State of Tennessee v. Paul Dennis Reid, Jr.

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

March 13, 2001 Session

STATE OF TENNESSEE v. PAUL DENNIS REID, JR.

Direct Appeal from the Criminal Court for Davidson County

No. 97-C-1834 Cheryl Blackburn, Judge

No. M1999-00803-CCA-R3-DD - Filed May 31, 2001

Paul Dennis Reid, Jr. was found guilty by a jury of two counts of first-degree murder and one count

of especially aggravated robbery. Reid’s convictions stem from the execution style murders of two

Captain D’s employees and the especially aggravated robbery of one of the employees. The jury

returned a sentence of death for each of the homicides based upon its finding of three aggravating

factors, i.e., (i)(2), prior violent felony; (i)(6), murder committed for the purpose of avoiding

prosecution; and (i)(7), murder committed during commission of robbery. The Davidson County

Criminal Court subsequently imposed a twenty-five-year sentence for the especially aggravated

robbery conviction and ordered this sentence to be served consecutively to the two death sentences.

In this appeal as of right, Reid presents numerous issues for our review, including (1) issues arising

from suppressed evidence; (2) challenges to the selection of jurors; (3) the sufficiency of the

convicting evidence; (4) the admission and exclusion of evidence at both the guilt and penalty

phases; (5) the propriety of the prosecution’s closing argument during the guilt phase; (6) the failure

to instruct on lesser-included offenses; (7) the trial court’s act of holding court into late hours of the

evening without cause; (8) the admissibility in general and the introduction of specific victim impact

evidence; (9) prosecutorial misconduct during closing argument; (10) the propriety of the jury

instructions; (11) whether application of the (i)(7) aggravator violates State v. Middlebrooks; (12)

the propriety of a twenty-five-year sentence for especially aggravated robbery; (13) the

constitutionality of Tennessee’s death penalty statutes; and (14) whether the sentences of death

imposed by the jury are proportionate sentences. After a careful review of the record, we affirm

Reid’s convictions for two counts of first-degree murder and one count of especially aggravated

robbery. Additionally, we affirm the imposition of the sentences of death and the accompanying

sentence for especially aggravated robbery.

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

DAVID G. HAYES, J., delivered the opinion of the court, in which JOHN EVERETT WILLIAMS, J.,

joined; JAMES CURWOOD WITT, JR. filed a concurring opinion.

Jeffrey A. DeVasher, Assistant Public Defender (on appeal); C. Dawn Deaner, Assistant Public

Defender, (at trial and on appeal); J. Michael Engle and David Baker, Assistant Public Defenders,

(at trial), Nashville, Tennessee, for the Appellant, Paul Dennis Reid, Jr.

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

Morante, Tom Thurman, Roger Moore, Grady Moore, Assistant Attorney Generals, for the Appellee,

State of Tennessee.

OPINION

In February 1999, the Appellant, Paul Dennis Reid, Jr., was convicted, in the Davidson

County Criminal Court, of two counts of first-degree murder in the execution style killings of

twenty-five-year-old Steve Hampton and sixteen-year-old Sarah Jackson and of one count of

especially aggravated robbery.1 At the conclusion of the penalty phase of the trial, the jury found the

presence of three aggravating circumstances, i.e., (i)(2), the defendant had previously been convicted

of a felony involving violence to a person; (i)(6), that the defendant committed the murder for the

purpose of avoiding prosecution; and (i)(7), that the murder was committed while the defendant was

committing a felony. Tenn. Code Ann. § 39-13-204(i)(2), (6), and (7) (1997). The jury further

determined that the mitigating circumstances did not outweigh the aggravating circumstances and

imposed sentences of death on each count. The trial court approved the sentencing verdict. At a

separate sentencing hearing, the trial court imposed a sentence of twenty-five years for the especially

aggravated robbery conviction and ordered the Appellant to serve this sentence consecutive to his

sentences of death. In this appeal as of right, the Appellant presents for our review the following

issues:

1

On August 26, 1997, an indictment was returned by the Davidson County Grand Jury charging the Appellant

alternatively with two counts of premeditated murder and two counts of felony murder arising from the deaths of Steve

Hampton and Sarah Jackson and one count of especially aggravated robbery of Steve Hampton. The jury returned guilty

verdicts as to all five counts. Upon the State’s motion, the trial court merged the two counts of felony murder into the

two counts of premeditated murder. We note that both premeditated murder and felony murder constitute first-degree

murder, see Tenn. Code Ann. § 39-13 -202(a)(1 ), (2) (199 7); State v. Hurley, 876 S.W .2d 57, 5 8 (Tenn . 1993), cert.

denied, 513 U.S. 933, 115 S. Ct. 328 (199 4), as they are but alternate means by which the offense may be committed.

Hurley, 876 S.W.2d at 58. Indeed, our suprem e court has re cognized that “[t]he perp etration of a felo ny, during which

a homicide occurs, is the legal equivalent of premeditation, deliberation and malice.” Strouth v. Sta te, 999 S.W.2d 759,

768 (Tenn. 1 999), petition for cert. filed, (Jan. 5, 2000) (Holder, J., concurring)(citation omitted). In a case involving

a killing where the jury has found the defendant guilty under both theories of first-degree premeditated murder and

felony murder, the trial court shou ld accept both verdicts but enter only one judgment of conviction, thereby merging

the two verdicts. See Carter v. Sta te, 958 S.W.2d 620, 624 -25 (Tenn. 1997); State v. Addison, 973 S.W.2d 260, 267

(Tenn. Crim. Ap p. 1997 ), perm. to appeal denied, (Tenn. 1998). In the present case, the trial court entered one judgment

of conviction a s to each victim no ting that the two co unts merged with one another. Additionally, we acknowledge that

a general verdict of guilty is sustainable if any one co unt in the indictm ent is sustained b y the proof. See Tenn. Code

Ann. § 40-18-1 11 (199 7). Accordingly, proof of either felony murder or premeditated murder is sufficient to sustain the

conviction.

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I. Whether the trial court erred in denying the Appellant’s Motions to Suppress the

identification testimony of Michael Butterworth and Mark Farmer and the physical

evidence seized from the Appellant’s residence (Appellant’s Issues I and II);

II. Whether the trial court properly controlled the selection of numerous jurors

(Appellant’s Issues III, V, VI, and VII);

III. Whether the evidence was sufficient to support the Appellant’s convictions for

the first-degree murders of Steve Hampton and Sarah Jackson and his conviction for

especially aggravated robbery (Appellant’s Issue XIV);

IV. Whether the trial court properly admitted testimony during the guilt phase of the

trial (Appellant’s Issues VIII, IX, and X);

V. Whether the State committed prejudicial error, at the guilt phase, by making

improper comments during closing argument (Appellant’s Issues XI and XII);

VI. Whether the trial court’s failure to instruct on lesser-included offenses was error

(Appellant’s Issue XIII);

VII. Whether the trial court committed plain error by holding court into the late

hours of the evening (Appellant’s Issue XXVIII);

VIII. Whether the admission and exclusion of certain testimony during the penalty

phase of the trial constituted error (Appellant’s Issues XVIII, XIX, XX, XXI);

IX. Whether the introduction of victim impact evidence constituted error

(Appellant’s Issues XV, XVI, XVII, and XXIII);

X. Whether the application of the (i)(7) aggravator was appropriate when the jury

found the Appellant guilty of felony murder (Appellant’s Issue XXII);

XI. Whether the trial court properly instructed the jury as to mitigating factors

(Appellant’s Issue XXIV);

XII. Whether the twenty-five-year sentence imposed for especially aggravated

robbery is excessive (Appellant’s Issue XXVII);

XIII. Whether Tennessee’s death penalty statutes are constitutional (Appellant’s

Issue IV); and

XIV. Whether the jury imposed an arbitrary and disproportionate sentence

(Appellant’s Issues XXV and XXVI).

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Having carefully considered the Appellant’s claims, we find no error of law requiring

reversal. Accordingly, we affirm the Appellant’s convictions, his sentence for especially aggravated

robbery, and the imposition of the death penalty in this case.

Background

A. Guilt Phase

On Sunday morning, February 16, 1997, sometime between 11:00 a.m. and noon, Sarah

Jackson and Steve Hampton, two employees of a Captain D’s restaurant in Nashville, were

discovered dead lying face down on the floor inside the restaurant’s walk-in cooler. Steve Hampton

was the manager of the Captain D’s restaurant located on Lebanon Road. Sarah Jackson was a high

school student who worked part-time in the restaurant. The deaths were carried out in execution-

style fashion. Jackson was shot four times in the head and once in the back. Two of the gunshot

wounds to the head were superficial and the wound to the back did not strike any major organs or

blood vessels. The medical examiner testified that Jackson may have been able to move if these

were the first shots fired. However, the two wounds to the head incapacitated Jackson and caused

her death. Hampton died as a result of two gunshot wounds to the back of the head and one in the

back. Expert testimony suggested that both victims were lying on the floor when they were shot.

The testimony further suggested, based on the blood patterns, that Jackson attempted to raise herself

after she had been shot. The victims were killed with a .32 caliber weapon, which was probably a

revolver. Seven thousand one hundred forty dollars, which included two hundred fifty dollars in

coins, was taken during the robbery of the restaurant.

The Appellant was first developed as a suspect on June 12, 1997, after he was arrested in

Cheatham County for attempting to kidnap the manager of a Shoney’s restaurant. The police

obtained the Appellant’s fingerprints as well as his photograph from this encounter. It is this

evidence which ultimately connected him to the robbery and murders at the Captain D’s restaurant.

Hampton’s driver’s license, credit card, movie video rental card, insurance cards, birth

certificate card, and his children’s identification cards were subsequently found on the ground next

to Ellington Parkway in Nashville, approximately 11.5 miles from the crime scene and 1.2 miles

from the Appellant’s residence. While the Appellant’s fingerprints were not found at the scene,

several unidentified prints were found. The Appellant’s fingerprint, however, was found on

Hampton’s movie rental card. Several shoe prints were photographed on the floor near the safe

inside the restaurant. The tread design of the shoe prints did not match any of the tread designs from

the Appellant’s shoes seized from his house; however, the length of the shoe print at the crime scene

was consistent with the length of the Appellant’s shoes.

The night before the murders, Sarah Jackson spent the night at the home of Steve Hampton

and his family. Hampton’s wife testified that they ate dinner and rented some movies from Movie

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Gallery. When Hampton left for work at 6:00 a.m. on Sunday morning, he had approximately $600

in his wallet.

Michael Butterworth and Jason Carter, two employees of Captain D’s working the night

before the murders, testified that a man came into the restaurant sometime before closing time and

inquired about a job application. The man said that he worked for Shoney’s which was just down

the road. Carter testified that the man asked if anyone would be at the restaurant on Sunday

morning. Carter told the man Hampton would be there but that he would be busy until after lunch.

Butterworth saw the man leave in a dark colored car.

During trial, both Carter and Butterworth identified the Appellant as the man who came into

Captain D’s the night before the murders. About a week after the murders, Butterworth, Carter and

James Cassidy, another employee who was present the night before the murders, assisted in

preparing a sketch of the man they saw. Butterworth stated that the man’s hair was “pulled straight

back.” Butterworth did not include a moustache in his sketch. Carter stated that the man wore a

ponytail but no moustache. The Appellant apparently, however, had a moustache at that time. In

June 1997, the police showed Butterworth and Carter a photographic lineup of six individuals,

including one of the Appellant. Butterworth could not make a positive identification at that time.

Carter, however, positively identified the Appellant from his photo.

Shortly thereafter, Butterworth saw the Appellant during a televised news report after the

Appellant was arrested. Butterworth contacted the police and informed them that the Appellant was

the man who came into Captain D’s the night before the murders. Butterworth testified that he was

sure of his identification of the Appellant after he had the opportunity to hear the Appellant’s voice,

see the way his lips moved when he talked, and see the way the Appellant walked during the news

report.

Jerry Marlin drove by the Captain D’s restaurant at approximately 8:45 a.m. on the morning

of the murders. Marlin observed a blue Ford station wagon “parked at a funny angle toward the rear

of the building.” Marlin testified that the car had some damage to its front left end and possibly its

left rear quarter panel. The Appellant’s light blue 1988 Ford Escort station wagon was appraised by

an insurance company on February 3, 1997. The car had damage to the left side of its front end.

Marlin testified that the Appellant’s car as pictured in the photographs of the insurance company was

similar to the car he observed in the Captain D’s parking lot that morning.

Debbie Hines also drove by the Captain D’s at approximately 8:50 a.m. that Sunday morning

on her way to church. She observed a man standing inside the doorway of the restaurant, later

identified as Steve Hampton, talking to a man standing outside the door. The man outside had pieces

of white paper in his hand. Hines described the man as having dark hair and as being five inches

taller than the employee. The Appellant is approximately 6'3" and weighs approximately 200 lbs.

Hampton was 5'8" and weighed 189 lbs.

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Mark Farmer drove by Captain D’s at approximately 9:30 a.m. on his way to breakfast that

same Sunday morning. He noticed “a car that sort of looked out of place.” According to Farmer,

the small to medium-sized car was parked about a car-length away from the front of the building in

the opposite direction of the drive-thru arrows painted on the lot. Farmer initially remembered that

it was a light blue car, but at trial he also stated it may have been painted a “pinkish plum color.”

Farmer also observed a man walking away from the restaurant toward the car. Farmer testified that

the man was walking in a hurried manner and he stopped at the passenger side of the car. Farmer

then stated the man “elevated his face and . . . it seemed like our eyes sort of caught one another,

and when he saw that I was watching him, he dropped his head, just completely down in a suspicious

way.” The man then got in the passenger side of the car. Farmer described the man as tall with a

muscular build and large neck. The man had dark eyebrows and dark eyes, a full head of hair which

was slicked back, and he was wearing a white t-shirt and white tennis shoes. Farmer saw the

Appellant on television after the Appellant’s arrest in June 1997. Farmer then called the police and

identified the Appellant as the man he saw at Captain D’s that morning.

Prior to the murders in this case, the Appellant asked Jeffrey Potter, his co-worker at

Shoney’s, where he could get a gun. The Appellant also told Potter he was dissatisfied with his job

at Shoney’s and stated he could make more money committing a robbery. Danny Wayne Tackett,

another friend and co-worker of the Appellant, testified that the Appellant was scheduled to work

February 16, 1997, but did not come in to work. Tackett also testified that, prior to the murders, the

Appellant asked Tackett and his wife to purchase a handgun for him. Arrangements were also made

with another Shoney’s employee for the Appellant to buy a gun. The Appellant was unsuccessful

in both of these attempts and apparently secured the services of another individual. Tackett testified

that he and the Appellant discussed robbing fast food restaurants. Tackett stated, however, that he

assumed the discussion was simply hypothetical and did not believe the Appellant was being serious.

Tackett mentioned that the Appellant was experiencing financial difficulties. After the murders at

Captain D’s, Tackett observed the Appellant with a stack of approximately $100 to $200 in five

dollar bills and a new red car. In fact, on February 18, 1997, the Appellant paid $2,000 down in cash

on a new Ford automobile. On February 20, 1997, the Appellant paid the remaining $3,127.92 of

the purchase price for the car. When the salesman asked where the Appellant obtained this large

amount of cash, the Appellant responded: “Well, I’ve been very good at saving and my dad is going

to be helping me.”

On February 4, 1997, the Appellant obtained a loan for $200 using his car title as collateral.

The loan was paid off in cash on February 21, 1997. On December 19, 1996, the Appellant had

$742.61 in his checking account. On January 22, 1997, the Appellant had $134.45 in his account.

On February 12, 1997, the Appellant had $139.35 in his account. On February 27, 1997, the

Appellant had $803.67 in his account. The bank employee testified that the Appellant maintained

fairly consistent checking transactions during this period and that to his knowledge the Appellant

did not have any other bank accounts.

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Bernie Billingsly and the Appellant belonged to the same fitness center. During either the

last week of February 1997 or the first week of March 1997, the Appellant told Billingsly that he had

about $3,000 and he asked Billingsly some questions about investing in the stock market.

After the murders in this case, Robert Bolin sold the Appellant two .25 automatic pistols.

The Appellant informed Bolin that he “had a .32 revolver and he didn’t like the way it shot. He

wanted something that had a clip that holded [sic] more shells.”

After the Appellant was arrested in June 1997, the police seized four one-gallon jugs full of

coins from the Appellant’s residence. The coins appeared to be layered according to their

denomination. The jugs contained a little over $1,000.

