GARY R. WADE, J., delivered the opinion of the Court, in which CORNELIA A. CLARK, C.J., JANICE M. HOLDER, WILLIAM C. KOCH, JR., and SHARON G. LEE, JJ., joined.
The defendant was convicted of first-degree murder in the perpetration of rape. In the penalty phase of the trial, the jury imposed a sentence of death, finding three aggravating circumstances beyond a reasonable doubt: (1) the defendant was previously convicted of one or more violent felonies; (2) the murder was especially heinous, atrocious, or cruel; and (3) the murder was committed during the defendant's escape from lawful custody or from a place of lawful confinement. The Court of Criminal Appeals affirmed the conviction, but reversed the death sentence, holding that the trial court's limitation on the mitigating evidence during the penalty phase required a new sentencing hearing. This Court affirmed. A second jury sentenced the defendant to death, concluding that the single aggravating circumstance, that the defendant had previously been convicted of one or more violent felonies, outweighed the mitigating circumstances beyond a reasonable doubt. The Court of Criminal Appeals affirmed. This Court reversed, holding that because the trial court had erroneously admitted detailed evidence of the defendant's prior violent felony offense, a third sentencing hearing was required. The jury again imposed a sentence of death, concluding that two statutory aggravating factors, that the defendant had been previously convicted of a felony involving the use of violence to the person and that the murder was committed while the defendant was engaged in the commission of a robbery, had been established beyond a reasonable doubt, and further determining that the aggravating circumstances outweighed the evidence of the mitigating circumstances beyond a reasonable doubt. This sentence was affirmed by the Court of Criminal Appeals. Upon careful review of the entire record, we hold as follows: (1) the defendant's constitutional right to a fair and impartial jury was not violated by the disqualification of a prospective juror; (2) the prosecutor's closing argument did not result in the use of non-statutory aggravating factors in the jury's weighing process warranting reversal of the death sentence; (3) the admission of photographs of the body did not constitute error; (4) the trial court's instructions on parole did not violate
On May 10, 1991, Richard Odom (the "Defendant") raped and stabbed to death Mina Ethel Johnson (the "victim") in a Memphis parking garage. A year later, he was convicted of first-degree murder committed in the perpetration of rape. See State v. Odom, 928 S.W.2d 18, 20 (Tenn. 1996) ("Odom I"). The jury found three aggravating circumstances beyond a reasonable doubt: (1) the Defendant was "previously convicted of one or more violent felonies; (2) the murder was especially heinous, atrocious, or cruel; and (3) the murder was committed during the [D]efendant's escape from lawful custody or from a place of lawful confinement." Id. at 20-21 (citing Tenn.Code Ann. § 39-13-204(i)(2), (5), (8) (Supp.1995)). After determining that the aggravating circumstances outweighed the mitigating circumstances beyond a reasonable doubt, the jury sentenced the Defendant to death by electrocution. Id. at 21. Our Court of Criminal Appeals affirmed the conviction but reversed the death sentence and ordered a second sentencing hearing. See State v. Odom, No. 02C01-9305-CR-00080, 1994 WL 568433, at *1, 1994 Tenn.Crim. App. LEXIS 689, at *2 (Tenn.Crim.App. Oct. 19, 1994).
This Court affirmed the Court of Criminal Appeals' determination that the trial court had erred during the penalty phase by excluding mitigating evidence in the form of a doctor's testimony and by improperly instructing the jury as to non-statutory mitigating circumstances. However, this Court further held that the evidence was insufficient to support the jury's determination that the murder was especially heinous, atrocious or cruel and that there was "no justification" to support its finding that the murder was committed by the Defendant while he was in lawful custody or in a place of lawful confinement or during the Defendant's escape from lawful custody or confinement. Odom I, 928 S.W.2d at 21, 27.
On remand, the second jury also sentenced the Defendant to death, concluding that a single applicable aggravating circumstance, that the Defendant had previously been convicted of one or more violent felonies, outweighed the mitigating circumstances beyond a reasonable doubt. State v. Odom, 137 S.W.3d 572, 575 (Tenn.2004) ("Odom II"). The Court of Criminal Appeals affirmed the sentence of death. State v. Odom, No. W2000-02301-CCA-R3-DD, 2002 WL 31322532, at *43, 2002 Tenn.Crim.App. LEXIS 871, at *131 (Tenn.Crim.App. Oct. 15, 2002). On appeal, this Court ordered a third sentencing hearing, holding that the trial court had erroneously admitted "detailed and graphic evidence" of the Defendant's prior violent felony offense.
At the third sentencing hearing, the State offered proof that at approximately 1:15 p.m. on the date of her murder, the victim, a seventy-eight-year-old woman, left the residence of her sister, Mary Louise Long,
Donna Michelle Locastro, who was employed by the Memphis Police Department at the time of the murder, had taken Ms. Long's missing person's call prior to the discovery of the body. She and her partner, Don Crowe, first called the local hospitals, the city wrecker dispatch, and the traffic bureau before setting out on the route the victim would have driven to her appointment. The officers arrived at the parking garage at approximately 8:00 p.m., shortly after Sullivan had discovered the body. When Officer Locastro looked inside the vehicle, she noticed what appeared to be blood on the right front passenger's seat and a wallet wedged between the emergency break and the driver's seat. She also saw that the victim was clutching what appeared to be a check in her left hand. She and other officers secured the area and contacted the homicide unit.
Detective Ronnie McWilliams, who was assigned to the case on the day after the murder, testified that a fingerprint found in the vehicle led to the identification of "Otis Smith" as a potential suspect. Three days after the murder, "Smith" was arrested. He had in his possession an "Old Timer's Light Blade Knife," which had a fold-out blade of over four inches. During the arrest, Detective McWilliams informed "Smith" of his rights. When he signed a waiver, however, Detective McWilliams observed that "Smith" had started to sign another name. Later, when his true identity was established, "Smith" signed a second waiver under the name Richard Odom.
In a written statement to the police, the Defendant, thirty years old at the time and unemployed, admitted killing the victim and provided details of the crime. He stated that just before the murder, he was in the stairwell trying to relax. When another individual entered the stairway, he entered the garage area at the same time the victim arrived. Claiming that he intended
Dr. Jerry Thomas Francisco, the Shelby County Medical Examiner at the time of the murder, conducted the autopsy. He found a stab wound at the front of the victim's chest and two on the right side of her body towards the back. He also observed cuts on the victim's right hand, which he described as defensive wounds. The knife wound to the front of her chest passed into the right side of the heart, causing two tears which, in turn, caused blood to accumulate in the heart cavity and the left side of her chest. A wound near the side penetrated her chest cavity and produced a tear in the lung, which caused bleeding in the lung cavity. The other wound to the side passed through her abdominal cavity into the liver, which produced bleeding in the peritoneal cavity. Dr. Francisco, who determined that the victim was 5 feet 6 inches in height and weighed 113 pounds, characterized each of the three wounds as lethal. In his opinion, the victim died between one and two hours after the wounds were inflicted. During his examination of the body, Dr. Francisco also discovered a tear of the vagina, a wound he described as caused by forcible penetration. Fluid samples from the victim's vaginal area "[r]evealed the presence of sperm and enzymes that are present in seminal fluid." It was Dr. Francisco's opinion that the vaginal injuries were likely the product of forcible rape.
