State v. Powers

IN THE SUPREME COURT OF TENNESSEE

AT JACKSON

June 5, 2002 Session at Nashville

STATE OF TENNESSEE v. GERALD POWERS

Automatic Appeal from the Court of Criminal Appeals

Criminal Court for Shelby County

No. 96-08230-31 Joseph B. Dailey, Judge

No. W1999-02348-SC-DDT-DD - Filed January 6, 2003

A Shelby County jury convicted the defendant, Gerald Powers, of first degree felony murder and

aggravated robbery. He was sentenced to death for the felony murder charge and to a consecutive

thirty-year prison sentence for the aggravated robbery charge. The Court of Criminal Appeals

affirmed the conviction and death sentence for the felony murder but reduced Powers’ sentence for

the aggravated robbery to twenty years. Thereafter, the case was automatically docketed in this

Court pursuant to Tennessee Code Annotated section 39-13-206(a)(1) (1997). We entered an order

designating the following issues for oral argument:1 1) whether allowing Powers’ wife to testify

violated the confidential marital communications privilege in Tennessee Code Annotated section

24-1-201(b) (Supp. 1998); 2) whether the trial court erred in excluding evidence and restricting

cross-examination indicating that other persons might have had the motive and opportunity to kill

the victim; 3) whether the deposition of Margaret York was admissible; 4) whether the evidence was

sufficient to establish beyond a reasonable doubt the aggravating circumstance in Tennessee Code

Annotated section 39-13-204(i)(6) (Supp. 1996); 5) whether the facts underlying Powers’ prior

violent felony convictions were admissible; 6) whether the trial court erred in not allowing the

defense to attack the character of the victim at the sentencing hearing; and 7) whether the sentence

of death is disproportionate, and all other issues mandated by Tennessee Code Annotated section

39-13-206(c)(1) (1997). Having carefully reviewed these issues and the issue of identification

testimony raised by Powers, 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

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.

1

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

and E. RILEY ANDERSON, JJ., joined. WILLIAM M. BARKER, J., filed a dissenting opinion, in which

ADOLPHO A. BIRCH, JR., J., joined.

W. Mark Ward, Tony N. Brayton, and Garland Ergüden, Memphis, Tennessee, for the appellant,

Gerald Powers.

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

B. Lustre, Assistant Attorney General, Nashville, Tennessee, for the appellee, State of Tennessee.

OPINION

FACTUAL BACKGROUND

On April 18, 1996, the victim, Shannon Sanderson, spent the evening gambling at Sam’s

Town Hotel and Gambling Hall in Tunica, Mississippi. She originally planned to spend her evening

at the casino with her husband, Robert Sanderson, to celebrate his birthday. However, an argument

occurred between the couple. After leaving her children with their paternal grandparents at

approximately 6:30 p.m., Mrs. Sanderson departed for Tunica alone.

Shannon Sanderson played blackjack most of the night and won $5,000. She cashed in her

chips shortly after 3:00 a.m. on April 19, 1996, receiving her winnings in one-hundred dollar bills.

She was then escorted to her car by a Sam’s Town security officer and began the fifty-six mile drive

back to Memphis to pick up her children.

At around 4:45 a.m., Shannon Sanderson’s former father-in-law, Edward Holland, awoke to

the sound of barking dogs. He looked outside and saw Mrs. Sanderson bending over beside her car.

He heard her say, “Don’t-don’t” and thought she was talking to her husband. By the time Mr.

Holland dressed and went outside, Mrs. Sanderson was gone, but her car remained in the driveway.

At the same time, the Hollands’ next-door neighbors, William and Anna Dillon, were also

awakened by the barking. Mr. Dillon looked out his window and saw a person wearing a red

baseball cap crouched in the Hollands’ driveway near Mrs. Sanderson’s car. Mrs. Dillon heard a

scream and a thud. When she looked out her living room window, she saw a car parked at the curb

with its dome light on. She saw a person behind the steering wheel of the car lean over the seat and

push something down in the back. The person then drove away at a high rate of speed.

Another neighbor, Johnnie Rose, was returning from work around 4:30 a.m. when he saw

Mrs. Sanderson’s car drive by his house. A second vehicle followed her. The vehicle was dark-

colored and shaped like a Chevrolet Beretta. He watched the second car turn down his street, turn

around in a driveway, and park in front of the Hollands’ house. When he was later shown a

photograph of the maroon Beretta owned by Powers’ wife, he stated that the car in the photograph

“looked like” the car he had seen following Mrs. Sanderson.

2

At approximately 6:40 a.m. on April 19, 1996, Alonzo Jeans, a school bus driver, was

heading north on Highway 301 near Eudora, Mississippi. He saw a white male backing into the

driveway of an abandoned house. In the ten years he had been driving this bus route, he had never

seen anyone coming from or going to that house. Mr. Jeans was later shown a photograph of the

maroon Beretta owned by Powers’ wife. He confirmed that the car in the photograph was the one

he had seen in the driveway.

At approximately 9:30 a.m. on April 19, 1996, Powers returned to his Clarksdale, Mississippi

home in his wife’s maroon Beretta, after a night of gambling in Tunica. He was wearing the same

yellow shirt, blue jeans, red baseball cap, blue denim jacket, and white tennis shoes that he had worn

the night before. According to his wife, Sharon Powers, he was in a good mood, but he was also

“kind of wired up.” He appeared nervous and kept looking out the blinds. Powers told his wife that

he had won a large amount of money at the casino and gave her a one-hundred dollar bill from the

stack he had in his wallet. Mrs. Powers also noticed that her husband had washed her car and had

cleaned and vacuumed its interior.

Mrs. Powers became suspicious and accused her husband of having an affair. After repeated

questioning, Powers confessed to kidnapping, robbing, and killing a woman he had seen playing

blackjack at Sam’s Town the night before. He described in specific detail how he watched the

woman play blackjack from the second floor balcony of the casino, followed her home, and abducted

her from her driveway. He drove her approximately forty miles to an abandoned house in

Mississippi, stopping at one point to move her from the back seat of the car to the trunk. He then

stole her jewelry as well as $5,000 in cash. After killing the woman, he threw her purse and his gun

into the river behind the site where the Splash Casino had been located. Powers also told his wife

that a school bus driver may have seen him at the abandoned house and that a neighbor may have

seen him take Mrs. Sanderson from her driveway. He did not believe that either person could

identify him.

That afternoon, Powers visited his neighbor, Margaret York, and asked her to provide him

with an alibi for the night of April 18, 1996. Laughing, Ms. York agreed to say that he had been with

her as long as he “didn’t kill anybody.” According to Ms. York, Powers’ expression did not change

when she made this remark, and he left shortly thereafter.

The next evening, Powers and his wife saw a television news report of the victim’s

abduction. The report described the perpetrator as a man wearing a red baseball cap and driving a

maroon Beretta. After hearing the report, Powers packed a bag and left home in his wife’s car.

Before leaving, he told his wife to tell anyone who asked that he was visiting his mother in

Murfreesboro, Tennessee. He also told his wife that there was some money buried in the backyard.

Soon after he left, Mrs. Powers called the police and told them that her husband may have been

involved in Mrs. Sanderson’s abduction. However, she did not inform the authorities about his

confession.

3

Powers returned a week later. He retrieved some of the money he had buried and told his

wife where he had hidden Mrs. Sanderson’s jewelry. As his wife watched, he wrote a note stating

that he was leaving because he was not happy with his marriage.

On May 9, 1996, the badly decomposed body of Shannon Sanderson was discovered in a

storage room at the back of the abandoned house on Highway 301 in Eudora, Mississippi. The body

was clad in the same clothing Mrs. Sanderson had been wearing the night she disappeared. Her

jewelry was missing. An autopsy disclosed that Mrs. Sanderson had died from a single gunshot

wound to the right side of the head. An examination of the skull revealed that she had also suffered

at least one major blow to her face that had knocked out her upper right front tooth, chipped another

tooth, and fractured her jaw and other facial bones.

