             IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                      AT JACKSON                FILED
                                 APRIL 1997 SESSION
                                                                November 5, 1997

                                                              Cecil Crowson, Jr.
                                                                Appellate C ourt Clerk

STATE OF TENNESSEE,                      )    No. 02C01-9603-CC-00085
                                         )
       Appellee                          )
                                         )    LAUDERDALE COUNTY
V.                                       )
                                         )    HON. JON KERRY BLACKWOOD,
KELVIN ANTHONY LEE,                      )    JUDGE
                                         )
       Appellant.                        )    (Felony Murder)
                                         )
                                         )


For the Appellant:                            For the Appellee:

Gary F. Antrican                              John Knox Walkup
District Public Defender                      Attorney General and Reporter
P.O. Box 700
Somerville, TN 38068                          Ruth Thompson
(At trial and of counsel on appeal)           Assistant Attorney General
                                              450 James Robertson Parkway
C. Michael Robbins                            Nashville, TN 37243-0493
Assistant Public Defender
P.O. Box 700                                  Elizabeth T. Rice
Somerville, TN 38068                          District Attorney General
(At trial)                                    302 Market Street
                                              Somerville, TN 38068

Jan R. Patterson                              James W. Freeland
225 W. Baltimore Street                       Assistant District Attorney
Jackson, TN 38301
(On appeal)




OPINION FILED: ___________________


AFFIRMED


William M. Barker, Judge
                                         OPINION


       The appellant, Kelvin Anthony Lee, appeals as of right the sentence he

received in the Lauderdale County Circuit Court following his plea of guilty to the

offense of felony murder. The appellant was sentenced by a jury to life in prison

without the possibility of parole upon its finding that the murder of W illiam Daniels, Jr.

was especially heinous, atrocious, or cruel.

       On appeal, the appellant alleges that the following errors occurred in the

sentencing process:

       (1)   the trial court committed plain error in permitting a jury to
       sentence appellant after accepting appellant’s waiver of jury
       sentencing;

       (2)   the trial court erred in permitting the introduction of inflammatory
       and cumulative photographs;

       (3)    the verdict forms did not correctly state the law regarding
       mitigating factors;

       (4)    the trial court failed to exercise its duty to act as thirteenth juror;
       and

       (5)   the evidence was insufficient to support the application of the
       heinous, atrocious or cruel aggravating circumstance.


After a complete review of the record, we find that the trial court committed no

reversible error. Accordingly, the appellant’s sentence of life without the possibility of

parole is affirmed.

                               FACTUAL BACKGROUND

       On the afternoon of September 17, 1994, Ricky Daniels drove to his family’s

farm in Lauderdale County to check on his aging father, William Daniels, Jr., who had

been working on the farm that day. He drove to a clearing and spotted his father’s

truck sitting in the midst of a field, near a small pond. As he drove closer, he realized

that his father was pinned underneath the truck and seriously injured. He first thought

that an accident had occurred and he called his sister. After surveying the situation,



                                              2
however, he concluded that his father’s condition was not accidental, and he

contacted an investigator with the Lauderdale County Sheriff’s Department.

       Authorities conducted an extensive examination of the scene, working

throughout the night. Their investigation revealed that Daniels had suffered numerous

gunshot wounds and that his body had been run over and crushed by the pickup truck.

Evidence at the scene indicated that Daniels’ body had been dragged approximately

148 feet while underneath the truck. It also appeared that the body had become

dislodged at one point and that the truck backed up and ran over the body again

before coming to a stop on the victim. Investigators noticed that the victim’s pants

pockets were turned inside out and his wallet was missing. Authorities also

discovered bicycle tracks at the scene which led to a nearby house where the

appellant lived with his family. After questioning several of the appellant’s brothers,

appellant was brought in for questioning. The appellant made a full confession,

admitting that he had robbed and killed Daniels.

       Based upon information in appellant’s statement, authorities found a gun and

bicycle belonging to the appellant in nearby Fisher Pond. The gun contained four live

rounds and two spent casings. Authorities also found one of the victim’s shoes

floating in the pond. Some of the tracks found at the crime scene matched the tires

on the bicycle removed from the pond.

       The appellant’s brother, Michael Lee, gave a statement to police which

incriminated the appellant. He said that he was present in a group of people on the

night before the murder and had heard the appellant say that he was going to rob

Daniels of $400. The next morning, the appellant again told Lee that he was going to

rob Daniels, and he took a .22 caliber, western-style, blue steel, six-shot pistol from a

car at the Lee home. The appellant left on his bicycle, saying he was going to get

$400 from Daniels. He returned home several hours later, “all shook up and

sweating.” He told Lee that he killed Daniels.