The proof also established that the Defendant had been convicted of murder in Rankin County, Mississippi in 1998, seven years after the victim's murder. The 1998 conviction was for a murder that had occurred some twenty years earlier. The Defendant was sentenced to a term of life. At the request of defense counsel, the judgment of conviction was admitted as an exhibit so that the jury would understand that there was "a detainer in Mississippi waiting on [the Defendant] no matter what happens in this case."
The defense counsel, in an effort to persuade the jury to spare the Defendant's
The Defendant, when an adolescent, ran away from the Bruce home and subsequently was ordered into the Mississippi juvenile court system. A psychological evaluation performed for the authorities there when the Defendant was fourteen years old indicated that he suffered from impaired insight, memory, and reasoning. He was diagnosed as having a moderate to severe personality disturbance. The evaluator determined that the Defendant only read at "a beginning second grade level" and "strongly urge[d that he not be] place[d] . . . in any academic situation." It was recommended that he enter a "complete evaluation program" in order to avoid psychosis or mental deterioration to the point of institutionalization.
Thereafter, the Defendant was placed in a Caritas program, but was found unfit to participate after thirty days. After his release in 1975, the Defendant was returned to the juvenile authorities. He escaped to be with his birth father, who lived one hundred and thirty miles away. Afterward, he voluntarily returned and was
Ms. Shettles then addressed the Defendant's record at Riverbend Maximum Security Prison, where he had been incarcerated since 1992. During the period since the victim's murder, he had obtained his GED and a paralegal certification. He worked as a teacher's aide, participated in life skills and Bible study classes, and also engaged in various arts and crafts. He was described by a correctional officer as a hard worker, having a positive attitude, being helpful, and treating other inmates and staff with courtesy. The Defendant's only infraction was in 1996, when he threw a mop bucket towards a guard, who, while standing behind a glass barrier, had allegedly taunted him. Ms. Shettles remarked that one write-up during this period of time was an "extremely low number." She also commented that the Defendant's prison record was "very positive," rating "in the top three."
In her capacity as an expert on parole procedures, Ms. Shettles described the Defendant's chances for release on a life sentence as "close to impossible." She made specific reference to the Defendant's other murder conviction in Mississippi, his escape from jail just prior to the murder of the victim, and prior theft and robbery convictions.
After reviewing the exhibits pertaining to mitigation, the jury submitted a series of written questions, including whether "mandatory parole" and "parole" could be "define[d] in layman's terms." Afterward, defense counsel recalled Ms. Shettles, who testified that if the Defendant was given a life sentence in this case, he would not be eligible for mandatory parole. She also explained that if sentenced to life imprisonment
Tim Terry, an inmate records manager at Riverbend, confirmed that if the Defendant ever received parole in Tennessee, he would be returned to Mississippi to serve his life sentence there. He provided assurances that, in the event the Defendant received a life sentence for the victim's murder, he would not be moved from Riverbend to a local county jail.
Dr. Joseph Angelillo, a clinical psychologist who qualified as an expert in forensic psychology, evaluated the Defendant and reviewed his social history. While admitting that he was unable to make a specific diagnosis, Dr. Angelillo found indications of "schizoid personality features," marked by a tendency to do things alone, sub-par social skills, lack of joy, withdrawal from others, and a fear of relationships "unless [there is] absolute assurance that they're going to be accepted." In his opinion, the lack of sufficient mental health treatment afforded the Defendant as a child, the rejection he had experienced, and the physical and sexual abuse he had undergone all had a profound effect on his development. Dr. Angelillo testified that the Defendant's time in the structured environment of Riverbend had "behaviorally defined . . . his ability . . . to engage in constructive activities." He believed that the Defendant would continue to thrive in this structured environment if given a life sentence.
Dorothy Rowell, the Defendant's adoptive aunt, also testified on his behalf, describing him as a "part of our family." She stated that her mother had adopted one of the Defendant's sisters, and that the other had been adopted by Ms. Rowell's sister. Ms. Rowell, who had spent a substantial amount of time with the children prior to the Odoms' divorce, described the Defendant as "[v]ery sweet," "[v]ery loving," "[a]lways smiling," "[h]appy, and a [v]ery precious little boy." She stated, however, that after the divorce of his adoptive parents "[h]e wasn't the happy smiling little boy that I remembered." She testified that the Defendant, when a teenager, "was very, very good" with her invalid brother, Charles, and "[t]reated him like a baby."
Cindy Martin, the Defendant's adoptive sister, described the Defendant as "[t]he sweetest person you would ever want to meet" prior to the time Marvin Bruce, his stepfather, became a part of his life. She described Bruce as "horrible" and a "terrible person" who mistreated the Defendant. She stated that after Bruce's arrival, the children stayed with their grandmother more often, and while Ms. Martin enjoyed being there because her grandmother generally "spoil[ed] kids," their grandmother "never really accepted [the Defendant] as her grandchild" and "would hit him with anything she could find."
Jimmy Odom, Jr., the Defendant's older adoptive brother, testified that prior to the Odoms' divorce, the Defendant was treated well, and that they were "kind of like a family then." He also claimed that things changed after his mother remarried, and that the Defendant "wasn't treated like a child" and "never was loved." He described their grandmother as "a mean woman" who often struck the Defendant "with belts and stuff like that," and who never accepted the Defendant into the
Like the Defendant, Jimmy, Jr. was housed at Columbia Training School for a time. He stated that on each day of their detention, the residents spent forty-five minutes reading and forty-five minutes on mathematics, but that the rest of the day was spent "in the fields." He testified to the excessive forms of discipline at the school, asserting that "[t]hey would whup you with a board" and that "if you couldn't take the licks they would get other people to hold you down." He also stated that when residents ran away, they would receive a beating from the staff. Jimmy, Jr., who was an inmate at Parchman Prison at the same time as the Defendant and their brother Larry, described it as "a real bad prison," where juvenile inmates are not housed separately. He stated that both Larry and the Defendant were sexually abused by the older inmates there and that his efforts to take up for his younger brothers often resulted in fights at the prison.
Several others who had become acquainted with the Defendant during his time in prison also testified on his behalf. Celeste Wray, who had been involved in prison ministries for eighteen years, corresponded with the Defendant on a regular basis and developed a friendship with the Defendant. She stated that her letters from the Defendant had "been pleasurable and enjoyable" and that they were "always very respectfu[l], which I appreciated." Ricky Harville, who was an instructor at Riverbend, testified that the Defendant worked as his aide when he began teaching at the prison in 2003. He recalled that the Defendant assisted the other inmates with reading and writing and that his interaction with them was "very positive." He stated that the Defendant was "very helpful," that he approached his job in a very positive manner, and that he served as a role model for other inmates who sought educational opportunities. In his opinion, the Defendant would continue to impact other inmates in a positive way if he received a life sentence. Gordon Janaway, a former teacher in various correctional institutes, taught the Defendant in a GED class at Riverbend. He testified that after the Defendant obtained his certificate, he became a clerk in the classroom. Janaway stated that the other inmates "really respected him because he had earned a GED. . . which is not easy to do in corrections." Jim Boyd, who taught a life skills course at Riverbend, met the Defendant while conducting a class. Boyd testified that the Defendant was "an active participant" in the class and observed that the Defendant had changed "for the better" during his time in prison. Finally, Helen Cox, who was also involved in the life skills course, testified that she kept a photo of the Defendant on her desk that was taken the day he received his GED. She described the Defendant as a part of her extended family.