In defense, the Appellant presented the testimony of TBI Agent Samera Zavaro. Zavaro

testified that her DNA examination of the cigarette butts discovered at the restaurant did not match

the DNA profiles obtained from the Appellant, Sarah Jackson, or Steve Hampton.

B. Sentencing Phase

In 1984, the Appellant was previously convicted on one count of aggravated robbery in

Texas. The parties stipulated that aggravated robbery is a crime that involves the use of violence to

the person. In 1978, two felony indictments returned against the Appellant in Texas were dismissed

based upon a finding of permanent incompetence and the Appellant was judicially committed to

psychiatric care. According to the testimony, under Texas law, after the defense files a motion and

evidence is presented, the issue of competency is decided by a jury before trial commences on the

charged offenses. A jury found the Appellant incompetent in 1978; however, a separate jury found

him to be competent in the 1984 case, resulting in the aggravated robbery conviction.

Deanna Hampton, Steve Hampton’s wife, testified on behalf of the State at the sentencing

hearing. Steve Hampton was twenty-five years old when he died and had three young children. Mrs.

Hampton testified that Steve Hampton was a good father. She further testified that after her

husband’s murder she withdrew from everybody, including her children. Both she and her children

have received counseling as a result. Paula Sue Guidry, Steve Hampton’s mother, also offered

victim impact evidence. Hampton was an only child. Ms. Guidry explained to the jury how the loss

affected her psychologically and testified that she will not be able to get over his death.

Sarah Jackson’s parents both testified at the sentencing hearing. They have suffered

psychologically as a result of the murder and have received counseling. Both feel guilty about

having allowed their daughter to take a job when she was sixteen. They told the jury nothing can

change what has happened and that nothing can replace their daughter. Wayne Jackson, Sarah

Jackson’s brother, testified that he had a good relationship with his sister and the murder made him

extremely angry. He told the jury he will miss having an adult relationship with his sister. Wayne

Jackson testified that the holidays are hard on the family and he stated that his younger brother is in

denial about the murder.

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The Appellant solicited testimony from Gloria Shettles, a private investigator who prepared

the Appellant’s social history which was provided to the mental health experts in this case. Her

account of the Appellant’s background came from interviews with the Appellant’s family members.

The Appellant was born in November 1957. His father died in May 1997. The Appellant’s mother

has fifteen brothers and sisters. The Appellant has two older sisters. The Appellant’s parents

divorced when he was about three years old. The Appellant and one of his sisters resided with their

father and grandmother. Apparently their father was frequently away from home so the grandmother

served as primary caretaker. The Appellant’s mother remarried and had two more daughters. The

Appellant apparently became unruly as a child and, at age eight, he was sent to a “boys’ home” for

about two years. There were reports that the Appellant stole mail from his neighbors’ mailboxes,

took clothes off the neighbors’ clotheslines, set his grandmother’s bed on fire and beat their dog to

death with a baseball bat. According to Shettles, the Appellant’s father wanted to put the Appellant

up for adoption. The Appellant’s mother retrieved the Appellant from the “boys’ home” and allowed

him to live with her. The Appellant’s mother divorced her second husband when the Appellant was

about thirteen years old. Shettles testified that this man was sexually abusing the Appellant’s older

sister. The Appellant left home when he was sixteen years old.

Shettles discovered that the Appellant was arrested for auto theft in 1975, for which he was

placed on probation. He was also charged with passing forged checks. The Appellant was married

but divorced in 1984. According to Shettles, one of the Appellant’s sisters warned the Appellant’s

ex-wife not to marry him. The Appellant lived with another woman in 1994. This woman told

Shettles that the Appellant had a temper; he threw her cat across the room and held a pillow over her

face on the couch. Furthermore, Shettles testified that one of the Appellant’s sisters feared the

Appellant because he had previously threatened to kill her.

Janet Kirkpatrick, the Appellant’s sister, testified on his behalf at sentencing. She stated that

their father drank and was frequently out of town on business, thus, he relied on the grandmother to

take care of the children. The Appellant started school at age seven. According to Kirkpatrick, their

grandmother financially supported the family. Kirkpatrick further testified that their grandmother

experienced severe discipline problems with the Appellant. The Appellant would throw things at

his grandmother. When the Appellant left the “boys’ home” and moved in with his mother, his

mother changed his name to Leon Morez, the surname of her second husband, because the name

“Paul Reid” reminded her of her ex-husband, the Appellant’s father. The Appellant suffered a skull

fracture as a result of a minibike accident in 1971. The Appellant also hit his head against the

windshield of a car and also slipped at work and hit his head on the ground. The Appellant

occasionally used drugs. Kirkpatrick testified that her brother became paranoid after he was

imprisoned in Texas. Kirkpatrick also testified that the Appellant tried to sexually molest her, her

sisters and their mother.

Patsy Casey Allen, a speech and language pathologist, reviewed the Appellant’s medical and

school records during her evaluation of the Appellant. Allen observed a language disorder in the

Appellant which she associated with the head injury he suffered when he was young. Allen also

noted that the Appellant suffered from a hearing loss. Furthermore, having reviewed the records,

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Allen believed that the Appellant had learning disabilities during his school years. Allen concluded

that the Appellant does not have a good vocabulary or knowledge of language rules. Allen opined

that the Appellant’s speech and language problems were characteristic of people with traumatic brain

injuries rather than people with developmental delay. The earliest record reviewed by Allen reflects

a traumatic head injury at the age of five.2 The most severe injury was the skull fracture in 1971,

which stemmed from a minibike accident. Allen also testified that the Appellant’s lack of consistent

schooling and his hearing loss are contributive to his problems.

Dr. Pamela Mary Auble, a clinical neuropsychologist, testified on the Appellant’s behalf.

Based upon her evaluation of the Appellant, Dr. Auble opined that the Appellant suffers from brain

damage in the left temporal lobe which impairs his behavior in a pervasive manner. She also opined

that the Appellant has a secondary psychotic disorder, a cognitive disorder and personality changes

from his brain injuries. Dr. Auble indicated that the Appellant meets some of the criteria for

antisocial personality disorder as well. Her evaluation entailed more than eight hours of interviews

over the course of a year and the administration of eighteen standardized tests. She also reviewed

the Appellant’s medical and school records and interviewed the Appellant’s mother and two sisters.

Apparently, the Appellant also has a history of mental illness on his mother’s side of the family.

Dr. Auble testified that the damage to the left temporal lobe manifests itself by causing the

person to have delusions and other disorders associated with their thinking. Also, a person with this

type of damage has a compulsion to talk and write excessively. Dr. Auble noticed these traits in the

Appellant. Dr. Auble stated, as did Allen, that the Appellant uses words that are not real words and

that he uses words inappropriately. Dr. Auble believed that the Appellant has shown abnormalities

in his functioning since childhood and that those abnormalities were worsened by the head injuries

he suffered. Also, Dr. Auble found it significant that the Appellant was born with a malformation

of his left ear. In making her diagnosis of the Appellant, she also reviewed and considered the

evaluations performed on the Appellant after he started school, finding that the Appellant exhibited

functioning problems, had trouble learning and relating to other children, and had behavior problems.

Dr. Auble testified that people with brain damage need a more structured and stable environment

than others, and that the Appellant did not have this growing up.

Dr. Auble testified that his Texas prison records reflect that the Appellant responded well to

medication for treatment of his psychosis. She related to the jury letters the Appellant wrote to the

Governor of Texas and the editor of the Washington Post explaining how he was being monitored

by the government. Also, the Appellant’s sisters and ex-girlfriend informed Dr. Auble that the

Appellant told them he was being monitored by the government. According to Dr. Auble, these

instances, as well as the statements the Appellant made to the police in this case and the statements

he made to Dr. Auble during the interviews about being monitored by the government, support the

conclusion that the Appellant is delusional.

2

This injury allegedly resulted from the Appellant’s mother striking him on the head with a brick.

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Dr. Auble testified that the Appellant was very polite and eager to please and perform well

during their interviews. Based on standardized testing, Dr. Auble concluded that the Appellant has

a below average I.Q.; in the nineteenth percentile. This score was consistent with scores from the

Appellant’s childhood. Dr. Auble opined that the Appellant was defensive about his shortcomings,

attempted to avoid his feelings, and acted insecure. However, Dr. Auble admitted that neither the

Minnesota Multiphasic Personality Inventory (MMPI) nor Rorschach personality test revealed

evidence of psychosis in this case. Dr. Auble also stated that the Appellant does have a history of

some malingering.

The Appellant also solicited testimony from Dr. Robert M. Kessler, a neuroradiologist. Dr.

Kessler performs imaging of the brain to diagnose the presence of disease. Dr. Kessler performed

Magnetic Resonance Imaging (MRI) and Positron Emission Tomography (PET) scans on the

Appellant. Dr. Kessler opined that the Appellant suffered shrinkage and acquired damage to the left

temporal lobe of the brain which was likely caused by an injury to his head after age six or seven.

Dr. Kessler further opined that the Appellant exhibits mild to moderately severe functional

abnormality in the left temporal lobe of his brain. According to Dr. Kessler, this portion of the brain

is responsible for visual and auditory processing, as well as emotional processing and memory. Dr.

Kessler testified that the Appellant lost brain material after his brain had achieved normal

development.

Dr. Xavier F. Amador, a clinical psychologist, also evaluated the Appellant and testified as

to his findings. Dr. Amador was approached by the Appellant’s pastor and eventually volunteered

to evaluate the Appellant. Dr. Amador concluded that the Appellant suffers from paranoid

schizophrenia, continuous type, as well as cognitive disorder. Dr. Amador opined that the Appellant

has personality change, combined type, which is caused by the Appellant’s head injuries. Dr.

Amador conducted a total of twenty hours of interviews with the Appellant, interviewed the

Appellant’s mother and sister, and reviewed all of the records provided to him by the defense.

Dr. Amador testified that the Appellant maintains longstanding delusions about government

surveillance and that there is evidence in the Appellant’s medical records that he has at times been

evaluated and treated for some type of brain dysfunction or psychotic disorder. The Appellant’s

medical records reflect that he has been prescribed at least eight different antipsychotic drugs over

his lifetime which improved his behavior in most cases. When he was nine and one-half years old,

a committee in the Appellant’s school district recommended that he be enrolled in special education

classes for children with brain damage. Dr. Amador testified that schizophrenia usually develops

in men in their late teens to early twenties and this coincides in time with the Appellant’s records that

reflect when he started having these delusions about government surveillance. Like Allen and Dr.

Auble, Dr. Amador also noticed problems regarding the Appellant’s speech pattern. And like Dr.

Auble, Dr. Amador testified that the Appellant attempted to perform well and act as normal as

possible during their meetings.

Dr. Amador testified that the records reflect that after the Appellant suffered the minibike

injury at age thirteen, he encountered more behavior problems and his performance in school

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dropped. Dr. Amador opined that the Appellant’s mental illness and inability, due to his brain

damage, to control his anger and emotions and impulses, combined with the lack of socialization and

guidance received as a child, renders the Appellant “very ill-equipped to deal with reality.” When

asked about the results of the tests administered by Dr. Auble, Dr. Amador testified that the MMPI

and Rorschach tests are adjunct tools and are not the primary diagnostic tools used in clinical

practice. Dr. Amador testified that during the commission of the crimes, the Appellant was under

the influence of his delusions.

Joe Ingle, an ordained minister in the United Church of Christ, started visiting the Appellant

in prison shortly after the Appellant’s arrest in June of 1997. Reverend Ingle primarily participates

in prison ministries. After counseling the Appellant and learning about his history, Reverend Ingle

contacted the Appellant’s sister and mother and discovered that the Appellant’s version of his

upbringing was not consistent with reports Reverend Ingle received from the Appellant’s family.

As a result, Reverend Ingle contacted Dr. Amador for his expert assistance in understanding the

Appellant’s thought processes.

The State introduced several witnesses in rebuttal. Raymond Lackey, Jr. is the attorney who

represented the insured of the insurance company the Appellant sued in April 1997 over an

automobile accident involving his blue Ford Escort. The Appellant represented himself at trial and,

according to Lackey, the Appellant performed as well as anyone he had seen represent themselves.

Lackey testified that the Appellant acted friendly and respectful before and during the proceeding.

Lackey, however, only had contact with the Appellant briefly before and during the relatively short

trial. The Appellant’s claim was unsuccessful.

Janice Roar, Director of Admissions at Volunteer State Community College, testified that

the Appellant registered to attend the school in January of 1997. The Appellant enrolled in three

remedial and developmental courses, which are considered college preparatory classes. According

to the school’s records, the Appellant was deficient in English, math, foreign language, and visual

and performing arts. The Appellant scored an A in all three classes.

The State recalled Brian Johnson, who testified earlier in the sentencing phase regarding the

Appellant’s prior conviction in Texas. Johnson served as the prosecutor in that trial. Johnson

testified that during the competency hearing the Appellant fell over backwards in his chair, shot

pieces of paper in the air with a rubber band, and made a paper hat and placed it on his attorney’s

head. All of this was in the presence of the jury. After he was convicted and placed in prison, the

Appellant wrote Johnson a letter stating that he was not crazy and that he apologized for his behavior

in the courtroom. The Appellant told Johnson that he felt threatened in prison and asked Johnson

if he could assist him in getting his sentence reduced.

Dr. Helen Mayberg, a professor of psychiatry and neurology at the University of Toronto,

focuses on studying behavior using brain imaging. The State solicited Dr. Mayberg to review the

MRI and PET scans utilized by Dr. Kessler in his evaluation. Dr. Mayberg, in her evaluation, also

reviewed the Appellant’s records. Dr. Mayberg concurred with Dr. Kessler’s finding that the

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Appellant’s left temporal lobe displayed some abnormality. However, given the fact that the

Appellant was born with a malformed left ear, and after reviewing the scans, Dr. Mayberg was of

the opinion that the abnormalities to the temporal lobe were not associated with trauma. According

to Dr. Mayberg, the condition of the Appellant’s brain was congenital rather than acquired. Dr.

Mayberg agreed with Dr. Kessler that there is decreased metabolism in the left temporal lobe;

however, she did not notice any abnormalities in the other areas of the brain connected to this portion

of the temporal lobe. Given the literature in her field of expertise, Dr. Mayberg did not believe

schizophrenia could be associated with this type of abnormality. She also testified that this type of

brain condition has not been associated with the act of premeditated murder. In other words, Dr.

Mayberg stated that there was nothing impulsive about these crimes to suggest they related to this

condition of the brain. Dr. Mayberg testified on cross-examination, however, that although it would

be speculative, it is possible there is a cause and effect between the Appellant’s brain condition and

his behavior. Dr. Mayberg did not meet with or interview the Appellant. Accordingly, she testified

that she could not offer a diagnosis about whether the Appellant is schizophrenic or not.

Dr. Dan Martell, a forensic neuropsychologist, also testified for the State. Dr. Martell is

employed by a private forensic consultation firm. Dr. Martell studies the relationship between brain

disorders and violent behavior. Dr. Martell interviewed the Appellant over two days for about

twelve hours and also reviewed all of the Appellant’s records and reports from the other experts in

this case. Dr. Martell was asked by the State to determine whether the Appellant was suffering from

an extreme mental or emotional disturbance at the time he committed the murders and whether the

Appellant’s capacity to appreciate the wrongfulness of his conduct or to conform his conduct to the

requirements of the law was substantially impaired as a result of the mental disease or defect. Dr.

Martell concluded that the Appellant suffers from a mild neurocognitive disorder, antisocial

personality disorder, and a delusional disorder. Dr. Martell opined that the Appellant’s mental status

did not affect his ability to conform or appreciate his conduct at the time of the crimes. The

Appellant’s cognitive disorder impairs his speech pattern; but Dr. Martell testified that this disorder

would not affect his ability to plan the crimes in this case. Antisocial personality is characterized

by the failure to conform to social norms, deceitfulness, irritability and aggressiveness, and lack of

remorse. Dr. Martell testified that the Appellant exhibits all of these traits. Moreover, Dr. Martell

testified that this condition is not related to his brain disorder.

Dr. Martell testified that there were some reports where the Appellant tested low on his I.Q.

exams. According to Dr. Martell, the Appellant told him he was attempting to perform poorly on

these tests. Dr. Martell also noticed two medical reports which indicated the Appellant was

malingering. However, Dr. Martell testified on cross-examination that he believed the Appellant

does suffer from a delusional disorder. According to Dr. Martell, persons suffering from delusional

disorders experience peaks and valleys, in that there are times when the disorder is in remission.

