide positive benefit to society through ability to have contact

with inmates in general population; children and wife who need their father/husband; borderline

3

The State did not rely on the (i)(2) aggravating circumstance at Carter’s original sentencing hearing. However,

this does not preclude the State from relying on this aggravating circumstance upon resentencing. See State v. Harris,

919 S.W.2d 323, 330-31 (Tenn. 1996) (stating that at resentencing the State may offer pro of of any legally valid

aggravating circumstance); see also Hodges, 944 S.W.2d at 357 (stating that “so long as a defenda nt is convicted of a

violent felony prior to the sentencing hearing at which the previous conviction is introduced, this aggravating

circumstance is applicable”).

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intelligence; schizotypal/personality features, if any; religious reformation; spiritual development;

etc.). Given Carter’s prior conviction for a violent crime against a person, as well as the torturous

manner in which he murdered Thomas and Tensia Jackson, a rational juror could find that the

mitigating circumstances did not outweigh the aggravating circumstances beyond a reasonable doubt.

In conducting a comparative proportionality review as required by Tennessee Code

Annotated section 39-13-206(c)(1)(D), we have previously stated that

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.”

State v. Powers, 101 S.W.3d 383, 403 (Tenn. 2003) (quoting State v. Hall, 976 S.W.2d 121, 135

(Tenn. 1998)) (citations omitted). In considering proportionality, we look at the facts and

circumstances of the crimes, the characteristics of the defendant, and the aggravating and mitigating

circumstances involved, and compare the present case with others in which a defendant was

convicted of the same or similar crimes. See State v. Godsey, 60 S.W.3d 759, 782 (Tenn. 2001)

(footnote omitted). The pool from which we select similar cases includes “only 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, regardless of the sentence actually imposed.” Id. at 783.

The following factors are useful 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 Bland, 958 S.W.2d at

667. 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.

In the present case, Mr. and Mrs. Jackson were innocent victims. The motive for the killings

was robbery. Although Carter acknowledged that he realized the Jacksons were not the drug dealers

he intended to rob, he and Anderson nonetheless terrorized them. Carter ransacked the Jacksons’

apartment looking for money or drugs while his accomplice, Anderson, raped Mrs. Jackson in the

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master bedroom. Mr. Jackson was forced into his daughter’s bedroom closet. Carter shot both

victims in the head, at close range, while their young daughter was present in the apartment.

Carter, who was twenty-four years old at the time he killed Mr. and Mrs. Jackson, confessed

to the murders. Proof was presented that he cooperated with the law enforcement officers

investigating the murders. Carter was convicted of aggravated robbery prior to his conviction in this

case. He is the father of four children and has married since his incarceration. Carter has a

“borderline” I.Q. and has been diagnosed with generalized anxiety disorder, obsessive-compulsive

disorder, and histrionic and schizotypal personality features. He admitted using drugs and alcohol

at the time of the murders. Carter has behaved well in prison, and he has stated that he has learned

to love and respect others. His pastor testified about his spiritual and intellectual growth.

Based upon an exhaustive review of the record and Supreme Court Rule 12 reports from trial

judges in trials for first degree murder, we conclude that the present case is proportionate when

compared to other similar murders in which the death penalty was imposed. The following cases

in which the death penalty was imposed bear similarities to the current case: State v. Stout, 46

S.W.3d 689 (Tenn. 2001) (twenty-year-old defendant shot victim once in the head during course of

robbery, death sentence upheld based upon (i)(2), (i)(6), and (i)(7) aggravating circumstances,

despite evidence that defendant had turned to religion); State v. Sims, 45 S.W.3d 1 (Tenn. 2001)

(defendant and co-defendant were burglarizing victim’s house when victim came home unexpectedly

and defendant shot him in the head, jury applied (i)(2) and (i)(5) aggravators); State v. Chalmers, 28