At the conclusion of its deliberations, the jury imposed a sentence of death for the count of first degree murder, concluding that two statutory aggravating factors, that the Defendant had been previously convicted of a felony involving the use of violence to the person and that the murder was committed while the Defendant was engaged in the commission of a robbery,
On appeal, the Court of Criminal Appeals held that the death sentence was not imposed in an arbitrary manner and that the evidence supported the jury's findings as to the aggravating and mitigating circumstances. See State v. Odom, No. W2008-02464-CCA-R3-DD, 2010 Tenn. Crim.App. LEXIS 223, at *107 (Tenn. Crim.App. Mar. 4, 2010). That court also determined that the sentence was not excessive and was proportional in comparison to similar cases in which a death sentence has been imposed. Id. Because the death sentence was affirmed, the appeal was automatically docketed in this Court. See Tenn.Code Ann. § 39-13-206(a)(1) (2010).
The following issues have been presented for our review: (1) whether the Defendant's state and federal constitutional rights to a fair and impartial jury were violated by the disqualification of a prospective juror; (2) whether the prosecutor's argument for the jury to weigh non-statutory aggravating factors warrants reversal of the death sentence; (3) whether the admission of photographs of the body constituted error; (4) whether the trial court instructions on parole and prosecutorial misconduct violated the Defendant's right to due process of law and heightened reliability; (5) whether the mandatory criteria of Tennessee Code Annotated section 39-13-206(c)(1) were satisfied; and (6) whether a judge on the Court of Criminal Appeals, who had reduced the amount of compensation sought by appellate defense counsel, should have been disqualified from participating in the case.
The Defendant argues that his right to an impartial jury under the Sixth, Eighth and Fourteenth Amendments to the federal Constitution and article I, sections 8, 9, and 16 of the Tennessee Constitution was violated when the trial court excluded a prospective juror based on her beliefs about the death penalty. While acknowledging inconsistencies in the juror's statements as to whether she could vote to impose the death penalty, the Defendant maintains that because the trial judge never asked the juror directly if she would refuse to sign the verdict form, her exclusion constituted reversible error. In response, the State argues that the juror "equivocated only when pressed about whether she would follow the law if she took an oath to do so," but "repeatedly told the trial court that she was not sure she would be able to sign a verdict of death," which warranted her dismissal.
During voir dire, the prosecution asked a prospective juror about her answers to the juror questionnaire. Pertinent portions of the colloquy are as follows:
The trial judge then asked the juror whether, if given an oath and sufficient proof as mandated by the controlling law, she could vote for a death sentence. When the trial judge observed, "[y]ou're shaking your head no, but I'm not sure," the juror responded, "[i]f they brought enough evidence, I wouldn't have no choice." The following exchange then took place:
When the trial court commented for the record that the juror was shaking her head, she responded, "I just don't feel right signing somebody's death." At that point, the trial court excused the juror for cause, explaining as follows:
The Defendant, who timely objected to the ruling, contends that the trial judge's failure to explicitly ask the juror if she would "refuse to sign the verdict form" means that "there is no evidentiary support for the trial court's ruling." We disagree. Initially, the trial court asked the juror if she could "sign a verdict of death in a proper case," to which she responded "I just don't feel right signing somebody's death." In order to justify exclusion for cause, trial courts need only determine that a prospective juror's views on the death penalty "would prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath." Witt, 469 U.S. at 424, 105 S.Ct. 844 (internal quotation marks omitted).
While the juror at issue was equivocal in some of her responses in the voir dire, she also expressed an unwillingness "to judge somebody for what they've done" when she "wasn't there when it happened."
The Defendant contends that during closing arguments, the prosecution improperly argued non-statutory aggravating factors by making reference to the fear the victim experienced during the assault, the photographs of her body, and the Defendant's prior criminal convictions. The Defendant asserts that because Tennessee is a "weighing" state, these non-statutory aggravating factors "skew[ed] the . . . process" in violation of article I, sections 8, 11, and 16 of the Tennessee Constitution, the Ex Post Facto Clause and the Eighth and Fourteenth Amendments of the United States Constitution, and Tennessee Code Annotated section 39-13-204. In response, the State submits that the prosecutor's argument "directly related to both the permissible evidence contemplated by Tenn.Code Ann. § 39-13-204 and to the aggravating circumstances and mitigating evidence in the case." In the alternative, the State argues that "the adverse effect, if any, of the prosecutor's closing argument was `erased' by the trial court's proper instructions to the jury as to weighing the aggravating and mitigating circumstances."
It is well-established that the State may not rely upon non-statutory aggravating circumstances when it seeks the imposition of the death penalty. See Terry v. State, 46 S.W.3d 147, 156 (Tenn.2001); see also Nesbit, 978 S.W.2d at 890 ("[T]he State may not rely upon non[-]statutory aggravating circumstances to support imposition of the death penalty, but is limited to those aggravating circumstances listed in the statute."). While closing arguments must be, among other things, based upon the evidence presented at trial and "pertinent to the issues," Jordan, 325 S.W.3d at 64, the arguments are considered "a valuable privilege that should not be unduly restricted." State v. Sutton, 562 S.W.2d 820, 823 (Tenn.1978). As a result, our courts have traditionally "give[n] wide latitude to counsel in arguing their position in a case to the jury." Id.; see also Terry, 46 S.W.3d at 156. Because a trial court has broad discretion in controlling these arguments, a decision to allow an attorney to argue a particular point to a jury will only be reversed upon a showing of an abuse of discretion. Sutton, 562 S.W.2d at 823. "Generally, an abuse of discretionary authority
This broad latitude afforded attorneys during closing arguments must also be viewed in light of our capital sentencing scheme. In determining whether death is the appropriate punishment for a particular defendant, a jury may consider "the nature and circumstances of the crime; the defendant's character, background history, and physical condition; any evidence tending to establish or rebut the aggravating circumstances . . . and any evidence tending to establish or rebut any mitigating factors." Tenn.Code Ann. § 39-13-204(c) (Supp.1990); see also State v. Harris, 919 S.W.2d 323, 331 (Tenn.1996) ("[B]oth the State and the defendant may introduce any evidence relating to the circumstances of the crime, relevant aggravating circumstances or any mitigating circumstances, so that the jury will have complete information relevant to punishment."). We have construed the statute to permit the sentencing jury "to consider `a myriad of factors' relevant to . . . establishing and assigning weight to aggravating and mitigating circumstances."