On May 22, 1996, Powers was stopped by an Immigration and Naturalization Services

(“INS”) agent in Hebronville, Texas, after making a suspicious turn in an apparent attempt to avoid

a checkpoint. When ordered to step out of the vehicle, Powers pulled a knife on the agent. The

agent was able to subdue Powers. Upon arrest, the agent discovered fourteen one-hundred dollar

bills in Powers’ pockets. Powers was on parole for a prior offense at the time of his arrest.

The Federal Bureau of Investigation (“FBI”) secured the vehicle at the checkpoint and

learned that Sharon Powers was its registered owner. With Mrs. Powers’ consent, the FBI searched

the Beretta and found a black wool fiber in the back seat that was consistent with the victim’s

clothing. Subsequently, the FBI interviewed Mrs. Powers. She eventually informed investigators

of her husband’s confession and led them to the B & W Lounge where Mrs. Sanderson’s jewelry was

recovered. The jewelry was wrapped in pink plastic wrap that matched wrap from Powers’ home.

Officers also searched the Splash Casino site, but they did not find Mrs. Sanderson’s purse or the

murder weapon.

The State also introduced video clips chronologically compiled from Sam’s Town

surveillance cameras operating on the night and early morning hours of April 18-19, 1996. The

videotape showed a person wearing white tennis shoes standing in an area overlooking the blackjack

table where Mrs. Sanderson was gambling. The tape then recorded Mrs. Sanderson leaving the

casino. The person from the second floor balcony followed her approximately thirty seconds later.

Powers called only one witness, Rebecca Coradini, who lived near the Holland residence.

Ms. Coradini testified that she was standing on her front porch shortly after 4:00 a.m. on April 19,

1996, when she saw a van drive by, turn around, and come back. She then saw Mrs. Sanderson’s

car drive by, followed by a little maroon car driven by an older Caucasian man, who resembled the

victim’s husband. Ms. Coradini had seen Mr. Sanderson on television following the abduction.

At the conclusion of the evidence, the jury convicted Powers of aggravated robbery and first

degree felony murder in the perpetration of robbery. During the sentencing phase of the trial, the

State sought to prove three aggravating circumstances: 1) the defendant had been previously

convicted of one or more felonies wherein the statutory elements involve the use of violence to the

person; 2) the murder was committed for the purpose of avoiding, interfering with, or preventing a

4

lawful arrest or prosecution; and 3) the murder was knowingly committed, solicited, directed, or

aided by the defendant while he was committing, attempting to commit, or fleeing after having

committed a kidnapping. See Tenn. Code Ann. § 39-13-204(i)(2), (6), and (7) (Supp. 1996).

The State presented, over defense counsel’s objection, facts relating to Powers’ prior felony

convictions. First, Emily Dodson testified that in 1979, in Rutherford County, Tennessee, Powers

followed her home one night. As she was getting out of the car, Powers jumped into the car and held

a knife to her throat. They struggled, and Powers hit her with a crescent wrench. Ms. Dodson,

however, successfully escaped to her house. Powers was apprehended shortly thereafter, and Ms.

Dodson identified him as her attacker. Powers subsequently pleaded guilty to the aggravated assault

of Ms. Dodson.

Karen Cannon then testified that in October 1980, in Murfreesboro, Tennessee, she was

giving Powers a ride when he pulled a knife and broke her nose with the handle. Despite being held

at knifepoint, Ms. Cannon managed to drive to the county jail where she alerted the authorities to

her predicament by honking the horn. Powers was apprehended, and Ms. Cannon later identified

him as her assailant. Powers subsequently pleaded guilty to the aggravated assault of Ms. Cannon.

The State next introduced testimony of Captain Sammy Magee, an officer with the Sheriff’s

Office of Hinds County, Mississippi. Captain Magee testified about his investigation of Powers’

robbery and aggravated assault of Clyo Griffin in June 1984. According to Captain Magee, Powers

entered Ms. Griffin’s home, beat her with an iron skillet, and stole her jewelry, credit cards, and a

pistol. Powers hid the jewelry and pistol in a plastic bag and buried them. He later pleaded guilty

to robbery and aggravated assault of Ms. Griffin.

The State also introduced a copy of the judgment reflecting Powers’ guilty plea and

conviction for assault with a dangerous weapon on the INS agent in Hebronville, Texas, in May

1996.

Finally, the State introduced the victim impact testimony of Caroline Holland, the paternal

grandmother of Shannon Sanderson’s three children. Ms. Holland testified that the death of Mrs.

Sanderson had been very traumatic for the children and that they suffered a “devastating feeling of

terror” that people would get lost and never come back. She also stated that the children had trouble

sleeping and missed their mother every day.

The only witness for the defense was Powers’ first wife, Pamela Bigelow, who had married

him while they were seniors in high school in Murfreesboro, Tennessee. Ms. Bigelow related that

Powers came to the United States from Taiwan when he was ten years old. Powers’ mother was a

native of Taiwan. His stepfather was a resident of Murfreesboro, Tennessee, who had met Powers’

mother while stationed with the military in Taiwan. According to Ms. Bigelow, Powers was a good

student and athlete, but he had trouble communicating with his mother. Ms. Bigelow and Powers

were married for four years and had two children. She divorced Powers because she “outgrew him,”

but she stated that Powers possessed “good traits.” She described Powers as quiet and withdrawn,

but very polite. She testified that Powers had never been physically or emotionally abusive to her.

5

She admitted, however, that he had used drugs and alcohol while they were married. She described

Powers as a “broken man” and pleaded for his life so that he could meet his two grandchildren.

Based on this proof, the jury found that the State had proven all three aggravating

circumstances beyond a reasonable doubt. 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 Powers to death for the murder of Shannon Sanderson.

CONFIDENTIAL MARITAL COMMUNICATIONS PRIVILEGE

At the time of trial, the statutory marital privilege codified at Tennessee Code Annotated

section 24-1-201(b) provided in relevant part that “[i]n either a civil or criminal proceeding,

confidential communications between married persons are privileged and inadmissible if either

spouse objects.” Powers contends that his wife’s testimony concerning his confidential

communications should have been excluded under the statute. Specifically, he argues that the

General Assembly’s amendment of this statute in 1995 returned the law to its status before this

Court’s opinion in State v. Hurley, 876 S.W.2d 57 (Tenn. 1993), and made inappropriate the use of

the factors adopted in Adams v. State, 563 S.W.2d 804, 808 (Tenn. Crim. App. 1978). We do not

agree.

Under early common law, one spouse was not permitted to testify either for or against the

other during court proceedings. This general rule was referred to as “spousal disqualification.”

Trammel v. United States, 445 U.S. 40, 43-44 (1980). This Court abandoned the spousal

disqualification rule in civil cases in Patton v. Wilson, 70 Tenn. (2 Lea) 101, 112-13 (1878). We

held that a wife was competent to testify in support of her deceased husband’s estate as to matters

that came to her knowledge from sources outside the marital relationship. See id. One year later,

the Tennessee General Assembly codified the holding of Patton and established the confidential

marital communications privilege, stating that

[i]n all civil actions, no person shall be incompetent to testify because

he is a party to, or interested in, the issue tried . . . but all persons,

including husband and wife, shall be competent witnesses, though

neither husband nor wife shall testify as to any matter that occurred

between them by virtue of or in consequence of the marital relation

....

1879 Tenn. Pub. Acts, ch. 200, § 1 (codified at Tenn. Code Ann. § 24-1-201 (1991))(emphasis

added). Spousal disqualification in criminal cases was abolished by the legislature in 1915. See

1915 Tenn. Pub. Acts, ch. 161, § 1 (later codified at Tenn. Code Ann. § 40-17-104 (1990)(repealed

1991) and recognized by the adoption of Tenn. R. Evid. 501). Unlike its civil counterpart, however,

the statute abolishing spousal disqualification in criminal cases failed to address the confidential

marital communications privilege. This Court, however, expressly held that this omission did not

abrogate the rule as to the marital communications privilege. Consequently, the privilege applied

to both civil and criminal cases, preventing a spouse from testifying as to any matter coming to his

6

or her knowledge by reason of the marital relation. See McCormick v. State, 186 S.W. 95, 97 (Tenn.

1916).