                                            3
        Investigators also obtained statements from Simmie Rice and Tyrone Maclin,

friends of the appellant. These statements indicated that the appellant had told them

about the crime, admitting he robbed and killed Daniels. The appellant was

subsequently indicted for premeditated murder, felony murder, and especially

aggravated robbery. The State filed notice that it would seek life without the possibility

of parole.1 In support, it alleged that the murder was especially heinous, atrocious or

cruel in that it involved torture or serious physical abuse beyond that necessary to

produce death. See Tenn. Code Ann. §39-13-204(i)(5) (Supp. 1996). 2

        On the morning of trial, the trial court granted the appellant’s request for a one-

day continuance because of notice of a new State’s witness. Later that afternoon, the

parties advised the trial court that a plea agreement had been reached. The appellant

agreed to plead guilty to felony murder and the State would dismiss the charges of

premeditated murder and robbery. After hearing the State’s factual summary of proof,

the trial court conducted a full examination of appellant and accepted his guilty plea.

The trial court also accepted the appellant’s waiver of jury sentencing.

        Two days later, on the morning of the sentencing hearing, the appellant’s

counsel advised the trial court that the appellant wished to withdraw his guilty plea and

was requesting new counsel. The trial court questioned the appellant, during which he

claimed that he pled guilty only because his attorneys forced him to do so. He insisted

he was not guilty and alleged that his attorneys were not “doing what they’re supposed

to.” The trial court recessed to permit appellant to discuss the matter with his family.

When the appellant returned to court, he announced that he desired to preserve the

guilty plea. However, he informed the court that while he was guilty of robbing

Daniels, he did not kill him. He professed to know who killed the victim. The court



        1
          The appellant was seventeen at the time of the offense and was properly transferred from
juvenile court. As a result, however, the State was prohibited from seeking the death penalty. Tenn.
Code Ann. §37-1 -134(a)(1) (Supp. 1994).

        2
            An a dditio nal ag grav ator w as or iginally n oted , but la ter wit hdra wn b y the d istrict attorn ey.

                                                               4
again explained the plea process to the appellant and accepted the appellant’s guilty

plea, ruling that it was voluntary and knowing.3 However, due to the developments in

the case and the statements which the appellant made to the court, the trial court

declined to accept appellant’s waiver of jury sentencing and decided that a jury should

be impaneled to decide punishment. The appellant chose to retain his appointed

counsel.

         At the sentencing hearing, the State, through the testimony of TBI agent Jack

Van Hooser, Jr., introduced the appellant’s statement confessing to the crime. In the

statement, the appellant explained that he had been fishing at the pond on Daniels’

farm the morning of the murder. Daniels arrived in his truck and told the appellant he

did not have permission to be on his property and asked him to leave. The appellant

pulled out a pistol, ordered Daniels out of the truck, and asked for the keys to the

truck. The appellant also commanded Daniels to write him a check for $350. Daniels

replied that he did not have a check, but he could get one for the appellant. The

appellant shot Daniels twice in the head, causing him to fall in the front of the truck,

hitting his head on the bumper. The appellant then shot him four more times,

reloaded the six-shot revolver, and fired three or four more shots into Daniels.

         According to his statement, the appellant walked to the body and removed eight

$100 bills from Daniels’ right front pants pocket and $200 in mixed bills out of his left

front pocket. Next, the appellant got in the truck and ran “back and forth” over the

body. He threw the gun and his bicycle into Fisher Pond and ran home. He later went

out and met his friend Simmie Rice. In the statement, he admitted telling Rice that he

robbed and killed Daniels and showed him the money. Later that night, the appellant


         3
          Although the appellant does not challenge his guilty plea in this appeal, we have reviewed the
plea and find that it is valid under North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d 162
(1970); and Dortch v. State, 705 S.W.2d 687, 689 (Tenn. Crim. App. 1985). The appellant proclaimed
that he planned and participated in the robbery of Daniels, but that he did not kill him. Nevertheless,
after advic e fro m h is fam ily and h is def ens e cou nse l, the a ppe llant re que sted the tria l cour t to ac cep t his
plea of guilt to felony murder so that he could “get on” and “pay his dues.” The trial court fully explained
to the appellant that if he pled guilty to the felony murder count, the State would drop the counts of first
deg ree m urde r and espe cially ag grav ated robb ery. T he re cord reflec ts tha t the a ppe llant w as fu lly
inform ed of the plea proc ess an d had re ason to believe tha t the guilty plea wa s in his bes t interest.