In response to this opening argument by the State, defense counsel stressed that the two aggravating factors were the only ones that could be considered by the jury during the weighing process. Defense counsel also addressed, at length, the State's use of the photographs and how they were being used to "inflame you," making it "so hard to limit yourself to just those aggravators." Defense counsel asserted that the State introduced the pictures "[b]ecause they don't want you to use the law. They want you to use passion and anger."
In rebuttal, the State again addressed the weighing of the two aggravating circumstances against the mitigating circumstances, arguing that the process involved an evaluation of "quality as opposed to quantity." This, the prosecutor claimed, was "why [the State] put up pictures of [the victim]. . . . to try to give you a little bit of [an] idea of what her last minutes on this planet were like. They don't support or prove an aggravator, but they're to assist you in your weighing decision."
Our analysis in Terry is instructive as to the propriety of the State's closing arguments. In Terry, the defendant argued that the State erred "when it asked the jury to `consider in the balance,' `weigh . . . in the balance,' and `put in the balance' six `unique circumstances' against the mitigating proof." 46 S.W.3d at 156. These six circumstances—"extreme premeditation," "innocent victim," "brutality of murder," "violated private trust," "burning a church," and "concealment of crime"—had been displayed on a chart to contrast the mitigating factors claimed by the defense. Id. This Court held that the use of the "unique circumstances" was not
The Terry rationale is persuasive, and after reviewing the content of the record, our view is that the State's argument did not result in the erroneous injection of non-statutory aggravating factors into the weighing process. The prosecutor clearly relied upon only two aggravating circumstances and, during argument, attempted to provide context to both the aggravating and mitigating circumstances. See Terry, 46 S.W.3d at 158; accord State v. Cunningham, 105 Ohio St.3d 197, 824 N.E.2d 504, 524 (2004) ("Prosecutors are entitled to urge the merits of their cause and legitimately argue that defense mitigation evidence is worthy of little or no weight.").
Further, the prosecutor's references to the victim's slight weight, the fear she must have felt, and the content of the photographs of the body related to the "nature and circumstances" of the crime. That the victim had a check in her hand at the time of her death was further evidence that the murder was committed in the perpetration of robbery. As previously indicated, this evidence is explicitly permitted by the statute. See Tenn.Code Ann. § 39-13-204(c). Finally, the Defendant's escape from Simpson County Jail and his theft and robbery convictions were used to rebut his claim of good behavior during his incarceration as a mitigating circumstance. See State v. Bane, 57 S.W.3d 411, 424 (Tenn.2001) ("[T]he prosecution is permitted to rebut any mitigating factors relied on by a defendant."); accord State v. Schmeiderer, 319 S.W.3d 607, 621 (Tenn. 2010).
In summary, the Defendant is not entitled to relief on this issue. Moreover, even if the argument on behalf of the State at any point crossed the line of impermissibility, here, as in Terry, the trial court properly instructed the jury as to the weighing of the aggravating and mitigating circumstances; it must be presumed that a jury has followed the instructions given by the court. 46 S.W.3d at 158.
The Defendant contends that the trial court erred by admitting into evidence two photographs, Exhibits 5 and 6, each of which depicted the body of the victim, because they were "cumulative, irrelevant to the issues in the re-sentencing hearing, and prejudicial." In support of this argument, the Defendant initially asserts that the rationale for upholding the admission of the photos—that they were relevant to show the nature and circumstances of the crime—"conflicts with the rule in State v. Teague, 897 S.W.2d 248, 251 (Tenn.1995), that evidence about the circumstances of the crime [must] be `carefully limit[ed] . . . to essential background.'" Moreover, the Defendant questions the admissibility of the photographs by the application of the guidelines set out in State v. Banks, 564 S.W.2d 947
In Odom II, this Court upheld the admission of the two photographs at issue as relevant evidence, illustrative of the "nature and circumstances" of the crime. 137 S.W.3d at 588. More specifically, this Court observed as follows:
Id. We also determined that the photographs were not unfairly prejudicial. Id.
During the sentencing hearing, the trial court took particular note of this Court's resolution of the photograph issue in Odom II, concluding that the ruling had become the "law of the case." The trial court, which had excluded several photographs offered by the State as overly prejudicial, also made its own assessment, however, holding that the photographs at issue were admissible, as they were not particularly incendiary, even though the victim was depicted in a "pitiful" state. Because "the State has a right to prove the nature of the offense" and the jury had "a right to know about the murder itself," the trial court permitted the two photographs as exhibits. While the defense offered to stipulate a verbal description of the photographs' content, the trial court observed that "you can't stipulate to the circumstances [of the crime]." The Court of Criminal Appeals agreed, holding that the photographs properly illustrated "the position of the victim's body where the homicide occurred and help[ed] explain the circumstances surrounding the offense." Odom, 2010 Tenn.Crim.App. LEXIS 223, at *55.
"[U]nder the law of the case doctrine, an appellate court's decision on an issue of law is binding in later trials and appeals of the same case if the facts on the second trial or appeal are substantially the same as the facts in the first trial or appeal." Memphis Publ'g Co. v. Tenn. Petroleum Underground Storage Tank Bd., 975 S.W.2d 303, 306 (Tenn.1998). This doctrine "applies to issues that were actually before the appellate court in the first appeal and to issues that were necessarily decided by implication," but it is inapplicable to dicta. Id. (citation omitted). The doctrine "is not a constitutional mandate nor a limitation on the power of a court," but "is a longstanding discretionary rule of judicial practice which is based on the common sense recognition that issues previously litigated and decided by a court of competent jurisdiction ordinarily need not be revisited." Id. (citations omitted). Application of the doctrine promotes finality, efficiency, consistent results, and obedience to appellate decisions. Id.
There are three "limited circumstances" that may justify a departure from the law of the case doctrine and subsequent reconsideration of an issue decided in a previous appeal:
Id. at 306. While neither the first nor second ground for a departure from the law of the case doctrine is present, the Defendant argues that the admission of the photographs "would seem to be in conflict with the rule in State v. Teague." The Teague opinion, however, was filed prior to our decision in Odom II; therefore, the controlling law did not change between the first and second appeal. Id. at 306. In consequence, the trial court properly applied the law of the case doctrine in these circumstances.
The Defendant also argues that the photographs did not provide "essential background" for purposes of showing the "nature and circumstances" of the crime and, therefore, this Court's ruling in Odom II that the photographs were relevant for these purposes, see 137 S.W.3d at 588, is in direct conflict with the ruling in Teague, 897 S.W.2d at 248. Because the re-sentencing jury did not have the benefit of the proof introduced at the guilt phase, the State contends that its familiarity with the circumstances of the crime was "essential to ensure both individualized sentencing by the jury and effective comparative proportionality review by the appellate courts." The Court of Criminal Appeals declined to address the Defendant's argument, stating that "[a]s an intermediate appellate court, we are bound by the decisions of our supreme court and without authority to consider whether these decisions are in conflict." Odom, 2010 Tenn. Crim.App. LEXIS 223, at *52.