During their interview, the Appellant was hesitant to talk about the government surveillance because

he did not want this information made known to the jury. Dr. Martell testified that, if the Appellant

was in a delusional state, he would probably not have committed the crimes because of his fear of

being noticed by the government surveillance. Dr. Martell suggested that the disorder may have been

in remission at the time. Other than the delusional disorder, which can affect one’s behavior, Dr.

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Martell found no other evidence that the Appellant is suffering from a psychosis. Dr. Martell

testified that the other experts who diagnosed the Appellant as having schizophrenia were incorrect

in their diagnoses. Given the facts presented in this case, Dr. Martell opined that the Appellant’s

capacity to plan, execute, and cover-up these crimes was not impaired. To the contrary, according

to Dr. Martell, these facts demonstrate the Appellant was able to effectively use his cognitive

abilities.

I. Motion to Suppress

A. Admissibility of Identification Testimony

The Appellant argues that the trial court erred by denying his motion to suppress the

identification testimony of witnesses Michael Butterworth and Mark Farmer. Specifically, he argues

that the procedures that led to the identifications were unduly suggestive and violative of his due

process rights. Following an evidentiary hearing and argument of counsel, the trial court denied the

Appellant’s motion and admitted the testimony of both Butterworth and Farmer.

The standard by which an appellate court reviews a trial court's findings of fact on

suppression issues is as follows:

Questions of credibility of the witnesses, the weight and value of the evidence, and

resolution of conflicts in the evidence are matters entrusted to the trial judge as the

trier of fact. The party prevailing in the trial court is entitled to the strongest

legitimate view of the evidence adduced at the suppression hearing as well as all

reasonable and legitimate inferences that may be drawn from that evidence. So long

as the greater weight of the evidence supports the trial court's findings, those findings

shall be upheld. In other words, a trial court's findings of fact in a suppression

hearing will be upheld unless the evidence preponderates otherwise.

State v. Daniel, 12 S.W.3d 420, 423 (Tenn. 2000); State v. Odom, 928 S.W.2d 18, 23 (Tenn.1996).

The application of the law to the facts found by the trial court, however, is a question of law, which

this court reviews de novo. State v. England, 19 S.W.3d 762, 766 (Tenn. 2000); State v. Yeargan,

958 S.W.2d 626, 629 (Tenn.1997).

1. Testimony of Michael Butterworth

On February 15, 1997, the night before the murders, the Appellant entered the Captain D’s

restaurant on Lebanon Road and requested a job application from employee, Michael Butterworth.

According to Butterworth, he spoke with the Appellant a few minutes before the Appellant left the

restaurant. Approximately four months later, in June of 1997, Butterworth was shown a

photographic lineup which contained a photo of the Appellant and five other persons. Butterworth,

while not excluding any of the photographs, was unable to identify any of the photos as the person

he had seen at Captain D’s the night before the murders. The next day, Butterworth was watching

the news when he saw coverage of the Appellant’s arrest on television. He immediately recognized

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the Appellant and phoned police to tell them that the Appellant was the person he spoke with at

Captain D’s the night before the murders. The police never instructed Butterworth to watch the

newscast.

2. Testimony of Mark Farmer

On the morning the murders were committed, at approximately 9:30 a.m., Mark Farmer was

driving by Captain D’s and noticed a car parked in an unusual manner outside the restaurant. As he

glanced at the restaurant, he noticed a man exiting the building. As they made eye contact, the man

looked down quickly in a suspicious manner. After hearing about the crime, Farmer phoned police

on three separate occasions to report seeing a man at the restaurant on the morning of the murders.

Police, however, never responded or contacted Farmer about what he saw. In June of 1997, Farmer

was watching the news when he saw coverage of the Appellant’s arrest on television. He instantly

recognized the Appellant as the person he saw leaving the restaurant on the morning of the murders

and phoned police.

3. Analysis

In support of his arguments, the Appellant cites to Neil v Biggers, 409 U.S. 188, 93 S. Ct.

375 (1972), wherein the United States Supreme Court established a two-part analysis to assess the

validity of a pretrial identification, namely: (1) the court must determine whether the procedure used

to obtain the identification was unduly suggestive and (2) if the identification was unduly suggestive,

the court must determine, under the totality of the circumstances, whether the identification is

nevertheless reliable.3 The Appellant argues that this court must apply the above test in order to

determine if the testimony should have been admitted. Specifically, he asserts the procedure by

which the witnesses identified him were “unduly suggestive.” In addition to his argument that the

television identification itself was unduly suggestive, the Appellant contends that Butterworth only

“instantly recogniz[ed]” him on television because he had seen his picture in the photo array the

previous day.

The Appellant’s reliance on Biggers is misplaced. While Tennessee law has long recognized

that any identification procedure initiated or designed by police which is inherently suggestive

violates the accused’s due process rights, see State v. Thomas, 780 S.W.2d 379 (Tenn. Crim. App.

1989); State v. Beal, 615 S.W.2d 77 (Tenn. Crim. App. 1981); Sloan v. State, 584 S.W.2d 461

(Tenn. Crim. App. 1978), it has also long been recognized that a defendant’s constitutional rights

cannot be violated where the State is not involved in the alleged suggestive activity. A private party

acting for a reason independent of a governmental purpose does not implicate the Fourth

Amendment. State v. Burroughs, 926 S.W.2d 243, 246 (Tenn. 1996).

In Bishop v. State, 582 S.W.2d 86, 91 (Tenn. Crim. App. 1979), this court held that no state

action was involved where a witness, who had seen the defendant at her neighbor’s home prior to

the murder, first identified the defendant by use of a single picture in a local newspaper and

subsequently reported the identification to police. Similarly, in State v. Mosby, 639 S.W.2d 672,

3

The Tennessee Supreme Court adopted the Biggers test in Bennett v. S tate, 530 S.W.2d 511 , 514 (Tenn. 1975).

-14-

673 (Tenn. Crim. App. 1982), the victims’ neighbor heard one of the victims describing the assailant,

went home, and returned with a photograph. Police had yet to arrive at the scene. Upon viewing the

photograph, both victims identified the person in the picture as their assailant. On appeal, the

defendant argued that the identification should be suppressed because the neighbor’s actions of

showing the photograph to the victims were “impermissibly suggestive.” This court disagreed and

held that because there was no evidence suggesting that the neighbor was connected to law

enforcement, “there was no state involvement in his showing the single photograph to [the victims].”

Id. As such, the court held that the identification testimony was properly admitted. See also State

v. Dixon, 656 S.W.2d 49, 51 (Tenn. Crim. App. 1983)(absent evidence that police arranged to stage

a confrontation between the defendant and the victim, identification resulting from the observation

was not induced by an inherently suggestive show up).

In the present case, both Butterworth and Farmer were exposed to the Appellant through

spontaneous or inadvertent viewing on television. Butterworth testified that once he saw the

Appellant “walk, talk and his lips move,” he was absolutely sure that the Appellant was the person

he had spoken with at the restaurant the night before the murders. There was absolutely no evidence

introduced at the hearing which suggested that either witness was told by law enforcement officers

to view the broadcast. In fact, both witnesses testified that no one told them to watch the news. As

the trial court correctly noted, “such accidental or inadvertent showings do not raise a constitutional

issue.” Thus, these issues are without merit.

Additionally, the Appellant argues that law enforcement should have used a physical lineup

rather than a photographic lineup, arguing that a physical lineup is more reliable. He contends that

the use of a photographic lineup, when a physical lineup was possible, was unduly suggestive. At

the suppression hearing, Detective Postiglione, the officer who conducted the photographic lineup,

testified that he, too, would have preferred a physical lineup. However, Detective Postiglione

testified that a physical lineup was not feasible at the time because the Cheatham County Jail, where

the Appellant was being housed, did not contain a sufficient number of prisoners to conduct a

physical lineup. Instead, Detective Postiglione traveled to Cheatham County to get a photograph of

the Appellant and returned to Nashville to conduct the photographic lineup. Detective Postiglione

stated that anything other than a photographic lineup would have taken “several hours,” which was

an unreasonable amount of time under the circumstances.

After examining the photographic lineup which was introduced into evidence, we note that

the exhibit contained photographs of six white males of approximately the same age. The Appellant's

photograph was not distinctive from the others in any manner. Eyewitness identification at trial,

following a pretrial identification by photograph, will not be set aside on that ground unless the

photographic identification procedure was so impermissibly suggestive as to give rise to a very

substantial likelihood of irreparable misidentification. Simmons v. United States, 390 U.S. 377,

384, 88 S. Ct. 967, 971 (1968). We find, under these circumstances, that the photographic

identification was not impermissibly suggestive. The Appellant has failed to make the required

showing that the identification was unreliable. See State v. Sanders, 842 S.W.2d 257, 259 (Tenn.

Crim. App. 1992). Thus, the procedure was proper and this issue is also without merit.

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Lastly, the Appellant argues that the identification testimony was suggestive because law

enforcement officers failed to shield him from television and media coverage when transporting him

to court for arraignment. First, we note that the Appellant cites no authority for the proposition that

the officers had the duty to shield his face from media coverage during his transportation and

subsequent court appearance. As such, this issue is waived. See State v. Dickerson, 885 S.W.2d

90, 93 (Tenn. Crim. App. 1993); Tenn. R. App. P. 27(a)(7). Notwithstanding, we find this issue to

be without merit. At the suppression hearing, Detective Postiglione testified that prior to

transporting the Appellant, he explained that the Appellant could cover his head with a jacket during

transportation and later, in court, could face the wall so that television cameras and observers would

not be able to see his face. Initially, the Appellant agreed. Just before exiting the jail, however, the

Appellant changed his mind and stated, “This is going to be the Paul Reid trial.” He did not cover

his head during transportation and, at court, turned completely around and faced everyone in the

room during the entire course of proceedings. The Appellant was given the option to conceal his

identity and declined the opportunity. He cannot now complain that the identification testimony of

Butterworth and Farmer was suggestive based upon his failure to mask his identity in front of news

cameras. See generally Tenn. R. App. P. 36(a).

B. Admissibility of Items Seized from the Appellant’s Residence

The Appellant argues that the trial court erred by denying his motions to suppress items

seized from his residence pursuant to search warrants 146 and 149. The Appellant raises three issues

which are common to both search warrants 146 and 149: (1) that his federal and constitutional rights

were violated because the items seized were not particularly described in the warrant; (2) that the

affidavits to each warrant do not state probable cause because there is no nexus between the criminal

activity and the place searched; and (3) that the Appellant was not personally delivered a copy of the

warrants served in violation of Tenn. R. Crim. P. 41(c). Additionally, the Appellant contends that

warrant 149 was invalid because the attachment, entitled “Affidavit of Probable Cause,” was not

expressly incorporated by reference into the warrant.

Again, we note that a trial court's factual findings on a motion to suppress are conclusive on

appeal unless the evidence preponderates against them. Daniel, 12 S.W.3d at 423; Odom, 928

S.W.2d at 23. Nonetheless, this court is not bound by the trial court's conclusions of law. State v.

Simpson, 968 S.W.2d 776, 779 (Tenn. 1998). The application of the law to the facts as determined

by the trial court is a question of law which is reviewed de novo on appeal. Yeargan, 958 S.W.2d

at 629. Furthermore, the Appellant bears the burden of demonstrating that the evidence

preponderates against the trial court's findings. See Odom, 928 S.W.2d at 22-23.

1. Particularity of Items Described in Warrant

First, the Appellant argues that the items seized from his residence pursuant to warrants 146

and 149 should have been excluded from evidence because they were not particularly identified in

the warrants. Specifically, the Appellant contends that none of the items seized belonged to either

the restaurants or the victims and that none of the items seized could have caused the deaths of the

victims.

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Search warrant 146 was issued on June 3, 1997, and authorized the following search of the

Appellant’s residence:

Items which may be identified as property belonging to Captain D’s restaurant or

McDonald’s Corp.[4] Items belonging to the victim’s of each restaurant/crime scene

located at 2633 Lebanon Road and 3470 Lebanon Road. Any items which may be

used to cause the death of the victims of each establishment. These crimes were

committed on 2/16/97 and 3/23/97.

Warrant 149, which was issued on June 5, 1997, used the same language as warrant 146, but

additionally included, “any and all financial records to include those indicating monies paid out by

[the Appellant] on an automobile lease during the time period that any of the restaurant murders

occurred.”5 An affidavit was attached to each warrant setting forth the nature and circumstances of

the respective crimes. The affidavits noted that several items had been taken from the restaurants,

including bank bags. With respect to warrant 146, officers seized four jars full of coins, six pairs

of shoes, one duffle bag, one brown carry bag, assorted photos, one Bible, three knives, and three

hats. With respect to warrant 149, officers seized a box of photo albums, a bag containing photos

and negatives, a bag of assorted letters and mail, women’s toiletry items, keys, teeth molds, and

assorted magazines, papers, and notes.

Our federal constitution provides that no warrants shall issue except those "particularly

describing the place to be searched." U.S. Const., amend. IV. A warrant meets this requirement if

it describes the place to be searched with such particularity that the searching officer can, with

reasonable effort, ascertain and identify the intended place. See Steele v. United States, 267 U .S.

498, 502, 45 S. Ct. 414 (1925); see also United States v. Gahagan, 865 F.2d 1490, 1496 (6th Cir.

1989). Likewise, Tennessee law prohibits general warrants, see Tenn. Const., art. I, § 7, and

provides that a search warrant must be supported by an affidavit "particularly describing the property,

and the place to be searched." Tenn. Code Ann. § 40-6-103 (1997). This requirement is satisfied

if the description "particularly points to a definitely ascertainable place so as to exclude all others,

and enables the officer to locate the place to be searched with reasonable certainty without leaving

it to his discretion." State v. Smith, 868 S.W.2d 561, 572 (Tenn.1993), cert. denied, 513 U.S. 960,

115 S. Ct. 417 (1994). The description of the place to be searched is adequate if it designated the

property accurately enough that the officer conducting the search of the premises of one person under

a warrant would be prevented from searching instead the premises of another person. See State v.

Cannon, 634 S.W.2d 648, 650 (Tenn. Crim. App.1982) (citing Lea v. State, 181 S.W.2d 351 (Tenn.

1944)). Additionally, Tenn. R. Crim. P. 41(b) provides:

4

At the time of this investigation, the Appellant was also under investigation for the murders, robbery and

assault of emp loyees of a N ashville Mc Donald ’s restaurant.

5

Law enforcement officers executed five other search warrants in addition to the two at issue above. All seven

warrants were challenged by the defense in pretrial motions. The State, however, gave notice prior to trial that it did not

intend to introduce the evidence seized pursuant to the other five warrants and did not seek admission of this evidence

at trial. Thus, on appeal, the Appellant only challenges evidence introduced from warrants 146 and 149.

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(b) Property Which May Be Seized with a Warrant. — A warrant may be issued

under this rule to search for and seize any:

(1) Property that constitutes evidence of the commission of a criminal

offense; or

(2) Contraband, the fruits of crime, or things otherwise criminally

possessed;

(3) Property designed or intended for use or which is or has been used

as the means of committing a criminal offense; or

(4) Person for whose arrest there is probable cause or who is

unlawfully restrained.

In State v. Meeks, 867 S.W.2d 361, 372 (Tenn. Crim. App. 1993), this court recited the

language found in Lea v. State, 181 Tenn. at 378, S.W.2d at 352-53, wherein our supreme court

distinguished between the character and the identity of the targeted item during a search as follows:

Thus, where the purpose of the search is to find specific property, it should be so

particularly described as to preclude the possibility of seizing any other. On the other

hand, if the purpose [is] to seize not specified property, but any property of a

specified character which, by reason of its character, and of the place where and the

circumstances under which it may be found, if found at all, would be illicit, a

description, save as to such character, place and circumstances, would be necessary,

and ordinarily impossible.

Here, as in Lea, the type of evidence that the officers were looking for was of a specific character,

rather than a specific property. The officers were looking for items that might have been taken from

either the victims or the restaurants. It would have been impossible to provide a particular

description of everything which might have been taken from the restaurants or victims. Thus, we

find the warrants sufficiently set forth the character of the items which were the subject of the search.

