SHARON G. LEE, J., delivered the opinion of the Court, in which JANICE M. HOLDER, C.J., CORNELIA A. CLARK, GARY R. WADE, and WILLIAM C. KOCH, JR., JJ., joined.
This capital case involves the 1988 rape, murder, robbery, and kidnapping of a thrift store employee in Cleveland, Tennessee. A Bradley County jury convicted the defendant of premeditated murder, felony murder, two counts of robbery with a deadly weapon, two counts of aggravated rape, and two counts of aggravated kidnapping. The trial court merged the premeditated murder and felony murder convictions into a single conviction for which the jury imposed a sentence of death after hearing proof of aggravating and mitigating circumstances. The trial court merged the remaining convictions into a single
On November 30, 1988, Frances Rose Crabtree,
Ms. Crabtree's murder remained unsolved for the next several years. Then, in early 1994, Lieutenant Danny Chastain of the Cleveland Police Department saw a National Crime Information Center teletype from police in Philadelphia, Pennsylvania, directed to any Tennessee police agency having an unsolved November 1988 homicide involving a female store employee whose throat had been cut. Lieutenant Chastain learned that this teletype was prompted by a letter that had been received by a federal judge in Philadelphia from an individual identified as Michael Goodhart, who was then incarcerated in Bastrop County Federal Correctional Facility in Texas. Lieutenant Chastain telephoned Mr. Goodhart, who advised him that the murder he had witnessed had occurred between 5:00 and 6:00 p.m. in a thrift store after the store had closed and that the murderer was presently incarcerated. Further investigation revealed that Mr. Goodhart and the defendant, John Patrick Henretta, had been traveling together at the time of the thrift store murder and that after the murder, on December 3, 1988, they had been arrested together outside of Little Rock, Arkansas. Mr. Goodhart and Mr. Henretta were wanted by the FBI for a kidnapping at knifepoint that had occurred on or about the day after Thanksgiving of 1988, and Mr. Henretta had previously been convicted of homicide and rape and was currently a suspect in yet another homicide.
In February of 1994, Lieutenant Chastain and TBI Agent Brooks Wilkins traveled to Texas to speak further with Mr. Goodhart and then went to Leavenworth, Kansas, where Mr. Henretta was incarcerated at the Leavenworth Federal Correctional Facility ("Leavenworth"). Upon presentation of their affidavit to a Leavenworth County judge, Lieutenant Chastain and Agent Wilkins were issued a search warrant to obtain samples of Mr. Henretta's blood, saliva, and hair.
Lieutenant Chastain and Agent Wilkins met with Mr. Henretta at Leavenworth on February 11, 1994, accompanied by an FBI agent assigned to the penitentiary, a forensic scientist with the Kansas Bureau of Investigation, and a corrections officer employed by the penitentiary. Agent Wilkins had a copy of the search warrant with him and advised Mr. Henretta that they were there to investigate a murder that had occurred in Tennessee in 1988 and explained that the purpose of the search warrant was to collect blood, hair, and saliva samples from him. Mr. Henretta was cooperative, and after the samples were taken, Agent Wilkins advised Mr. Henretta that the investigation concerned the murder of Frances Rose Crabtree in Cleveland, Tennessee, in November of 1988. Mr. Henretta expressed his willingness to talk and after signing a waiver of his Miranda rights, was interviewed by Agent Wilkins, providing the following signed sworn statement:
In addition to this statement, Mr. Henretta drew and signed an accurate map of the layout of the store that showed where Ms. Crabtree was killed and other details of the crime scene. After giving his statement, Mr. Henretta told the officers that he would be willing to come to Tennessee and plead guilty in return for a life sentence if the death penalty was not sought.
The blood, saliva, and hair samples obtained from Mr. Henretta were received by the TBI laboratory for testing and were sent to the FBI on March 8, 1994, for DNA analysis. The analysis was completed in April of 1997 and revealed that Mr. Henretta's DNA matched DNA found on Ms. Crabtree's skirt and on the vaginal swabs taken from Ms. Crabtree.
On October 3, 1997, Mr. Henretta was transferred from Leavenworth to the Bradley County jail for arraignment and was thereafter returned to Leavenworth on November 3, 1997. The case was tried in April of 2002. During the guilt/innocence phase of the trial, Mr. Henretta presented no witness testimony but entered documentary evidence showing that he had been sentenced to imprisonment for life without possibility of parole in Pennsylvania. In his statement to the jury, defense counsel conceded that Mr. Henretta committed the charged crimes of robbery, rape, and murder, stating "You have heard proof that John Patrick Henretta robbed, raped, and murdered Rose Crabtree. You have not heard from me, nor will you ever, or from Mr. Henretta, anything to the contrary. Those are true." Defense counsel further advised the jury "this case ... is only about sentencing." The jury convicted the defendant of premeditated murder in the first degree, felony murder in the first degree, two counts of robbery with a deadly weapon, two counts of aggravated rape, and two counts of aggravated kidnapping. The trial court merged the premeditated murder conviction and the felony murder conviction into a single conviction and the convictions of robbery with a deadly weapon, aggravated rape, and aggravated kidnapping into a single conviction for each offense.
During the subsequent sentencing phase of the trial, the State asserted the existence of four statutory aggravating factors. First, the State presented proof that "[t]he defendant was previously convicted of one or more felonies, other than the present charge, which involve the use or threat of violence to the person," Tenn.Code Ann. § 39-2-203(i)(2) (1982). In that regard, the State established that on October 11, 1974, Mr. Henretta was convicted of a rape occurring in Crawford County, Pennsylvania on July 17, 1974; on June 17, 1991, he was convicted of a second degree murder occurring in Lawrence County, Pennsylvania on September 19, 1988, and of a rape occurring in that county on November 14, 1988; and on July 7, 1989, he was convicted of a kidnapping occurring on November 23, 1988. With respect to the aggravating factor that "[t]he murder was especially heinous, atrocious, or cruel in that it involved torture or depravity of mind," Tenn.Code Ann. § 39-2-203(i)(5), the State relied on proof adduced during the guilt phase pertaining to the nature of the wounds inflicted upon Ms. Crabtree and other circumstances of her murder. As to the aggravating circumstance that "[t]he murder was committed for the purpose of avoiding, interfering with, or preventing a lawful arrest or prosecution of the defendant or another," Tenn.Code Ann. § 39-2-203(i)(6), the State relied upon proof introduced during the guilt phase as to the close proximity of the police station, showing that Ms. Crabtree was murdered to prevent her from summoning the police.