                                                             5
and Rice used some of the money to buy beer and the appellant also gave some of

the money to his friends and to his brother, Michael Lee.

        In response to specific questions from law enforcement, the appellant indicated

in his statement that the gun belonged to his father and that he had possessed it for

about three or four days prior to the murder. He further declared that he ran over

Daniels’ body “to make sure he was dead.” He stated that he was wearing a white T-

shirt at the time, which he later burned because it had blood on it.4 Finally, he said

that Rice was holding $400 of the money for him “so [he] wouldn’t get busted with it.”

        Pictures of the victim’s injuries and a videotape of the crime scene were

introduced through the testimony of Gaston Garrett, the investigator with the

Lauderdale County Sheriff’s Department. Garrett, the first official at the crime scene,

described what he observed upon arrival. The victim’s body was lodged underneath

the right front of the truck. The right front wheel was resting on the victim’s arm. The

left door of the truck was spattered with blood, as well as the front bumper and grill.

There were blood stains on both of the front tires. He observed several puddles of

blood in different places on the ground, and he also discovered skin tissue and flesh

on the bolts and metal framework under the truck.

        The State also presented testimony from Michael Lee and Tyrone Maclin.

Initially, Lee denied telling authorities that the appellant admitted murdering Daniels.

However, after the court instructed him about perjured testimony, Lee testified that the

appellant had told him he was going to rob and kill Daniels. He also remembered that

the appellant told him he shot the victim.

        Tyrone Maclin testified that he saw the appellant the day of the murder.

According to Maclin, the appellant had a lot of money and told him that he killed

Daniels. The appellant further told Maclin that he shot Daniels eleven or twelve times

and ran over him with the truck before throwing the gun and bike into the pond.


        4
          Agent Van Hooser testified that ashes and ribbing from a T-shirt were found in a barrel behind
appellan t’s house . No blood was de tected in the ashes .

                                                    6
       Lisa Moore, a deputy from the Lauderdale County Sheriff’s Department testified

that she overheard a disagreement between the appellant and the jail doctor when the

doctor visited the appellant on one occasion. She testified that when she returned the

appellant to his cell, he commented about the doctor, saying: “He don’t know what

he’s doing. I should kill him like I did [Daniels].”

       Dr. O’Brien C. Smith, the deputy chief medical examiner for West Tennessee,

performed an autopsy on the victim and testified at the hearing. He stated that

Daniels died as a result of numerous gunshot wounds and crushing injuries to the

chest and abdomen. He described to the jury fourteen gunshot wounds; eleven in

head and neck region, two in the chest, and one in the back. Despite extensive

damage to the top of the victim’s head and his skull, none of the bullets penetrated the

brain. As such, those wounds caused only bruising and bleeding on the brain. The

two gunshot wounds to the heart were very serious, but Dr. Smith testified that the

victim could have survived for several minutes afterwards with pain and suffering.

       As a result of being crushed, all of the victim’s ribs were broken with a total of

fifty-four fractures which in turn caused bruising of the lungs. Additionally, Dr. Smith

indicated that the liver was bruised and the right abdomen surrounding the liver had

red abrasions indicative of pressure and force. The victim also suffered crushing

injuries to the lower part of his body. The victim’s left leg was broken, and he had

bruises on his knees and feet, as well as tears and lacerations on his legs. Dr. Smith

opined that all of these injuries occurred while the victim was still alive.

       The autopsy indicated that the victim was lying down when he was run over by

the truck. A heavy abrasion on his back was consistent with the body being dragged

underneath a vehicle. Injuries to the front of the body were also consistent with

entrapment under a vehicle. Dr. Smith testified that the victim would have

experienced pain from the soft tissue injuries and bone fractures. In addition, bleeding




                                              7
from the head and facial wounds would have obstructed the victim’s airway and

interfered with his ability to breathe.

       The gunshot wound to the back struck the spinal cord and caused some

paralysis. On cross-examination, Dr. Smith stated that the spinal wound would have

caused loss of feeling from the mid-chest downward. Assuming the wound occurred

prior to the crushing injuries, the victim would not have felt the lower rib fractures or

the broken leg. However, he still would have felt at least nineteen of the rib fractures,

as well as the head and neck wounds. Although Dr. Smith was unable to determine

whether the gunshot wounds or the crushing injuries were inflicted first, he believed

that the crushing injuries occurred while the victim was still alive because of active

bleeding around the fracture sites. Moreover, he admitted that the victim may have

been unconscious during those injuries, but he explained that there was no brain

damage which would have caused unconsciousness.

