             IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                               AT JACKSON
                           August 8, 2000 Session

                  STATE OF TENNESSEE v. MICHAEL D. RIMMER

                  Appeal as of Right from the Criminal Court for Shelby County
                   Nos. 97-02817, 98-01033 & 98-01034 W. Fred Axley, Judge



                        No. W1999-00637-CCA-R3-DD - Filed May 25, 2001


The Defendant appeals his conviction for murder in the first degree and the sentence of death
imposed by the jury.1 This opinion is delivered in two parts, with a separate opinion addressing Part
II.

In Part I of this opinion we address the following issues:
             (1) Admission of evidence regarding his escape attempts;
             (2) Shackling of his feet and hands;
             (3) Prohibition of mitigation evidence at sentencing;
             (4) Admission of his statement to police;
             (5) Propriety of the prosecutor’s closing argument;
             (6) Unconstitutionality of the death penalty; and
             (7) Proportionality of sentence of death.
After careful review, we affirm the conviction for murder in the first degree.

In Part II of this opinion, Judge Williams sets forth his minority position on the following issues:
        (1) Application of the (i)(2) aggravating factor in the imposition of the death penalty;
        and
        (2) Cumulative effect of errors.
The position of the majority on the issues addressed in Part II is set forth in the separate opinion filed
by Judge Witt, in which Judge Hayes has joined. The majority concludes that the verdict is
enigmatic and uncertain, requiring reversal of the sentence of death and re-sentencing.

 Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed in Part,
                    Reversed in Part and Remanded for Re-sentencing

Part I:
JOHN EVERETT WILLIAMS, J., delivered the opinion of the court, as to Part I, joined by DAVID G.


        1
           Defendant was also convicted of aggravated robbery and theft of property over $1000 but less than $10,000
in value. No issues are raised with respe ct to those convictions or sentence s.
HAYES and JAMES CURWOOD WITT, JR., JJ.

Part II:
JAMES CURWOOD WITT, JR., J., delivered the opinion of the court as to Part II, in a separate opinion,
joined by DAVID G. HAYES, J. JOHN EVERETT WILLIAMS, J., dissents, which is set forth in Part II
of the lead opinion.

Paula Skahan and Gerald Skahan, Memphis, Tennessee, for the defendant, Michael Dale Rimmer.

Paul G. Summers, Attorney General and Reporter; Michael E. Moore, Solicitor General; Tonya G.
Miner, Assistant Attorney General; William L. Gibbons, District Attorney General; and Thomas D.
Henderson, Assistant District Attorney General, for the appellee, State of Tennessee.


                                            OPINION

       The Defendant, Michael Rimmer, was convicted of premeditated first degree murder by a
Shelby County jury on November 7, 1998. In addition to premeditated first degree murder, the jury
also found the Defendant guilty of theft of property and aggravated robbery. Extensive
circumstantial evidence was presented in this case to prove that the Defendant was the individual
who committed these crimes. The victim’s body has never been found.

                                              FACTS

        In 1989, the Defendant, Michael Rimmer, was convicted and incarcerated for burglary in the
first degree, aggravated assault, and rape of his former girlfriend, who was also the victim in the
instant case. While incarcerated at the Northwest Correctional Facility, the Defendant discussed the
victim with fellow inmates, William Conaley and Roger Lescure, and threatened to kill the victim.
Conaley was a friend of the victim’s niece and told her of the Defendant’s threats of killing the
victim. Lescure worked with the Defendant in the maintenance department and lived in the same
unit at the prison. Lescure testified that the Defendant not only threatened to kill the victim, but
discussed methods for disposing of a body so that it would not be found.

        After the Defendant’s release from prison in January 1997, the Defendant secured
employment working for an auto body shop. Cheryl Featherston met the Defendant when he came
to help her husband do some auto framework at her home. That same month, Featherston reported
her maroon 1988 Honda Accord stolen from her driveway. A bent ignition key that her 3-year-old
son played with was not seen after the theft.

        On February 7, 1997, the victim went to work at her job as a night clerk at the Memphis Inn
Motel. Guests of the motel established her presence in the locked front office between 1:00 a.m. and
1:45 a.m. on February 8, 1997. However, in those early morning hours, the victim disappeared from
the office. She was never heard from again, and her body has never been found.