In addition to proof establishing aggravating circumstances, the State presented victim impact statements written by Ms. Crabtree's children. Ms. Crabtree's daughter, Amanda Crabtree Forest, who was thirteen years old at the time of her mother's murder, wrote that her "life was snatched away from her at a young age" as the result of her mother's murder, "at a time when I needed her the most," and that "[m]y mom was all that my brother and I had and she was who we depended on." Amanda also stated that she is "afraid to fully love someone for fear that they may be taken away from me too," that "[t]here's not a single day that goes by that I don't think about my mom and wonder why all this had to happen," and that "my heart will always be broken." Amanda also stated that as a result of the murder her own daughter has now been deprived of a grandmother. Ms. Crabtree's son, James, who was eleven at the time of her murder, wrote that the murder has injured him forever and has caused him to be depressed and distrustful and that he doesn't like to meet new people and is not able to work alone.
Mr. Henretta presented the testimony of three mitigation witnesses. The first witness was Judy Randolph, who was employed by defense counsel to investigate Mr. Henretta's background. Ms. Randolph testified that Mr. Henretta was born in 1943. When Mr. Henretta was two to three years old, his mother deserted the family, which consisted of himself, his father, and his two brothers, Robert and Terrance. In 1945, Mr. Henretta was given a psychological examination, from which it was determined that he was of "dull normal" intelligence. In 1948, he and his brothers were placed in a Catholic orphanage by his aunt. In 1953, his father took him and his brother Terrance out of the orphanage, and the three lived together along with the father's new wife, who died unexpectedly in 1961.
Mr. Henretta also presented the mitigation testimony of Dr. James Walker, a neuropsychologist. Dr. Walker testified that tests performed on Mr. Henretta showed evidence of brain dysfunction that, among other things, made it difficult for him to inhibit impulses and learn from his mistakes. Dr. Walker determined that Mr. Henretta's intelligence quotient (IQ) is "about 78, 79" and categorized him as "borderline impaired," which he described as "somewhere in that land between normal and mentally retarded." With respect to Mr. Henretta's family history and childhood, Dr. Walker testified that Mr. Henretta told him that when his father was intoxicated he would regularly beat him, that once, his father had threatened him with a knife, and that, often, Mr. Henretta would hide or leave the house when his father had been drinking. Dr. Walker also testified that Mr. Henretta told him that he had been drinking on the day he killed Ms. Crabtree and stated that this consumption of alcohol would have further reduced Mr. Henretta's ability to control his impulses.
Finally, Mr. Henretta presented the testimony of Dr. William Bernet, a forensic psychiatrist who evaluated Mr. Henretta and reiterated much of the testimony of Dr. Walker. Dr. Bernet conducted personal
After presentation of proof and closing arguments, the jury imposed a sentence of death, finding that statutory aggravating circumstances outweighed any mitigating circumstances.
The Court of Criminal Appeals affirmed the judgments of conviction and sentences, including the sentence of death. State v. Henretta, No. E2007-01750-CCA-R3-DD, 2009 WL 1025828, *24 (Tenn.Crim.App. Apr. 14, 2009).
At the sentencing phase of trial, the State made the following comments in its closing argument, urging the jury to impose the death sentence rather than incarceration for life:
Mr. Henretta asserts that the language employed by the prosecutor, specifically the phrase "You put him on death row, where he is under the tightest security he can be under, and where there is no chance he is going to escape and do something again, or injure some guard," constituted an argument for Mr. Henretta's future dangerousness.
Mr. Henretta contends that this argument violated the trial court's direction, given before jury selection, that proof regarding Mr. Henretta's future dangerousness or that Mr. Henretta is a danger in the penitentiary would not be admissible. Our review of the record reveals that defense counsel failed to object to this portion of the prosecutor's argument at the time it was made
We find nothing in the language of the trial court that would have prohibited the State from arguing the risk that Mr. Henretta would impose if not placed under the heightened security of death row. The referenced language of the trial court indicates that evidence of past crimes, wrongs, or acts would not be admissible for the purpose of proving that Mr. Henretta was of such a character that he would present a danger in prison. Mr. Henretta fails to point to any evidence in the record that was presented for that purpose nor do we find any such evidence, and the remarks made by the prosecutor in closing argument do not constitute evidence. See State v. Woods, 806 S.W.2d 205, 211 (Tenn. Crim.App.1990). Rather, the prosecutor's remarks merely amounted to reasonable inferences that Mr. Henretta would present a future risk and were based on properly introduced evidence, including the sworn statement Mr. Henretta gave at Leavenworth, which established the violent nature of the murder and that it was committed after Mr. Henretta escaped from authorities in Pennsylvania where he was on parole. A prosecutor's closing argument may be based upon reasonable inferences drawn from the evidence. State v. Banks, 271 S.W.3d 90, 131 (Tenn.2008).
Second, Mr. Henretta argues that, in light of the prosecutor's "future dangerousness" argument, the trial court should have "reinforced" to the jury that parole for Mr. Henretta "was a practical impossibility." In support of this latter argument, Mr. Henretta relies upon Simmons v. South Carolina, 512 U.S. 154, 114 S.Ct. 2187, 129 L.Ed.2d 133 (1994). In Simmons, after the defendant was found guilty of murder, the prosecutor made a generalized argument that the jury should consider the defendant's future dangerousness in deciding whether to impose the death penalty, stating that the question for the jury was "`what to do with [petitioner] now that he is in our midst'" and that a verdict for death would be "`an act of self-defense.'" Id. at 157, 114 S.Ct. 2187 (alteration in original). Under the circumstances, if given life imprisonment, the defendant would not have been available for parole under state law, and he requested that the trial judge instruct the jury that life imprisonment under state law did not the carry the possibility that the defendant would be released on parole. The judge refused to give this instruction, and when the jury sent a note to the judge specifically inquiring as to whether a life sentence would carry the possibility of parole, the judge instructed the jury that it should not consider parole eligibility in reaching its
Id. at 168-69, 114 S.Ct. 2187. Mr. Henretta acknowledges that in 1988, when Ms. Crabtree was killed, Tennessee statutory law provided that only two possible punishments were available for first degree murder, death or imprisonment for life (with the possibility of parole). Tenn.Code Ann. § 39-2-202(b) (1982). It was not until 1993 that the legislature added a third possible punishment of life without the possibility of parole. Tenn.Code Ann. § 39-13-202(c) (Supp.1993). He also acknowledges that in State v. Bush, 942 S.W.2d 489, 503 (Tenn.1997), we held that Simmons did not apply in a state where parole was available. However, Mr. Henretta contends that although he was theoretically eligible for a life sentence with the possibility of parole under Tennessee law, he was not subject to parole as a matter of fact because as of the time of his trial in Tennessee, he had already been sentenced to life without the possibility of parole in Pennsylvania.