Over time, the confidential marital communications privilege remained intact, but underwent

revisions that operated to limit the privilege.2 In Adams, the Court of Criminal Appeals held that

the following conditions must exist before a communication may be considered privileged:

(1) The communications must originate in a confidence that they

will not be disclosed;

(2) This element of confidentiality must be essential to the full

and satisfactory maintenance of the relation between the

parties;

(3) The relation must be one which, in the opinion of the

community, ought to be sedulously fostered; and

(4) The injury that would inure to the relation by the disclosure of

the communications must be greater than the benefit thereby

gained for the correct disposal of litigation.

563 S.W.2d at 808.

In Hurley, this Court endorsed the application of the four Adams factors to determine whether

a marital communication is privileged. 876 S.W.2d at 63. We also modified the common law rule

that allowed both parties to assert the privilege. We held that the witness spouse alone could assert

the confidential marital communications privilege. See id. at 64.

In 1995, in response to Hurley, the General Assembly amended Tennessee Code Annotated

section 24-1-201. The new version of the statute provided:

(a) In either a civil or criminal proceeding, no married person has

privilege to refuse to take the witness stand solely because

that person’s spouse is a party to the proceeding.

(b) In either a civil or criminal proceeding, confidential

communications between married persons are privileged and

inadmissible if either spouse objects. This communications

privilege shall not apply to proceedings between spouses or to

proceedings concerning abuse of one (1) of the spouses or

2

For instance, the legislature added an express exc eption for divorce cases, see 1949 Tenn. Pub . Acts, ch. 55,

§ 1, and this Court clarified that the privilege only applied to communications made between spouses in the absence of

third person s, see Hazlett v. Bryant, 241 S.W .2d 1 21, 1 23 (Tenn. 19 51).

7

abuse of a minor in the custody of or under the dominion and

control of either spouse . . . .

1995 Tenn. Pub. Acts, ch. 53, § 1 (emphasis added). This version of Tennessee Code Annotated

section 24-1-201 was in effect at the time of the offense in this case as well as at the time of Powers’

trial. Powers asserts that the trial court and Court of Criminal Appeals erred by applying the Adams

factors to determine whether his communications were privileged. He argues that the revised statute

effectively abrogated the applicability of the four criteria because the statute made no mention of

them. We disagree.

The role of this Court in construing statutes is to ascertain and give effect to the legislative

purpose and intent without unduly restricting or expanding the coverage of the statute beyond its

intended scope. See Mooney v. Sneed, 30 S.W.3d 304, 306 (Tenn. 2000). The best expression of

the legislative purpose and intent is “the natural and ordinary meaning of the language used by the

Legislature within the four corners of the statute . . . .” Austin v. Memphis Publ’g Co., 655 S.W.2d

146, 148 (Tenn. 1983). Only an ambiguity in the language of the statute will permit us to look

behind its face to determine the legislature’s intent. See id. A statute is ambiguous “[w]here [the]

language . . . is susceptible of more than one reasonable interpretation . . . .” Memphis Hous. Auth.

v. Thompson, 38 S.W.3d 504, 512 (Tenn. 2001) (citing Carter v. State, 952 S.W.2d 417, 419 (Tenn.

1997)).

We agree with Powers’ contention that the language of the statute clearly indicates the

General Assembly’s intent to return the law to its pre-Hurley status. It is clear that the amended

statute expressly overturns the rule in Hurley that vested the privilege solely in the testifying spouse

and provides that either spouse may assert the privilege. However, it is not clear that the legislature

intended to abolish the Adams factors. We conclude that the legislature had no such intent.3

In 2000, the General Assembly amended Tennessee Code Annotated section 24-1-201 to

adopt the Adams factors. Powers claims that this amendment would not have been necessary had

the legislature intended the 1995 amendment to include the Adams factors. Powers argues that the

factors were not implicit in the 1995 statute because a change in the language of a statute by the

legislature raises a presumption that the legislature intended to depart from the old law. See Dunn

v. Hackett, 833 S.W.2d 78, 81 (Tenn. Ct. App. 1992). Powers also relies on the rule that one must

presume that the legislature did not enact useless or meaningless legislation. See Tex. Gas

Transmission Corp. v. Atkins, 327 S.W.2d 305, 307 (Tenn. 1959). However, we find this argument

unconvincing.

3

By adopting the opinion of the Co urt of Criminal App eals in an appendix to our opinion in State v. Bush , 942

S.W.2d 489, 509 (Tenn. 1997), we recognized that the common law prior to Hurley included the use of the Adams

factors. The Co urt of Criminal App eals has co nsistently follo wed this interpretation. See State v. Go snell, 62 S.W.3d

740, 746-47 (Tenn. Crim. App. 2001) (stating that even prior to the 2000 amendm ent, which explicitly adopted the

Adams factors, the confidential marital communications privilege was available only when the factors were met); State

v. Price, 46 S .W .3d 7 85, 799-8 00 (Tenn. Crim. Ap p. 20 00) (concluding that the G enera l Assem bly did not intend to

change the common law beyond reversing the rule in Hurley that exclusively vested the privilege in the testifying spouse).

8

By adding the Adams factors to the statute, the legislature was codifying twenty-two years

of case law.4 The Adams factors define the confidential marital communications privilege. The

1995 amendment showed no clear intent on the part of the legislature to alter that definition. The

statute does not define “confidential,” “communications,” or “privileged.” Therefore, the meaning

of those terms must be provided by the existing case law, including Adams. The legislature is

presumed to know the state of existing case law. See Neff v. Cherokee Ins. Co., 704 S.W.2d 1, 4

(Tenn. 1986). Thus, it would have been necessary for the General Assembly to explicitly abolish

the Adams factors if that had been its intent. See Price, 46 S.W.3d at 801(stating that a “statute is

to be construed with reference to pre-existing law and it does not change pre-existing law further

than it expressly declares or necessarily implies”). The 1995 statute, however, fails to mention the

factors at all.

Based on our interpretation of the 1995 amendment of Tennessee Code Annotated section

24-1-201, we find that the General Assembly did not intend to abrogate the applicability of the

Adams factors. We conclude that the intent of the General Assembly in its 2000 amendment of the

statute was to codify existing common law. Therefore, we hold that the trial court did not err in

applying the Adams factors to determine whether Powers’ communications with his wife were

privileged. Moreover, the record supports the trial court’s findings regarding the application of the

factors to the facts in this case. Consequently, the confidential marital communications privilege did

not apply, and Sharon Powers’ testimony was admissible.

EXCLUSION OF EVIDENCE THAT OTHER PERSONS HAD

MOTIVE AND OPPORTUNITY TO KILL THE VICTIM

Powers challenges the trial court’s exclusion of evidence suggesting that persons other than

himself had motive and opportunity to kill Shannon Sanderson. He asserts that the trial court’s

exclusion of this evidence on irrelevancy grounds effectively deprived him of his Fourteenth

Amendment right to be afforded a meaningful opportunity to present a complete defense.

Specifically, he contends that the following evidence would have established a third-party defense

and should have been admitted: 1) testimony that the victim had broken off a romantic relationship

with Brian Maher two days before she disappeared; 2) testimony concerning an injunction entered

against a former boyfriend, Brett Musekamp, that was lifted just before the victim disappeared; 3)

cross-examination of Robert Sanderson regarding the existence of a post-nuptial agreement executed

by him and the victim two weeks before the victim’s disappearance; 4) testimony from Sam’s Town

assistant manager Mark Burchfield that he saw the victim and her husband together at the casino the

night she disappeared and that the victim appeared to be fearful of her husband; and 5) testimony

from Mr. Burchfield that Robert Sanderson came to the casino three days after the victim’s

4

The dissent argues that legislative history indicates that the 2000 amendment represented a material change

in the law. W e find it unnecessary to resort to legislative history to ascertain the legislature’s intent. Nevertheless, we

note that the bill’s sponsor stated that the amendment “adopts the case-law standard that has four specific factors that

have to be considered b y the court.” Legislative Tapes on Hou se Bill 155 9, Senate B ill 1485, 10 1st General A ssemb ly

(Second Regular Session) (Tenn. 2000) (statement by Rep. Kim M cMillan, House Judiciary Committee, May 3, 2000 ).