       The first defense witness was the appellant’s friend, Simmie Rice. Despite

detailed questioning about his activities on the day of the crime, Rice denied any

involvement in the crime. He also denied saying that he killed the victim and then

“pinned it” on the appellant. On cross-examination, Rice revealed that the appellant

had told him the day before the murder that he was going to rob and kill somebody.

Rice saw the appellant the next day and the appellant said he had killed Daniels. The

appellant showed him the money and Rice also witnessed the appellant give money to

various people. In addition, Rice said the appellant gave him $800 to hold, which Rice

turned over to police when he was questioned.

       Dr. Luis Wong, a physician who treated inmates at the Lauderdale County jail,

was called by the defense to rebut the testimony of Lisa Moore. Dr. Wong testified

that he visited the appellant only once at the jail for a routine physical exam. He

denied having a confrontation or argument with the appellant during this visit. He

further stated that he did not hear the appellant make a remark about killing the victim.



                                             8
On cross-examination, Dr. Wong conceded that he might not have heard the appellant

make a remark to the jailer because he was in a different room and he does not pay

attention to situations that arise between jailers and inmates.

          The appellant’s testimony at the sentencing hearing varied substantially from

his statement to law enforcement. According to the appellant, he and Rice had

planned to rob someone for about a week prior to the murder. The day before the

murder, he and Rice decided to rob Daniels. In preparation, the appellant said that he

telephoned Daniels and told him that he wanted to buy some watermelons. Daniels

told the appellant he would be at the farm around 11:00 a.m. the next day.

          The appellant testified that on the day of the murder, he, Simmie Rice, and

someone named Jeff Smith met at the appellant’s aunt’s house and walked toward the

pond on Daniels’ farm. The threesome waited for Daniels at the pond, during which

time the appellant gave the gun to Rice. When Daniels arrived, they confronted him

and asked for his money. As Daniels reached into his pocket, the appellant testified

that Jeff Smith shot Daniels three or four times. The appellant and Rice then ran to

Daniels and took the money from his pockets. As they were taking the money, the

appellant testified that Daniels struggled and pulled off Rice’s mask.5 The appellant

allegedly told Smith not to kill Daniels, but Smith and Rice said they had to kill Daniels

because he could identify them. Smith then fired three more shots and Rice got into

the truck and drove over the body. Fleeing the scene, the appellant claimed that

Smith threatened to kill him and his family if he did not confess to the police. He

explained that this was the reason for the first statement he gave to the authorities. In

corroboration of his testimony, the appellant introduced a letter that he wrote to the

Lauderdale County Sheriff in February of 1995. In the letter, appellant denied robbing

or killing Daniels. He claimed to know who did it and said the “real killer [was] still out

there.”


          5
              Appellant explained that they were all wearing masks.

                                                        9
       The appellant also testified about his home life and education. He stated that

he got into a lot of trouble in high school, mostly for fighting and stealing. However, he

stated that he never hurt anybody. He was in special education classes at school and,

despite being seventeen years of age, had only completed the ninth grade. The

appellant further testified that his father is a share cropper and that he and his family

live in a four room house. Five brothers sleep together in one bedroom that has two

beds, and there are no bathrooms in the house. He also stated that the house has no

underpinning and that ten to fifteen dogs live under the house. Under these living

conditions, the appellant stated that he robbed Daniels to “get some stuff I ain’t had.”

He admitted he was wrong and that he deserved to be punished.

       On cross-examination, the appellant admitted to twenty-three infractions over

the course of the last school year. These included sexual harassment of a teacher,

assault, profanity, and disobeying authority. He claimed that his brother’s testimony

was false and also denied the admission to Maclin. In addition, the appellant claimed

that part of his statement to authorities was true, but that part of it was not. In contrast

to Dr. Smith’s testimony, the appellant stated that the gun was fired no more than

seven times. Furthermore, he testified that the shooter was twelve to fifteen feet from

the victim and could not explain Dr. Smith’s testimony that the wounds were inflicted at

close range. The appellant admitted that his testimony at the sentencing hearing was

the first time he had ever alleged Jeff Smith to be the shooter. He was unable to say

where Jeff Smith could be found. Finally, the appellant stated that all shots were fired

before dragging the body, which he agreed was a distance of about 140 feet.

       Dr. Wyatt Lee Nichols, a clinical psychologist who examined the appellant, also

testified for the defense. The records he reviewed indicated that the appellant had a

consistent IQ of seventy-one, which indicates borderline intellectual functioning. He

stated that the appellant functions intellectually as a twelve year old. Dr. Nichols

testified that school was not a place where the appellant felt very successful. In order


                                            10
to compensate for this, he acted out to enhance his self-esteem, which increased as

he got older, eventually manifesting in criminal behavior.