We believe that Mr. Henretta misapprehends the Court's holding and underlying rationale in Simmons. In that case, the defendant's parole eligibility was relevant in answering the State's argument that the defendant would present a future threat to society for the obvious reason that if the defendant were to be released on parole, society would be exposed to his future criminal conduct. As the Court stated, "the jury reasonably may have believed that [the defendant] could be released on parole if not ... executed [ ] [and] [t]o the extent this misunderstanding pervaded the jury's deliberations, it had the effect of creating a false choice between sentencing [the defendant] to death and sentencing him to a limited period of incarceration." Simmons, 512 U.S. at 161, 114 S.Ct. 2187. By contrast, in the instant matter, the prosecutor did not argue that Mr. Henretta would present a future danger to society if sentenced to life in prison with the possibility that he might be released but instead, that he might "escape and do something again, or injure some guard." The posited threats of escape or injuring a guard are not contingent upon or consistent with Mr. Henretta's release from prison on parole but rather assume Mr. Henretta's continuing incarceration. Thus, presenting the jury with information that an alternative sentence to death is life without parole would not in any way undercut the State's argument that Mr. Henretta poses an intra-prison threat or might escape if not sentenced to death. In the language of the Simmons court, information regarding Mr. Henretta's parole ineligibility would not "allow[] the defendant to `deny or explain' the showing of future dangerousness." 512 U.S. at 169, 114 S.Ct. 2187. The instant matter is further distinguishable from Simmons in that the defendant in Simmons was precluded from presenting proof that he would not be
Finally, Mr. Henretta contends that the trial court erred in failing to allow defense counsel to comment on the fact that he would receive a life sentence if the jury failed to reach unanimous agreement to impose the death penalty. With respect to this third argument, applicable statutory law at the time of trial provided as follows:
Tenn.Code Ann. § 39-2-203(f)-(h) (1982). Mr. Henretta maintains that the last sentence of subsection (h), which prohibits the trial court and attorneys from advising the jury that the consequence of its failure to reach a unanimous decision as to either a death sentence or a sentence of life will result in a sentence of life without parole, is unconstitutional and in conflict with the Court's holding in Simmons requiring that the jury be informed that a defendant is ineligible for parole after the defendant's future dangerousness has been placed at issue by the prosecution.
Although Mr. Henretta argues that adherence to subsection (h) conflicts with the Supreme Court's decision in Simmons requiring that the jury be informed that a defendant is parole ineligible after the defendant's future dangerousness has been placed at issue by the prosecution, he has also acknowledged that controlling state statutory law at the time of his trial and sentencing provided that the punishments for first degree murder were either death or imprisonment for life with the possibility of parole. As we have noted, in Bush, we found Simmons inapplicable under these circumstances, stating "[s]ince Tennessee is a state in which defendants sentenced to life imprisonment are eligible for parole, Simmons does not require that the jury be given information about parole
Next, we consider Mr. Henretta's argument that the trial court failed to accord him the full measure of the heightened standard of due process to which a capital defendant is entitled by denying his motion for mistrial upon allegation that a juror was witnessed reading a newspaper. With regard to this issue, Mr. Henretta merely states that "Juror Edred Dayle Durham was seen with a newspaper and the Defense raised the issue of whether as he saw [sic] that the objection to his having a copy of a newspaper (probably USA Today) came from the Defense team. The motion for mistrial was not granted." Mr. Henretta presents no authority or argument as to why the trial court's failure to grant his motion was erroneous and constituted a denial of due process. Accordingly, to the extent that he has even articulated an issue, that issue is waived. See Hawkins v. Hart, 86 S.W.3d 522, 531 (Tenn.Ct.App.2001). Whether to grant a motion for mistrial is a matter within the trial court's discretion. State v. Nash, 294 S.W.3d 541, 546 (Tenn.2009); State v. Saylor, 117 S.W.3d 239, 250 (Tenn.2003). Notwithstanding Mr. Henretta's waiver of this issue, we have examined the record in this case and find no evidence that the trial court abused its discretion in denying Mr. Henretta's motion for mistrial.
During the sentencing phase of trial, the trial court instructed the jury that it should consider as a mitigating circumstance whether Mr. Henretta's capacity to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of law was substantially impaired as a result of voluntary intoxication. However, the trial court did not instruct the jury as to the defense of intoxication as to intent during the guilt/innocence phase of trial. Although Mr. Henretta did not complain of this omission during trial and did not raise it in his motion for new trial or present it as an issue before the Court of Criminal Appeals, he urges us to address it as a matter of plain error.
Appellate review of a patently incomplete instruction is available in capital cases despite the defendant's failure to raise the issue below under the plain error doctrine. State v. Bledsoe, 226 S.W.3d 349, 353-54 (Tenn.2007); State v. Hugueley, 185 S.W.3d 356, 382 (Tenn.2006); State v. Stephenson, 878 S.W.2d 530, 554 (Tenn.1994), abrogated on other grounds by Saylor, 117 S.W.3d at 246. As set forth in Rule 36(b) of the Tennessee Rules of Appellate Procedure, "[w]hen necessary to do substantial justice, an appellate court may consider an error that has affected the substantial rights of a party at any time, even though the error was not raised in the motion for a new trial or assigned as error on appeal." The following five elements must be satisfied before an alleged error qualifies for review as plain error:
State v. Adkisson, 899 S.W.2d 626, 641-42 (Tenn.Crim.App.1994) (citations and footnotes omitted); see also State v. Smith, 24 S.W.3d 274, 282-83 (Tenn.2000) (adopting the Adkisson five-element test). Our review of an issue under the plain error doctrine is contingent upon all five of these elements having been satisfied, and if any one of the elements is not met, we need not consider the other four in denying relief.
At the time the offenses were committed in this case, Tennessee statutory law defined first degree murder as follows:
Tenn.Code Ann. § 39-2-202(a) (1982). Further, it was well settled at the time of the commission of the offenses in this case that proof of intoxication constituted a defense to first degree murder:
State v. Adkins, 653 S.W.2d 708, 713 (Tenn.1983) (citing State v. Bullington, 532 S.W.2d 556 (Tenn.1976)). In accord, this state's pattern jury instruction regarding intoxication provides in part as follows:
T.P.I.-Crim. 40.02 (footnotes omitted).