9

disappearance to discuss her disappearance and to tell Mr. Burchfield that he was not at the casino

on April 18, 1996.5

It has long been recognized by the courts of this state that an accused is entitled to present

evidence implicating others in the crime. See Sawyers v. State, 83 Tenn. (15 Lea) 694, 695 (1885).

However, a clear standard for the admission of such evidence has never been articulated. A majority

of states apply a “direct connection” test in making this determination. Under a “direct connection”

test, the evidence must directly connect the third party with the substance of the crime and must

clearly point out someone besides the accused as the guilty person in order to be admissible.6 We

believe, however, that such a standard imposes too high a threshold for the admissibility of evidence

concerning third-party culpability.7 We hold that the Rules of Evidence are adequate to determine

whether such evidence is admissible.

To be relevant under Tennessee Rule of Evidence 401, evidence must tend “to make the

existence of any fact that is of consequence to the determination of the action more probable or less

probable than it would be without the evidence.” In a criminal case, evidence that a third party had

the motive and opportunity to commit the offense certainly would be relevant. Even if the evidence

meets the test of relevance, however, Tennessee Rule of Evidence 403 may still justify exclusion of

such evidence. Under Rule 403, relevant evidence “may be excluded if its probative value is

substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading

the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative

evidence.” Generally, when we review a claim that calls into question a trial court’s exclusion of

evidence on the grounds of irrelevance, we will not disturb the decision of the trial court absent an

abuse of discretion. See State v. Banks, 564 S.W.2d 947, 949 (Tenn. 1978).

Powers sought to prove that three other persons had motives to kill Mrs. Sanderson: Brian

Maher, Brett Musekamp, and Robert Sanderson. Powers attempted to introduce evidence that Mrs.

Sanderson and Mr. Maher had dated for approximately two months. Just two days before her

disappearance she went to Mr. Maher’s place of employment to break off the relationship. She then

telephoned him two hours later to confirm that they were “still friends.” Mr. Maher would have

testified that he was relieved when Mrs. Sanderson decided to end the relationship because he had

started seeing another woman. There was no evidence of animosity between the parties that would

5

In his brief, Powers also asserts that the trial court erred by excluding testimony from Mrs. Sanderso n’s sister

that Robert Sanderson refused to provide her with a photograph of the victim to use in a missing person flyer. Be cause

Powers failed to make an offer of pro of as to this testimony, this issue is waived . See Tenn. R. A pp. P . 36(a ); see also

State v. Elderidge, 951 S.W .2d 775, 783 -84 (Tenn. Crim. App. 19 97).

6

See generally David McC ord, But Perry Mason Made It Look So Easy!: The Admissibility of Evidence

Offere d by a Criminal Defendant to Suggest That Someo ne Else Is Guilty, 63 Tenn. L. Rev. 917 (1 996).

7

The Court of Criminal Appeals has applied a “direct connection” test in two unpub lished opinions. See State

v. Mo ore, No. 03C 01-9 704 -CR-001 31, 1 998 W L 15 690 8 (T enn. C rim. App. M ar. 18 , 199 8); State v. Peck, No. 958,

1991 W L 1545 34 (Tenn. Crim. Ap p. Aug. 15, 1991 ). Citing Peck, the Court of Criminal Ap peals concluded in this case

that the proffered evidence was irrelevant and inad missible because Powers offered no proof which directly connected

a third party with the substance of the crime.

10

give rise to a motive to kill the victim. The trial court found the evidence relating to Mr. Maher to

be irrelevant and refused to admit it. We agree with the trial court that the evidence was not relevant

under Tennessee Rule of Evidence 401. The evidence produced in Powers’ offer of proof would not

assist in proving that Mr. Maher had a motive to kill Mrs. Sanderson. We conclude that the trial

court did not err in excluding the evidence concerning Brian Maher.

Powers also proffered testimony regarding an injunction against Brett Musekamp that was

lifted shortly before Mrs. Sanderson disappeared. Mr. Musekamp would have testified that he had

written a letter to Mr. Sanderson in an attempt to stop the Sandersons from dating. Mr. Musekamp

stated that the letter angered the Sandersons and that they brought charges against him to keep him

away from Mrs. Sanderson. He denied ever following or threatening Mrs. Sanderson. The trial court

also excluded this evidence on relevancy grounds. We agree that this evidence was irrelevant under

Tennessee Rule of Evidence 401. The mere existence of Mr. Musekamp’s attempt to undermine the

Sandersons’ relationship is not relevant to establish a motive to kill Mrs. Sanderson. Therefore, we

conclude that the trial court did not abuse its discretion in excluding the evidence concerning Brett

Musekamp.

Powers also sought to cross-examine Mr. Sanderson about a post-nuptial agreement that was

executed by him and Mrs. Sanderson. Under the agreement, the parties planned to file joint income

tax returns for 1995, 1996, and 1997. In the event of a divorce, each party would retain his or her

separate, personal property, and Mrs. Sanderson would receive $10,000. In addition, Mr. Sanderson

would be obligated to rent an apartment for Mrs. Sanderson for a period of sixty days. The

agreement was to be a final settlement of any divorce action unless the parties gave birth to a child.

The trial court ruled that the evidence was irrelevant. We hold that the trial court did not abuse its

discretion in excluding this evidence. Mr. Sanderson testified that neither he nor Mrs. Sanderson

were contemplating divorce, and the existence of the agreement does not necessarily lead to the

conclusion that the Sandersons were having marital problems. There is no indication that the terms

of the agreement were disadvantageous to Mr. Sanderson or that he considered them to be so.

Consequently, even if this evidence satisfies the relatively low threshold of Tennessee Rule of

Evidence 401, its probative value would be substantially outweighed by the risk of confusing and

misleading the jury. Therefore, we conclude that the trial court did not err in refusing to admit this

evidence.

However, we reach a different conclusion with regard to the other testimony concerning

Robert Sanderson. Rebecca Coradini testified that Mr. Sanderson looked like the man she saw

following Mrs. Sanderson into the Hollands’ neighborhood on the morning of April 19, 1996. In

addition to this testimony, Powers proffered the testimony of Mark Burchfield, an assistant shift

manager at Sam’s Town. Mr. Burchfield would have testified that he saw Mrs. Sanderson on the

night of Mrs. Sanderson’s disappearance as she was attempting to hide in a restricted area of the

casino. Mr. Burchfield observed that Mrs. Sanderson was shaking. Mrs. Sanderson explained that

she was having trouble with a man at the blackjack table and that the man was her husband.

Ultimately, Mrs. Sanderson identified her husband to Mr. Burchfield. Mr. Burchfield also would

have testified that three days later Mr. Sanderson returned to the casino, asked for him by name, and

introduced himself. Mr. Sanderson asked Mr. Burchfield what Mrs. Sanderson had said about him.

11

Mr. Sanderson then stated to Mr. Burchfield that Mr. Sanderson had not been there on the night in

question. That testimony, if admitted into evidence, would have been in direct contradiction to Mr.

Sanderson’s testimony that his wife was alone at the casino that night. The proffered testimony of

Mr. Burchfield was relevant to show that Mr. Sanderson had the motive and the opportunity to kill

Mrs. Sanderson. Considering Ms. Coradini’s testimony, the probative value of Mr. Burchfield’s

testimony concerning Mr. Sanderson was not substantially outweighed by the risk of unfair

prejudice, confusion of issues, possible misleading of the jury, or waste of time. The jury was

entitled to hear this evidence, weigh it, and determine its value. We conclude, therefore, that the trial

court erred by not permitting the jury to consider this evidence. However, we must now determine

whether this error warrants reversal of Powers’ conviction.

To make this determination, we must first decide whether the error complained of is a

constitutional or non-constitutional error. See State v. Harris, 989 S.W.2d 307, 314 (Tenn. 1999).

If the error is constitutional, the burden shifts to the State to prove harmlessness, and the error will

result in reversal unless this Court is convinced beyond a reasonable doubt that the error did not

affect the outcome of the trial. See id. at 314-15. On the other hand, if the error is non-

constitutional, the burden does not shift to the State, and the error will not result in reversal “unless

the error affirmatively appears to have affected the result of the trial on the merits, or considering

the whole record, the error involves a substantial right which more probably than not affected the

judgment or would result in prejudice to the judicial process.” Id. at 315.