Finally, if during the lawful search the officers find items that are not specified in the warrant,

but which are immediately apparent to be contraband, fruit of the crime, or evidence of criminal

conduct, their right to seize these items is governed by the plain view exception to the warrant

requirement. Meeks, 867 S.W.2d at 373; see also Horton v. California, 496 U.S. 128, 136-141, 110

S. Ct. 2301, 2308-2310 (1990). The plain view doctrine is applicable where the items seized are in

plain view, and the viewer has a right to be in the position to see the items. Horton, 496 U.S. at 137,

110 S. Ct. at 2308; State v. Hoerner, 605 S.W.2d 835, 836 (Tenn. Crim. App. 1990).

In the present case, Detectives Postiglione and Roland testified about their reasons for seizing

the items found in the Appellant’s apartment. With respect to warrant 146, Detective Postiglione

testified that he seized the four jars of coins because of the large quantity involved and because

change had been taken in both robberies. Six pairs of shoes were seized for comparison to shoe

prints found at the two restaurants. Knives were seized because one victim had been stabbed and

three hats were taken because the suspect was portrayed wearing a hat in two of the composite

-18-

drawings. Finally, Detective Postiglione testified that he took large numbers of photographs because

some of the photos were pictures of various intersections in Nashville and he felt the photos might

be tied to other robberies. With respect to warrant 149, Detective Roland testified that he seized

numerous photos, some of which also contained pictures of various Nashville intersections.

Detective Roland testified that all photos were seized because it would have been impossible to sort

through all of the photos to determine if they were incriminating at the time of the search. The

women’s toiletry items were seized because he felt the items might belong to one of the female

victims. The keys were seized because the keys to Captain D’s had been missing since the crime.

Finally, the magazines, notes, and assorted papers were taken in an effort to uncover the financial

records described in warrant 149. As the trial court correctly found, “the items sought were

described with particularity and items recovered were in plain view.” Thus, this issue is without

merit.

2. Nexus Between Residence and Crime

The Appellant next argues that the items seized should have been suppressed because “there

is no connection stated in the warrants or supporting affidavits between the criminal activity and the

. . . defendant’s residence.” Specifically, the Appellant contends that “the crimes had been

committed several months prior to the issuance of the warrants so that the information provided in

the affidavits is too stale to establish the nexus.” The Appellant further asserts that the affidavits

provided no information which would give officers probable cause to believe that evidence

concerning the crimes would be located at the Appellant’s residence.

In State v. Longstreet, 619 S.W.2d 97, 99 (Tenn.1981), our supreme court held that to

establish probable cause an affidavit must set forth facts from which a reasonable conclusion may

be drawn that the evidence will be found in the place to be searched pursuant to the warrant. State

v. Vann, 976 S.W.2d 93, 105 (Tenn. 1998), cert. denied, 526 U.S. 1071, 119 S. Ct. 1467 (1999).

Accordingly, the nexus between the place to be searched and the items to be seized may be

established by the type of crime, the nature of the items, and the normal inferences where a criminal

would hide the evidence. Smith, 868 S.W.2d at 572; see United States v. Jacobs, 715 F.2d 1343,

1346 (9th Cir. 1983). The affidavit must contain information which will allow a magistrate to

determine whether the facts are too stale to establish probable cause at the time issuance of the

warrant is sought. Vann, 976 S.W.2d at 105. Although the lapse of time between the occurrence

of a crime and the issuance of a search warrant may affect the likelihood that incriminating evidence

will be found, probable cause must be determined on a case by case basis. State v. Meeks, 876

S.W.2d 121, 125 (Tenn. Crim. App. 1993); see also Sgro v. United States, 287 U.S. 206, 210-11,

53 S. Ct. 138, 140 (1932). In making this decision, the issuing magistrate should consider (1)

whether the criminal activity under investigation was an isolated event or of a protracted and

continuous nature, (2) the nature of the property sought, and (3) the opportunity those involved

would have had to dispose of incriminating evidence. Meeks, 876 S.W.2d at 125; see United States

v. Steeves, 525 F.2d 33, 38 (8th Cir. 1975).

In the present case, the warrants issued sought to include any items that may have been used

to cause the death of the victims. The warrants also sought to recover any property that may have

-19-

been taken from the victims or the restaurant. The attached affidavits set forth the facts surrounding

both the Captain D’s and McDonald’s robberies, including the fact that all of the victims had been

killed with the exception of one who had been stabbed numerous times. Furthermore, the affidavits

noted that the Appellant’s fingerprint had been recovered from an item found belonging to one of

the Captain D’s victims. As stated above, probable cause is determined on a case by case basis.

Meeks, 876 S.W.2d at 125. It is neither unreasonable nor unlikely that a perpetrator, who believes

his identity to be unknown, would keep items he or she has taken or the instruments used to commit

the crime at his or her residence. See Smith, 868 S.W.2d at 572. In this instance, it is apparent from

the facts that the Appellant eluded capture for some time and intended to leave no witnesses to his

crimes. Therefore, it is likely the Appellant would have concluded that his identity was unknown

to police, dispelling the necessity of disposing of any incriminating items. Although a few months

passed between the crimes and the search, we find a sufficient nexus between the items sought and

the Appellant’s residence. This issue is without merit.

3. Tenn. R. Crim. P. 41(c)

The Appellant argues that a violation of Tenn. R. Crim. P. 41(c) occurred when law

enforcement officers failed to personally deliver to him a copy of search warrants 146 and 149 when

each was executed. At the time the warrants were issued, the Appellant was incarcerated at the

Cheatham County Jail.6 Tenn. R. Crim. P. 41(c) reads in pertinent part as follows:

[T]he failure of the serving officer where possible to leave a copy with the person or

persons on whom the search warrant is being served, shall make any search

conducted under said search warrant an illegal search and any seizure thereunder an

illegal seizure.

(Emphasis added). At the suppression hearing, Detective Postiglione and Detective Roland both

acknowledged that they were aware of the Appellant’s incarceration and knew where he could be

found when both search warrants were issued. In both cases, however, the detectives testified that

they left a copy of the search warrant locked inside the Appellant’s residence. There was no one

present on whom the officers could serve the warrant or with whom they could leave a copy as

required by Tenn. R. Crim. P. 41(c). The Rule requires the officers to leave a copy with the person,

not personally deliver a copy to the person if he or she is not present. Thus, we do not read the

provisions of Rule 41(c), concerning the leaving of a copy of the warrant with the person served, to

prevent a search when no person is present or in occupancy of the premises to be searched. See

generally Poole v. State, 467 S.W.2d 826, 832 (Tenn. Crim. App. 1971). This issue is without merit.

4 . Failure to Incorporate Affidavit by Reference in Warrant

Lastly, the Appellant argues that search warrant 149 is invalid because the language of the

warrant does not incorporate by reference the affidavit of probable cause that appears on a separate

6

As previously noted, the Appellant’s incarceration in the Cheatham County Jail stemmed from another incident

where he atte mpted to kidnap the m anager of a Shoney’s res taurant.

-20-

page. An affidavit is an indispensable prerequisite to the issuance of a search warrant. State v.

Lowe, 949 S.W.2d 300, 303 (Tenn. Crim. App. 1996). Despite this fact, however, in Tennessee,

an affidavit is not considered an actual part of the warrant. Id. Tennessee Code Annotated section

40-6-103 provides that “[a] search warrant can only be issued on a probable cause, supported by

affidavit, naming or describing the person, and particularly describing the property, and the place to

be searched.” See also Tenn. R. Crim. P. 41(c). Neither the statute nor the rule requires that the

affidavit, which is used to establish probable cause, must be incorporated by reference. Rather, case

law holds that an affidavit must be incorporated by reference where the search warrant inadequately

describes the location to be searched. See Lowe, 949 S.W.2d at 303; see also Hackerman v. State,

223 S.W.2d 194, 196 (Tenn. 1949); State v. Smith, 836 S.W.2d 137, 141(Tenn. Crim. App. 1992).

In the present case, the search warrant adequately described the location of the place to be searched.

Further, the affidavit was properly attached to the warrant and presented to the magistrate for a

determination of probable cause. No additional requirements are provided by law. Thus, this issue

is without merit.

II. Voir Dire of the Venire

A. Use of Religious Tests

Prior to trial, the Appellant filed a motion requesting that the court prohibit the use of

“religious tests” during jury selection. He argued that the removal for cause of prospective jurors

who oppose the imposition of the death penalty because of “sincerely held” religious, moral or

philosophical beliefs violates Article I, section 6 of the Tennessee Constitution. He further asserted

that the question, “whether the juror’s ‘sincerely held’ religious, moral, or philosophical beliefs

would preclude them from following their oath as jurors,” violates Article I, sections 3, 4, 6, 8, and

17 and Article XI, section 8 of the Tennessee Constitution. Indeed, the Appellant argued that the

only inquiry which is constitutionally permissible when a prospective juror expresses an opposition

to the death penalty upon religious, moral or philosophical grounds is that of determining whether

the belief is sincerely held. The trial court denied the Appellant’s motion. The Appellant now

contends that this denial was error.

A person otherwise competent may not be disqualified as a juror because of his or her

religious beliefs. In other words, no religious test shall be put forth to the person. Religious tests

probe religious beliefs. See Wolf v. Sundquist, 955 S.W.2d 626, 631 (Tenn. App.), perm. to appeal

denied, (Tenn. 1997) (citing Torcaso v. Watkins, 367 U.S. 488, 494, 81 S. Ct. 1680, 1683 (1961);

Patty v. McDaniel, 547 S.W.2d 897, 908 (Tenn. 1977), rev’d on other grounds, 435 U.S. 618, 98 S.

Ct. 1322 (1978)). For example, a person may not be excluded from jury service because of their lack

of belief in a Supreme Being nor may a judge coerce a prospective juror to take an oath which

includes a reference to God where the prospective juror is an atheist. See generally 47AM . JUR. 2d,

Jury § 177 (1995). However, the exclusion by a trial court of prospective jurors because of their

moral or religious-based reluctance to impose the death penalty is not error. In this regard, potential

jurors are removed for cause not because of their religious opinion or affiliation but because the

jurors are unable to view the proceedings impartially and perform their duties in accordance with the

juror’s oath. See generally State v. Jones, 789 S.W.2d 545, 547 (Tenn.), cert. denied, 498 U.S. 908,

-21-

111 S. Ct. 280 (1990); State v. Bobo, 727 S.W.2d 945, 949 (Tenn.), cert. denied, 484 U.S. 872, 108

S. Ct. 204 (1987). The Court of Appeals, in Wolf v. Sundquist, reaffirmed this principle, stating:

It is now settled that a criminal defendant’s constitutional rights are not violated by

excusing prospective jurors for cause when their personal beliefs concerning the

death penalty would prevent or substantially impair their performance as a juror in

accordance with their instructions and their oath.

Wolf v. Sundquist, 955 S.W.2d at 629 (citing Wainwright v. Witt, 469 U.S. 412, 424, 105 S. Ct. 844,

852 (1985); Adams v. Texas, 448 U.S. 38, 45, 100 S. Ct. 2521, 2526 (1980); State v. Hutchinson,

898 S.W.2d 161, 167 (Tenn. 1994), cert. denied, 516 U.S. 846, 116 S. Ct. 137 (1995); State v. Alley,

776 S.W.2d 506, 518 (Tenn. 1989), cert. denied, 493 U.S. 1036, 110 S. Ct. 758 (1990)). The court

further held that questioning jurors concerning their religious beliefs with regard to the death penalty

does not amount to a religious test.7 Wolf v. Sundquist, 955 S.W.2d at 631. In sum, the court held

that the exclusion of jurors who because of their religious beliefs cannot apply the law to the facts

of a particular case is not error.8 Wolf v. Sundquist, 955 S.W.2d at 633. This issue is without merit.

B. Other Issues Concerning Voir Dire

The Appellant raises additional issues regarding the trial court’s direction of voir dire within

the jury selection process in his case. Specifically, the Appellant contends that the court improperly

limited the Appellant’s ability to learn about potential jurors’ attitudes toward mental health

evidence, improperly questioned jurors concerning opinions about the death penalty, and improperly

commented that the court expected the Appellant to be found guilty. The State asserts that the

Appellant has waived any challenge related to jury composition based upon his failure to exhaust

all peremptory challenges. With regard to challenges to specific jurors,9 we agree that the Appellant

has waived any challenge on appeal. See generally State v. Howell, 868 S.W.2d 238, 248 (Tenn.

1993), cert. denied, 510 U.S. 1215, 114 S. Ct. 1339 (1994); State v. Middlebrooks, 840 S.W.2d 317,

329 (Tenn. 1992); State v. Teel, 793 S.W.2d 236, 247 (Tenn.), cert. denied, 498 U.S. 1007, 111 S.

Ct. 571 (1990). It is only where a defendant exhausts all of his peremptory challenges and is

thereafter forced to accept an incompetent juror can a complaint about the jury selection process have

merit. State v. Coury, 697 S.W.2d 373, 379 (Tenn. Crim. App. 1985) (citing Hale v. State, 198

7

Like the State, we ar e strained to find logic behind the Appe llant’s assertion that the only appropriate inquiry

is whether a relig ious belief is “since rely held.” Ac cordingly, we find it unnecessa ry to addre ss this compla int.

8

The Appellant recognizes the Court of Appeals’ decision in Wolf v. Sundq uist as dispositive of this issue.

Notwithstanding, he asserts that “ Wolf is incorrectly decided.” As the State acknowledges, the Appellant fails to offer

any argument for his position. We agree with the Court of Appeals’ rationale in Wolf . Accordingly, we reject the

Appellant’s contention that the court’s decision is flawed.

9

The Ap pellant’s brief makes reference to Prospective Juror Gerald Hodges in his challenge to the limitation

of questioning in to mental health issues. Additionally, within his challenge to the trial court’s questioning the jurors

regarding their opinion of the death pena lty, the Appellant makes specific reference to prospective jurors William Nelson,

Gerald Hodges, Gary Hixson, Terry McN abb, Troy Calloway, Willie King, Patricia Anderson, Justin Law and Robert

Brown. The se challenges are waived for failure to exha ust all peremptory challenges.

-22-

Tenn. 461, 281 S.W.2d 51 (1955); McCook v. State, 555 S.W.2d 411, 413 (Tenn. Crim. App.

1977)). Further, the record shows that the jury that heard the case was fair and impartial. There is

nothing in the record to show that any prejudice resulted to the Appellant by the manner of the

selection process utilized. Accordingly, we find no error. However, because of the manner in which

the remaining challenges are phrased, we choose to address the challenges on their merits.

1. Limitation of Inquiry into Mental Health Evidence as Mitigating Circumstance

Tennessee Rule of Criminal Procedure 24(a), in pertinent part, states that the trial court "shall

permit questioning by the parties for the purpose of discovering bases for challenge for cause and

enabling an intelligent exercise of peremptory challenges." It further states that "[t]he court . . . may

direct that any portion of the questioning of a prospective juror be conducted out of the presence of

the tentatively selected jurors and other prospective jurors." Although the rule provides no test for

determining whether the scope of questioning is adequate to fulfill the rule's purpose, Tennessee

courts have held that "the scope and extent of voir dire is entrusted to the discretion of the trial judge,

and his actions will not be disturbed unless clear abuse of discretion is shown." State v. Harris, 839

S.W.2d 54, 65 (Tenn. 1992), cert. denied, 507 U.S. 954, 113 S. Ct. 1368 (1993); see also State v.

Smith, 993 S.W.2d 6, 28 (Tenn.), cert. denied, 528 U.S. 1023, 120 S. Ct. 536 (1999). Thus, the

method of voir dire, i.e., individual or group,10 the questions that may be asked, and the scope of

inquiry are all within the discretion of the trial court.11

In the present case, the trial court, prior to the commencement of jury selection, instructed

counsel that individual voir dire would be limited to issues surrounding pretrial publicity and death

qualification, “unless there has been something on that questionnaire that we need to deal with

individually.” Defense counsel informed the court that, from the questionnaires,

an amazingly large number of jurors recorded for us mental health issues related to

themselves or to their family. As this obviously would be a subject of voir dire

where they have indicated something which is innately a personal topic, I wonder if

the Court would like to consider those questions. [12]

10

Howell , 868 S.W.2d at 247; State v. Van Tran, 864 S.W .2d 465 , 473-47 4 (Tenn . 1993), cert. denied, 511

U.S. 1046, 114 S. Ct. 1577 (19 94).

