                                 IN THE SUPREME COURT OF TENNESSEE

                                              AT NASHVILLE



             STATE OF TENNESSEE,                   )         FOR PUBLICATION
                                                   )
                        Appellee,                  )         FILED:
                                                   )
             v.                                    )         DAVIDSON COUNTY
                                                   )
             HENRY EUGENE HODGES,                  )         HON. WALTER C. KURTZ, JUDGE
                                                   )

 FILED                  Appellant.                 )         NO. 01-S-01-9505-CR-00080



   April 28, 1997                          DISSENTING OPINION

 Cecil W. Crowson
Appellate Court Clerk   I dissent because I cannot agree with the majority of my

             colleagues     in   holding    that       the    erroneous    jury   instructions

             constituted harmless error.         To the contrary, I conclude that the

             instructions    were   indeed    harmful         and   more   probably   than   not

             affected the jury’s verdict.



                          In instructing the jury, the trial court committed two

             errors.      First, the trial court instructed the jury that the

             mitigating circumstances had to be “proven.” Second, the court

             identified the defendant as the party who had submitted certain

             nonstatutory mitigating issues for the jury’s consideration.



                          In State v. Odom, we held that the trial court must

             initially determine whether the evidence proffered is relevant to

             mitigation.    State v. Odom, 928 S.W.2d 18, 31 (Tenn. 1996).              If the

             trial court concludes that a circumstance is mitigating in nature,

             it must then determine whether the mitigating circumstance was

             raised by the evidence.       Id.   If found to be raised by the evidence

             and if the defendant specifically requests an instruction on that
circumstance, the trial court, as mandated by Tenn. Code Ann. § 39-

13-204(e)(1), must include the mitigating circumstance in the jury

instructions.



            In reviewing the trial court’s instructions in the case

under submission, it is abundantly clear to me that the trial court

did not make the requisite determinations. By instructing the jury

that a mitigating circumstance must be “proven,” the trial court,

in effect, restricted the jury’s consideration of the nonstatutory

mitigating factors that may have been raised by the evidence: that

is, the instructions were likely to lead a juror to conclude that

he or she should not consider such mitigating circumstances unless

“proven.”



            Tennessee Code Annotated § 39-13-204(e)(1) provides: "No

distinction shall be made between mitigating circumstances as set

forth in subsection (j) and those otherwise raised by the evidence

which are specifically requested . . . to be instructed to the

jury."      Instructions   must     be    drafted    so   that   the    statutory

mitigating       circumstances      are      indistinguishable         from    the

nonstatutory mitigating circumstances.              Odom, 928 S.W.2d at 32.



            As    to   mitigating    circumstances,        the    trial       court

instructed the jury as follows:


                  In arriving at the punishment, you,
                  the   jury,   shall   consider,   as
                  heretofore indicated, any proven
                  mitigating circumstances which shall
                  include the following . . .      any
                  aspect of the Defendant's character
                  or record or any aspect of the

                                         2
                circumstances    of   the    offense
                favorable to the defendant, which is
                supported by the evidence.

                . . . .

                In determining mitigating factors,
                you are to consider the above. In
                addition, the defense has submitted
                the   following   issues  for   your
                consideration.     They are to be
                considered, if you believe they have
                been proven and are mitigating or
                favorable to the defense or reduce
                his    blameworthiness.    (Emphasis
                added).

I find this instruction contrary to the legislative imperative. As

this Court expressed in Odom,


                the   legislature    intended    this
                language as a mandate to the trial
                court   to  place   all   mitigating
                circumstances--statutory          and
                nonstatutory--on    equal     footing
                before the jury. . . . [T]he trial
                court is prohibited from revealing
                to the jury that a request was made,
                nor should the trial judge identify
                the party(ies) making the request.
                Only strict adherence to the letter
                and the spirit of the statute will
                permit the sentencing procedure to
                attain that degree of integrity that
                is legislatively intended.


Odom,   928   S.W.2d   at   31-32    (emphasis   added).    These   jury

instructions clearly did not conform to the requirements of the

statute.   To reiterate, from my review of the record in this case,

I conclude that such errors were harmful and more probably than not

affected the jury’s verdict.         Accordingly, I would reverse the

sentence of death and remand this cause for a new sentencing

hearing.




                                    ADOLPHO A. BIRCH, JR., Chief Justice


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