Mr. Henretta argues that the trial court erred in failing to give an instruction apprising the jury about intoxication as a defense. As we recently reiterated in State v. Hatcher, 310 S.W.3d 788, 815 n. 16 (Tenn.2010), when a defendant is charged with an offense that requires a culpable mental state, such as first degree murder, "a jury instruction about a defendant's alleged voluntary intoxication at the time he or she committed the offense under consideration is required only if the intoxication was such that it compromised the defendant's capacity for whatever culpable mental state the offense required." Therefore, to show that the trial court breached a clear rule of law for the second element of the plain error analysis, Mr. Henretta must show that the trial court heard evidence that Mr. Henretta was intoxicated to the extent that it compromised his capacity to create the culpable mental state.
Furthermore, the closing argument of Assistant District Attorney Donaghy also did not require the trial court to give an instruction on intoxication. Remarks made by a prosecutor during closing argument do not constitute proof. Woods, 806 S.W.2d at 211. Therefore, her statements are insufficient to show that the trial court was required to give an instruction. Finally, Drs. Walker and Bernet did not testify until the sentencing phase of trial. Accordingly, their testimony was not before the trial court when it charged the jury on guilt/innocence. Mr. Henretta has failed to show that the trial court breached a clear and unequivocal rule of law when it failed to provide a jury instruction on intoxication, and thus he failed to show plain error.
Mr. Henretta argues that the delay between his confession and the filing of the notice to seek the death penalty resulted in a violation of the heightened standard of due process required in a capital case. He asserts that between the time of his confession and the filing of the death penalty notice, his brother Terrance, who purportedly could have provided mitigation testimony, died.
Mr. Henretta confessed in writing to the robbery, rape, and murder of Ms. Crabtree on February 11, 1994. In April of 1997, the FBI issued its report concluding that DNA from the crime scene matched DNA extracted from the samples obtained from Mr. Henretta at Leavenworth. On August 20, 1997, Mr. Henretta was indicted and, on the same date, the State gave notice of its intent to seek the death penalty. The defendant's trial began on April 1, 2002.
Tennessee Rule of Criminal Procedure 12.3(b), which became effective August 22, 1984, requires that notice of intent to seek the death penalty be filed not less than thirty days before trial:
Tenn. R.Crim. P. 12.3 (1997) (emphasis added). The State certainly complied with the time limitation under this Rule. The State was required to file the notice of its intent to seek the death penalty at least thirty days before trial and, in fact, filed such notice almost five years prior to trial. Because the State fully complied with the Rule, Mr. Henretta's motion to dismiss the notice of intent to seek the death penalty based upon alleged delay in its filing was properly denied by the trial court.
The next questions presented for our review pertain to the means by which Mr. Henretta was transferred from Leavenworth to the Bradley County jail for arraignment in 1997.
By letter dated August 26, 1997, Assistant Attorney General Sandra Donaghy advised the Records Office at Leavenworth that indictments were pending against Mr. Henretta in Bradley County and that "temporary custody is needed for service of process and disposition of the charges pending against him." The letter further states that this temporary custody is being sought "through Writ of Habeas Corpus Ad Prosequendum." The letter requests that Bradley County be allowed to assume custody of Mr. Henretta on October 3, 1997. This letter was accompanied by a document entitled "WRIT OF HABEAS CORPUS AD PROSEQUENDUM" entered by the trial court on August 28, 1997, and addressed to Mr. Henretta; Bradley County Sheriff Dan Gilley; and the Records Office at Leavenworth. The document recites that the trial court has been advised that Leavenworth and the Attorney General's Office "have agreed to honor this Writ of Habeas [C]orpus Ad Prosequendum" and that arrangements have been made between [Leavenworth] and the Bradley County Sheriffs Department for the latter to take custody of Mr. Henretta. The document orders the Bradley County Sheriff's Department to take temporary custody of Mr. Henretta at Leavenworth and, thereafter, to bring him before the trial court for purposes of service of process and disposition of pending charges. The letter was also accompanied by an August 28, 1997, order directing the trial court clerk to issue the "writ of habeas corpus prosequendum" to Sheriff Gilley to receive Mr. Henretta into custody and bring him before the trial court. The record shows that in accordance with these documents, Leavenworth temporarily relinquished custody of Mr. Henretta to Bradley County officials on or about October 3, 1997; that he was incarcerated in the Bradley County jail for one month, during which time he was arraigned on the charges in this case; and that he was transferred back to Leavenworth on or about November 5, 1997.
Mr. Henretta contends that the letter from Assistant Attorney General Donaghy, the document designated to be a writ of habeas corpus ad prosequendum, and the associated order addressed to the trial court clerk collectively constituted a detainer. Consequently, Mr. Henretta argues, the transfer of custody to Tennessee authorities was subject to the Interstate Compact on Detainers ("the Compact"), codified at Tennessee Code Annotated sections
Id. § 40-31-101, art. IV(e). Mr. Henretta argues that the charges against him should have been dismissed pursuant to this provision because he was returned to Leavenworth without having been tried. The State contends, in accordance with the ruling of the Court of Criminal Appeals, that Mr. Henretta was transferred pursuant to a writ of habeas corpus ad prosequendum not subject to the Compact.