11

State v. Smith, 857 S.W.2 d 1, 19-2 0 (Tenn . 1993), cert. denied, 510 U.S. 996 , 114 S. C t. 561 (19 93); State

v. Irick, 762 S.W .2d 121 , 125 (T enn. 198 8), cert. denied, 489 U.S. 1072, 109 S. Ct. 1357 (1989); State v. Poe, 755

S.W.2d 41, 45 (T enn. 198 8), cert. denied, 490 U.S. 1085, 109 S. C t. 2111 (1 989); Kenned y v. State, 186 Tenn. 310,

319, 21 0 S.W .2d 132 , 136 (19 47), cert. denied, 333 U.S. 846, 68 S. Ct. 659 (1948 ).

12

The ven ire comp leted an exte nsive questio nnaire prio r to voir dire. Pursuant to the Appellant’s request, the

questionnaire included multiple inquiries regarding mental health issues. Of relevance to this issue:

Question Numbe r 44 Do you believe that diagnosis o r treatment p rovid ed by a psychiatrist or

psycholog ist or other qu alified profess ional might b e helpful?

Question Number 45 Have you, anyone in your family or close personal friend ever received any type

(continued ...)

-23-

The court denied the Appellant’s request to question jurors during individual voir dire regarding

mental health issues, but stated, “that is something that you can deal [with] within the general voir

dire.” The trial court additionally informed defense counsel that during the individual voir dire they

could ask the general question, “Will you consider all mitigation?” and also permitted the parties to

question the potential jurors regarding any matters that the jurors had designated as “private” on their

questionnaires. Regarding group voir dire, the trial court limited inquiry into mental health issues,

requiring any question to be an attempt to clarify a position stated in the questionnaire or be a general

inquiry regarding the juror’s ability to consider mental health testimony.13 The Appellant now

contends that the limitations placed on voir dire prevented him from developing possible cause

challenges against jurors who had already expressed negative attitudes about mental health

evidence,14 thereby rendering the limitations essentially meaningless.

We cannot conclude that the trial court abused its discretion. Defense counsel had access to

the questionnaires of the prospective jurors. The questionnaires combined with the permissible

inquiries as to mental health issues during individual and group voir dire provided the Appellant with

ample background information from which to exercise peremptory challenges. Accordingly, we find

that the limited restrictions placed upon the parties by the trial court were reasonable and were well

within the trial court’s discretion. This issue is without merit.

2. Court Implied to Venire that Appellant was Guilty

The Appellant cites to numerous statements by the trial court which he asserts “implicitly

conveyed that the court expected the [Appellant] to be found guilty of first-degree murder, so that

a penalty phase would necessarily occur thereafter.” The Appellant contends that the inference from

the trial court’s directions to the venire implied that the court “viewed the [Appellant’s] convictions

as a foregone conclusion.” Accordingly, he avers that the court’s comments resulted in prejudice

to the judicial process requiring reversal. See Tenn. R. App. P. 36(b).

12

(...continued)

of inpatient or out-patient me ntal health cou nseling or trea tment?

Question Number 46 Have you, any member of your family . . . or close personal friend ever taken

any type of psychotropic drug or other medications for depression, anxiety or any other psychological

or psychiatric problem or disorder?

Question Number 47 Have you ever had an unpleasant experience or confrontation with someone who

suffered from any type of mental illness o r emotiona l disorder, o r someon e who has lo st control of

their behavior?

Question Number 48 Do you hold an opinion about de fendants who use mental health as an excuse

for their actions?

13

The court’s restrictions during group voir dire arose from the court’s concern over the recent case of State

v. Reid , 981 S.W .2d 166 (Tenn. 1 998)(no tice requirements of intent to use mental health evidence as mitigation and

ability to withdraw notice of intent at any time prior to presenting such evidence), and unfair disadvantage to the State.

14

The App ellant specifically refers to prospective jurors Ho dges and Fears. Again, base d upon h is failure to

exercise all available peremp tory challenges, the Appellant has waived any challenge to individual jurors.

-24-

Without reiterating verbatim the challenged language of the trial court to the venire, we

acknowledge that the court, for example, used the term “until he is found guilty beyond a reasonable

doubt of murder in the first-degree” rather than the term “unless he is found guilty beyond a

reasonable doubt of murder in the first-degree.” The Appellant argues prejudice without considering

the context in which the court’s statements were provided. Indeed, one challenged comment of the

court, placed in full context of the court’s instruction, provided:

Mr. Reid hasn’t been found guilty of anything. That is what the trial is about, so I

want to make certain that you understand he is presumed innocent as he sits in front

of you, and that presumption stays with him until he is found guilty after you hear the

proof in the case, so just because we are asking you questions with regard to the

possible punishments in this case, I want to make certain you keep in mind that he

has not been found guilty of anything, but the reason we have to ask you these

questions is that we must have jurors who can consider all three possible

punishments.

We disagree with the Appellant’s argument that this instruction compels the finding that the court

implied to the jury the Appellant’s guilt. Given the entire context of the voir dire, we conclude that

no reasonable juror could have believed that the court was instructing him or her to return a guilty

verdict. This issue is without merit.

III. Sufficiency of the Evidence

The Appellant argues that the evidence presented at trial is insufficient to support his

convictions for two counts of first-degree murder and one count of especially aggravated robbery.

Specifically, the Appellant asserts that the “physical evidence and the testimony of prosecution

witnesses raise reasonable doubts as to his identity as the perpetrator.” We disagree and find the

evidence more than sufficient to support the verdicts.

A jury conviction removes the presumption of innocence with which a defendant is cloaked

and replaces it with one of guilt, so that on appeal, a convicted defendant has the burden of

demonstrating that the evidence is insufficient. State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982).

In determining the sufficiency of the evidence, this court does not reweigh or reevaluate the

evidence. State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). Likewise, it is not the duty of this

court to revisit questions of witness credibility on appeal, that function being within the province of

the trier of fact. See generally State v. Adkins, 786 S.W.2d 642, 646 (Tenn. 1990); State v.

Burlison, 868 S.W.2d 713, 718-19 (Tenn. Crim. App. 1993). Instead, the defendant must establish

that the evidence presented at trial was so deficient that no reasonable trier of fact could have found

the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307,

319, 99 S. Ct. 2781, 2789 (1979); State v. Cazes, 875 S.W.2d 253, 259 (Tenn. 1994), cert. denied,

513 U.S. 1086, 115 S. Ct. 743 (1995); Tenn. R. App. P. 13(e). Moreover, the State is entitled to the

strongest legitimate view of the evidence and all reasonable inferences which may be drawn

-25-

therefrom. Harris, 839 S.W.2d at 75. In State v. Matthews, 805 S.W.2d 776, 779 (Tenn. Crim.

App.), perm. to appeal denied, (Tenn. 1990), this court held these rules applicable to findings of guilt

predicated upon direct evidence, circumstantial evidence, or a combination of both direct and

circumstantial evidence.

The Appellant was convicted of two counts of premeditated first-degree murder, two

counts of felony murder and one count of especially aggravated robbery. Initially, we note that,

where the jury returns guilty verdicts as to alternative counts of first-degree murder, the two

verdicts merge into one count of first-degree murder. See Carter, 958 S.W.2d at 624-625; see

also supra, at footnote 1. Accordingly, a general verdict of guilty is sustainable if any one count

in the indictment is supported by the proof. See Tenn. Code Ann. § 40-18-111; see also supra, at

footnote 1. Thus, proof of either felony murder or premeditated murder is sufficient to sustain

the conviction. See supra, at footnote 1. First-degree murder is the “premeditated and

intentional killing of another.” Tenn. Code Ann. § 39-13-202(a)(1) (1997). Tennessee Code

Annotated section 39-13-202(d) defines premeditation as follows:

As used in subdivision (a)(1) 'premeditation' is an act done after the exercise of

reflection and judgment. 'Premeditation' means that the intent to kill must have

been formed prior to the act itself. It is not necessary that the purpose to kill

pre-exist in the mind of the accused for any definite period of time. The mental

state of the accused at the time the accused allegedly decided to kill must be

carefully considered in order to determine whether the accused was sufficiently

free from excitement and passion as to be capable of premeditation.

The element of premeditation is a question of fact to be resolved by the jury and may be

established by proof of the circumstances surrounding the killing. State v. Suttles, 30 S.W.3d

252, 260 (Tenn. 2000). Furthermore, robbery is the “intentional or knowing theft of property

from the person of another by violence or putting the person in fear.” Tenn. Code Ann. § 39-13-

401 (1997). In order for the robbery to be elevated to especially aggravated robbery, the robbery

must be accomplished with a deadly weapon and the victim must suffer serious bodily injury.

Tenn. Code Ann. § 39-13-403(a)(1)(2) (1997).

We agree with the Appellant that the identity of the defendant as the perpetrator is

certainly an indispensable element of any crime. The determination of identity is a question of

fact for the jury after a consideration of all competent evidence. See Biggers v. State, 219 Tenn.

553, 411 S.W.2d 696, 697 (Tenn.), cert. granted, 390 U.S. 404, 88 S. Ct. 979 (1968) (affirmed on

other grounds); Marable v. State, 203 Tenn. 440, 313 S.W.2d 451 (Tenn. 1958); State v.

Crawford, 635 S.W.2d 704 (Tenn. Crim. App. 1982). The evidence offered to prove identity,

however, can be either direct or circumstantial. State v. Thompson, 519 S.W.2d 789, 793 (Tenn.

1975); State v. Shelley, 628 S.W.2d 436, 438 (Tenn. Crim. App. 1981). Before an accused may

be convicted upon circumstantial evidence alone, the facts must be "so clearly interwoven and

connected that the finger of guilt is pointed unerringly at the defendant and the defendant alone."

Howell, 868 S.W.2d at 253-254. Additionally, the determination of whether all reasonable

-26-

theories are excluded by the circumstantial evidence presented is primarily a question of fact for

the jury. Pruitt v. State, 460 S.W.2d 385 (Tenn. Crim. App. 1970).

This case is based entirely upon circumstantial evidence. Upon reviewing the record, we

find the evidence legally sufficient to support the jury's verdict of both premeditated first-degree

murder and especially aggravated robbery. The record reflects that the Appellant told a co-

worker prior to the crime that there were additional ways to make money, such as robbing fast

food restaurants. The Appellant had also asked a friend to help him obtain a .32 caliber revolver

prior to the crimes. After the crimes, the Appellant told a friend he owned a .32 caliber revolver

and did not like the way it shot. Both victims were killed using a .32 caliber weapon. The

Appellant worked near the location of the murders, was familiar with the location, and was a

restaurant employee. The night before the murders, the Appellant obtained a job application

from a Captain D’s employee, who informed him to come back the next day and speak with the

manager, Steve Hampton. The Appellant and his vehicle were identified by two witnesses as

being outside Captain D’s on the morning of the murders. Approximately $7,140 in cash and

coins was taken during the Captain D’s robbery. Although the Appellant was experiencing

serious financial trouble prior to the crime, he spent in excess of $6,000 in cash approximately

two weeks after the crime. A large amount of coined money was taken during the crime, and

over $1,000 in coins was found at the Appellant’s residence. Moreover, the Appellant’s

fingerprint was found on Steve Hampton’s movie card which had been discarded on a nearby

road. Considering these facts in the light most favorable to the State, we conclude that the proof

in the record points the finger of guilt unerringly at the Appellant and the Appellant alone, and

that the proof was sufficient for a jury to have found the essential elements of the offenses

beyond a reasonable doubt. This issue is without merit.

IV. Evidentiary Issues: Guilt Phase

A. Admissibility of Testimony of Sergeant Hunter

The Appellant argues that the trial court erred by permitting Sgt. Johnny Hunter to testify

as an expert witness in the field of blood spatter analysis. Specifically, the Appellant contends

that this testimony violated his constitutional right to a fair trial because the defense was unfairly

surprised. We disagree and find no error.

Sgt. Hunter was qualified by the court to testify as an expert on fingerprint analysis and

comparison, as well as blood spatter analysis. The Appellant complains that he received no

advance notice that the State was intending to introduce expert testimony in the field of blood

spatter analysis and that he was denied the opportunity to effectively cross-examine the witness.

Sgt. Hunter’s report, which was provided to the defense prior to trial, mentioned that no visible

blood spatter was found, with the exception of a small amount of blood on the floor around the

victims. At trial, Sgt. Hunter testified about blood patterns found on the floor and surrounding

area, specifically noting the absence of blood spattering. Sgt. Hunter further testified that the

absence of blood spattering indicated that the victims were lying on the ground when they were

-27-

shot. He further stated that the blood pattern on a shelf to the right of one of the victims, Sarah

Jackson, indicated that she had attempted to lift herself up after being shot.

The Appellant is not contesting Sgt. Hunter’s qualifications, but rather insists that he was

surprised by his testimony in this respect. Although the Appellant argues that he had no notice

that Sgt. Hunter would testify about blood spattering at trial, the Appellant fails to explain how

he was prejudiced by this testimony. Over a year before trial, the Appellant was provided with a

copy of Sgt. Hunter’s report, which stated that a small amount of blood was found on the floor

near the victims. The Appellant cannot complain about Sgt. Hunter’s testimony simply because

he failed to find any significance in the report which was properly and timely provided to him by

the State. This issue is without merit.

B. Testimony of TBI Agent Linda Littlejohn Regarding Length of Shoes Seized

The Appellant argues that the trial court erred by allowing Tennessee Bureau of Investigation

Agent, Linda Littlejohn, to testify that the length of the shoes seized from the Appellant’s apartment

were within the range of the unidentified shoe print left at the scene of the crime. Specifically, he

contends that the technique used in “measuring” the enlarged photographic negative was not shown

to meet the standards of admissibility for expert testimony set forth in McDaniel v. CSX Transp.,

955 S.W.2d 257 (Tenn. 1997). Additionally, the Appellant asserts that the admission of Agent

Littlejohn’s testimony violated Tenn. R. Evid. 702 and 401.

Determinations of the admissibility of expert testimony are made within the sound discretion

of the trial court. State v. Ballard, 855 S.W.2d 557, 562 (Tenn. 1993). The standard of review on

appeal is whether the trial court abused its discretion in excluding the expert testimony. The abuse

of discretion standard contemplates that, before reversal, the record must show that a judge "applied

an incorrect legal standard, or reached a decision which is against logic or reasoning that caused an

injustice to the party complaining." State v. Shirley, 6 S.W.3d 243, 247 (Tenn. 1999); State v.

Shuck, 953 S.W.2d 662, 669 (Tenn. 1997).

In the present case, Agent Littlejohn testified that a ruler was placed near the shoe print found

at the crime scene before the photograph was taken. The negatives were later developed and “one

to one photographs were made, and that would be where the negative is enlarged to where the ruler

in the photograph is actually the same size of the ruler next to the print at the scene, so the

photographs . . . would be exactly the same size as the print at the crime scene.” Both tread and

length were determined using this same technique. After comparing the photograph and the shoes,

Agent Littlejohn testified that none of the treads on the shoes recovered from the Appellant’s

apartment matched the print left at the crime scene. Although Agent Littlejohn testified that she

could not speculate as to the actual size of the shoe worn by the perpetrator because different styles

and brands would vary slightly in length, she did testify, however, that the length of the shoe print

found at the scene fell within the range of lengths of the nine pairs of shoes seized from the

Appellant’s apartment. Specifically, she testified that the shoe print found at the scene measured 12

-28-

and 3/8 inches in length. The shoes taken from the Appellant’s apartment ranged from 11 13/16

inches to 12 ½ inches in length.

First, the Appellant contends that the trial court erred in admitting Agent Littlejohn’s

testimony regarding the length of the shoe print because it did not comport with standards for expert

testimony set forth in McDaniel, 955 S.W.2d at 257. We note that the Appellant does not contest

this measurement technique with respect to the tread identification testimony, which was favorable

to him. Rather, he only attacks this technique with respect to the length of the shoe print. The

Appellant further argues that the trial court erred by violating Tenn. R. Evid. 702, which reads, “[i]f

scientific, technical, or other specialized knowledge will substantially assist the trier of fact to

understand the evidence or to determine a fact in issue, a witness qualified as an expert by

knowledge, skill, experience, training, or education may testify in the form of an opinion or

otherwise.”

In McDaniel, the Tennessee Supreme Court held that a trial court may consider the following

factors when determining the reliability of scientific evidence: (1) whether scientific evidence has

been tested and the methodology with which it has been tested; (2) whether the evidence has been

subjected to peer review or publication; (3) whether a potential rate of error is known; (4) whether,

as formerly required by Frye, the evidence is generally accepted in the scientific community; and

(5) whether the expert's research in the field has been conducted independent of litigation.