       Dr. Nichols believed that asking Daniels to write a check during the robbery was

consistent with the behavior of a twelve year old. The request indicated that the

appellant did not understand the ramifications of his actions. Also, the evidence

indicating that the appellant had given away a lot of the money was consistent with

this profile. Because the appellant had such a strong desire to belong and have

friends, Dr. Nichols opined that he would try to buy friends. Furthermore, Dr. Nichols

stated that the appellant would not have the capacity to challenge his own actions as

right or wrong. Dr. Nichols characterized the appellant as more impulsive under stress

due to his low intellectual capacity. Finally, Dr. Nichols indicated that the appellant

was capable of planning a robbery, but was more likely to follow someone else’s plan.

       The appellant’s brother, Joseph Lee, and his friend, Greg Hankins, testified for

the defense as well. According to Joseph Lee, two to three days after the murder,

Simmie Rice told him “we killed that nigger and your brother took the blame.” Hankins

testified that he was present and heard Rice make that statement. The appellant’s

father, grandmother, and a cousin also testified on his behalf.

       Based upon the foregoing, the jury sentenced the appellant to life in prison

without the possibility of parole, finding that the murder was heinous, atrocious or

cruel. Tenn. Code Ann. §39-13-204(i)(5) (Supp. 1996).

                           WAIVER OF JURY SENTENCING

       The appellant contends that the trial court erred in refusing to honor his waiver

of jury sentencing. He argues that the trial judge questioned his own impartiality in the

matter and should have recused himself or sought interchange with another judge.

We do not agree.

       Initially, we note that the appellant failed to raise this issue in his motion for new

trial. We recognize that issues regarding sentencing are ordinarily not required to be



                                            11
preserved through their presentation in a new trial motion. See State v. Draper, 800

S.W.2d 489, 497 (Tenn. Crim. App. 1990). However, when sentencing occurs through

a bifurcated trial process that includes the use of the jury to decide sentencing issues

by a reasonable doubt standard, we believe that the sentencing hearing is part of the

case being “tried by a jury” as contemplated by Rule 3(e), Tenn. R. App. P., to require

a motion for new trial. Thus, the appellant’s failure constitutes a waiver of the issue.

Tenn. R. App. P. 3(e).

        We also note that the appellant cites no authority in support of his argument,

which provides additional grounds for waiver. Tenn. Ct. Crim. App. R. 10(b); State v.

Killebrew, 760 S.W.2d 228, 231 (Tenn. Crim. App. 1988). Moreover, the issue was

not preserved by a motion to recuse or an objection at the hearing. Tenn. R. App. P.

36(a); Killebrew, 760 S.W .2d at 235. Despite these multiple grounds for waiver, we

will address the merits of the issue due to the serious nature of the offense and the

penalty imposed.6

        As discussed above, the trial judge initially accepted appellant’s waiver of jury

sentencing at the same time that he accepted appellant’s plea of guilty. On the day of

sentencing, upon learning that the appellant wanted to withdraw his plea, the trial

court examined him under oath. During this examination by the court, the appellant

made equivocal statements concerning his role in the crime, but expressed a desire to

preserve his plea. The trial court accepted the plea, but withdrew his consent to the

waiver of jury sentencing.7 The trial court remarked:

        However, in light of all the developments in this case; especially in light
        of the last statements that the defendant has made in this case


        6
           W e do not, h oweve r, addres s this issue on the ba sis of plain e rror, as the appellant u rges us to
do. See Tenn. R. Crim. P. 52(b). Appellant fails to explain why this should be considered plain error and
our review of the rec ord reve als no ration ale supp orting con sideration on that ba sis. W e are un able to
conclude that the trial court committed an egregious error affecting the appellant’s substantial rights and
thus, it does not rise to the level of plain er ror. See State v. Adkisson, 899 S.W.2d 626, 639-40 (Tenn.
Crim . App. 199 4).

        7
         Waiver of jury sentencing in first degree murder cases is permitted when the defendant has the
advice of his attorney and both the trial court and district attorney consent. Tenn. Code Ann. §39-13-
205(b) (1991).

                                                       12
       regarding his motivation and his involvement in this case, the Court finds
       that the Court will not accept that waiver, and has determined that the
       Court will not consent to it, and that a jury should be impaneled to hear
       this case with regard to the proper sentence that will be imposed in the
       case.
       ...