S.W.3d 913 (Tenn. 2000) (twenty-one-year-old defendant shot victim during robbery and was

sentenced to death based upon the sole aggravating factor that he had previously been convicted of

a violent felony); State v. Smith, 993 S.W.2d 6 (Tenn. 1999) (twenty-three-year-old defendant

admitted to drinking alcohol and taking drugs prior to robbery and murder of victim and cooperated

with authorities, death sentence upheld based upon (i)(2) aggravator); State v. Burns, 979 S.W.2d

276 (Tenn. 1998) (twenty-three-year-old defendant shot and killed victim during robbery, death

sentence upheld based upon (i)(5) aggravator, despite evidence regarding defendant’s religious faith);

State v. Nesbit, 978 S.W.2d 872 (Tenn. 1998) (nineteen-year-old defendant shot and tortured victim

at victim’s house with victim’s young children present, death sentence upheld based upon (i)(5)

aggravator); State v. Cribbs, 967 S.W.2d 773 (Tenn. 1998) (twenty-three-year-old defendant shot

victim once in the head when she and her husband returned home to find the defendant and second

assailant burglarizing their home, death sentence upheld based upon (i)(2) and (i)(7) aggravators);

State v. Howell, 868 S.W.2d 238 (Tenn. 1993) (twenty-seven-year-old defendant shot victim in the

head during robbery of convenience store, death sentence upheld based upon (i)(2) aggravator); State

v. Van Tran, 864 S.W.2d 465 (Tenn. 1993) (nineteen-year-old defendant shot victim in the head

during course of robbery of restaurant, death sentence upheld based upon (i)(5) and (i)(12)

aggravators); State v. Harries, 657 S.W.2d 414 (Tenn. 1983) (thirty-one-year-old defendant shot

victim in the head during the course of robbing a convenience store, death sentence upheld based

upon (i)(2) aggravator). After reviewing these cases, and many others not specifically cited, we

conclude that the penalty imposed by the jury in this case is not disproportionate to the penalty

imposed for similar crimes.

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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 and conclude that the sentence of

death has not been imposed arbitrarily, that the evidence supports the jury’s finding of the statutory

aggravating circumstances, that the evidence supports the jury’s finding that the aggravating

circumstances outweigh the mitigating circumstances beyond a reasonable doubt, and that the

sentence is not excessive or disproportionate.

We have reviewed all of the issues raised by Carter and conclude that they do not warrant

4

relief. Carter’s sentence of death is affirmed and shall be carried out on the 4th day of February,

2004, unless otherwise ordered by this Court or proper authority. It appearing that the defendant,

Preston Carter, is indigent, costs of this appeal are taxed to the State of Tennessee.

___________________________________

JANICE M. HOLDER, JUSTICE

4

In a supplemental filing, Carter argues for the first time that his sentences of death must be reversed based upon

decisions of the United States Supreme Court in Apprendi v. New Jersey, 530 U.S. 466 (2000), and Ring v. Arizona,

536 U.S. 584 (2002). He contends that according to these decisions the indictment in his case must be dismissed and

his convictions vacated because the aggravating circum stances were not charged in the indictment. Carter asserts that

Tennesse e’s statutory scheme of aggravating circumstances is analogous to that of the Federal Death Penalty Act and

points out that some federal courts have held that aggravating circumstances must be charged in the indictment. See

United States v. Prom ise, 255 F.3d 150 , 152 (4th C ir. 200 1) (drug case); United States v. Lentz, 225 F. Supp. 2d 672,

680 (E.D. Va. 2002) (capital case). Bec ause Carter failed to file a motion seeking permission to raise this supplemental

issue, it could be co nsidered waived . Carter’s argument, however, is without merit. This Court has held that “[n]either

the United States Constitution nor the Tennessee Constitution requires that the State charge in the indictment the

aggravating factors to be relied upon by the State during sentencing in a first degree murder prosecution.” State v.

Dellinger, 79 S .W .3d 4 58, 4 67 (Tenn.), cert. denied, 123 S. Ct. 695 (200 2).

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