In support of his contention that he was transferred from Leavenworth by detainer, Mr. Henretta cites State v. Moore, 774 S.W.2d 590 (Tenn. 1989). In that case, the defendant pled guilty to multiple counts of a presentment returned against her in Tennessee, charging her with various offenses, including forgery and passing forged checks. She reserved the question of whether the charges should be dismissed upon the ground that the State had violated Article III of the Compact, which provides in pertinent part as follows:
Tenn.Code Ann. § 40-31-101, art. III(a). A warrant for the arrest of the defendant was issued by Tennessee officials in October of 1982; however, it was never served and no action was taken until May 1985 when Tennessee officials learned that she was incarcerated in Florida. Tennessee officials then sent Florida prison officials a certified copy of the warrant and a cover letter requesting that the warrant be placed as a detainer against her. Before receipt of this request, Florida officials had received similar requests from Indiana and other states. Florida officials notified the defendant of the pending Tennessee charges, and, on August 21, 1985, the defendant executed documentation requesting a final disposition of the Tennessee charges. However, this and other detainer forms were not sent to Tennessee until May 23, 1986, after the defendant was tried and convicted of charges also pending in Indiana. Consequently, Tennessee officials did not learn of her request for final disposition of the Tennessee charges until receipt of the detainer forms from
In arriving at our decision in Moore, we discussed whether an unserved arrest warrant, as was implemented in that case, would trigger the provisions of the Compact. Acknowledging that the Compact itself contains no definition of "detainer," we observed that "detainer" has been defined by the federal courts on various occasions. Id. at 596-97. In United States v. Mauro, 436 U.S. 340, 359, 98 S.Ct. 1834, 56 L.Ed.2d 329 (1978), the United States Supreme Court observed that House and Senate reports related to the Compact "explain that [a] detainer is a notification filed with the institution in which a prisoner is serving a sentence, advising that he is wanted to face pending criminal charges in another jurisdiction." (internal quotation omitted) (alteration in original). In Carchman v. Nash, "detainer" was defined as "a request filed by a criminal justice agency with the institution in which a prisoner is incarcerated, asking the institution either to hold the prisoner for the agency or to notify the agency when release of the prisoner is imminent." 473 U.S. at 719, 105 S.Ct. 3401. And in United States v. Dixon, 592 F.2d 329, 332 n. 3 (6th Cir.1979), the Sixth Circuit presented the following definition of "detainer":
We also noted in Moore that throughout the Compact, there is reference to "untried indictments, informations or complaints and to detainers based thereon," 774 S.W.2d at 595, and we stated that "the better view and the more consistent interpretation of the Compact is that an untried `indictment, information or complaint' is a charging instrument upon which the requesting state may proceed to trial, and not merely a warrant of arrest," id. at 597. However, in consideration of "the general practice of prosecuting officials in this and other states," id., we concluded that an unserved arrest warrant will suffice as a detainer, triggering provisions of the Compact. Alluding to our analysis in Moore and our conclusion that the warrant in that case constituted a detainer, Mr. Henretta asserts that in the instant matter, "[t]he Order and Writ together with the letter were simply a notice filed with the Federal
In Mauro, the Supreme Court held that a writ of habeas corpus ad prosequendum is not a detainer for purposes of the Compact, 436 U.S. at 361, 98 S.Ct. 1834, and Tennessee courts agree. See State v. Brown, 53 S.W.3d 264, 285 (Tenn.Crim. App.2000); Metheny v. State, 589 S.W.2d 943, 945 (Tenn.Crim.App. 1979). The Mauro Court distinguished a writ of habeas corpus ad prosequendum from a detainer as follows:
436 U.S. at 358, 98 S.Ct. 1834 (footnote omitted). The Court explained that the Compact was implemented to expedite disposal of detainers and thereby address problems arising from the fact that unresolved detainers create psychological difficulties for the prisoner and administrative obstacles for prison administrators, as well as sentencing dilemmas for the courts. It explained:
Id. at 359-60. 98 S.Ct. 1834. (citations omitted). The Court noted that because a writ of habeas corpus is executed immediately, the problems associated with a detainer — which, but for the requirements of the Compact, might linger unresolved for long periods of time — do not arise. In Moore, Tennessee officials specifically requested that the warrant mailed to prison officials in Florida be treated as a detainer against the defendant. See 774 S.W.2d at 592. By contrast, Ms. Donaghy's letter to prison officials at Leavenworth specifically stated that temporary custody of Mr. Henretta was being sought through a writ of habeas corpus ad prosequendum for purposes of service of process and disposition in the case against him and set forth a date and time, October 6, 1997 at 9:00 a.m., that he would be taken before the Bradley
It appears that Mr. Henretta argues in the alternative that if he was transferred from Leavenworth pursuant to a writ of habeas corpus ad prosequendum, the writ was void and without effect because 1) the trial court did not have constitutional or statutory authority to issue a writ against an individual in Kansas; 2) under Tennessee Code Annotated section 29-21-102 (1980), Tennessee courts do not have jurisdiction over federal prisoners; 3) the writ and order were not granted pursuant to a notarized petition and affidavit pursuant to Tennessee Code Annotated section 29-21-107 (1980); and 4) Mr. Henretta was never served with the writ pursuant to Tennessee Code Annotated section 29-21-112 (1980).
First, Mr. Henretta contends that Tennessee courts do not have authority to issue a writ of habeas corpus ad prosequendum against an individual incarcerated in a federal prison in Kansas. We do not agree. As the Court of Criminal Appeals correctly stated, "[t]he very purpose of the common law writ of habeas corpus ad prosequendum requires that it be issued against the prisoner by a court located in a different jurisdiction." Henretta, 2009 WL 1025828, at *8. Long ago, in Ponzi v. Fessenden, 258 U.S. 254, 42 S.Ct. 309, 66 L.Ed. 607 (1922), the United States Supreme Court recognized that a state has the right to obtain temporary custody of a federal prisoner by writ of habeas corpus ad prosequendum as a matter of "reciprocal comity and mutual assistance to promote due and orderly procedure." Id. at 259, 42 S.Ct. 309; see also Carbo v. United States, 364 U.S. 611, 621, 81 S.Ct. 338, 5 L.Ed.2d 329 (1961) (noting that the writ of habeas corpus ad prosequendum is recognized as a matter of "comity ... necessary between sovereignties in the administration of criminal justice in our federal-state system ... affording... respect and courtesy to the laws of the respective jurisdictions"); Robinson v. Owens, C.A. 4:07-3118-H, 2008 WL 783782, at *8 (D.S.C. Mar. 20, 2008) ("Without relinquishing its priority, a sovereign may loan a defendant in its custody to another sovereign for criminal proceedings in the receiving jurisdiction by way of a writ of habeas corpus ad prosequendum.") (citing Causey v. Civiletti, 621 F.2d 691, 693 (5th Cir.1980)). Furthermore, federal regulations specifically authorize federal prisons to entertain the transfer of a federal prisoner to state officials as follows:
28 C.F.R. § 527.30 (1997). The Ponzi Court additionally noted that the voluntary transfer of custody by one sovereign to another provides a defendant with no ground for objection:
258 U.S. at 265-66, 42 S.Ct. 309.
Mr. Henretta also argues that the writ of habeas corpus ad prosequendum failed to comply with various sections of Chapter 21 of Title 29 of the Tennessee Code Annotated, which provides that "[a]ny person imprisoned or restrained of liberty, under any pretense whatsoever, except in cases specified in § 29-21-102, may prosecute a writ of habeas corpus, to inquire into the cause of such imprisonment and restraint." Tenn.Code Ann. § 29-21-101(a). First, Mr. Henretta contends that Tennessee courts do not have habeas corpus jurisdiction over federal prisoners under Tennessee Code Annotated section 29-21-102, which states as follows:
Next, Mr. Henretta contends that the writ was not granted pursuant to a notarized petition and affidavit, as required by Tennessee Code Annotated section 29-21-107, which provides in subsection (a) that "[a]pplication for the writ shall be made by petition, signed either by the party for whose benefit it is intended, or some person on the petitioner's behalf, and verified by affidavit." Finally, Mr. Henretta contends that he was never served with a copy of the writ as required by Tennessee Code Annotated section 29-21-112, which at subsection (a) states that "[t]he proper mode of service is by leaving a copy of the original writ with the defendant." We believe Mr. Henretta misapprehends the nature of the writ of habeas corpus employed in this case and, therefore, the relevance of the cited statutes.