                                                -2-
        The victim checked in guest James Defevere between 1:00 and 1:15 a.m. Guest Natalie
Doonan testified that she was in the vending area adjacent to the front office between 1:30 and 1:45
a.m. and saw the victim on duty when a man entered the lobby area. Dr. Ronald King went to the
vending area between 1:40 and 1:45 a.m. and witnessed the victim let a man through the locked
security door in the office area. The man was driving a maroon automobile. Doonan called the
office twenty to thirty minutes after leaving the vending area, but received no answer. When
Defevere went to check out between 2:25 and 2:35 a.m., the victim was not in the office. Further,
Dixie Roberts Presley and a companion stopped to get a map between 1:30 and 2:00 a.m. Presley
saw a maroon car directly in front of the office with its trunk open, which she considered odd since
it was raining.

        After CSX Railroad management was unable to contact the front desk to wake its crews
housed at the Memphis Inn, yardmaster Raymond Summers drove to the motel where he found the
victim’s office empty and signs of a violent physical struggle. He immediately sought help.
Deputies from the Shelby County Sheriff’s Department secured the scene and called the Memphis
Police.2

         The crime scene investigation revealed signs of a violent struggle in the employee bathroom,
including large amounts of blood, a cracked sink, bloody towels, and a torn off commode seat. A
trail of blood led from the bathroom, through the office, and to the curb outside the night entrance.
Approximately $600 and several sets of sheets were missing from the office. The victim’s billfold
and identification were in the office, her car remained in the parking lot, and a ring she constantly
wore was on the floor of the bathroom.

       Sometime between 8:30 and 9:00 a.m. that morning, the Defendant arrived at his brother’s
home driving a maroon Honda. Joyce Frazier, his brother’s girlfriend, described the Defendant as
uncharacteristically dirty. His car and shoes were muddy, and he claimed to have driven into a ditch.
The Defendant asked his brother to keep a shovel he was carrying and to help him clean blood from
the backseat of the car. After cleaning his shoes in the shower the Defendant asked if he could stay
and rest, but his request was denied. The Defendant’s brother disposed of the shovel after the
Defendant left.

        Although his employer considered him to be a good, reliable worker, the Defendant failed
to report for work on Monday, February 10, 1997. Nearly one month later, on March 5, 1997, a
sheriff’s deputy in Johnson County, Indiana, stopped the Defendant for speeding. A check of the
license plate and driver’s identification revealed that the car was Featherston’s stolen maroon Honda
and that the Defendant was wanted in Tennessee for questioning in conjunction with the victim’s
disappearance and suspected murder.



        2
            Memp his Inn is located inside Me mphis city lim its which gave the city police jurisdiction over the
investigation.


                                                      -3-
        An inventory of the car yielded receipts that evidenced the Defendant’s cross-country flight
after the victim’s murder. Until his arrest, he traveled through Mississippi, Florida, Missouri,
Wyoming, Montana, California, Arizona, Texas, and Indiana. Also found were large blood stains
in the car’s back seat. DNA testing proved the blood was consistent with female offspring of the
victim’s mother. Additional testing revealed that blood from the crime scene and the car contained
DNA that was consistent with the victim’s.

        While jailed in Indiana, the Defendant agreed to be questioned by officers from the Memphis
Police Department. In the course of the questioning, the Defendant claimed to have been at a topless
club in Memphis on the night of the victim’s disappearance, that he left the club at about 3:00 a.m.
and headed for Mississippi but was too tired to finish the drive, that the car he was driving got stuck
in mud on the median and required rocking to get out, that he slept at a rest stop until about 8:00
a.m., after which he went to Arkabutla Lake, and then to his brother’s house. The Defendant claimed
that he didn’t know anything about the victim’s disappearance, but speculated that she went to visit
her mother in Mississippi. In response to the officers’ claim that the victim might be dead, the
Defendant responded that she could not be dead because the police did not have a body.

       The Defendant’s Indiana cell mate, James Allard, Jr., testified that the Defendant told him
about killing his wife in a room behind the service desk at the motel where she worked. The
Defendant described the scene as very bloody, described the location where he dumped the body,
and expressed surprise that officials had not yet located it.