Our resolution of this issue requires both a review of the standard by which evidence is admitted during a capital sentencing hearing and an examination of our holding in Teague. Generally, "photographs of a murder victim's body are admissible if they are `relevant to the issues on trial, notwithstanding their gruesome and horrifying character.'" State v. Carter, 114 S.W.3d 895, 902 (Tenn.2003) (quoting Banks, 564 S.W.2d at 950-51). While the Rules of Evidence govern the admissibility of photographs at trial, Tennessee Code Annotated section 39-13-204(c) controls the admission of evidence in the sentencing hearing of a capital case. The statute allows for the admission of evidence on "any matter that the court deems relevant to the punishment" including, but not limited to, "the nature and circumstances of the crime . . . regardless of its admissibility under the rules of evidence." Tenn.Code Ann. § 39-13-204(c) (emphasis added); see also Carter, 114 S.W.3d at 903 (noting that, under the statute, "any evidence relevant to the circumstances of the murder, the aggravating circumstances relied upon by the State, or the mitigating circumstances is admissible if such evidence has probative value in the determination of punishment"). Although a trial court may use the Rules of Evidence as guidance in capital sentencing proceedings, Carter, 114 S.W.3d at 903, the rules "should not be applied to preclude introduction of otherwise reliable evidence that is relevant to the issue of punishment, as it relates to mitigating or aggravating circumstances, the nature and circumstances of the particular crime, or the character and background of the individual defendant." Sims, 45 S.W.3d at 14. Instead, the relevant inquiries for the trial court
In Teague, the issue was whether a defendant could present exculpatory evidence in a re-sentencing hearing as a means of mitigating his culpability for his crimes. 897 S.W.2d at 249. While holding that a "defendant has the right to present at the [re-]sentencing hearing . . . evidence relating to the circumstances of the crime or the aggravating or mitigating circumstances, including evidence which may mitigate his culpability," id. at 256, this Court also expressed general approval of the State's introduction of "background evidence," setting out guidelines as follows:
Id. at 251 (quoting State v. Teague, 680 S.W.2d 785, 787-88 (Tenn.1984)). Nothing in Teague suggests that photographs of a murder victim at the scene of the crime cannot be considered "essential background" relevant to the nature and circumstances of the offense. In our view, Exhibit 5 demonstrates "how the crime was committed." The victim's stab wounds illustrate the severity of the attack. See Teague, 897 S.W.2d at 251. Exhibit 6, which depicts the victim clutching a check in her hand, is probative of the State's assertion that the murder was committed while the Defendant was engaged in a robbery, an aggravating circumstance warranting the imposition of the death penalty. Id. In our view, there is no conflict between our determination in Odom II that the photographs were admissible to show the nature and circumstances of the crime and the principle established in Teague.
The Defendant also argues that the trial court abused its discretion by admitting the photographs because any information conveyed to the jury had already been provided through the testimony of witnesses. While it is true that the photographs may have been cumulative of live testimony, it does not necessarily follow that their admission was improper. For example, this Court has observed that where the jury is without the benefit of the factual background established by the proof during the guilt phase, "the parties are entitled to offer evidence relating to the circumstances of the crime" in order to allow the jury to "ac[t] from a base of knowledge in sentencing the defendant." Carter, 114 S.W.3d at 903 (citations and internal quotation marks omitted). In Carter, we found that when "the photographs corroborate testimony presented at the sentencing hearing, the information sought to be conveyed by the photographs, even if cumulative, is clearly admissible." Id. at 904; cf. State v. Brown, 836 S.W.2d 530, 551 (Tenn.1992) (upholding the admission at trial of nine photographs of murder victim, despite the fact that "oral testimony. . . graphically describing the [victim's] injuries" was also admitted). In this instance, the jury, as in Carter, had not been exposed to the proof ordinarily introduced during the guilt phase of a capital trial. In the context of the testimony provided, the two photographs at issue allowed the jury to "see for itself what [was] depicted in the photograph[s]." State v. Griffis, 964 S.W.2d 577, 594 (Tenn.Crim.App.1997).
The Defendant also argues that the trial court erred by admitting the photographs in light of the factors set out in Banks, 564 S.W.2d at 949. While not explicitly addressing the factors articulated in Banks, the Court of Criminal Appeals generally found that the photographs' "admission was appropriate under the criteria set out." Odom, 2010 Tenn.Crim.App. LEXIS 223, at *55.
In Banks, this Court ruled that "certain factors are to be considered by the trial judge" when determining the admissibility of photographs of a murder victim for the purposes of trial, including
564 S.W.2d at 951. The Court commented on the difficulty of establishing that the probative value of particularly gruesome photographs outweighs their prejudicial effect and observed that the State's burden on this matter is often difficult to meet "[i]n the presence of an offer to stipulate the facts shown in the photograph." Id.
While the Defendant asserts that his offer to stipulate to the facts reflected in the photographs means that they were improperly admitted under Banks, this standard applies only during the guilt phase of the trial under the more rigid guidelines established by our Rules of Evidence. See Banks, 564 S.W.2d at 949-51. Although the Rules may serve as a guide in determining the admissibility of evidence in capital sentencing hearings, "[t]rial judges are not . . . required to adhere strictly" to them during a sentencing hearing because they "are too restrictive and unwieldy in the arena of capital sentencing." Sims, 45 S.W.3d at 14. We hold, therefore, that the trial judge did not err by admitting these photographs during the penalty phase of the trial.
The Defendant argues that the trial court's instruction to the jury that if the Defendant was sentenced to life imprisonment, he would be eligible for parole after twenty-five years, created a "false choice" in sentencing. He alleges that at the time of the re-sentencing hearing, he had already been imprisoned for seventeen years, meaning that he "would be considered parole-eligible in [eight] years if given a `life sentence.'" The Defendant argues that by instructing the jury as it did, "the trial court effectively eliminated a reasonable alternative sentence to the death penalty," which violated his right to due process of law and heightened reliability under the federal and state constitutions. The State responds that the Defendant's argument "flies in the face" of the proof he presented during sentencing, which indicated that he would not be paroled if he received a life sentence, and that the Defendant "invited any error with regard to the alleged instruction."
The Defendant also asserts that the prosecution should have allowed him to plead to an additional charge, such as rape or robbery, "with the understanding that the sentence for that crime would be added to the 25 calendar years if the jury
At the time of this offense, a sentence of life without the possibility of parole was not an option. The two sentence alternatives were life with the possibility of parole and death.
After the proof had been submitted, the trial court charged the jury as follows:
The United States Supreme Court has made the following observations regarding a challenge to jury instructions:
Cupp v. Naughten, 414 U.S. 141, 147, 94 S.Ct. 396, 38 L.Ed.2d 368 (1973) (citations omitted). The key consideration in reviewing a criminal defendant's challenge to a particular instruction, therefore, is "`whether the ailing instruction by itself so infected the entire trial that the resulting conviction violates due process.'" State v. Rimmer, 250 S.W.3d 12, 31 (Tenn.2008) (quoting Cupp, 414 U.S. at 147, 94 S.Ct. 396); see also Middleton v. McNeil, 541 U.S. 433, 437, 124 S.Ct. 1830, 158 L.Ed.2d 701 (2004) ("[N]ot every ambiguity, inconsistency, or deficiency in a jury instruction rises to the level of a due process violation.").