In Ex parte Bollman, 8 U.S. (4 Cranch) 75, 95, 2 L.Ed. 554 (1807), Chief
Next, Mr. Henretta argues that the search at Leavenworth on February 11, 1994 — at which time he gave blood, hair, and saliva samples and after which he confessed to robbing, raping, and murdering Ms. Crabtree — was defective because he was not given a copy of the search warrant at the time of the search and because the warrant that was eventually served upon him was incomplete.
As noted, in early 1994, Lieutenant Chastain learned from police in Philadelphia, Pennsylvania, that Michael Goodhart had written a letter to a federal judge indicating that Mr. Goodhart may have been involved in the murder of Ms. Crabtree. Information subsequently obtained from Mr. Goodhart by Lieutenant Chastain confirmed Mr. Goodhart's involvement and led Lieutenant Chastain to conclude that Mr. Henretta may also have been involved. Thereafter, Lieutenant Chastain and Agent Wilkins traveled to Texas to speak further with Mr. Goodhart and then continued on to Kansas, where on February 10, 1994, a Leavenworth County judge issued a search warrant to obtain samples of Mr. Henretta's blood, saliva, and hair. In their affidavit filed in support of the warrant application, Agent Wilkins and Lieutenant Chastain attested as follows:
On February 11, 1994, Agent Wilkins and Lieutenant Chastain met with Mr. Henretta at Leavenworth. Agent Wilkins was in possession of a copy of the search warrant, advised Mr. Henretta that they were there to investigate a murder that had occurred in Tennessee in 1988, and explained that the purpose of the search warrant was to collect blood, hair, and saliva samples from him. The samples were taken, and shortly thereafter, Mr. Henretta made his confession. He was not given a copy of the search warrant at the time of its execution, and the return shows that, instead, a copy of the warrant was left with "Bill Thomas, SIS." Mr. Henretta testified that SIS officers are "like a police within an institution. They police the police and the convicts, like the internal affairs in a police department."
The standard governing our review of a suppression issue is well established. We are bound by factual findings made by the trial court at the conclusion of the suppression hearing unless the evidence preponderates to the contrary. State v. Odom, 928 S.W.2d 18, 23 (Tenn. 1996). Questions of witness credibility and the weight and value of the proof as well as the resolution of conflicts in proof are all matters entrusted to the trial judge as the trier of fact, and "[t]he 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." Id. We review the trial court's application of the law to the facts de novo without a presumption of correctness. State v. Walton, 41 S.W.3d 75, 81 (Tenn.2001) (citing State v. Crutcher, 989 S.W.2d 295, 299 (Tenn.1999); State v. Yeargan, 958 S.W.2d 626, 629 (Tenn.1997)).
In support of his argument that he was required to be given a copy of the warrant at the time of its execution, Mr. Henretta cites Rule 41(c) of the Tennessee Rules of Criminal Procedure, which at the time of the search, provided that "the 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." Tenn. R.Crim. P. 41(c) (1994). The trial court ruled that service was satisfactory under the "where possible" provision of the rule, finding that the "the officers did as instructed by prison officials and left a copy for the defendant because they believed that they could not personally hand it to [Mr. Henretta]." There is no proof in the record showing that prison rules precluded the executing officers from personally handing Mr. Henretta a copy of the warrant, and the State presented no testimony otherwise as to why the warrant was not personally served upon the defendant when executed. Mr. Henretta attested that there was no rule prohibiting officers from handing him a copy of the warrant. Based upon State v. Roach, No. C.C.A. 4, 1989 WL 22815 (Tenn.Crim.App. Mar. 15, 1989), we conclude that even if there was no prison rule forbidding such personal service at the time of the search, the method of service utilized was adequate to satisfy the requirements of Rule 41(c). In Roach, the defendant was arrested and taken to jail while police officers were searching his premises pursuant to a search warrant. The defendant was not served with a copy of the warrant at the time of the search. However, upon completion of the search, an officer took a copy of the warrant to the jail where the defendant was incarcerated and placed the copy in the defendant's property bag. Later, the warrant was transmitted to the defendant's attorney by the jailor in charge of the property bag. The intermediate court
Mr. Henretta also contends that the copy of the search warrant served upon him was defective because it did not include as an attachment the letter from Mr. Goodhart that was referred to in the affidavit supporting the application for issuance of the warrant. Mr. Henretta presents no authority supporting this argument. Based upon our decision in State v. Henning, 975 S.W.2d 290 (Tenn.1998), we find the argument to be without merit. In Henning, the defendant argued for the suppression of evidence seized during the search of his home upon the ground that the affidavit underlying the search warrant was neither attached to nor filed with the warrant. We ruled that the failure to attach the affidavit to the search warrant was "inconsequential" and noted that "there is no statute or rule in Tennessee which requires an affidavit upon which a search warrant is issued to be attached or otherwise kept with the warrant." Id. at 296 (citing State v. Smith, 836 S.W.2d 137, 141 (Tenn.Crim.App.1992)). As the Court of Criminal Appeals correctly reasoned in the instant matter, "[g]iven that the failure to attach or file an underlying affidavit does not affect the validity of the warrant, we cannot say that the failure to attach a letter included in support of the affidavit would render the warrant in this case invalid." Henretta, 2009 WL 1025828, at *14.
Next, Mr. Henretta argues that the proof presented was insufficient to warrant his separate conviction for kidnapping, asserting that any movement or confinement of Ms. Crabtree was merely incidental to the accompanying felonies of robbery and murder.
In support of this argument, Mr. Henretta cites State v. Anthony, 817 S.W.2d 299 (Tenn.1991), wherein we heard consolidated appeals of two cases. The defendant in each case was convicted of both armed robbery and aggravated kidnapping. In one of the cases, the defendant and his accomplice robbed a restaurant at gunpoint, and, during the approximately five minutes that they were at the restaurant, the defendant forced one restaurant employee to remain in an office while his accomplice held three other employees outside at the back of the restaurant. The defendant in the other case robbed an insurance agency at gunpoint. In the second case, the robbery took approximately four minutes during which time the defendant forced the owner and an employee into a bathroom. At the time these offenses were committed, the applicable version of the aggravated kidnapping statute was the same as in the present matter, requiring conviction of "[a]ny person who unlawfully seizes, confines, inveigles, entices, decoys, abducts, conceals, kidnaps or carries away another with the felonious intent to: (1) [c]ause the other to be confined secretly against his will; (2) [d]etain the other against his will; or (3) [s]end the other out of the state against his will." Tenn.Code Ann. § 39-2-301(a) (1982).