        The Defendant participated in at least three escape attempts after his arrest. The first
involved using toe-nail clippers to cut an opening in the recreation yard fence at the Johnson County,
Indiana jail. The Defendant discussed this attempt with Allard and enumerated plans which
included the possibility of taking a guard hostage or killing a guard to get out. Two “shanks,” or
homemade knives, were found in the defendant’s Indiana cell. In his second attempt, the Defendant
seized control of a prisoner transport van. After a chase of approximately twenty miles, Bowling
Green, Ohio police were able to stop the van and apprehend the Defendant who had a shotgun, shells
and beer in the van. The third attempt occurred at the Shelby County jail where the Defendant and
another inmate sawed through the bars of their cell, broke out a window, and used a homemade rope
to climb down.

        As a result of the Defendant’s escape attempts and the discovery of potential weapons on his
person prior to trial, the trial court ordered that the Defendant’s legs be shackled while in the
courtroom. After his conviction and the discovery of a book with a handcuff key impression and a
drawing of handcuff mechanics, the court also ordered that handcuffs be placed on the Defendant’s
wrists at sentencing.

       At sentencing, the State offered two witnesses: the victim’s mother who gave limited victim
impact evidence and the criminal court clerk who gave proof of the defendant’s prior convictions
involving violence against the person. Over his counsel’s objection, and in spite of the trial court’s
warning, the Defendant opted to present no mitigating evidence. Upon receiving the jury’s verdict,


                                                 -4-
the trial court concluded that the jury found that the Defendant had prior convictions involving
violence to the person and that the aggravating circumstances outweighed any mitigating factors.
A sentence of death was imposed.3

                                                    ANALYSIS

                                                        Part I

                                 1. EVIDENCE OF ESCAPE ATTEMPTS


        The Defendant argues that the trial court erred by allowing the State to present evidence of
his escape attempts to the jury. The Defendant contends that this evidence was overly prejudicial
and should not have been introduced at the guilt phase of his trial. The Defendant argues that our
analysis of this error must be conducted in light of the heightened reliability requirements in capital
case decisions pursuant to the Eighth Amendment. The State argues that the trial court did not abuse
its discretion and that there is no precedent for this court to substitute its judgment for the trial
court’s on this issue.

       The State maintains that case law and a plain reading of Tennessee Rules of Evidence 401
and 403 establish the relevance of the escape evidence and the trial court’s authority to admit such
evidence at its discretion. See generally Tenn. R. Evid. 401; Craig v. State, 455 S.W.2d 190 (Tenn.
Crim. App. 1970) (“[f]act that a substantial period of time has elapsed between the beginning of the
custody and the . . . attempted escape does not render evidence . . . too remote, and escape from
custody may be shown even though the prosecution has introduced evidence to show the flight of
accused prior to the time he was taken into custody”). The State also challenges the assertion that
evidence of the Defendant’s escape attempts should have been excluded under Tenn. R. Evid. 403
as unduly prejudicial since nothing about the presented evidence would establish unfair prejudice.

        In rebuttal, the Defendant claims not to challenge the relevancy of the proffered evidence,
only its probative value, which was modest in comparison to the evidence of his flight immediately
after the crime. More importantly, the Defendant argues that due to the nature and extent of the
escape evidence, its probative value was far outweighed by its prejudicial effect and that the trial
court erred by admitting it.

        The State’s introduction of evidence as related to the Defendant’s multiple escape attempts
was intended to demonstrate consciousness of guilt associated with evidence of flight. The evidence
introduced included testimony and physical evidence. The Defendant’s Indiana cell mate testified
regarding plans and actions taken by the Defendant at the Johnson County jail. An officer testified
that he found two shanks hidden in the Defendant’s Indiana cell. The Bowling Green, Ohio officer


       3
           The trial court’s interpretation of the jury’s verdict will be discussed in Part II of this opinion.


                                                          -5-
who apprehended the Defendant in the prisoner transport van testified about a shotgun and
ammunition found in the van. Two jailers testified about the Defendant’s attempt to climb out the
window at the Shelby County jail using a homemade rope; the rope, the sawed-through cell bars, and
the homemade pick that was used to break the window at the Shelby County jail were introduced
into evidence. The Defendant claims that the prejudicial effect of this evidence significantly
outweighed its probative value, especially when compared to the evidence of his cross-country
journey immediately following the crime.