       I feel like it would be improper at this time to -- One of the reasons,
       among the many reasons, that the Court finds that the jury should hear
       this case, as opposed to the Court, the Court has observed this
       defendant here, and I’ve ruled that his plea was knowing and voluntarily
       made, but there’s obviously some emotions that are going through his
       head at this particular time about what is going on. He’s made various
       statements here to the Court that, upon reflection and consideration, at a
       sentencing hearing he might not have made, and, therefore, to assure
       that he’s going to have the issue of sentencing impartially determined by
       a jury, as opposed to this Court now, I think the prudent measure would
       be to bring a jury in to determine the appropriate sentence to be imposed
       in this case, and will do so.

       We cannot agree with the appellant that these comments indicate that the trial

judge had a duty to recuse himself.8 There is no indication in the record of the trial

judge’s inability to be impartial. Moreover, the appellant has failed to demonstrate any

improper rulings, remarks or conduct by the judge that could be attributed to partiality.

See State v. Hurley, 876 S.W.2d 57, 64 (Tenn. 1993), cert. denied, 513 U.S. 933, 115

S.Ct. 328, 130 L.Ed.2d 287 (1994). We find no evidence that the trial court was

predisposed to any particular result or that it had already made a decision on key

issues. See Alley v. State, 882 S.W.2d 810, 822 (Tenn. Crim. App. 1994). The

sentencing issue was tried before an impartial jury who determined punishment based

upon the evidence presented. In sum, the record is devoid of any evidence of bias or

prejudice.

       We find that the trial court acted with extreme caution to empanel a jury for

sentencing in light of the appellant’s statements made during his examination by the

court. We are unable to say the appellant was prejudiced by the trial court’s action.

The appellant is entitled to no relief on this issue.




       8
           App ellant neve r requ este d rec usa l.

                                                      13
                        ADMISSIBILITY OF PHOTOGRAPHS

      The appellant next contends that the trial court erred in admitting into evidence

several photographs of the crime scene depicting the victim’s injuries. He argues that

their admission was duplicative of evidence contained within a videotape of the crime

scene and that their inflammatory and cumulative nature outweighed their probative

value. See Tenn. R. Evid. 403.

      The admissibility of photographs lies within the sound discretion of the trial

court and generally enjoys a liberal admission policy. See State v. Banks, 564 S.W.2d

947, 949 (Tenn. 1978). On appeal, we will not reverse a decision to admit evidence

absent a clear showing of abuse of discretion. Id. The record before us demonstrates

no such abuse.

      A videotape of the crime scene was played for the jury during the testimony of

the investigating officer for the Lauderdale County Sheriff’s Department. The

videotape portrayed the geography of the crime area and depicted the relative

locations of the truck, pond, and the body at the time it was found. This was relevant

in light of the appellant’s testimony, which included a hand-drawn map of the crime

scene indicating the beginning and ending locations of the truck and the victim’s body.

In addition, the video was the most effective method of showing the jury the distance

the body was dragged under the truck, as evidenced by blood smears and stains on

the ground.

      Still photographs taken at the crime scene were also introduced by the State.

The appellant objected to their admission, but the trial court ruled they were relevant

to prove the heinousness and atrociousness of the crime, and that their relevancy

outweighed any unfair prejudice to the appellant. We agree that these photos were

relevant and important in depicting the heinous, atrocious and cruel nature of the

injuries. See State v. Cazes, 875 S.W.2d 253, 263 (Tenn. 1994), cert. denied 513

U.S. 1086, 115 S.Ct. 743, 130 L.Ed.2d 644 (1995) (holding that graphic post-mortem



                                           14
photographs were relevant to establish the heinous, atrocious, or cruel aggravating

circumstance). While it is true that the videotape and the pictures did contain some of

the same material, we cannot say their admission was an abuse of discretion. See

State v. Bigbee, 885 S.W.2d 797, 807 (Tenn. 1994) (holding that it was not an abuse

of discretion to admit a videotape of the crime scene although it depicted images

similar to those in photographs also admitted). The videotape and the photographs

served different purposes and were highly probative of the issues to be decided by the

jury.

                           ERROR IN JURY VERDICT FORM

        The appellant next argues that the verdict forms submitted to the jury

improperly stated the law on mitigation. According to the appellant, those forms did

not instruct the jury that it could find that the mitigating factors outweighed the

aggravating circumstance. Therefore, he asserts that the forms did not appropriately

instruct the jury on a sentence of life with the possibility of parole. The relevant portion

of the jury instructions reads as follows:

        If you do not unanimously determine that the statutory aggravating
        circumstance has been proved by the State beyond a reasonable doubt,
        the sentence shall be life imprisonment. You will write your verdict upon
        the enclosed form attached hereto and made a part of this charge.