Both parts of the Dixon test are met under the circumstances of the instant case. Ms. Crabtree was raped and robbed in the middle portion of the store and was then moved to the storeroom located in the rear portion of the store. In his confession, Mr. Henretta states that "we both grabbed her at the store room entrance. We told her to lay down and Goodhart had sex with her first and I went and got her purse. ... After I got her purse I went back and had sex with her." Investigating officers found one of Ms. Crabtree's shoes on the floor in this middle portion of the store, where she was raped and robbed. Her other shoe and her body were found at the rear portion of the store. It is clear from Mr. Henretta's confession that the rape and robbery had already occurred when Ms. Crabtree was moved to the rear of the store and, therefore, moving her to that location obviously was not necessary to accomplish those offenses. Second, movement of Ms. Crabtree to the room at the rear of the store placed her farther
Mr. Henretta also asserts that Ms. Crabtree's body was moved to the rear of the store after she was killed, apparently contending that a conviction of kidnapping does not lie for transporting a dead body. Mr. Henretta references no evidence to support his assertion that Ms. Crabtree was already dead when she was taken to the rear of the store and the evidence presented indicates otherwise. Ms. Crabtree died from loss of blood as a result of the cuts to her neck. No evidence of blood was found in the middle portion of the store at the storeroom entrance where Ms. Crabtree was initially accosted, raped and robbed. However, a large pool of blood was found near Ms. Crabtree's body in the rear portion of the store, showing that that is where Mr. Henretta cut her throat and where she bled to death.
Next, Mr. Henretta argues that the death penalty constitutes "cruel and unusual punishment" and, as such, it is specifically prohibited under the Eighth Amendment to the United States Constitution and under article I, section 16 of the Tennessee Constitution.
The United States Supreme Court has pronounced that capital punishment is constitutional and does not violate the Eighth Amendment. Baze v. Rees, 553 U.S. 35, 47, 128 S.Ct. 1520, 170 L.Ed.2d 420 (2008); Gregg v. Georgia, 428 U.S. 153, 177, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976). Likewise, the Supreme Court of this state has concluded that capital punishment does not violate article I, section 16 of the Tennessee Constitution. Re-examining the issue in State v. Black, 815 S.W.2d 166, 188 (Tenn.1991), we noted that article I, section 15 of the Tennessee Constitution states in pertinent part "[t]hat all prisoners shall be bailable by sufficient sureties, unless for capital offenses, when the proof is evident, or the presumption great." We observed that the emphasized language has been included in each of this state's three constitutions, evidencing the framers' acceptance of capital punishment. Id. at 188. We further stated as follows:
Id. (footnote omitted); see also State v. Bane, 853 S.W.2d 483, 489-90 (Tenn.1993). Based upon this federal and state authority, we find Mr. Henretta's constitutional challenge to the death penalty to be without merit.
In all cases where the defendant has been sentenced to death, the statutory law of this state requires us to determine whether:
Tenn.Code Ann. § 39-13-206(c)(1) (2006).
Mr. Henretta asserts that none of these statutory criteria were properly satisfied; however, he fails to articulate a specific argument supporting this assertion. Rather, he relies solely on what he alleges to be a "report in the Tennessean," which he attributes to "John Seigenthaler." However, a newspaper article is not admissible evidence under the hearsay rule. See State v. Martin, No. 02C01-9512-CC-00389, 1997 WL 471158, at *6 (Tenn.Crim.App. Aug. 18, 1997) ("[T]he content of newspaper articles is hearsay that does not fall within an exception to the hearsay rule."). While Rule 201 of the Tennessee Rules of Evidence
Next, we must consider whether the evidence supports the jury's finding beyond a reasonable doubt of aggravating circumstances and that these aggravating circumstances outweigh any mitigating circumstances. Pursuant to Tennessee Code Annotated section 39-2-203(g) (1982), the jury was prohibited from imposing the death penalty except upon a unanimous finding that the State had proven at least one of several statutory aggravating circumstances.
First, the State established beyond a reasonable doubt the aggravating circumstance that "[t]he defendant was previously convicted of one or more felonies, other than the present charge, which involve the use or threat of violence to the person," under section 39-2-203(i)(2). This factor was established upon presentation of undisputed proof that Mr. Henretta was previously convicted of rape in 1974, of kidnapping in 1989, and of rape and second degree murder in 1991.
Next, the State established beyond a reasonable doubt the aggravating factor that "the murder was especially heinous, atrocious, or cruel in that it involved torture or depravity of mind," under section 39-2-203(i)(5). As we have recognized on prior occasions, this factor is "directed at `the conscienceless or pitiless crime which is unnecessarily torturous to the victim.'" State v. Dicks, 615 S.W.2d 126, 132 (Tenn.1981) (citing Proffitt v. Florida, 428 U.S. 242, 255, 96 S.Ct. 2960, 49 L.Ed.2d 913 (1976)). This factor was established upon presentation of undisputed proof that, despite the fact that Ms. Crabtree was helpless, offered no resistance, and, after being raped twice, attempted to aid Mr. Henretta and Mr. Goodhart by warning them of their close proximity of the police station, she was stabbed three times and killed. Dr. Fenton Scruggs, the pathologist who examined Ms. Crabtree's body after the murder, testified that one of the wounds inflicted was so severe that it severed her jugular vein and carotid artery and exposed her spinal cord. Dr. Scruggs stated that, of the approximately twenty-five stab wounds to the neck that he had examined during the course of his career, he had "never seen one go back and actually cut the ligaments of the vertebral column and expose the spinal cord." He described it as "a wound of great force." In addition to the savagery with which Mr. Henretta stabbed Ms. Crabtree despite her failure to offer any resistence, Ms. Crabtree was ambushed while alone in the darkened store, and after being raped by two different men, was manhandled from one part of the store to another where she was murdered. It can be reasonably inferred from all of these factual circumstances that the murder in this case was especially heinous, atrocious, or cruel in that it involved torture or depravity of mind.
The State established beyond a reasonable doubt the aggravating circumstance that "[t]he murder was committed for the purpose of avoiding, interfering with, or preventing a lawful arrest or prosecution of the defendant or another," under section 39-2-203(i)(6). This aggravating factor was established upon presentation of undisputed proof, as stated by Mr. Henretta in his confession, that Mr. Henretta murdered Ms. Crabtree while he and Mr. Goodhart were on the run from Pennsylvania law enforcement officers and that she was murdered upon agreement of Mr. Goodhart after she informed the two that there was a police station "right out the back door" of the building in which she was accosted. This evidence gives rise to the inference that Ms. Crabtree was killed to ensure that Mr. Henretta and Mr. Goodhart would evade detection by law enforcement officers.