McDaniel, 955 S.W.2d at 265. In this instance, the following dialogue took place during a jury-out

hearing:

THE COURT: Well, let me ask Ms. Littlejohn a

couple of questions. Ms. Littlejohn,

the training that you had in terms of

the conclusions that you drew, were

these standard procedures used in that

field?

LITTLEJOHN: Yes, I mean - -

THE COURT: Okay, and it is the blowing up, the

one-on-one comparison - -

LITTLEJOHN: Uh-huh.

THE COURT: - - and is that what your training

indicates?

LITTLEJOHN: . . .yes, ma’am.

-29-

THE COURT: And is that the standard used in your

field?

LITTLEJOHN: Yes, it is.

THE COURT: All right, and is there scientific

literature with regard to this, I mean - -

LITTLEJOHN: Yes, there is.

THE COURT: - - and is this subject to being able to

be proven or disproved?

LITTLEJOHN: Yes.

THE COURT: Okay, so there are scientific principles

behind this?

LITTLEJOHN: Yes.

THE COURT: So you blow it up one-on-one, which

is the exact size of the print, and then

you just make a comparison of both in

tread and otherwise, and apparently

you did that in this case that [defense

counsel] does not object to?

LITTLEJOHN: Yes, your honor.

DEFENSE: Correct.

THE COURT: Okay, so yo u used that same

methodology to compare the prints,

the tread, and that, that you used to

make the size comparison?

LITTLEJOHN: Basically. . . .

We conclude that the above text, along with other testimony presented at the jury-out hearing,

more than satisfies the factors set forth in McDaniel. The evidence presented at both the jury-out

hearing and trial indicated that the technique used by Agent Littlejohn was standard procedure and

widely accepted in the field of shoe and footprint comparison. Agent Littlejohn properly qualifies

-30-

as an expert in shoe and footprint comparison and her testimony would have substantially assisted

the trier of fact due to her education, experience, and training. See Tenn. R. Evid. 702. Moreover,

the Appellant was able to solicit testimony during cross-examination that the length of the print

found would be fairly common among the general population. This issue is without merit.

The Appellant also argues that Agent Littlejohn’s testimony concerning range of length was

irrelevant. See Tenn. R. Evid. 401 and 402. Tennessee Rules of Evidence 401 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.” Clearly, testimony concerning the shoe prints found at the crime scene as compared to

the shoes seized from the Appellant’s apartment is relevant evidence that was properly admitted.

This issue is without merit.

C. Admissibility of Cash Register Receipts Seized from Appellant’s Residence

The Appellant argues that the trial court erred in admitting into evidence cash register

receipts seized from the Appellant’s residence that were not properly authenticated pursuant to Tenn.

R. Evid. 901. Specifically, he contests the authentication of the receipts because the prosecution

failed to call as witnesses representatives of the respective businesses to testify as to the legitimacy

and accuracy of the receipts. The prosecution, through the testimony of Detective Postiglione,

introduced three cash register receipts seized from the Appellant’s residence: (1) a Wal-Mart receipt

in the amount of $78.34, dated February 17, 1997; (2) a Wal-Mart receipt dated the same day in the

amount of $69.29; and (3) a receipt from Jumbo Sports dated February 18, 1997, for $97.41. The

purpose for the introduction of these receipts was to show that the Appellant had spent a large

amount of money in a short period of time after the murders despite the fact that he was in dire

financial trouble at the time. At trial, defense counsel objected to the introduction of the receipts,

arguing that the receipts had not been properly authenticated. The trial court overruled the objection

and found the cash register receipts admissible. Upon reviewing this issue, we agree that the receipts

were admissible.

Rule 901(a) of the Tennessee Rules of Evidence provides that “[t]he requirement of

authentication . . . is satisfied by evidence sufficient to the court to support a finding by the trier of

fact that the matter in question is what its proponent claims.” Notwithstanding, Rule 902(7) states

that extrinsic evidence of authenticity is not required as a condition precedent to admissibility when

the item or items sought to be admitted are “[i]nscriptions, signs, tags, or labels purporting to have

been affixed in the course of business and indicating ownership, control or origin.” In the present

case, two of the receipts were from Wal-Mart and one receipt was from Jumbo Sports. All three

receipts were in printed form, bearing the retailer’s name, address, and other relevant information.

This printed material constitutes an “inscription” for purposes of satisfying Rule 902(7). See, e.g.,

United States v. Hing Shair Chan, 680 F. Supp. 521, 526 (E.D.N.Y. 1988)(a hotel record on hotel

stationary was held to be self-authenticating); State v. Deleon, No. CA 17574, 2000 WL 646502

(Ohio App. 2d. May 19, 2000)(bill of sale for automobile bearing dealer’s name and address held

to be self-authenticating); Neil P. Cohen, et. al., Tennessee Law of Evidence §§ 9.02[9] (4th ed.

2000). Thus, the cash register receipts were self-authenticating and properly admitted at trial. This

issue is without merit.

-31-

V. Closing Argument at Guilt Phase

A. Prosecutorial Comment on Appellant’s Failure to Testify

The Appellant argues that the trial court erred by denying defense counsel’s motion for a

mistrial when, during closing arguments of the guilt/innocence phase, the prosecution commented

on the Appellant’s failure to testify. A prosecutor is strictly prohibited from commenting on the

defendant's decision not to testify. State v. Coker, 911 S.W.2d 357, 368 (Tenn. Crim. App. 1995).

However, a prosecutor's statement that proof is unrefuted or uncontradicted is not an improper

comment upon a defendant's failure to testify. State v. Thomas, 818 S.W.2d 350, 364 (Tenn. Crim.

App.1991); Coury, 697 S.W.2d at 378.

In the present case, the Appellant did not testify at trial. However, a videotaped statement

to the detectives following the Appellant’s arrest was played before the jury. In this tape, the

Appellant stated that he did not know how his fingerprint got on Hampton’s Movie Gallery card.

Nonetheless, he also told detectives “I’m not surprised that it is on there.” During closing arguments

of the guilt/innocence phase, defense counsel made the following statements:

I believe the evidence showed that card was found the next day, over 24 hours after

the robbery happened. You heard that it was found on Ellington Parkway, about a

mile from [the Appellant’s] house. You heard that [the Appellant] had a car that

broke down all the time. If a person was near something and your car breaks down

and you walk by something, you might pick that up and throw it back down. Four

months after the fact, you may not even remember that.

Additionally, defense counsel questioned the prosecution’s reasoning for playing the videotaped

statement during trial. In its closing arguments, the prosecution responded to defense counsel’s

comments as follows:

[Defense counsel] talked about why did the State put in the statement. Because he

gave it, and you, as jurors, have a right to hear it. You did hear it, and we put in on

for one reason; because he was given chance after chance to explain how his

fingerprint could have gotten on that card. He said I’m not surprised it is on there.

Would he ever have an explanation? [Defense counsel] grabbed one out of the air,

and there is no basis in fact or evidence for anything else, and said, well maybe his

car broke down.

(Emphasis added). The Appellant maintains that the prosecution’s statement of “When would he

ever have an explanation?” clearly commented upon the fact that the Appellant failed to explain

during his statement to police the presence of his fingerprint on property that had been in the

possession of one of the victims. Additionally, he contends that the prosecutor wrongfully

commented on the Appellant’s failure to take the witness stand and offer an explanation at trial. We

disagree. This was clearly rebuttal argument directed toward defense counsel's earlier argument that

the Appellant could have picked up the movie card while walking after his car broke down. We do

-32-

not find that the statement can be fairly characterized as a comment on the Appellant’s failure to

testify. At most, the comment was mere argument by the prosecution that its proof was unrefuted

or uncontradicted. See Coury, 697 S.W.2d at 378. This issue is without merit.

B. Prosecutorial Comment During Closing Arguments

The Appellant argues that the trial court erred by overruling defense counsel’s objection to

the prosecution’s statement during closing argument that the Appellant’s foot was the “same size”

as shoe prints left at the scene. Specifically, the Appellant contends that the comment was

prejudicial “because the prosecutor’s comments constituted a misstatement of the evidence on a

crucial matter.”

Closing arguments are an important tool for the parties during the trial process.

Consequently, the attorneys are usually given wide latitude in the scope of their arguments, see State

v. Bigbee, 885 S.W.2d 797, 809 (Tenn. 1994), and trial judges, in turn, are accorded wide discretion

in their control of those arguments, see State v. Zirkle, 910 S.W.2d 874, 888 (Tenn. Crim. App.

1995). Notwithstanding such, arguments must be temperate, based upon the evidence introduced

at trial, relevant to the issues being tried, and not otherwise improper under the facts or law. Coker

v. State, 911 S.W.2d 357, 368 (Tenn. Crim. App. 1995). To justify a reversal on the ground of

improper argument of counsel, it must affirmatively appear that the improper conduct affected the

verdict to the prejudice of the defendant. Harrington v. State, 385 S.W.2d 758, 759 (Tenn. 1965);

State v. McBee, 644 S.W.2d 425, 428 (Tenn. Crim. App. 1982). Furthermore, the following factors

must be considered by this court in making such a determination: 1) the conduct complained of,

viewed in light of the facts and circumstances of the case; 2) the curative measures undertaken by

the court and the prosecutor; 3) the intent of the prosecutor in making the improper statement; 4) the

cumulative effect of the improper conduct and any other errors in the record; and 5) the relative

strength or weakness of the case. Bigbee, 885 S.W.2d at 809; State v. Buck, 670 S.W.2d 600, 609

(Tenn. 1984).

In the present case, Agent Littlejohn testified that the unidentified shoe print found at the

crime scene was within the range of the length of shoes seized from the Appellant’s residence. She

also testified that it is common for the same “shoe sizes” to vary in length based upon the brand

name and manufacturer of the shoe. Accordingly, Agent Littlejohn declined to specifically identify

the shoe print as being a particular size. Because the shoes taken from the Appellant’s apartment

ranged in length from 11 and 13/16 inches to 12 and ½ inches, Agent Littlejohn testified that she had

no doubt that the shoe print found at the scene, which measured 12 and 3/8 inches in length, fell

within the range of length of shoes taken from the Appellant’s apartment. Thus, the Appellant could

not be excluded from having left the print.

During closing arguments of the guilt/innocence phase, the prosecution made the following

three comments with respect to the Appellant’s “shoe size”:

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More than likely, it was the killer, and could that print have excluded [the Appellant]

if it [sic] was the killer? Of course, if it was a size 7 or a size 8 or a size 9, but it fit

in the size of the shoe [the Appellant] wears.

***

The footprint could have excluded him. The same size of [the Appellant].

***

Who has a footprint the same size as the one left at the crime scene? [The Appellant].

(Emphasis added). The Appellant argues the above comments made by the prosecution were

prejudicial and misrepresented the proof. We disagree. The prosecutor never referred to the

unidentified shoe print as being a particular size. While it might have been more preferable for the

prosecution to use the terminology “within range of length of [ the Appellant’s] shoes” instead of

“same size,” it is clear from the record before us that the prosecution was simply referring to Agent

Littlejohn’s testimony where she explained that the crime scene shoe print fell within the range of

shoes seized from the Appellant. As the trial court correctly noted, “the State did nothing more than

argue its position that, because the length of the unknown print was not inconsistent with the length

of the [Appellant’s] shoes, the [Appellant] could not be excluded as the perpetrator.” Moreover, we

note that the trial court also cautioned the jury that “Statements, arguments, and remarks of counsel

are intended to help you in understanding the evidence and applying the law, but they are not

evidence. If any statements were made that you believe are not supported by the evidence, you

should disregard them.” As such, we find no evidence of prosecutorial misconduct, nor do we find

error which prejudiced the Appellant. Thus, this issue is without merit.

VI. Instructions on Lesser-Included Offenses

The Appellant argues that it was error for the trial court to deny his request for jury

instructions as to the lesser-included offenses of facilitation of first-degree murder and facilitation

of especially aggravated robbery. With respect to the premeditated first-degree murder charges, the

court instructed the jury on the lesser-included offense of second-degree murder. With respect to

the especially aggravated robbery charges, the court instructed the jury on the lesser-included offense

of aggravated robbery. The trial court, however, declined to instruct the jury on the lesser-included

offense of facilitation.

Initially, we note that, in Tennessee, irrespective of a party’s request for a lesser-included jury

instruction, “[I]t is the duty of all judges charging juries in cases of criminal prosecutions for any

felony . . . to charge the jury as to all of the law of each offense included in the indictment.” Tenn.

Code Ann. § 40-18-110(a) (1997). Moreover, as the State concedes, facilitation is a lesser-included

offense of both first-degree murder and especially aggravated robbery. See generallyState v. Burns,

6 S.W.3d 453 (Tenn. 1999). This fact alone, however, is not dispositive of whether error occurred.

See generally Burns, 6 S.W.3d at 463.

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Determining whether a lesser-included offense must be charged in the jury instructions is a

two-part inquiry. Burns, 6 S.W.3d at 469. First, the court must determine whether any evidence

exists that reasonable minds could accept as to the application of a lesser-included offense. Id. In

making this determination, the trial court must view the evidence liberally in the light most favorable

to the existence of the lesser-included offense without making any judgments on the credibility of

such evidence. Id. Second, the trial court must determine if the evidence, viewed in this light, is

legally sufficient to support a conviction for the lesser-included offense. Id. at 467-469.

Criminal responsibility for facilitation of a felony is defined in Tenn. Code Ann. § 39-11-403

(1997) and reads as follows:

(a) A person is criminally responsible for the facilitation of a felony if, knowing that

another intends to commit a specific felony, but without the intent required for

criminal responsibility under § 39-11-402(2), the person knowingly furnishes

substantial assistance in the commission of the felony.

We are unable to conclude under the test announced in Burns that reasonable minds could

find that anyone other than the Appellant was involved in this crime. Neither the prosecution nor

the defense advanced the theory that the Appellant was criminally responsible for facilitating the acts

of another at trial. To the contrary, it was the prosecution’s theory that the Appellant was solely

responsible for both the murders and the robbery. At trial, the Appellant, in his defense, asserted the

position that the prosecution failed to establish his identity as the perpetrator.

On appeal, the Appellant gives several reasons why he was entitled to the lesser-included

instructions. First, the Appellant points to his statement to police where he says, “I am not the

triggerman.” This statement, however, in no way indicates the participation of another person.

Second, the Appellant points to his statement where he says he did not know the victims but was

“not surprised” his fingerprint was on the victim’s Movie Gallery card. He also insists the

bloodhounds’ tracking of a scent from the location of the card to a nearby residence implicates the

involvement of another person. Once again, we do not interpret this to mean another person was

involved. Moreover, no evidence was presented at trial to support this contention. Third, the

Appellant argues that another person could have been involved because there were many unidentified

fingerprints left at the crime scene. The crime scene was a public restaurant and it is expected that

many unidentifiable fingerprints would be found at such a location. Fourth, the Appellant points

to the fact that one shoe print was never identified. Once again, it is expected in a public restaurant

to have many prints, whether fingerprints or shoe prints, that belong to unidentified persons. Fifth,

the Appellant maintains that cigarettes were found in an ashtray in the restaurant. The proof at trial,

however, indicated that the cigarettes were found at the employees’ break station and had not been

removed the night before when the employees went home. Sixth, the Appellant argues that his

friend, Danny Tackett, testified that he and the Appellant had previously discussed committing

robberies against fast food restaurants. Seventh, the Appellant points to the testimony of Mark

Farmer, who testified at trial that it was “possible” that someone else could have been in the driver’s

side of the car. However, he did not testify that there was, or that he thought there was another

-35-

person in the car. Instead, he only acknowledged that it would have been possible. Finally, the

Appellant argues that the composite drawings do not resemble him. The evidence at trial, however,

indicates that the drawings were similar and that many features between the composite drawings and

the Appellant match.

We find that no reasonable juror could have accepted that the evidence presented in any

manner established the commission of the lesser-included offense of facilitation. To the contrary,

the entire case is centered around the Appellant as the sole perpetrator and the Appellant’s defense

of not being involved. Thus, the trial court properly declined to instruct the jury on the lesser-

included offenses of facilitation of first-degree murder and facilitation of especially aggravated

robbery. This issue is without merit.