In support of his argument that the trial court's instruction deprived him of due process, the Defendant relies upon two United States Supreme Court decisions: Beck v. Alabama, 447 U.S. 625, 100 S.Ct. 2382, 65 L.Ed.2d 392 (1980) and Simmons v. South Carolina, 512 U.S. 154, 114 S.Ct. 2187, 129 L.Ed.2d 133 (1994). Both of these cases, however, are distinguishable. In Beck, the Alabama law required the jury to either convict a defendant of a capital crime and impose the death penalty or acquit—there was no room for a lesser-included offense instruction. 447 U.S. at 628-29, 100 S.Ct. 2382. The Court found that "when the evidence . . . leaves some doubt with respect to an element that would justify conviction of a capital offens[e,] the failure to give the jury the `third option' of convicting on a lesser included offense would seem inevitably to enhance the risk of an unwarranted conviction." Id. at 637, 100 S.Ct. 2382. The Court determined that the state statute "interject[ed] irrelevant considerations into the factfinding process, diverting the jury's attention from the central issue of whether the State has satisfied its burden of proving beyond a reasonable doubt that the defendant is guilty of a capital crime." Id. at 642, 100 S.Ct. 2382.
Here, the jury, having received instructions that it could impose either the death penalty or a life sentence with the possibility of parole, was not presented with an "all-or-nothing" choice. While the instruction provided that the Defendant would be eligible for parole after serving twenty-five full calendar years, he was allowed to offer proof demonstrating that parole was out of the question because of his previous criminal convictions. This evidence went unchallenged by the State.
In Simmons, the prosecution argued the future dangerousness of the defendant in an effort to secure a sentence of death. The trial court refused to instruct the jury that the defendant was ineligible for parole. The Court held that the ruling violated due process and ordered a new sentencing hearing, Simmons, 512 U.S. at 168-69, 114 S.Ct. 2187, observing that the defendant "`had no opportunity to deny or explain.'" Id. at 161, 114 S.Ct. 2187 (quoting Gardner v. Florida, 430 U.S. 349, 362, 97 S.Ct. 1197, 51 L.Ed.2d 393 (1977)). Unlike Simmons, this is not a case where the Defendant had no opportunity to present evidence that he would never be released on parole. Instead, defense counsel presented the testimony of Ms. Shettles and Tim Terry, both of whom explained that the Defendant had little chance to ever receive parole in Tennessee, and that even if he did, he would immediately be sent back to Mississippi to finish serving his life sentence for the murder conviction there.
While it is true that the prosecution here argued that a factor for the jury to consider in sentencing was "protect[ing] people like Mina Johnson from [the Defendant]," any due process concerns were cured, not only by the evidence presented by the defense, but the instructions of the trial court. See Simmons, 512 U.S. at 169, 114 S.Ct. 2187 ("Because truthful information
The Defendant argues that the prosecution abused its discretion by failing to extend a plea offer in this case to an additional charge, such as rape or robbery, which he argues would have presented the jury with a "reasonable alternative" to the death penalty. The jury, however, was presented with an alternative to the death penalty, namely, life imprisonment with the possibility of parole. Further, while the Rules of Criminal Procedure state that "[t]he district attorney general and the defendant's attorney . . . may discuss and reach a plea agreement," Tenn. R.Crim. P. 11(c)(1) (emphasis added), this language is permissive, not mandatory. In addition, "[t]here is no obligation on the part of the State to offer any benefit or advantage to the defendant by reason of entering a guilty plea." State v. Hodges, 815 S.W.2d 151, 155 (Tenn.1991); see also Weatherford v. Bursey, 429 U.S. 545, 561, 97 S.Ct. 837, 51 L.Ed.2d 30 (1977) (observing that "there is no constitutional right to plea bargain"). This claim, therefore, is without merit.
Constitutional concerns regarding the imposition of the death penalty arise when "`sentencing procedures . . . create a substantial risk that the punishment will be inflicted in an arbitrary and capricious manner.'" Zant v. Stephens, 462 U.S. 862, 910, 103 S.Ct. 2733, 77 L.Ed.2d 235 (1983) (Marshall, J., dissenting) (quoting Godfrey v. Georgia, 446 U.S. 420, 427, 100 S.Ct. 1759, 64 L.Ed.2d 398 (1980)). The United States Supreme Court has held that these concerns can be alleviated by "a carefully drafted statute that ensures that the sentencing authority is given adequate information and guidance." Gregg v. Georgia, 428 U.S. 153, 195, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976). Tennessee's capital sentencing procedures have been upheld as satisfying these constitutional requirements. State v. Kiser, 284 S.W.3d 227, 271 (Tenn.2009).
The Defendant argues that the cumulative effect of the following errors resulted in a "deviatio[n] from applicable statutes and procedural rules" such that his death sentence was arbitrarily imposed: (1) the trial court's dismissal of a prospective juror for cause; (2) the admission of photographs of the victim's body at the crime scene; (3) the prosecutor's highlighting of the victim's age, frailty, and helplessness during closing argument; (4) the prosecution's "urg[ing] the jury to weigh non-statutory factors as part of the aggravation in this case"; (5) the trial court's charge to the jury concerning parole; (6) the fact that the Defendant "was not informed that he had a limited privilege against self-incrimination if he testified about mitigation in the sentencing hearing"; and (7) the trial court's use of a reasonable doubt instruction "whose further use this Court has discouraged." The State asserts that there was no error as to these issues, and that because the sentencing hearing adhered to the applicable statutes and procedural rules, the sentence was not imposed in an arbitrary manner.
We have previously determined that there was no error as to the first five
"In determining whether the evidence supports the application of the aggravating circumstances, the proper standard to consider is whether, after reviewing the evidence in a light most favorable to the State, a rational trier of fact could have found the existence of the aggravating circumstances beyond a reasonable doubt." State v. Stevens, 78 S.W.3d 817, 841 (Tenn.2002). The two aggravating circumstances submitted by the State were the Defendant's prior violent felony, see Tenn.Code Ann. § 39-13-204(i)(2), and that the murder was committed during an attempt to commit robbery, see Tenn.Code Ann. § 39-13-204(i)(7). In support of the (i)(2) aggravating circumstance, the jury was presented with evidence of the Defendant's conviction for the 1978 murder of Becky Roberts in Mississippi. The Defendant did not dispute the judgment of conviction for that crime. The Defendant's
The Defendant argues that the mitigating circumstances of his difficult childhood and his rehabilitation while in prison are not outweighed by the two aggravating circumstances found by the jury. He contends that a rehabilitated inmate "cannot be among the `worst' murderers for whom the death penalty is intended" and that his death sentence should be modified to one of life imprisonment as a result. Additionally, he argues that the Court should use a de novo standard of review in determining the weight to be given the aggravating and mitigating circumstances. In response, the State contends that the evidence clearly supports the jury's weighing of the aggravating and mitigating circumstances.