        The verdict shall be as follows:

        “We, the jury, unanimously find that the punishment shall be life
        imprisonment.”

        If you unanimously determine that a statutory aggravating circumstance
        has been proven by the State beyond a reasonable doubt, and you
        determine that such a statutory aggravating circumstance has been
        proven beyond a reasonable doubt to outweigh any mitigating
        circumstance or circumstances, you shall, in your considered discretion,
        sentence the defendant either to imprisonment for life without possibility
        of parole or to imprisonment for life. In choosing between the sentences
        of imprisonment for life without possibility of parole and imprisonment for
        life, you shall weigh and consider the statutory aggravating circumstance
        proven by the State beyond a reasonable doubt and any mitigating
        circumstance or circumstances. In your verdict you shall reduce to
        writing the statutory aggravating circumstance so found and shall return
        your verdict upon the enclosed form attached hereto and made a part of
        this charge.

                                             15
         The verdict should be as follows:

         “We, the jury, unanimously find that the State has proven the following
         listed statutory aggravating circumstance beyond a reasonable doubt.”
         And here you will list the statutory aggravating circumstance. And,

         “We, the jury, unanimously find that such statutory aggravating
         circumstances outweigh any mitigating circumstance or circumstances
         beyond a reasonable doubt,” therefore:

         You shall then indicate on the enclosed verdict form either:

         “We, the jury, unanimously agree that the defendant shall be sentenced
         to imprisonment for life without the possibility of parole;” or

         “We, the jury, unanimously agree that the defendant shall be sentenced
         to imprisonment for life.”

The jury verdict forms reflected the instructions given by the trial court. However, the

appellant requested the trial court to instruct the jury that it must weigh the aggravating

and mitigating circumstances before imposing a sentence of life or life without the

possibility of parole.

         Pursuant to Tennessee Code Annotated, section 39-13-207 (Supp. 1996), 9 if

the jury unanimously determines that the State has proven beyond a reasonable

doubt one or more of the statutory aggravating circumstances, the jury shall, in its

considered discretion, sentence the defendant either to imprisonment for life or life

without the possibility of parole. The statute does not direct the jury to find that the

aggravating circumstance outweighs the mitigating circumstances before choosing

between those possible sentences Therefore, the instruction requested by the

appellant was not in conformity with the law and was properly rejected by the trial

court.

         Nevertheless, we do find that the trial court improperly instructed the jury in this

case. The jury instructions and verdict form in the appellant’s case required the jury to

find that the aggravating circumstance outweighed any mitigating circumstances.



         9
          The compiler’s notes to this statute indicate that it is applicable to all offenses committed on or
after July 1, 1993. The statute is applicable to the instant offense, which was committed on September
17, 1994.

                                                     16
Because this weighing language is not required by statute, the jury forms incorrectly

instructed the jury.

       However, we do not find that the error requires reversal. Requiring the jury to

make such a determination held the State to a higher burden than our legislature

dictates and thus, provided a heightened protection for the appellant. The appellant

suffered no prejudice and, therefore, the error was harmless beyond a reasonable

doubt. See Tenn. R. App. P. 36(b).

                                  THIRTEENTH JUROR

       The appellant next contends that the trial court failed to properly exercise its

role as thirteenth juror in the proceedings because the order denying the motion for

new trial does not specifically contain a thirteenth juror finding. He argues that the

omission of such a finding requires a new trial. We disagree.

       Under Tennessee Rule of Criminal Procedure 33(f), the trial judge must act as

a thirteenth juror and grant a new trial if he or she disagrees with the jury about the

weight of the evidence. In every criminal trial, the trial judge has a mandatory duty to

serve as the thirteenth juror. State v. Carter, 896 S.W.2d 119, 120 (Tenn. 1995).

Contrary to appellant’s assertion, however, the trial court is not required to explicitly

state on the record that this duty has been performed. See id.; see also State v.

Moats, 906 S.W.2d 431, 434 (Tenn. 1995); State v. Burlison, 868 S.W.2d 713, 719

n.2 (Tenn. Crim. App. 1993). Instead, “when a trial judge denies a motion for new

trial, an appellate court may presume, in the absence of evidence to the contrary, that

the trial judge approved the jury’s verdict as the thirteenth juror.” See Carter, 896

S.W.2d at 120.

       Although the trial court’s order denying appellant’s motion for new trial does not

explicitly state that it exercised its role as thirteenth juror, we presume from the denial

of the motion that the trial court discharged its duty. The record contains no evidence




                                             17
that the trial court disagreed with the jury’s verdict. Therefore, the appellant’s issue is

without merit.