         The trial court addressed the Defendant’s objections to the evidence as they arose during the
course of trial. It concluded that the stated purpose of introducing the evidence was proper and that
its probative value was not outweighed by its prejudicial effect. The trial court, as the trier of fact,
is able to assess the credibility of the witnesses, determine the weight and value to be given to the
evidence, and resolve any conflicts in the evidence. State v. Odom, 928 S.W.2d 18, 23 (Tenn. 1996).
The trial court did not abuse its discretion and this issue is without merit.

                                 2. SHACKLED FEET & HANDS

        The Defendant contends that the trial court erred by ordering that he wear leg restraints
during the course of trial and both handcuffs and leg restraints during the sentencing proceedings.
The State argues that the trial court properly restrained the Defendant and that under the
circumstances it did not inherently violate the Defendant’s constitutional rights.

A.     Leg Restraints

        The Defendant argues that he had a right to appear before the jury free from restraints.
LaFave et al., Criminal Procedure § 24.2(e) (1999). The Defendant further claims that the trial court
erred by failing to conduct a hearing to show extreme need, by failing to provide a sufficient reason
to justify the restraints, and by failing to instruct the jury that shackling should not affect its
determination of guilt or innocence or its assessment of punishment. See Willocks v. State, 546
S.W.2d 819 (Tenn. Crim. App. 1976); Raybin, Tennessee Criminal Practice and Procedure § 24.55.
The Defendant also contends that the trial court’s actions were so grossly prejudicial as to be harmful
beyond a reasonable doubt. By contrast, the State argues that the trial court made its decision to
shackle the Defendant in accordance with the procedural safeguards established by Willocks and that
the record demonstrates that the use of restraints was reasonably necessary.

        The Willocks court held that in-court shackling is inherently prejudicial but also concluded:
(1) a defendant may be shackled in the trial court’s discretion to prevent his escape; (2) a hearing
should be conducted to determine whether physical restraint is necessary to prevent the escape of that
particular defendant or whether less drastic security measures will suffice; and (3) when physical
restraint is used, the jury must be given an instruction that shackling should in no way affect their
determination of guilt or innocence or their assessment of punishment. 546 S.W.2d at 821-22.
Under these guidelines, this court must determine whether the trial court clearly abused its discretion
in permitting the Defendant to be shackled before the jury.


                                                  -6-
        Prior to the start of evidence, the trial court heard arguments regarding the placement of leg
restraints on the Defendant. The record reveals that the courtroom was very small and provided little
space between the Defendant and other parties (i.e. jurors, spectators, etc.). The Defendant was
dressed in civilian clothes and the leather restraints were placed around his ankles. He sat behind
a set of tables which obstructed the jurors’ view of his legs. In deciding that restraints were
appropriate, the trial court stated, “From the second row in the jury box, even on the far end toward
the defendant, [the restraints] can’t be seen .... [T]he legal presumption [that restraints should not
be used has] been overcome.” The trial court also noted that two potential weapons were taken from
the Defendant’s person just minutes before being brought into the courtroom.

        During the course of jury voir dire, the Defendant again raised the issue of the leg restraints.
He claimed that two potential jurors seemed to be looking at the restraints. The trial court found that
the defense table obstructed the jurors’ views of the Defendant’s ankles. Furthermore, the record
indicates that the trial court ensured that the Defendant was only moved around the courtroom
outside the jury’s presence.

          Given the Defendant’s attempted escapes following his arrest and his attempt to arm himself,
it is clear that the trial court did not abuse its discretion in permitting limited physical restraint of the
Defendant. See Id.; see also State v. Beauregard, No. W1999-01496-CCA-R3-CD, 2000 WL
705978 (Tenn. Crim. App. filed May 26, 2000, at Jackson) (no abuse of discretion when a trial court
restrains a defendant where “necessary to prevent escapes, violence or misconduct which would
impede the trial”). As argued by the State, the trial court used the least obtrusive means to ensure
courtroom safety without using more noticeable and prejudicial safeguards. Furthermore, the trial
court’s finding that the jury could not see the Defendant’s leg restraints obviated the need for a jury
instruction which would have operated to the Defendant’s detriment by calling attention to the
physical restraints during trial.