Powers claims that the trial court’s exclusion of evidence that supported his third-party

defense effectively deprived him of his Fourteenth Amendment right to be afforded a meaningful

opportunity to present a complete defense. Such a right has been deemed a fundamental element of

due process. See Washington v. Texas, 388 U.S. 14, 22-23 (1967). When an error affects a

constitutional right, it is considered constitutional error and is presumed to be reversible. See Harris,

989 S.W.2d at 315.

However, an evidentiary ruling ordinarily does not rise to the level of a constitutional

violation. See Crane v. Kentucky, 476 U.S. 683, 689 (1986) (“We acknowledge also our traditional

reluctance to impose constitutional constraints on ordinary evidentiary rulings by state trial courts.”).

As we explained in State v. Brown, 29 S.W.3d 427, 433 (Tenn. 2000), “[t]he facts of each case must

be considered carefully to determine whether the constitutional right to present a defense has been

violated by the exclusion of evidence.” In determining whether the constitutional right to present

a defense has been violated by the exclusion of evidence, the analysis should consider whether: “1)

the excluded evidence is critical to the defense; 2) the evidence bears sufficient indicia of reliability;

and 3) the interest supporting exclusion of the evidence is substantially important.” Id. at 433-34

(citing Chambers v. Mississippi, 410 U.S. 284, 298-301 (1973)). In Chambers, the defendant was

not allowed to introduce evidence that another person had confessed to the crime. Powers’ proffered

evidence concerning Robert Sanderson falls short of the critical evidence considered in Chambers.

Moreover, the trial court’s ruling did not amount to a “blanket exclusion” of all third-party defense

evidence concerning Robert Sanderson. See Crane, 476 U.S. at 690 (holding that blanket exclusion

of proffered testimony about circumstances of petitioner’s confession deprived him of a fair trial).

12

On the facts of this case, we cannot conclude that the trial court’s erroneous exclusion of additional

evidence concerning Robert Sanderson amounted to a due process violation.

We are convinced that the error was harmless, even if a constitutional harmless error standard

were applicable. See id. at 691 (stating that a defendant’s right to be afforded a meaningful

opportunity to present a complete defense is subject to harmless error analysis). There was

overwhelming evidence establishing Powers’ guilt, including his confession and his knowledge

concerning the location of Mrs. Sanderson’s jewelry. Therefore, Powers’ conviction will not be

reversed on this ground.

ADMISSION OF DEPOSITION TESTIMONY OF MARGARET YORK

Powers maintains that the trial court erred in allowing the State to admit into evidence

portions of Margaret York’s deposition, which was taken by a Tennessee court reporter in

Mississippi. He claims that the deposition testimony should have been excluded because the court

reporter was not authorized by law to take the deposition in Mississippi. Based upon the discussions

held prior to the deposition and the clear need to take the deposition in Mississippi due to Ms. York’s

medical condition, the trial court ruled that it could “be fairly interpreted that the court reporter that

went down with all of you to take this deposition in Mississippi was appointed indirectly by [the

court].” For the reasons set forth below, we find that the trial court did not err in admitting Ms.

York’s deposition testimony.

Under Rule 15(d) of the Tennessee Rules of Criminal Procedure, depositions in criminal

cases “shall be taken and filed in the manner provided in civil actions except as otherwise provided

in these rules.” Rule 28.01 of the Tennessee Rules of Civil Procedure, which addresses the taking

of depositions, states that

[w]ithin the United States . . . depositions shall be taken before an

officer authorized to administer oaths by the laws of the United States

or of the place where the examination is held, or before a person

appointed by the court in which the action is pending. A person so

appointed has power to administer oaths and take testimony.

Before the deposition was taken, the trial judge discussed with counsel the need to have someone

present at the deposition to administer the oath. After determining that it would be inappropriate for

the judge himself to travel to Mississippi for this purpose, the trial judge specifically mentioned that

someone else would need to be sent. The deposition was then taken in Mississippi by a Tennessee

court reporter. At the hearing held May 15, 1998, counsel first raised the issue of the admissibility

of the deposition. The trial judge stated that “it was [his] intent . . . acting in good faith to have

someone chosen, selected, appointed to go down there who could take the deposition and who could

administer the oath.” In light of the discussions and planning that led up to Ms. York’s deposition

and the clear need to conduct the deposition in Mississippi, we agree with the trial court’s assessment

that the court effectively appointed the court reporter under Tennessee Rule of Civil Procedure

28.01.

13

Moreover, it appears that the court reporter was authorized to take the deposition in

Mississippi. Under Mississippi law in effect at the time the deposition was taken, authorized

notaries of other states were permitted to administer oaths in Mississippi. Mississippi Code

Annotated section 11-1-1 provides, in pertinent part, that

any officer of any other state, or of the United States, authorized by

the law thereof to administer oaths . . . may administer oaths and take

and certify affidavits whenever the same may be necessary or proper

in a proceeding in any court or under any law of this state, or for the

purpose of taking depositions of any party of interest, or witnesses of

any suit pending before any such court, or for the perpetration of

testimony, as provided in Section 13-1-57, Mississippi Code of 1972.

As a notary authorized to administer oaths under Tennessee Code Annotated section 8-16-302,8 the

court reporter was authorized to administer oaths in Mississippi. Thus, the trial court properly

admitted Ms. York’s deposition testimony.

SUFFICIENCY OF EVIDENCE ESTABLISHING

THE AGGRAVATING CIRCUMSTANCE IN

TENNESSEE CODE ANNOTATED SECTION 39-13-204(i)(6)

Powers contends that the evidence presented by the State was insufficient under the standard

enunciated in Jackson v. Virginia, 443 U.S. 307 (1979), to establish beyond a reasonable doubt the

aggravating circumstance found at Tennessee Code Annotated section 39-13-204(i)(6). Section

39-13-204(i)(6) provides that the death penalty may be imposed if “[t]he murder was committed for

the purpose of avoiding, interfering with, or preventing a lawful arrest or prosecution of the

defendant or another . . . .” Under the Jackson standard, an appellate court must determine “whether,

after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact

could have found the essential elements of the [aggravating circumstance] beyond a reasonable

doubt.” 443 U.S. at 319 (emphasis in original); see also Tenn. Code Ann. § 39-13-204(i) (Supp.

1996). While the State agrees with the application of this standard, it argues that the record amply

supports the jury’s finding that one of the motives for the murder was to avoid arrest or prosecution.

We find that the evidence presented was sufficient to establish the (i)(6) aggravator.

In proving the (i)(6) aggravator, the State does not need to prove that the defendant’s desire

to avoid arrest or prosecution was his sole motive in murdering the victim. See State v. Henderson,

24 S.W.3d 307, 314 (Tenn. 2000). It must show only that such a desire was “one of the motives in

the killing.” Id. However, we have indicated that there must be some “particular proof” in the

record to support this aggravating circumstance. State v. Hartman, 42 S.W.2d 44, 58 (Tenn. 2001).

Mere plausibility of the theory that avoiding arrest or prosecution was one of the motives of the

murder is insufficient. See id.

8

Tennessee Code Annotated section 8-16-302 provides that “[a] notary public has the power to administer

oaths, to take d epo sitions, to q ualify parties to bills in chancery, and to take affidavits, in all cases . . . .”

14

In the present case, Powers followed Mrs. Sanderson over fifty miles to Memphis, where he

abducted her from the Hollands’ driveway. Realizing that one of the Hollands’ neighbors may have

seen him take Mrs. Sanderson, he began the forty-mile drive back to Mississippi, stopping at one

point to move her from the backseat of the car to the trunk. He took her to an abandoned house in

a rural part of Mississippi. He shot her in the head, robbed her of her money and jewelry, and left

her body in a storage room. If he had not been concerned about avoiding arrest and prosecution, he

could have killed Mrs. Sanderson in the driveway. However, he took her to another state and killed

her in an abandoned house located in an isolated, rural area. We conclude that this evidence, viewed

in a light most favorable to the State, supports a finding that Powers killed Mrs. Sanderson to avoid

arrest and prosecution.