VII. Late Night Court Sessions

The Appellant argues that the trial court committed reversible error by holding numerous

“late night” court sessions. Specifically, the Appellant maintains that the late night sessions caused

his attorneys to be tired and less effective than they normally would have been had they been given

the opportunity for more rest. In State v. Parton, 817 S.W.2d 28, 33 (Tenn. Crim. App. 1991), this

court addressed the issue of “late night” court sessions as follows:

It is clear in this state that late night court sessions should be scheduled "only when

unusual circumstances require it." McMullin, 801 S.W.2d at 832. Regardless of

whether counsel or any juror objects, the late night sessions should be avoided; and

they must be justified because of unusual circumstances. If the requisite unusual

circumstances do exist and late night sessions are scheduled because of necessity,

good practice would be to also let the record affirmatively reflect that all counsel and

all jurors expressly agree. But the threshold question which must always be

determined by the court is whether the circumstances justify the unusual session.

First, we note that this issue has been waived for failure of defense counsel to object to the late hours

at trial and for defense counsel’s failure to raise this issue in the motion for new trial. See Tenn. R.

App. P. 36(a). Notwithstanding the waiver, however, we find that the record does not support the

Appellant’s argument that the court kept excessively late hours during trial. During the two and one-

half weeks of trial, sessions ran “late” on five of the thirteen nights. On the five “late nights,” two

of which were jury selection, court concluded between 8:30 and 9:25 p.m. We also note that during

this period, there were five “off days” where neither counsel nor the litigants had to report to court.

Further, this was a sequestered jury from a distant county. The Tennessee Supreme Court has held

that a determination of how long into the evening a trial should last is a matter within the discretion

of the trial court. See Poe, 755 S.W.2d at 47. Although these five days may exceed the “normal

eight hour day,” we do not find the sessions to be unreasonable in this particular case. This issue is

without merit.

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VIII. Evidentiary Issues at Penalty Phase

A. Dr. Martell as Expert Witness

During the penalty phase of the Appellant’s trial, the State called Dr. Daniel Martell as a

rebuttal witness and sought to qualify Dr. Martell as an expert in “forensic neuropsychology.”15

During voir dire of Dr. Martell, the State elicited testimony that Dr. Martell obtained both his

master’s degree and his Ph.D. at the University of Virginia and completed a forensic internship at

Bellevue Hospital in New York City. After his internship, he was awarded a postdoctoral fellowship

to do advanced study and research in forensic neuropsychology. From this fellowship, Dr. Martell

founded the Forensic Neuropsychology Laboratory at Kirby Forensic Hospital in New York City,

where he remained as director for the next eight years. Dr. Martell then joined the clinical faculty

at the Neuropsychiatric Institute at UCLA and also engaged in private consultation practice.

Throughout his career, Dr. Martell has authored numerous papers outlining the relationship between

neuropsychology and criminal law and has limited his professional practice to forensic

neuropsychology.

Dr. Martell testified that board certification was currently unavailable in the field of “forensic

neuropsychology” and there is no professional association for “forensic neuropsychologists.” Dr.

Martell admitted that, although there is Board Certification and Recognition in the field of

neuropsychology, he has never applied for board certification in the field of neuropsychology. On

this basis, the Appellant, while conceding Dr. Martell’s qualifications as an expert witness in the

field of psychology, objected to his qualification as an expert in the field of “forensic

neuropsychology.” The trial court overruled the objection, accepting Dr. Martell’s qualifications

as an expert in the field of forensic neuropsychology. The Appellant now challenges this ruling,

alleging that “an expert is competent to testify ‘only as to matters within the limited scope of his or

her expertise and licensure.’” Appellant’s Brief at 260 (citing Bolton v. CNA Ins. Co., 821 S.W.2d

932, 935 (Tenn. 1991)). He contends that the “State never sufficiently established that Dr. Martell

was an expert in the field of ‘forensic neuropsychology.’” Appellant’s Brief at 261.

The determination of the qualifications of an expert witness and the relevancy and

competency of expert testimony are matters generally entrusted to the sound discretion of the trial

court. State v. Anderson, 880 S.W.2d 720, 728 (Tenn. Crim. App.), perm. to appeal denied, (Tenn.

1994); see also Tenn. R. Evid. 104(a). This court will not overturn the trial court's decision absent

a clear abuse of discretion. Anderson, 880 S.W.2d at 728 (citing State v. Williams, 657 S.W.2d 405,

411 (Tenn. 1983), cert. denied, 465 U.S. 1073, 104 S. Ct. 1429 (1984)).

Rule 702 of the Tennessee Rules of Evidence provides “that in order to testify as an expert

and thus be permitted to give conclusions and opinions on a matter involving scientific, technical

or other specialized knowledge, a witness must possess sufficient ‘knowledge, skill, experience,

training, or education.’” Neil P. Cohen et al, Tennessee Law of Evidence § 7.02[4] at 7-21 (emphasis

15

Dr. Martell ex plained that “fo rensic neuro psycholog y” is “the study of b rain dama ge, and ho w it affects

violent behavior.”

-37-

added). The witness may acquire the necessary expertise through formal education or life

experiences. Id. However, the witness must have such superior skill, experience, training,

education, or knowledge within the particular area that his or her degree of expertise is beyond the

scope of common knowledge and experience of the average person. Id. (citations omitted).

The record in the present case clearly establishes that forensic neuropsychology is a

recognized sub-specialty of psychology regardless of the availability of board certification in this

area. It is equally clear that Dr. Martell is more than qualified to testify in this area of practice.

Moreover, the issue of whether the courts of this state recognize experts in the area of forensic

neuropsychology is not an issue of first impression. The courts of this state have previously

permitted experts to testify in this area. See, e.g., Coe v. State, 17 S.W.3d 193, 205 (Tenn.), cert.

denied, 529 U.S. 1034, 120 S. Ct. 1460 (2000) (defense presented Dr. Walker as expert witness in

field of forensic neuropsychology); Victor James Cazes v. State, No. 02C01-9801-CR-00002 (Tenn.

Crim. App. at Jackson, Dec. 8, 1999) (Dr. Martell testified as expert in field of forensic

neuropsychology). Accordingly, we cannot conclude that the trial court abused its discretion in

qualifying Dr. Martell as an expert in forensic neuropsychology.16

B. Cross-Examination of Dr. Martell

Prior to Dr. Martell’s testimony, the Appellant requested that he be permitted to question Dr.

Martell regarding a letter written by Dr. Martell in 1997 to the United States Department of Justice.

Relying upon Rule 405 of the Tennessee Rules of Evidence as grounds for the letter’s admission,

he argues that the letter was relevant to the witness’ credibility and bias. The eight-page letter was

Dr. Martell’s request for a Department of Justice investigation into an incident that had led to rumors

of unprofessional and possibly illegal conduct by Dr. Martell in a federal death penalty case.17 In

his letter, Dr. Martell repeatedly asserted his innocence of any wrongdoing and sought an

investigation so that he could receive a letter of exoneration from the Department of Justice.

Specifically, he emphasized that these allegations had damaged his professional reputation and

threatened his “financial status.” The allegations concerned an affidavit Dr. Martell had signed in

a federal case. This affidavit was discussed by the attorneys and the judge in chambers.18 Dr.

Martell was denied the opportunity to hear the allegations or to defend himself if needed.

16

Within his argument, the Appellant additionally alleges that the court’s acceptance of Dr. Martell as an expert

in the field of forensic neuropsychology undoubtedly resulted in prejudic e to his case. Sp ecifically, he asserts tha t,

although he called Dr. Auble, a psychologist with similar training to that of Dr. Martell, he did not seek to qualify her

as an expert in fo rensic neuro psycholog y. Accordingly, he argues that the jury likely gave Dr. Martell’s testimony greater

weight than Dr. Auble’s testimony. Nothing prevented the Appellant from seeking to qualify Dr. Auble as an expert in

forensic neuropsyc hology. He cannot no w comp lain about an action which he failed to pursue. Tenn. R. App. P. 36(a).

17

Members of the National Network of Capital Defense A ttorneys alleged that, in the case o f United States v.

Spivey, Dr. Ma rtell signed a false a ffidavit.

18

The Appellant acknowledges that the allegation against Dr. Martell was by defense counsel in that matter and

that there is no evidence that the allegation by defense counsel did, in fact, occur.

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In denying admission of Dr. Martell’s letter, the trial court found, in relevant part:

It says I must determine that the questions are proposed in good faith rather than an

effort to place before the jury unfairly prejudicial information supported only by

unreliable rumors. I’m going to determine that there is no reasonable factual basis

for that inquiry.

The Appellant challenges the trial court’s ruling, asserting that this information was admissible to

show Dr. Martell’s credibility and “goes to the prospect of bias.” Like other evidentiary rulings, an

appellate court reviews a trial court's ruling under Tenn. R. Evid. 608(b) using an abuse of discretion

standard. See Ingram v. Earthman, 993 S.W.2d 611, 639 (Tenn. App. 1998), cert. denied, 528 U.S.

986, 120 S. Ct. 445 (1999); State v. Blanton, 926 S.W.2d 953, 959-60 (Tenn. Crim. App. 1996).

Character evidence may be used in limited circumstances to impeach a witness. See Tenn.

R. Evid. 404(a)(3) (evidence of character of witness admissible as provided in Rules 607, 608 and

609). However, extrinsic evidence of conduct other than criminal conviction may not be used to

attack the character of a witness. See Tenn. R. Evid. 608(b). Accordingly, Dr. Martell’s letter was

properly excluded as extrinsic evidence of Dr. Martell’s character.

Moreover, certain conditions must be satisfied before allowing inquiry on cross-examination

of the witness about specific instances of conduct probative solely of truthfulness or untruthfulness.

See Tenn. R. Evid. 608(b). First, upon request, the court must hold a hearing outside the jury’s

presence and must determine that the alleged conduct has probative value and that a reasonable

factual basis exists for the inquiry. See Tenn. R. Evid. 608(b)(1). If these requirements are met, the

court must then determine that the conduct, within limited exceptions, must have occurred no more

than ten years before commencement of the action or prosecution. See Tenn. R. Evid. 608(b)(2).

In the present case, the court determined that no “reasonable factual basis” existed for the

Appellant’s inquiry. We agree. The Appellant offered no evidence of conduct by Dr. Martell

evidencing untruthfulness. Rather, the only proof offered was a letter written by Dr. Martell

requesting exoneration because of false rumors. The letter itself is not proof of Dr. Martell’s

untruthfulness. Where there is no factual basis for an inquiry into prior conduct of a witness, the

court shall bar any such attempt to interrogate a witness based on mere speculation or rumor. See

State v. Philpott, 882 S.W.2d 394, 404 (Tenn. Crim. App. 1994)( “An attempt to communicate by

innuendo through questions which are answered in the negative is impermissible when the questioner

has no evidence to support the question.”); see also State v. Bowling, 649 S.W.2d 281, 283 (Tenn.

Crim. App. 1983); Neil P. Cohen et al., Tennessee Law of Evidence § 6.08[7][d]. Accordingly, we

conclude that the trial court did not abuse its discretion in preventing inquiry into Dr. Martell’s letter

to the Department of Justice. Finally, we fail to see how the letter written by Dr. Martell establishes

that Dr. Martell is biased in favor of the State or prejudiced against the Appellant. See Tenn. R.

Evid. 616. This issue is without merit.

C. Court’s Refusal to Admit Tape-Recording to Rebut Dr. Martell’s Testimony

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During his testimony, Dr. Martell opined that the Appellant suffered from “delusional

disorder, mixed type with persecutory and grandiose themes, in substantial remission.” He qualified

his diagnosis, however, noting that the Appellant has a lengthy history of malingering mental illness

and that, in his opinion, the Appellant’s delusional disorder was in remission. During cross-

examination, defense counsel requested permission to introduce an audiotape of a June 1997

interview by Detective Postiglione of Ms. Dorothy Meadlin, the Appellant’s former landlord. Dr.

Martell, in forming his opinions of the Appellant, testified that he had reviewed and considered the

contents of the audio taped interview. The trial court denied defense counsel’s request, finding that

the contents of the tape constituted hearsay and were “not appropriate.” Specifically, the court

stated:

Mr. Engle, I’m not going to let you do this. It is just flat out not appropriate. I still

don’t understand why – why you don’t call her as a witness? You could have called

her as a witness, or you could call Detective Postiglione, if you had reason, in order

to put that, in order to authenticate the tape, but to try to get the information of what

she has to say in through [Dr. Martell], who is testifying as an expert about Mr.

Reid’s mental condition, I mean, just exactly what rule of evidence do you think this

belongs to?

Defense counsel then sought to introduce a transcript of Ms. Meadlin’s testimony provided

by the State. The State objected, noting that the State had not provided defense counsel a transcript

of the audio taped interview. At this point, defense counsel conceded that the transcript was supplied

by the District Attorney’s Office in another judicial district. In response to further inquiry by the

court, defense counsel stated that he intended to ask Dr. Martell about the tape, whether he

considered the tape in making his conclusions, and how he evaluated the tape. Defense counsel

further added that he did not call Ms. Meadlin as a witness because she is sixty-eight years old and

infirm. Although defense counsel conceded that he could have sought a deposition from Ms.

Meadlin, he stated that he would rather seek admission of the interview through Dr. Martell. The

court again refused admission of the tape.

The Appellant challenges the trial court’s exclusion of the audiotape during the cross-

examination of Dr. Martell. Specifically, the Appellant relies upon the premise that the rules of

evidence do not preclude, at a capital sentencing hearing, evidence which establishes or rebuts an

aggravating circumstance.

The Appellant is correct in his argument that evidence is not excluded at a capital sentencing

hearing merely because the evidence is hearsay. See Tenn. Code Ann. § 39-13-204(c). Thus, as long

as evidence or testimony is relevant to the circumstances of the murder, the aggravating

circumstances of the murder, or the mitigating circumstances and has probative value in the

determination of punishment, such evidence is admissible. See State v. Teague, 897 S.W.2d 248,

250 (Tenn. 1995); see also State v. Hall, 8 S.W.3d 593, 602 (Tenn. 1999), cert. denied, – U.S. –, 121

S. Ct. 98 (2000). The admission of evidence, however, is not without constraints. Evidence may

properly be excluded if it is so unduly prejudicial that it renders the trial fundamentally unfair. See

-40-

State v. Vincent C. Sims, No. W1998-00634-CCA-R3-DD (Tenn. Crim. App. at Jackson, Mar. 14,

2000), aff’d by, No. W1998-00634-SC-DDT-DD (Tenn. at Jackson, Apr. 17, 2001) (citing State v.

Burns, 979 S.W.2d 276, 282 (Tenn. 1998), cert. denied, 527 U.S. 1039, 119 S. Ct. 2402 (1999); State

v. Nesbit, 978 S.W.2d 872, 891 (Tenn. 1998), cert. denied, 526 U.S. 1052, 119 S. Ct. 1359 (1999)).

Additionally, the admissibility of evidence ultimately is entrusted to the sound discretion of the trial

court. State v. Vincent C. Sims, No. W1998-00634-CCA-R3-DD (citing Hutchinson, 898 S.W.2d

at 172). Absent an abuse of that discretion, such rulings will not be reversed on appeal. State v.

Vincent C. Sims, No. W1998-00634-CCA-R3-DD (citing State v. Caughron, 855 S.W.2d 526, 541

(Tenn.), cert. denied, 510 U.S. 979, 114 S. Ct. 475(1993)).

Initially, we acknowledge that the record belies the Appellant’s assertion that the audiotape’s

admission was sought to rebut the testimony of Dr. Martell. The record is abundantly clear that the

Appellant had every opportunity to question Dr. Martell regarding his consideration of the audiotape

interview of Ms. Meadlin in making his diagnosis of the Appellant, yet he failed to avail himself of

such opportunity. See generally Tenn. R. App. P. 36(a). Additionally, the Appellant fails to offer

any valid reason as to why a deposition of Ms. Meadlin was not requested or as to why Detective

Postiglione was not called to testify regarding his interview of Ms. Meadlin. See generally Tenn.

R. App. P. 36(a). Finally, we fail to comprehend the Appellant’s assertion that Ms. Meadlin’s

statement would rebut Dr. Martell’s conclusion that the Appellant’s delusional disorder was in

substantial remission in the late 1990's when the incidents discussed by Ms. Meadlin occurred in the

early 1990's. For these reasons, we cannot conclude that the trial court abused its discretion in

excluding introduction of the audiotape interview of Ms. Meadlin. This issue is without merit.

D. Cross-Examination of Janet Kirkpatrick

Prior to trial, the defense team interviewed the Appellant’s sisters. A summary of the joint

interview was provided to the Appellant’s experts, the State’s experts, and the prosecuting attorneys.