The standard consistently utilized by this Court to review a capital sentencing jury's weighing of the aggravating and mitigating circumstances is "whether, after reviewing the evidence in the light most favorable to the State, a rational trier of fact could have found that the aggravating circumstance[s] outweighed the mitigating circumstance[s] beyond a reasonable doubt." State v. Stephenson, 195 S.W.3d 574, 593 (Tenn.2006); see also State v. Reid, 164 S.W.3d 286, 314 (Tenn.2005); accord State v. Woods, 143 Wn.2d 561, 23 P.3d 1046, 1075 (2001) (noting that in "determin[ing] whether there was sufficient evidence to justify the affirmative finding that there were not sufficient mitigating circumstances to merit leniency," the reviewing court must "ask whether, after reviewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found sufficient evidence to justify that conclusion beyond a reasonable doubt").
The Defendant claims that because the imposition of a death sentence ultimately turns on the weighing of the aggravating and mitigating circumstances, de novo review is warranted in order to ensure that only those criminal defendants who genuinely deserve the ultimate punishment receive it. While we are mindful of the need for "a greater degree of reliability when the death sentence is imposed," Lockett v. Ohio, 438 U.S. 586, 604, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978), the Defendant does not cite to any authority in support of his argument that a departure from the traditional standard of review would render more reliable results in the imposition of the death penalty. Further, the statute in question requires that we determine if the evidence supports the jury's findings. See Tenn.Code Ann. § 39-13-206(c)(1)(C). A jury's finding as to the weight of the evidence is entitled to deference. See State v. Davis, 141 S.W.3d 600, 611 (Tenn. 2004) ("Questions concerning the credibility of the witnesses, the weight to be given the evidence, and any factual issues raised by the evidence are resolved by the trier of fact."); State v. Flake, 88 S.W.3d 540, 553 (Tenn.2002) (noting that it is the jury's
With this standard in mind, we must address the weighing of the aggravating and mitigating circumstances. The State proved that the Defendant had murdered Becky Roberts in 1978. The jury was presented with the judgment of conviction for that crime. The State also presented evidence that the Defendant murdered the victim in this case during a robbery. The State submitted photographic and testimonial evidence describing the nature and circumstances of the crime, which allowed the jury to assess the weight to be given the proffered aggravating circumstances.
In mitigation, the defense presented the Defendant's personal history, which outlined his abandonment by his birth parents and separation from his siblings at a young age. It illustrated the abusive home life the Defendant experienced as a result of his adoptive mother's remarriage, the emotional rejection he experienced as a child, and his involvement with juvenile authorities in Mississippi. The defense described his stay at the Columbia Training Center, where two psychological evaluations identified the Defendant's need for psychological treatment, which he never received. The jury also heard evidence concerning the Defendant's almost spotless record while incarcerated at Riverbend, where he received his GED and a paralegal certification, worked as a teacher's aide, participated in a variety of classes, and engaged in arts and crafts. Several parties who had come into contact with the Defendant during his incarceration testified to the Defendant's efforts at self-improvement and his capacity for rehabilitation in a structured prison environment. The jury also heard from Dr. Joseph Angelillo, who believed the Defendant suffered from "schizoid personality features" and opined that the Defendant had the capacity to do well in the prison environment. The State rebutted this evidence by describing the Defendant's escape from prison and his prior theft and robbery convictions, both of which were committed after his escape.
While the defense offered extensive proof of circumstances in mitigation of the crime, the two aggravating circumstances were firmly established by the evidence. The State also presented evidence that the jury could have used to assess the weight to be given the aggravating and mitigating circumstances. As a result, there was a sound basis for the jury's determination that the aggravating circumstances outweighed the mitigating ones beyond a reasonable doubt.
The Defendant argues that, because of his status as a rehabilitated inmate, his
This Court's proportionality review begins with a presumption that the sentence "is not disproportionate to the crime in the traditional sense;" however, we must inquire as to whether "the penalty is nonetheless unacceptable in a particular case because disproportionate to the punishment imposed on others convicted of the same crime." Reid, 213 S.W.3d at 820 (internal quotation marks omitted); see also Terry, 46 S.W.3d at 163. "`[T]he pool of cases considered by this Court . . . includes those first degree murder cases in which the State seeks the death penalty, a capital sentencing hearing is held, and the sentencing jury determines whether the sentence should be life imprisonment, life imprisonment without the possibility of parole, or death.'" Reid, 213 S.W.3d at 820 (quoting Davis, 141 S.W.3d at 620). The Court's function in this review is not limited to those cases which are "perfectly symmetrical," but rather to "identify and to invalidate the aberrant death sentence." Terry, 46 S.W.3d at 164 (citation omitted). "Before we may hold that the death sentence received by the Defendant was disproportionate, we must find that the facts of this case are `plainly lacking in circumstances consistent with those in cases where the death penalty has been imposed.'" Rimmer, 250 S.W.3d at 34 (quoting Reid, 213 S.W.3d at 820).
There is no formula for comparing similar cases; however, this Court generally looks to the following factors regarding the offense:
Reid, 213 S.W.3d at 820 (quoting Davis, 141 S.W.3d at 620). As to the defendant, this Court considers the following factors: "`(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.
Here, the Defendant sought out an elderly victim and murdered her in the course of a robbery. This Court has, on numerous occasions, upheld the death sentences of defendants where an elderly victim was attacked and killed during the course of a robbery or burglary. See State v. Rollins, 188 S.W.3d 553 (Tenn.2006); State v. Leach, 148 S.W.3d 42 (Tenn.2004); State v. Mann, 959 S.W.2d 503 (Tenn. 1997); State v. Smith, 893 S.W.2d 908 (Tenn.1994); State v. Van Tran, 864 S.W.2d 465 (Tenn.1993); State v. McNish, 727 S.W.2d 490 (Tenn.1987).
As stated, the State proved two aggravating circumstances. See Tenn.Code Ann. § 39-13-204(i)(2) and (i)(7). We have previously upheld death sentences where the murder was committed in the course of a robbery or burglary and where there was at least one other aggravating circumstance. See Carter, 114 S.W.3d at 895; State v. Chalmers, 28 S.W.3d 913 (Tenn. 2000); State v. Cribbs, 967 S.W.2d 773 (Tenn.1998); State v. Cazes, 875 S.W.2d 253 (Tenn.1994); State v. Barber, 753 S.W.2d 659
Evidence was presented showing that the Defendant had a troubled upbringing, spent time in the custody of juvenile authorities, never received recommended psychological treatment, and suffered from "schizoid personality features" as an adult. We have upheld the death sentences of other defendants who experienced similarly troubled childhoods and were affected adversely by these experiences. Schmeiderer, 319 S.W.3d at 607 (affirming death sentence where defendant was shown no affection during his childhood, was housed in a juvenile facility from ages fifteen to eighteen, and had not received treatment advised by a psychiatric evaluator); Leach, 148 S.W.3d at 42 (upholding death sentence where mitigation showed that defendant was neglected as a child, physically and sexually abused from childhood through his adult years in prison, and suffered from low self-esteem, depression, and suicidal tendencies); State v. Keen, 31 S.W.3d 196 (Tenn.2000) (affirming death sentence where defendant grew up in an extremely abusive home until the age of four, at which point he was adopted, and never received recommended psychological care); State v. Blanton, 975 S.W.2d 269 (Tenn.1998) (affirming defendant's death sentence despite mitigating evidence that defendant was abused by his father as a child and grew up under difficult familial and economic circumstances); State v. Hines, 919 S.W.2d 573 (Tenn.1995) (affirming death sentence of defendant who experienced a troubled childhood, during which his father abandoned him and his mother was an alcoholic, and he suffered from paranoid personality disorder and chronic depression).