Finally, the State established beyond a reasonable doubt the aggravating circumstance that "[t]he murder was committed while the defendant was engaged in committing, or was an accomplice in the commission of, or was attempting to commit,
In mitigation of the four aggravating circumstances, Mr. Henretta presented evidence that he was abused and neglected during his childhood, that he has brain damage that impairs his ability to control aggressive urges, and that he has a below normal IQ of around 78 or 79. The evidence supports the jury's finding that the aggravating circumstances outweighed these mitigating circumstances beyond a reasonable doubt.
It is also our duty to determine whether the death sentence in this case is disproportionate to the penalty imposed in similar cases. Tenn.Code Ann. § 39-13-206(c)(1)(D). We have recognized the following as guiding principles pertinent to conducting a comparative proportionality review:
State v. Faulkner, 154 S.W.3d 48, 62 (Tenn.2005) (quoting State v. Hall, 976 S.W.2d 121, 135 (Tenn.1998)) (internal citations omitted).
In comparing the case under review with previous cases, we find it appropriate to consider the following circumstances of the offense:
State v. Reid, 213 S.W.3d 792, 820 (Tenn. 2006) (quoting State v. Davis, 141 S.W.3d 600, 620 (Tenn.2004)). As to the defendant, we ordinarily consider his or her "(1) prior criminal record, if any; (2) age, race, and gender; (3) mental, emotional, and physical condition; (4) role in the murder; (5) cooperation with authorities; (6) level of remorse; (7) knowledge of the victim's helplessness; and (8) potential for rehabilitation." Id. (quoting Davis, 141 S.W.3d at 620).
In this case, Mr. Henretta and his accomplice hid in the thrift store where Ms. Crabtree was working alone as a clerk and, after raping and robbing her, Mr. Henretta cut her throat and killed her without provocation or justification. Ms.
In State v. Dicks, 615 S.W.2d 126, 132 (Tenn.1981), the sentence of death was affirmed by this Court where the defendant murdered the owner of a second-hand clothing store by slitting the victim's throat in the course of a robbery at the store. The proof established that the victim offered no resistance at the time he was killed, having been rendered unconscious by the defendant and his accomplice, and the proof further established aggravating circumstances in that the murder was especially heinous, atrocious, or cruel in that it involved torture or depravity of mind, Tenn.Code Ann. § 39-13-204(i)(5), and that the murder was committed during the commission of a robbery, id. § 39-13-204(i)(7).
In State v. Campbell, 664 S.W.2d 281, 283-84 (Tenn.1984), we affirmed imposition of the death sentence where the defendant murdered a seventy-two year old man during a robbery and the evidence established aggravating circumstances in that the defendant had been previously convicted of one or more felonies other than the present charge involving the use or threat of violence to the person, Tenn.Code Ann. § 39-2-203(i)(2), that the murder was especially heinous, atrocious, or cruel in that it involved torture or depravity of mind, id. § 39-2-203(i)(5), and that the murder was committed during the commission of a robbery, id. § 39-2-203(i)(7).
In State v. King, 694 S.W.2d 941, 947 (Tenn.1985), we affirmed a sentence of death where the defendant murdered the victim during the robbery of a tavern and the evidence established aggravating circumstances in that the defendant had been previously convicted of one or more felonies other than the present charge involving the use or threat of violence to the person, Tenn.Code Ann. § 39-2-203(i)(2), and that the murder was committed during the commission of a robbery, id. § 39-2-203(i)(7).
In State v. Duncan, 698 S.W.2d 63, 65 (Tenn.1985), we affirmed the jury's sentence of death where the defendant raped and murdered the night-shift cashier of a convenience store. The victim's "death resulted from three cuts to her neck of such force that they cut through her neck muscles, jugular vein, trachea, larynx and esophagus, and nicked the carotid artery." Id. at 66. The jury found aggravating factors in that the murder was especially heinous, atrocious, or cruel in that it involved torture or depravity of mind, Tenn. Code Ann. § 39-2-203(i)(5), and the murder was committed during the commission of a rape and robbery, id. § 39-2-203(i)(7).
In Bush, 942 S.W.2d at 493, we affirmed the sentence of death where the defendant murdered the victim by stabbing her numerous times, and the evidence established that the murder was committed for the purpose of preventing arrest, Tenn.Code Ann. § 39-2-203(i)(6), and was especially heinous, atrocious, or cruel in that it involved torture or depravity of mind, Tenn. Code Ann. § 39-2-203(i)(5).
Finally, in State v. Reid, 164 S.W.3d 286 (Tenn.2005), we affirmed the jury's imposition of the death sentence where the defendant robbed an ice cream shop, kidnaped two employees of the shop, and thereafter murdered them by stab wounds to their necks which cut vital arteries and injured their spines. Id. at 301. The proof established aggravating circumstances in that the defendant had been previously convicted of one or more felonies other than the present charge, whose statutory elements involve the use of violence to the person, Tenn.Code Ann. § 39-13-204(i)(2), the murder was especially heinous, atrocious, or cruel in that it involved torture or serious physical abuse beyond that necessary to produce death, id. § 39-13-204(i)(5), and the murder was committed for the purpose of preventing arrest, id. § 39-13-204(i)(6).
In summary, considering the nature of the crime and the characteristics of the defendant, our review confirms that the sentence of death imposed by the jury in this case is neither excessive nor disproportionate to the penalty imposed in similar cases, and we do not find that the mitigating circumstances presented by Mr. Henretta are sufficient to create a significant distinction between his case and those cases summarized above.
In summary, upon our consideration of the entire record in this case, we conclude that the issues raised in this appeal do not warrant relief and, accordingly, Mr. Henretta's convictions and sentences are affirmed. The sentence of death shall be carried out as provided by law on the 4th day of October, 2011, unless otherwise ordered by this Court or other proper authority. It appearing that defendant John Patrick Henretta is indigent, the costs of this appeal are taxed to the State of Tennessee.
(Emphasis added.) This instruction was erroneous because it was based upon the law in effect at the time of trial rather than the law in effect at the time of the murder. See State v. Brimmer, 876 S.W.2d 75, 82 (Tenn.1994). At the time of the murder, Tennessee Code Annotated section 39-2-203(g) (1982) provided as follows:
(Emphasis added.) Adhering to the trial court's instruction, the jury found that aggravating circumstances in this case outweighed any mitigating circumstances. While neither the trial court's instruction nor the jury's finding were in accord with the applicable law, the error was harmless because the finding that aggravating circumstances outweighed mitigating circumstances necessarily entailed a finding that no mitigating circumstances outweighed aggravating circumstances.