B.      Hand Restraints

        The Defendant also contends that the trial court erred when it ordered the Defendant to be
handcuffed at the sentencing phase of trial. The State argues that the jury conviction removed the
presumption of innocence and that the Defendant failed to support his assertion that the additional
restraint violated his due process rights. In the event this court finds that the trial court erred, we are
urged to conduct a harmless error analysis.

        A guilty verdict removes the presumption of innocence which the Defendant enjoyed at trial.
State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982). Nevertheless, the Defendant cites to Duckett
v. Godinez, 67 F.3d 734, 748 (9th Cir. 1995) for the proposition that the trial court erred by allowing
physical restraints at sentencing:

        In the penalty phase of a capital trial, the jury knows the defendant is a convicted
        felon. But the extent to which he continues to be dangerous is a central issue . . .


                                                    -7-
        physical restraints may create the impression in the minds of the jury that the court
        believes the defendant is a particularly dangerous and violent person. Therefore, in
        the absence of a compelling need to shackle the defendant during his sentencing
        hearing, such a practice is inherently prejudicial.
Id.

        Even assuming that the restraints placed on the Defendant were prejudicial, the record reveals
a compelling need for the restraints. On the second day of trial, the Defendant attacked one of the
State’s witnesses in the jail in retaliation for having testified against him. On the third day of trial,
a self-help litigation manual with an impression of a handcuff key and drawings of handcuff
mechanics was removed from the Defendant’s person.

         Clearly, the Defendant posed a danger to courtroom security. He attempted several escapes
prior to trial; he attempted to arm himself in the courtroom; he attacked a witness against him in the
jail; and he obtained materials to attempt to free himself from his hand restraints. The trial court was
justified in placing the additional restraints on the Defendant for the sentencing phase. This court
must also note that the record reflects that the trial court arranged for the Defendant’s hands to be
restrained in front, rather than behind his back, which made his hands easier to conceal without
drawing the jury’s attention to the restraints.

              3. PROHIBITION OF MITIGATION EVIDENCE AT SENTENCING

        Over the objection of defense counsel, the trial court allowed the Defendant to prohibit the
presentation of additional mitigation evidence to the jury at sentencing. While acknowledging the
recent ruling that a Defendant has the right to decide whether to present mitigating evidence, see
Zagorski v. State, 983 S.W.2d 654, 660-61 (Tenn. 1998), he asserts that the trial court’s procedure
was inadequate to ensure that he was competent and fully informed of the consequences of his
decision. The State argues that, despite the penalty phase occurring before the filing of the opinion
in Zagorski, the trial court substantially complied with its stated procedure for ensuring a knowing
and voluntary waiver of that right. See State v. Smith, 993 S.W.2d 6, 13 (Tenn. 1999).

        When faced with a criminal defendant who desires to forego the presentation of mitigating
evidence, Zagorski requires the trial court to: (1) inform the defendant of his right to present
mitigating evidence and make a determination that the defendant understands this right and the
importance of such evidence; (2) question whether the defendant and counsel have discussed the
importance of mitigation evidence and the risks of not presenting such; and (3) after ensuring that
the defendant understands the importance of mitigation, inquire whether he still wishes to forego
such presentation. 983 S.W.2d at 660-61.

       At sentencing, the Defendant made a pro se motion to waive jury sentencing and defense
counsel advised the court that the Defendant also wished to waive further presentation of mitigating
evidence. The Defendant was placed under oath and questioned regarding these requests. There was
no suggestion that the Defendant was incompetent to understand the possible consequences of his


                                                  -8-
request, and the trial court noted the Defendant’s intellect.