ADMISSION OF FACTS UNDERLYING

DEFENDANT’S PRIOR FELONY CONVICTIONS

Powers argues that the trial court erred during the sentencing hearing by admitting evidence

of the facts underlying his prior felony convictions of three aggravated assaults and a robbery to

prove the (i)(2) aggravating circumstance. Specifically, he claims that the trial court improperly

applied the 1998 amendment to Tennessee Code Annotated 39-13-204(c) in determining whether

to admit this evidence.9 The record indicates that Powers objected at trial to the admissibility of the

facts underlying his prior convictions based on the cumulative and prejudicial nature of the evidence.

He did not, however, object to the applicability of the 1998 amendment. Generally, a party’s failure

to take available action to prevent or nullify an alleged error waives the issue. See Tenn. R. App.

P. 36(a); see also State v. Elderidge, 951 S.W.2d 775, 783-84 (Tenn. Crim. App. 1997).

Nevertheless, we agree with Powers that the 1998 amendment was inapplicable in this case

because the offense was committed before the effective date of the amendment. See State v. Smith,

893 S.W.2d 908, 919 (Tenn. 1994). Therefore, we shall address whether admission of this evidence

constituted plain error under the law in effect prior to the 1998 amendment. See State v. Chalmers,

28 S.W.3d 913, 917 (Tenn. 2000).

In 1989, the General Assembly amended the (i)(2) aggravating circumstance to provide that

a jury could consider as an aggravating factor that “the defendant was previously convicted of one

9

In 1998, Tennessee Code Annotated section 39-13-204(c) was amended to add the following language:

In all cases where the state relies upon the aggravating factor that the defendant was

previously convicted of one (1) or more felonie s, other than the present charge,

whose statutory elements involve the use of violence to the person, either party shall

be permitted to introduce evidence concerning the facts and circumstances of the

prior conviction. Such evidence shall not be construed to pose a danger of creating

unfair prejudice , confusing the issues, or misleading the jury and shall not be

subject to exclusion on the ground that the probative value o f such ev idenc e is

outweighed by prejudice to either party. Such evidence shall be used by the jury

in determining the weight to be accorded the aggravating factor.

1998 T enn. Pub. Acts, ch. 915, § 1 (effective May 7, 1998 ).

15

(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) (1991) (emphasis added). It is this

version of the statute that is applicable here. In State v. Sims, 45 S.W.3d 1, 11-12 (Tenn. 2001), we

held that whether the statutory elements of an offense involve the use of violence to the person must

be determined by the trial court, not the jury. In Sims, the State introduced evidence of two prior

convictions for aggravated assault to establish the prior violent felony circumstance. We recognized

that the statutory elements of aggravated assault do not necessarily involve the use of violence.

Accordingly, we approved a procedure in which the trial judge, outside the presence of the jury,

considers the underlying facts of the prior assaults to determine whether the elements of those

offenses involved the use of violence to the person. If the trial court determines that the statutory

elements of the prior offense involved the use of violence, the State may introduce evidence that the

defendant had previously been convicted of the prior offenses. The trial court then would instruct

the jury that those convictions involved the use of violence to the person. See id. The trial court in

this case did not follow this procedure. Instead, it admitted evidence of facts underlying Powers’

prior felony convictions to prove the (i)(2) aggravating circumstance. Therefore, the trial court erred

by permitting the jury to consider evidence of these facts unless the evidence was relevant to some

other issue raised in sentencing. See Chalmers, 28 S.W.3d at 917; see also State v. Stout, 46 S.W.3d

689, 701 (Tenn. 2001).

The State contends that the underlying facts of the prior convictions were admissible to prove

the (i)(6) aggravating circumstance that the murder was committed for the purpose of avoiding

prosecution. See Tenn. Code Ann. § 39-13-204(i)(6) (Supp. 1996). The State presented testimony

from two women who had been assaulted by Powers. Both women had positively identified Powers

as their attacker, and their statements led to his apprehension and prosecution. The State also

introduced the county clerk’s records and a portion of the transcript of Powers’ guilty plea relating

to his robbery and aggravated assault of Clyo Griffin in 1984. In addition, the State introduced

evidence of Powers’ 1996 conviction for assault with a deadly weapon against a federal officer. The

State argues that Powers killed Mrs. Sanderson so that she would not be able to identify him as the

person who kidnapped and robbed her, thus enabling him to avoid prosecution.

In Stout, we found similar evidence proper to establish this same aggravating circumstance.

46 S.W.3d at 700-01. The relevant information showing that Shannon Sanderson was killed to avoid

prosecution for her kidnapping and robbery was Powers’ similar assaultive behavior against women

in the past. In each of those prior cases, Powers had been identified and convicted of an offense.

We believe it is reasonable to infer from such information, in addition to the evidence that he took

Mrs. Sanderson to an isolated area in another state to rob and kill her, that Powers killed Mrs.

Sanderson in order to avoid similar identification and prosecution. Although we hold that these facts

were admissible, we are concerned that the details of those offenses went beyond what was

reasonably necessary to prove the (i)(6) aggravating circumstance. However, even excluding

evidence of the facts underlying the prior violent felony convictions, the evidence supporting the

(i)(6) aggravating circumstance was considerable and the mitigating evidence was slight. Therefore,

this evidence did not affect the jury’s sentencing determination to the defendant’s prejudice. Thus,

we conclude that any error was harmless beyond a reasonable doubt. See Chalmers, 28 S.W.3d at

918.

16

EXCLUSION OF DEFENSE EVIDENCE

ATTACKING THE CHARACTER OF THE VICTIM

Powers maintains that the trial court erred by limiting his proof regarding the victim’s “bad

character.” The trial court ruled that Powers had a right to rebut the victim impact evidence

introduced by the State. The court refused, however, to allow him to introduce evidence regarding

extramarital relationships the victim may have had or difficulties in her marriage. We hold that the

trial court acted properly in excluding this evidence.

Rule 401 of the Tennessee Rules of Evidence defines “relevant evidence” as “evidence

having any tendency to make the existence of any fact that is of consequence to the determination

of the action more probable or less probable than it would be without the evidence.” In State v.

Teague, this Court held that “evidence of the defects in the victim’s character . . . is not relevant

mitigating evidence . . . .” 680 S.W.2d 785, 788 (Tenn. 1984); see also State v. Johnson, 698 S.W.2d

631, 634 (Tenn. 1985) (stating that the defendant’s “argument that a showing that the victim dealt

in stolen property would somehow mitigate his murder of the victim is erroneous”). Powers claims

that Teague is no longer sound law and points to Payne v. Tennessee, 501 U.S. 808 (1991), and State

v. Nesbit, 978 S.W.2d 872 (Tenn. 1998), as support for this contention. He argues that these cases

make a victim’s character relevant to the harm caused by the defendant as well as to the

circumstances of the offense. He contends that evidence of a victims’ character, therefore, should

be admissible. However, Powers’ interpretation of these two cases is flawed.

In Payne, the United States Supreme Court permitted the use of victim impact evidence in

a capital case to “level the playing field” so as to ensure that both the victim and the accused receive

justice. See Payne, 501 U.S. at 827. The Court noted that “just as the murderer should be

considered as an individual, so too the victim is an individual whose death represents a unique loss

to society and in particular to his family.” Id. at 825. Several years later, this Court reaffirmed that

victim impact evidence is permissible under both the United States and Tennessee Constitutions as

being “relevant to punishment.” Nesbit, 978 S.W.2d at 887, 889. In Nesbit, we stated that

[g]enerally, victim impact evidence should be limited to information

designed to show those unique characteristics which provide a brief

glimpse into the life of the individual who has been killed, [footnote

omitted] the contemporaneous and prospective circumstances

surrounding the individual’s death, and how those circumstances

financially, emotionally, psychologically or physically impacted upon

members of the victim’s immediate family.

Id. at 891. In addition, we noted that such evidence could be excluded when it would threaten to

render the proceedings fundamentally unfair or pose a danger of unfair prejudice. Id.