                  HEINOUS, ATROCIOUS, OR CRUEL AGGRAVATOR

        The appellant’s final issue challenges the application of the heinous, atrocious,

or cruel aggravating circumstance. See Tenn. Code Ann. §39-13-204(i)(5) (Supp.

1996). He claims that the evidence is insufficient to support this aggravator as it was

interpreted by our supreme court in State v. Odom, 928 S.W.2d 18 (Tenn. 1996). We

disagree.

       In order to support the heinous, atrocious or cruel aggravating circumstance,

the State was required to prove that the murder involved torture or serious physical

abuse beyond that necessary to produce death. See Tenn. Code Ann. §39-13-

204(i)(5) (Supp. 1996). “Torture” is defined as the infliction of severe physical or

mental pain upon the victim while he or she remains alive and conscious. See Odom,

928 S.W.2d at 26 (citing State v. Williams, 690 S.W.2d 517 (Tenn. 1985)). “Serious

physical abuse” is a distinctive and separate element. “Abuse” means an excessive

act or an act which makes improper use of a thing. See id. If proven, the abuse must

be physical, not mental, and it must be serious as a matter of degree. See id. Proof

of either torture or serious physical abuse beyond that necessary to produce death is

sufficient to support the aggravator.

       The evidence of Daniels’ physical injuries provided overwhelming proof of both

torture and serious physical abuse. Daniels endured fourteen gunshot wounds which

were fired at close range.10 The primary area affected by these wounds was Daniels’

head and neck, only two wounds were found in the chest area and one in the back.

Although the gunshot wounds were not instantly fatal, they caused severe pain and

suffering and would have caused death within four or five minutes without immediate


       10
           Dr. Smith characterized all the gunshot wounds as “near” gunshot wounds. He explained that
some of the wounds were fired as close as six inches from the body while others were no more than 24
inches f rom the body.

                                                 18
medical intervention. In addition to the gunshot wounds, Daniels suffered crushing

injuries as a result of being run over and dragged a distance of 148 feet by a pickup

truck. The active bleeding around the wound sites indicated that the crushing injuries,

including the bone fractures, bruises, lacerations, and abrasions, were inflicted while

Daniels was still alive. Testimony at the sentencing hearing revealed that Daniels

experienced pain from the bone fractures and soft tissue injuries resulting from the

crushing and dragging. Furthermore, the large volume of blood loss from the head

and neck injuries obstructed Daniels airway and caused anxiety or “air hunger.”

       In light of this proof, it was reasonable for the jury to conclude that the crushing

and dragging of Daniels’ constituted torture. These actions inflicted severe physical

and mental pain on Daniels while he remained alive and conscious. While suffering

from multiple gunshot wounds and struggling for his life, Daniels was forced to endure

the horror of being run over and then dragged by a pickup truck. He was then left to

die under the weight of the vehicle.

       Although Dr. Smith conceded on cross-examination that Daniels may have

experienced partial paralysis as a result of one bullet striking the spinal cord, he stated

that Daniels would have retained feeling from his mid-chest upward. Thus, Daniels

continued to feel the pain from the gunshot wounds. We also recognize that Dr. Smith

was unable to say within a degree of medical certainty that Daniels would have

remained conscious after the gunshot wounds. However, he did state that there was

no medical reason, such as brain damage, which would have caused Daniels to lose

consciousness after the gunshots. Dr. Smith was certain that Daniels was still alive

when the dragging occurred.

       It was within the province of the jury to resolve the factual issues concerning

whether Daniels was conscious and capable of feeling the extreme physical pain

during the crime. State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). Considering

the evidence in the light most favorable to the State, a rational trier of fact could have


                                            19
found that Daniels was conscious and experienced the serious physical pain during

the crime. See Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560

(1979).

       Moreover, the proof was sufficient to demonstrate that the appellant inflicted

serious physical abuse upon the victim. Running over his body after shooting him

fourteen times is clearly excessive, as required by the definition of abuse. See Odom,

928 S.W.2d at 26. Because the gunshot wounds would have caused Daniels’ death,

the infliction of the crushing injuries was “beyond that necessary to produce death.”

See Tenn. Code Ann. §39-13-204(i)(5) (Supp. 1996). Therefore, we conclude that the

jury was fully justified in finding that the murder of Daniels was especially heinous,

atrocious, or cruel.

       We affirm the appellant’s sentence of life without the possibility of parole.




                                                 _______________________________
                                                 William M. Barker, Judge



____________________________
Joseph M. Tipton, Judge



____________________________
David G. Hayes, Judge




                                            20