During the penalty phase of the trial, the Appellant’s sister, Janet Kirkpatrick, testified for the

defense. Ms. Kirkpatrick, on direct examination, discussed many of the same topics mentioned

during her prior interview, including her acknowledgment that the Appellant had previously been

incarcerated. Prior to cross-examination of Ms. Kirkpatrick, the State approached the bench and

inquired whether the witness could be impeached with other information provided during the

interview since the defense had questioned her about information obtained from the interview.

During cross-examination, the prosecutor asked Ms. Kirkpatrick whether, during her

interview with the defense team, she had indicated that she “was aware that during an attempt to rob

a restaurant, [the Appellant] was putting one of the victims in the freezer.”19 At this point, the

defense team objected and a jury-out hearing was conducted. Ms. Kirkpatrick denied making any

such statement during the interview. Rather, she stated that her sister made the statement based upon

a newspaper article she had read. Although she agreed that the report indicated both sisters’

knowledge of the incident, Ms. Kirkpatrick maintained that she merely agreed with her sister.

19

This incident which resulted in the Ap pellant’s arrest and conviction occu rred in Texas.

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Defense counsel then moved for a mistrial. The trial court ruled that the prosecutor’s comment was

improper but denied the Appellant’s request for a mistrial.

When the jury returned to the courtroom, the trial court provided the following curative

instruction:

Ladies and gentlemen of the jury, before you went upstairs for your afternoon break,

General Thurman had asked a question of this witness. I sustained an objection, and

that information is now stricken from the record. You may not consider that for any

reason, and you must treat it as if you had never known it.

Again, I remind you that you may not consider allegations of criminal behavior or

prior crimes with regard, that you’ve been hearing this afternoon, except as to how

it relates to the mental health of the defendant. The State is relying upon the prior

conviction for its aggravating circumstance involving the robbery charge that was

committed on the dates on the certified copy, and you may not consider other crimes

or other criminal behavior for any reason, other than the mental condition of the

defendant.

Despite the instruction, the Appellant submits that the trial court erred in denying his motion for a

mistrial. Specifically, he contends that the prosecutor’s question informing the jury that the

Appellant had previously attempted to commit a crime under circumstances almost identical to the

instant case was so prejudicial that the trial court’s curative instruction could not remove the taint

of the statement.

The decision of whether to grant a mistrial is within the sound discretion of the trial court.

See State v. McKinney, 929 S.W.2d 404, 405 (Tenn. Crim. App. 1996). "Generally, a mistrial will

be declared in a criminal case only when there is a 'manifest necessity' requiring such action by the

trial judge." State v. Millbrooks, 819 S.W.2d 441, 443 (Tenn. Crim. App. 1991). In reviewing a trial

court's denial of a motion for mistrial, this court will not disturb that decision unless there is an abuse

of discretion. Adkins, 786 S.W.2d at 644; Williams, 929 S.W.2d at 388.

In the present case, the Appellant has shown no manifest necessity that would require a

mistrial. We cannot conclude that the information was so prejudicial that a mistrial should have been

granted. In measuring the prejudicial impact of any misconduct on behalf of the prosecutor in asking

the question, this court should consider the facts and circumstances of the case; any curative

measures undertaken by the court and the prosecutor; the intent of the prosecutor; the cumulative

effect of the improper conduct and any other errors; and the relative strength or weakness of the case.

Judge v. State, 539 S.W.2d 340, 344 (Tenn. Crim. App. 1976); see also Buck, 670 S.W.2d at 609.

In the present case, there was considerable evidence regarding the Appellant’s culpability in other

violent crimes prior to the question of the State. The Appellant had already been found guilty by the

jury and the jury had already been presented with substantial proof of the aggravating circumstances.

The Appellant does not contest the aggravating circumstance, previous conviction for a violent

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felony. Finally, the trial court provided the jury with an instruction that they were to disregard the

information of the felony charge. We presume that the jury followed the trial court's explicit

instruction not to consider the inappropriate evidence. State v. Smith, 893 S.W.2d 908, 923 (Tenn.

1994), cert. denied, 516 U.S. 829, 116 S. Ct. 99 (1995).

Under these circumstances, we hold that the trial court did not abuse its discretion when it

denied the motion for a mistrial. The record does not support a conclusion that a miscarriage of

justice occurred by continuing the trial after the prosecutor’s improper questions. See State v.

McPherson, 882 S.W.2d 365, 370 (Tenn. Crim. App. 1994). This issue has no merit.

IX. Introduction of Victim Impact Evidence

In State v. Nesbit, 978 S.W.2d at 889, our supreme court held that “victim impact evidence

and argument is [not] barred by the federal and state constitutions.” See also Payne v. Tennessee,

501 U.S. 808, 827, 111 S. Ct. 2597, 2609 (1991) (holding that the Eighth Amendment erects no per

se bar against the admission of victim impact evidence and prosecutorial argument); State v.

Shepherd, 902 S.W.2d 895, 907 (Tenn. 1995) (holding that victim impact evidence and prosecutorial

argument not precluded by the Tennessee Constitution). Notwithstanding the holding that victim

impact evidence is admissible under Tennessee’s death penalty sentencing scheme, the introduction

of such evidence is not unrestricted. Nesbit, 978 S.W.2d at 891. Victim impact evidence may not

be introduced if (1) it is so unduly prejudicial that it renders the trial fundamentally unfair; or (2) its

probative value is substantially outweighed by its prejudicial impact. See Nesbit, 978 S.W.2d at 891

(citations omitted); see also State v. Morris, 24 S.W.3d 788, 813 (Tenn. 2000) (Appendix), cert.

denied, – U.S.–, 121 S. Ct. 786 (2001). Additionally, our supreme court has established certain

procedural guidelines which must be followed before victim impact evidence may be admitted by

the trial court. First, the State must notify the trial court of its intent to produce victim impact

evidence. Nesbit, 978 S.W.2d at 891. Second, upon receiving the State’s notification, the trial court

must hold a hearing outside the presence of the jury to determine the admissibility of the evidence.

Id. Finally, the trial court should not permit introduction of such evidence until the court determines

that evidence of one or more aggravators is already present in the record. Id.

At the sentencing hearing, the State presented the testimony of Deanna Hampton, the wife

of victim Steve Hampton, and Pamela Sue Guidry, Steve Hampton’s mother. Deanna Hampton

testified that Steve Hampton was twenty-five years old at the time of his murder. He was the father

of three young children. Deanna Hampton testified that the death of her husband caused her to

withdraw from everybody, including her children, and that both she and her children have received

counseling. Pamela Sue Guidry testified that Steve Hampton was her only child. She stated that she

will never be able to get over her son’s death. Additionally, members of victim Sarah Jackson’s

family testified as to how her death has devastated their lives. Both of Sarah Jackson’s parents

testified that they have suffered psychologically because of her death. Both parents feel guilty about

permitting their daughter to take a job when she was sixteen. Sarah Jackson’s brother, Wayne,

testified that his sister’s murder has made him extremely angry. He explained the difficulty his

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family was having during the holidays coping with his sister’s loss. Wayne Jackson also stated that

his younger brother was in denial about the murder. The Appellant challenges admission of this

victim impact evidence on grounds that (1) State v. Nesbit should not have been applied in this case;

(2) the instruction mandated in State v. Nesbit conflicts with the statute and, therefore, should not

have been given; and (3) the victim impact evidence provided in the instant case exceeds the

parameters established in State v. Nesbit.

A. Application of State v. Nesbit

The Appellant acknowledges that neither the Tennessee Constitution nor the United States

Constitution bar the introduction of victim impact evidence. Nesbit, 978 S.W.2d at 899 (citing

Shepherd, 902 S.W.2d at 907; State v. Brimmer, 876 S.W.2d 75, 86 (Tenn.), cert. denied, 513 U.S.

1020, 115 S. Ct. 585 (1994)). Nonetheless, he argues that State v. Nesbit, is inapplicable because

the crimes for which he was convicted occurred prior to the supreme court’s decision in Nesbit. This

argument is advanced notwithstanding the fact that the statute reviewed by our supreme court in

Nesbit is the same statute applicable in this case.20

In State v. Nesbit, our supreme court, analyzing the statute in effect in 1997, determined that

“the language of the statute is broad.” Nesbit, 978 S.W.2d at 891. Indeed, the court, although

cognizant of its holding in Cozzolino v. State, 584 S.W.2d 765, 768 (Tenn. 1979)(evidence is

relevant to the punishment, and thus admissible, only if it is relevant to an aggravating circumstance,

or to a mitigating factor raised by the defendant), found that the court had consistently recognized

that “a sentencing jury must be permitted to hear evidence about the nature and circumstances of

the crime even though the proof is not necessarily related to a statutory aggravating circumstance.”

Nesbit, 978 S.W.2d at 890 ( citing State v. Harris, 919 S.W.2d 323, 331 (Tenn. 1996); Teague, 897

S.W.2d at 251; State v. Nichols, 877 S.W.2d 722, 731 (Tenn. 1994); Bigbee, 885 S.W.2d at 813

(citing cases)) (emphasis in original). In this regard, the court held that “the impact of the crime on

the victim’s immediate family is one of those myriad of factors encompassed within the statutory

language nature and circumstances of the crime.” Nesbit, 978 S.W.2d at 890 (emphasis in original).

20

At the time the A ppellant’s offen ses were co mmitted, the fo llowing statute wa s in effect:

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 histo ry, and physica l condition; an y evidence te nding to

establish or rebut the a ggravating cir cumstance s enumera ted in subsec tion (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 ma y be received regard less of its admissibility under the

rules of evidence; provided that the defendant is accorded a fair opportunity to rebut any hearsa y

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.

Tenn. Code A nn. § 39-1 3-204(c ). In 1998 , the capital sente ncing statute was ame nded spe cifically to perm it victim

impact testimony. See Tenn. Code Ann. § 39-13-204 (Supp. 1998) (“The court may permit a member or members, or

a representative or representatives of the victim’s family to testify at the sentencing hearing about the victim and about

the impact of the murder on the family of the victim and o ther relevant persons. Such evidence may be considered by

the jury in determ ining which sen tence to impose.”). In the present case, the State agreed not to rely upon the amended

statute to introduce victim impact evidence.

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Accordingly, under the court’s holding, the 1997 statute permitted the introduction of victim impact

testimony as part of the nature and circumstances of the murder. In making his argument, the

Appellant is essentially asking this court to overrule the Tennessee Supreme Court which we are

obviously unable to do.

Within his challenge to the applicability of State v. Nesbit, the Appellant contends that the

application of State v. Nesbit in his case violates his right to be free from ex post facto laws. See

generally Tenn. Const. Art. I, § 11. Both the United States Constitution, in Article I, sections 9 and

10, and the Tennessee Constitution, in Article I, section 11, forbid the passage of any ex post facto

law by Congress or the General Assembly. See State v. Rogers, 992 S.W.2d 393, 401 (Tenn. 1999),

cert. granted, 529 U.S. 1129, 120 S. Ct. 2004 (2000). The United States Supreme Court has

extended the constitutional provisions to not only apply to acts of Congress, but also to apply to any

“judicial construction of a criminal statue [that] is unexpected and indefensible by reference to the

law which has been expressed prior to the conduct in issue.” Rogers, 992 S.W.2d at 402 (citing

Bouie v. City of Columbia, 378 U.S. 347, 354, 84 S. Ct. 1697, 1703 (1964) (internal quotations and

citations omitted)); accord Marks v. United States, 430 U.S. 188, 191-192, 97 S. Ct. 990, 992-93

(1977).

An ex post facto law within the meaning of the federal and state constitutions has been

defined as one that

makes an action done before the passing of the law, and which was innocent when

done criminal; and punishes such action. Second, every law that aggravates a crime,

or makes it greater than it was when committed. Third, every law that changes the

punishment, and inflicts a greater punishment, than the law annexed to the crime,

when committed. Fourth, every law that alters the legal rules of evidence, and

receives less, or different, testimony, than the law required at the time of the

commission of the offense, in order to convict the offender.

Rogers, 992 S.W.2d at 401-402 (citing Calder v. Bull, 3 U.S. (3 Dall.) 386, 1 L. Ed. 648 (1798); see

also State v. Pearson, 858 S.W.2d 879, 881 (Tenn. 1993); Miller v. State, 584 S.W.2d 758, 761

(Tenn. 1979)(adopting the categories identified in Calder and stating that “every law which, in

relation to the offense or its consequences, alters the situation of a person to his disadvantage”

constitutes an ex post facto law)) (emphasis added); see also Carmell v. Texas, – U.S. –, 120 S. Ct.

1620, 1627 (2000); State v. Bragan, 920 S.W.2d 227, 241 (Tenn. Crim. App. 1995). An ex post

facto law contains two critical elements: (1) the law must apply to events occurring before its

enactment and (2) it must disadvantage the offender affected by it. See State v. Ricci, 914 S.W.2d

475, 480 (Tenn. 1996); see generally State v. Rickman, 972 S.W.2d 687, 693 (Tenn. Crim. App.

1997).

The rule announced in State v. Nesbit is neither an unexpected nor unforeseen judicial

construction of a principle of criminal law. As the Nesbit court acknowledged, prior to the Nesbit

decision, evidence about the nature and circumstances of the crime was admissible in a capital

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sentencing hearing regardless of the fact that “the proof is not necessarily related to a statutory

aggravating circumstance.” Nesbit, 978 S.W.2d at 890 (citing Harris, 919 S.W.2d at 331; Teague,

897 S.W.2d at 251; Nichols, 877 S.W.2d at 731; Bigbee, 885 S.W.2d at 813). The rule announced

in Nesbit merely clarified existing practice in admitting victim impact testimony and established

specific guidelines to be followed in admitting such testimony. Moreover, the United States

Supreme Court has consistently held that laws which change a rule of evidence, but which do not

increase the punishment nor change the elements of the offense or the ultimate facts necessary to

establish guilt, but only remove existing restrictions on the competency of certain classes of evidence

or of persons as witnesses do not constitute ex post facto laws. See Carmell v. Texas, – U.S. at –,

120 S. Ct. at 1632-1633; Bragan, 920 S.W.2d at 241 (citing Thompson v. Missouri, 171 U.S. 380,

18 S. Ct. 922 (1898); Hopt v. Utah, 110 U.S. 574, 4 S. Ct. 202 (1884)). Indeed, laws which change

rules of procedure but which do not affect any substantial right of a defendant are not ex post facto

laws. Bragan, 920 S.W.2d at 241. Victim impact testimony does not reduce the quantum of

evidence necessary to return a death sentence. Victim impact testimony does not eliminate the

necessity of finding the presence of a statutory aggravating circumstance(s) nor does it eliminate the

necessity of finding that the aggravator(s) outweigh any applicable mitigating circumstances.

Finally, victim impact testimony does not lower the burden of the State’s proof. For these reasons,

Nesbit’s application to the Appellant’s case does not violate the Appellant’s right to be free from ex

post facto laws. Additionally, we note that, although the offenses in the present case occurred prior

to the court’s decision in Nesbit, it is undisputed that the Nesbit ruling was established prior to the

Appellant’s trial. See generally State v. Pilkey, 776 S.W.2d 943, 945 (Tenn. 1989), cert. denied, 494

U.S. 1046, 110 S. Ct. 1510 (1990) (trial occurred after effective date of statute authorizing use of ex

parte videotaped statement of child victim, thus, no ex post facto claim). This claim is without merit.

B. Victim Impact Evidence Irrelevant within Capital Sentencing Structure

Next, the Appellant avers that victim impact testimony is irrelevant within the capital

sentencing structure established by Tenn. Code Ann. § 39-13-204(g)(1) and State v. Nesbit, 978

S.W.2d at 892. Essentially, he asserts that a contradiction exists between Tenn. Code Ann. § 39-13-

204(g)(1) and the victim impact jury instruction promulgated in Nesbit. He concludes that this

contradiction necessarily renders victim impact evidence irrelevant.

Tenn. Code Ann. § 39-13-204(g)(1) provides:

If the jury unanimously determines that

(A) At least one (1) statutory aggravating circumstance or several

statutory aggravating circumstances have been proven by the state

beyond a reasonable doubt; and

(B) Such circumstance or circumstances have been proven by the

state to outweigh any mitigating circumstances beyond a reasonable

doubt; then the sentence shall be death.

This text is long and has been trimmed here. Open the source document for the complete record.