In the present case, the victim impact evidence presented by the State was appropriately

limited to a “brief glimpse” of how the lives of the victim’s three children were adversely impacted

by her death. We fail to see how evidence that the victim’s personal life was less than ideal is

17

relevant to rebut this evidence or how it could mitigate Powers’ culpability for the crime. Powers

was not limited as to the quantum of proof he could introduce related to his own character, his

record, or any mitigating circumstances.

Neither Payne nor Nesbit explicitly addresses the relevance of evidence that relates to a

victim’s bad character. Given the purpose underlying the admission of victim impact evidence,

however, Powers’ reliance on these cases is misplaced. Payne and Nesbit both address the need to

provide justice for the victim. This goal would be completely undermined if we were to grant

criminal defendants unfettered discretion to disparage the victim’s character, as Powers would have

us do. Therefore, we reject Powers’ argument that a defendant should be allowed to rebut the

showing of specific harm by introducing evidence of the character of the victim once the State has

introduced evidence of the specific harm caused by the victim’s death in the form of victim impact

evidence. We also reject Powers’ suggestion that Payne and Nesbit overruled the holding in Teague.

We conclude that Teague is still good law. Accordingly, we hold that the trial court’s decision to

deny evidence of the victim’s “bad character” was proper.

PROPORTIONALITY REVIEW

Although the issue of proportionality was not raised by Powers, 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) (1997). Having thoroughly reviewed the record, we find that

the sentence of death was not imposed in an arbitrary fashion. We have already determined that the

State presented sufficient evidence to support application of the aggravating circumstance in

Tennessee Code Annotated section 39-13-204(i)(6). We also conclude that the State presented

sufficient proof to uphold the jury’s finding of the aggravating circumstances in Tennessee

Annotated section 39-13-204(i)(2) and (i)(7). The proof in this case demonstrates that the prior

aggravated assaults and robbery all involved the use of violence to the person as did the federal

offense of assault. In addition, the record showed that Powers forced Mrs. Sanderson into his car

and drove her to an isolated part of Mississippi to rob and kill her. This proof is sufficient to support

a finding that the murder was knowingly committed by Powers while he was committing a

18

kidnapping. We further hold that the evidence supports the jury’s finding that the aggravating

circumstances outweighed any mitigating circumstances beyond a reasonable doubt.

Next, we are compelled to consider 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. See Tenn. Code Ann. § 39-13-206(c)(1)(D) (1997).

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.”

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

factors helpful in choosing and comparing 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 id. In comparing defendants, we consider the following

traits: 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, the victim was shot in the head and left in a storage room in the back of

an abandoned house in another state. The motive for the killing was to rob the victim and to avoid

arrest and prosecution. The murder was premeditated, and no evidence was presented to show either

provocation or justification.

Powers, an Asian male, was forty-two years old at the time of the murder. He had a number

of prior convictions, including three separate aggravated assault convictions, a robbery conviction,

and a conviction for assault with a dangerous weapon on a federal officer. He was on parole when

the murder was committed. No evidence was presented to show that Powers cooperated with

authorities. In fact, there is evidence to show that he tried to evade authorities on at least three

different occasions, both before and after his arrest. Furthermore, no evidence was presented to

show that Powers displayed any remorse for the murder. Considering the nature of the crime and

the defendant, we conclude that this murder places Powers into a class of defendants for whom the

death penalty is an appropriate punishment.

19

We have found several prior cases involving facts similar to those in this case in which the

death penalty was imposed. For instance, in State v. Stout, 46 S.W.3d 689 (Tenn. 2001), the

defendant and three co-defendants abducted a woman from her driveway, forced her into the

backseat of her car at gunpoint, drove her to an isolated location, and shot her once in the head. See

id. at 693-99. After taking a suitcase from the victim’s car, the defendant and one of his accomplices

left the area, leaving the victim behind. See id. at 693. The defendant was convicted of first degree

felony murder, especially aggravated kidnapping, and especially aggravated robbery. See id. at 692.

He was sentenced to death on the basis of three aggravating circumstances: (1) that he had prior

violent felony convictions, (2) that he had committed the murder to avoid arrest and prosecution, and

(3) that he committed the murder while committing robbery or kidnapping. See id.

In State v. Bates, 804 S.W.2d 868 (Tenn. 1991), the defendant pleaded guilty to first degree

murder and grand larceny and was sentenced to death. See id. at 871, 883. The defendant was on

escape status from Kentucky when he abducted a woman. See id. at 872. He took her into some

nearby woods, tied her to a tree, gagged her, and shot her once in the head. See id. He then hid her

body under some brush and tree limbs and stole her car and traveler’s checks. See id. He eventually

confessed. See id. at 873. The jury found three aggravating circumstances: (1) that he had prior

violent felony convictions, (2) that he had committed the murder to avoid arrest and prosecution, and

(3) that he committed the murder while kidnapping and robbing the victim. See id. at 882.

In State v. King, 718 S.W.2d 241 (Tenn. 1986), the defendant was sentenced to death after

being convicted of murder in the first degree while in the perpetration of a simple kidnapping by

confinement and armed robbery. See id. at 243. He abducted a woman, confining her in the trunk

of her own car. See id. at 244. He drove her to an isolated location where he made her lie on the

ground and then shot her in the head. See id. The jury found four aggravating circumstances: (1)

that he had prior violent felony convictions, (2) that he had committed the murder to avoid arrest and

prosecution, (3) that the murder was especially heinous, atrocious, or cruel in that it involved torture

or depravity of mind, and (4) that he committed the murder while kidnapping and robbing the victim.

See id.

Based upon an exhaustive review of the record and Rule 12 reports from trial judges in trials

for first degree murder in which either life imprisonment or a sentence of death has been imposed,

we conclude that the following additional cases in which the death penalty was imposed also bear

similarities with the current case. See State v. Chalmers, 28 S.W.3d 913 (Tenn. 2000) (defendant

shot victim during a robbery and was sentenced to death based on the sole aggravating factor that

he had previously been convicted of a violent felony); State v. Burns, 979 S.W.2d 276 (Tenn. 1998)

(defendant shot and killed victim during a robbery and was sentenced to death based on the jury’s

finding that he knowingly created a great risk of death to two or more persons other than the

murdered victim); State v. Carter, 714 S.W.2d 241 (Tenn. 1986) (after abducting his victim, shooting

him to death, rolling his body over a cliff, and stealing his truck, defendant was sentenced to death

based on the aggravating circumstances that he committed the murder to avoid arrest and prosecution

and committed the murder while committing larceny and kidnapping). After reviewing these cases,

and many others not specifically cited, we are of the opinion that the penalty imposed by the jury in

this case is not disproportionate to the penalty imposed for similar crimes.

20

CONCLUSION

In accordance with Tennessee Code Annotated section 39-13-206(c) 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 the defendant and conclude that they do not

warrant relief. With respect to the issue of identification testimony, which was raised in this Court

but not addressed in this opinion, we affirm the Court of Criminal Appeals. Relevant portions of that

opinion are incorporated herein and are attached as an appendix. The defendant’s sentence of death

is affirmed and shall be carried out on the 15th day of May, 2003, unless otherwise ordered by this

Court or proper authority. It appearing that defendant Gerald Lee Powers is indigent, costs of this

appeal are taxed to the State of Tennessee.