In the course of the proportionality review, our Court of Criminal Appeals did not specifically address the mitigating circumstance of rehabilitation. The Defendant offered proof of a significant period of good behavior during his years of incarceration, which was bolstered by the testimony of several individuals who believed that he had significantly improved himself while he was imprisoned and would continue to thrive in the structured environment of Riverbend. The Defendant also obtained his GED, along with several other certifications, and engaged in a variety of constructive activities within the prison system. We have identified, however, several cases in which death sentences have been upheld despite evidence of rehabilitation during a term of imprisonment. For instance, in State v. Austin, 87 S.W.3d 447 (Tenn.2002), the defendant hired another person to kill the victim, was convicted of murder, and subsequently sentenced to death. Id. at 457. In a re-sentencing hearing taking place several years after the initial trial, the defendant presented evidence that he was "a model prisoner and a man of good character" who had only "one minor disciplinary write-up in his twenty-two years on death row and had achieved the highest classification level possible based on good behavior." Id. at 458. The Defendant also worked as a teacher's aide and tutored fellow inmates in preparation for the GED. Id. Two guards testified that the defendant helped save their lives during a prison riot. Id. Despite these mitigating factors, this Court upheld the sentence of death. Id. at 467; see also Stephenson, 195 S.W.3d at 584 (affirming after re-sentencing hearing death sentence of defendant who was described as "cream of the crop," completed paralegal and construction training courses, served as inmate advisor on disciplinary board, spoke to troubled youth, was an ordained minister, participated in religious programs, and played in multi-racial gospel band); State v. Cauthern, 967 S.W.2d 726 (Tenn.1998) (affirming after re-sentencing
After carefully reviewing the record and the pertinent case law, we conclude that the Defendant's case is not "plainly lacking in circumstances consistent with those in cases where the death penalty has been imposed." Rimmer, 250 S.W.3d at 36 (quoting Davis, 141 S.W.3d at 620).
The Defendant argues that Judge John Everett Williams, who served on the panel of the Court of Criminal Appeals, should have granted the motion to recuse because of his prior disapproval of the full amount of compensation sought by his appellate counsel.
"`The right to a fair trial before an impartial tribunal is a fundamental constitutional right.'" Bd. of Prof'l Responsibility v. Slavin, 145 S.W.3d 538, 548 (Tenn.2004) (quoting Austin, 87 S.W.3d at 470). The Tennessee Constitution provides that "[n]o judge . . . shall preside on the trial of any cause in the event of which he may be interested." Tenn. Const. art. VI, § 11; cf. Tumey v. Ohio, 273 U.S. 510, 523, 47 S.Ct. 437, 71 L.Ed. 749 (1927) ("[I]t certainly violates the Fourteenth Amendment and deprives a defendant in a criminal case of due process of law to subject his liberty or property to the judgment of a court, the judge of which has a direct, personal, substantial pecuniary interest in reaching a conclusion against him in his case."). The purpose of this constitutional protection "`is to guard against the prejudgment of the rights of litigants and to avoid situations in which the litigants might have cause to conclude that the court had reached a prejudged conclusion because of interest, partiality or favor.'" Slavin, 145 S.W.3d at 548 (quoting State v. Benson, 973 S.W.2d 202, 205 (Tenn.1998)). As a result, recusal is necessary in some instances in order to preserve the public confidence in judicial neutrality and impartiality. See Slavin, 145 S.W.3d at 548. The test in determining whether recusal is necessary is an objective one, "`since the appearance of bias is as injurious to the integrity of the judicial system as actual bias.'" Id. (quoting Davis v. Liberty Mut. Ins. Co., 38 S.W.3d 560, 565 (Tenn.2001)); see also Reid, 213 S.W.3d at 815 (quoting Davis, 38 S.W.3d at 565); accord Caperton v. A.T. Massey Coal Co., ___ U.S. ___,
The Defendant's appellate attorneys, Brock Mehler and Gerald Skahan, sought Judge Williams' disqualification after he reduced the amount of their compensation application by $4,305 and $3,372, respectively.
In our view, Judge Williams evaluated the motion for recusal as required by Tennessee Supreme Court Rule 10, Canon 3E, which directs the use of an objective test in questions of recusal. While it is defense counsel's prerogative to challenge the propriety of the denial of the full amount of the fees sought, it does not follow that the Defendant was deprived of an impartial judge on the panel of the Court of Criminal Appeals. The issues are separate and distinct, and the disposition on one has no bearing on the other. The order does not reflect prejudice or bias against the Defendant, but merely provides that at the time counsel submitted their claim, Judge Williams could not approve the compensation sought based on his assessment of the hours worked. While the Defendant's counsel assert that their subsequent motions to reconsider were "unavailing," they are not able to point to any portion of the record as support for their inference that Judge Williams had somehow displayed prejudice either to them or to the Defendant.
We hold that (1) the Defendant's right to a fair and impartial jury was not violated by the disqualification of a prospective juror; (2) the prosecutor's closing argument did not result in the erroneous injection of non-statutory aggravating factors into the weighing process warranting reversal of the death sentence; (3) the admission of photographs of the body did not constitute error; (4) the trial court's instructions on parole did not violate the Defendant's right to due process of law and heightened reliability; (5) the mandatory criteria of Tennessee Code Annotated section 39-13-206(c)(1) are satisfied; and (6) the reduction of the amount of compensation sought by appellate defense counsel by a judge on the Court of Criminal Appeals did not necessitate the judge's disqualification from participating in the case.
Accordingly, the judgment of the Court of Criminal Appeals is affirmed. The sentence of death shall be carried out on the 13th day of March, 2012, unless otherwise ordered by this Court or other proper
As to issue seven, the Defendant challenged the portion of the trial court's jury instruction providing that "[r]easonable doubt does not mean a doubt that may arise from possibility." Odom, 2010 Tenn.Crim.App. LEXIS 223, at *95. While we noted in Rimmer that "the language of this particular instruction may not be helpful," and subsequently discouraged its use, 205 S.W.3d at 31, this opinion was, as noted above, released after the Defendant's sentencing hearing in this case, and therefore "the trial court was not privy to [our] advice on continued use of this instruction." Odom, 2010 Tenn.Crim.App. LEXIS 223, at *98. The Court of Criminal Appeals concluded that, because this instruction had been upheld on numerous occasions prior to our opinion in Rimmer, its use in the sentencing hearing did not result in a violation of the Defendant's due process rights. Id. at *98-99.