___________________________________

JANICE M. HOLDER, JUSTICE

21

APPENDIX

(Excerpts from the Court of Criminal Appeals’ Decision)

22

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

December 5, 2000 Session

STATE OF TENNESSEE v. GERALD L. POWERS

Direct Appeal from the Criminal Court for Shelby County

No. 96-08230 & -08231 Joseph Dailey, Judge

No. W1999-02348-CCA-R3-DD - Filed September 28, 2001

The Defendant, Gerald L. Powers, was convicted by a jury of first degree felony murder in

the perpetration of a robbery and of aggravated robbery. The jury sentenced the Defendant to death

for the murder on the basis of three aggravating circumstances: that the Defendant was previously

convicted of one or more violent felonies; that the Defendant committed the murder to avoid his

arrest and/or prosecution; and that the Defendant committed the murder while committing a

kidnapping. The trial court subsequently sentenced the Defendant as a Range III persistent offender

to thirty years incarceration for the aggravated robbery, to be served consecutive to the death

sentence. In this appeal as of right, the Defendant challenges his convictions, raising the following

issues: (1) whether the evidence identifying him as the perpetrator is sufficient; (2) whether a

variance between the indictment and the proof at trial is material and prejudicial; (3) whether the trial

court had jurisdiction over the crimes; (4) whether the Defendant’s wife’s testimony should have

been suppressed pursuant to the marital communications privilege; (5) whether the trial court erred

in refusing to admit evidence in support of a third-party defense; (6) whether the trial court erred in

admitting a lay witness’s testimony identifying photographs as being of the Defendant; and (7)

whether the trial court erred in admitting a deposition taken in Mississippi by a Tennessee notary

public. The Defendant challenges the imposition of the death sentence on the following grounds:

(1) whether the trial court erred in admitting the facts underlying the Defendant’s prior felonies; (2)

whether the Defendant’s prior felonies were violent within the meaning of the statutory aggravating

circumstance; (3) whether the evidence is sufficient to support the jury’s finding that the Defendant

committed the murder to avoid his arrest and/or prosecution; (4) whether the trial court erred in

refusing to admit evidence of the victim’s bad character; and (5) whether Tennessee’s death penalty

scheme is constitutional. Finally, the Defendant contends that the trial court should have sentenced

him as a Range II offender for the aggravated robbery. Upon our review of the record and relevant

legal authority, we find no reversible error in the Defendant’s convictions or in the imposition of the

death sentence. We reduce the Defendant’s sentence for the aggravated robbery to twenty years. In

all other respects, we affirm the judgment of the trial court.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed as

Modified

ROBERT W. WEDEMEYER , J., delivered the opinion of the court, in which JOE G. RILEY and JOHN

EVERETT WILLIAMS, JJ., joined.

W. Mark Ward, Assistant Public Defender, (on appeal), Memphis, Tennessee; Tony N. Brayton,

Assistant Public Defender, (on appeal), Memphis, Tennessee; Garland Erguden, Assistant Public

Defender, (on appeal), Memphis, Tennessee; Loyce Lambert-Ryan, Assistant Public Defender, (at

trial), Memphis, Tennessee; and Larry H. Nance, (at trial), Memphis, Tennessee, for the appellant,

Gerald Powers.

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

Lustre, Assistant Attorney General; William L. Gibbons, District Attorney General; Amy P. Weirich,

Assistant District Attorney General; and Jerry R. Kitchen, Assistant District Attorney General, for

the appellee, State of Tennessee.

OPINION

[DELETED: SUMMARY OF FACTS]

ANALYSIS: GUILT PHASE ISSUES

[DELETED: I. SUFFICIENCY OF IDENTIFICATION EVIDENCE]

[DELETED: II. VARIANCE BETWEEN INDICTMENT AND PROOF]

[DELETED: III. JURISDICTION]

[DELETED: IV. MARITAL PRIVILEGE]

[DELETED: V. ADMISSIBILITY OF EVIDENCE TO SHOW THIRD PARTIES’

MOTIVES TO MURDER THE VICTIM]

VI. IDENTIFICATION TESTIMONY

During the course of his testimony explaining the surveillance videotapes taken at Sam’s

Town casino on the night of April 18, 1996, Tom Scott repeatedly referred to the person seen in

the tapes as “Mr. Powers.” Mr. Scott did not know the Defendant; rather, he referred to the

person as “Mr. Powers” on the basis of information provided to him by the F.B.I. Accordingly,

the Defendant objected to Mr. Scott’s identification of him as based on inadmissible hearsay.

The trial court overruled the Defendant’s objection, and the Defendant now argues that the trial

court’s ruling was error.

We agree with the Defendant that Mr. Scott should not have been allowed to refer to

the person shown in the tapes as “Mr. Powers.” “A witness may not testify to a matter unless

Appendix - pg. 2

evidence is introduced sufficient to support a finding that the witness has personal knowledge of

the matter.” Tenn. R. Evid. 602. Mr. Scott admitted that he had no personal knowledge of the

Defendant’s appearance or identity and that his knowledge of the Defendant’s identity was based

on information provided to him by the F.B.I. Accordingly, the trial court erred in overruling the

Defendant’s objection.

During the State’s redirect examination of Mr. Scott, the prosecutor asked him to identify

whether any person in the courtroom was the person shown in the videotape. Over defense

counsel’s objection, the trial court allowed Mr. Scott to testify that the person in the videotape

was the Defendant. We agree with the Defendant that the prosecutor’s question called for an

opinion from a lay witness.

Our Rules of Evidence provide that a lay witness’s testimony “in the form of opinions or

inferences is limited to those opinions or inferences which are (1) rationally based on the

perception of the witness and (2) helpful to a clear understanding of the witness’s testimony or

the determination of a fact in issue.” Tenn. R. Evid. 701(a). Certainly, Mr. Scott’s testimony

that the person in the tape was the Defendant was “rationally based” on Mr. Scott’s perception of

the similarities between the photographs and the Defendant’s person in the courtroom. Id.

However, Mr. Scott’s opinion about the identity of the person in the tape was not necessary to a

clear understanding of his testimony, nor was it helpful in the determination of a fact in issue.

While the Defendant’s identity as the man in the tape was certainly an issue in the trial, Mr. Scott

was in no better position to identify that person as the Defendant than were the jurors: Mr. Scott

had no more past familiarity with or knowledge of the Defendant than did they. Thus, we find

that the trial court erred in permitting the State to seek Mr. Scott’s opinion on this issue.

Nevertheless, we find both of the trial court’s errors regarding Mr. Scott’s testimony to be

harmless. The jurors saw the videotape and had the Defendant before them; each juror therefore

had the opportunity to determine for her or himself whether the person in the video was the

Defendant. Mr. Scott admitted that he did not know the Defendant and admitted that his

identification was based on hearsay information. Moreover, Ms. Powers viewed a still

photograph made from the surveillance tapes and identified the person therein as the Defendant.

Ms. Powers was certainly qualified to testify as to the Defendant’s identity, and we are confident

that the jury gave far more weight to her testimony than it did to Mr. Scott’s. Accordingly, we

find this issue to be without merit.

[DELETED: VII. ADMISSIBILITY OF MARGARET YORK’S DEPOSITION]

ANALYSIS: SENTENCING PHASE ISSUES

[DELETED: VIII. ADMISSIBILITY OF FACTS UNDERLYING

PRIOR VIOLENT FELONIES]

Appendix - pg. 3

[DELETED: IX. WHETHER THE DEFENDANT’S PRIOR CONVICTIONS WERE

ADMISSIBLE TO ESTABLISH THE AGGRAVATING CIRCUMSTANCE FOR PRIOR

VIOLENT FELONIES]

[DELETED: X. SUFFICIENCY OF EVIDENCE ESTABLISHING THAT

THE DEFENDANT COMMITTED THE MURDER TO AVOID

HIS ARREST AND/OR PROSECUTION]

[DELETED: XI. ADMISSIBILITY OF VICTIM’S CHARACTER EVIDENCE]

[DELETED: XII. CONSTITUTIONALITY OF TENNESSEE’S DEATH PENALTY]

[DELETED: XIII. PROPORTIONALITY REVIEW]

[DELETED: XIV. DEFENDANT’S STATUS AS A RANGE III OFFENDER]

CONCLUSION

We have carefully reviewed the record of this case and the issues raised by the Defendant.

We have further conducted a proportionality review of the sentence of death imposed upon the

Defendant. Finding no reversible error in the guilt phase of the trial; finding that the death

penalty is proportionate to the crime, that it was neither arbitrarily nor capriciously applied;

finding that the evidence supports the jury’s finding of the three aggravating circumstances; and

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

any mitigating circumstances, we affirm the Defendant’s convictions and sentence of death.

Finding that the trial court erred in sentencing the Defendant as a Range III offender, we reduce

his sentence for the aggravated robbery to twenty years as a Range II offender. In all other

respects, the judgment of the trial court is AFFIRMED.

ROBERT W. WEDEMEYER, JUDGE

CONCUR:

JOE G. RILEY, Judge

JOHN EVERETT WILLIAMS, Judge

Appendix - pg. 4