        The trial court questioned whether counsel advised the Defendant regarding the potentially
devastating consequences of failing to present mitigating evidence. Counsel indicated that he had
advised the Defendant, and the Defendant indicated he understood the risks of waiving his right and
did so of his own volition. When the defense made an offer of proof by their mitigation specialist,
the Defendant again expressed his desire to forego mitigation by strenuously objecting to the offer
of proof. At the close of the State’s proof, the trial court offered the Defendant an opportunity to
change his mind. The Defendant responded that he did not wish to change his mind, that no one
pressured him into the decision, and that the decision was his own.

         The trial court correctly determined that the Defendant was competent to execute a waiver
of his right to present mitigating evidence, see Smith, 993 S.W.2d at 13, and substantially complied
with the requirements established by Zagorski. The Defendant’s claim that the trial court’s “blind
deference” to his wishes amounted to constitutional error is without merit.

                           4. ADMISSION OF DEFENDANT’S STATEMENT

        Memphis police interviewed the Defendant after his arrest in Johnson County, Indiana, at
which time he made an arguably inculpatory statement regarding the absence of the victim’s body. 4
During the course of Sergeant William Ashton’s examination at trial, it became apparent that a page
of the Defendant’s statement was omitted inadvertently from the defense’s copy of the statement.
As a result of this discovery violation, the trial court excluded the Defendant’s statement and
instructed the jury to disregard the officer’s testimony. However, on the basis of the defense’s cross-
examination regarding the length of the interrogation, the trial court reversed itself and allowed the
State to re-introduce the content of the Defendant’s statement.

         The Defendant claims that the State committed a discovery violation that required exclusion
of the evidence at issue. Raybin, Tennessee Criminal Practice and Procedure § 13.92 (most effective
remedy for discovery violation is exclusion of evidence). He argues that the inculpatory statement
was the only direct evidence against him, other than an alleged jailhouse confession, and that its
initial exclusion by the trial court was proper. By contrast, he asserts that the trial court’s subsequent
reversal was “inexplicable and indefensible.”

        The State argues that the statement should not have been excluded in the first place, given
its predominantly exculpatory nature, and since the only arguably inculpatory portion of the
Defendant’s comment was that the victim could not be dead since the police had no body. Further,
the State also argued that it was not error for the trial court to admit the statement on re-direct after
it found that the defense “opened the door” during cross-examination.


         4
            Appare ntly, upon qu estioning by the officers as to the v ictim’s whereabouts, the Defendant commented that
the victim could not be dea d becau se the police did not hav e a body, a fact which th e officers did not mention to the
Defenda nt.


                                                          -9-
         The record clearly sets forth that the prosecution failed to provide the Defendant with a copy
of his statement when requested during discovery. The record also shows that it was not until the
statement was introduced at trial that the defense counsel learned of the statement. As such, we
agree that the Defendant’s statement should have initially been excluded since it was not provided
to the Defendant when requested during discovery. See Tenn. R. Crim. P. 16(a)(1) & (d)(2). We
note, that while the court had not yet ruled on this matter at the time the jury heard the statement that
the Defendant made to the police, the trial court told the jury that the only testimony they could
consider during deliberations was that on March 6th the police went to Franklin, Indiana, and when
they arrived they saw the Defendant and advised him of his rights. The trial court then told the jury
that “[i]f during deliberations someone raises the issues about anything else, you must remind them,
they can’t consider anything else.” There is nothing in the record to suggest that the jury did not
follow the curative instruction given by the trial court.

        As set forth above, it later became proper for the trial court to allow the jury to consider the
statement the Defendant gave to the police. Following the trial court’s curative instruction to the
jury, the defense cross-examined the officer who testified about the Defendant’s statement. During
cross-examination, the defense asked the officer whether he recorded the Defendant by audiotape
or videotape, or took notes during the interview. When the defense counsel later conducted re-cross,
the officer was told to “refer back to [his] supplement” to answer questions asked of him by defense
counsel. When defense counsel instructed the officer to use his notes containing the Defendant’s
statement to the police to answer questions, the defense counsel opened the door for the full
statement contained within those notes to be read into the record. See State v. Jones, 15 S.W.3d 896
(Tenn. Crim. App. 2000). The trial court did not err by allowing the Defendant’s statements to be
heard and considered by the jury once defense counsel opened the door.5

         This court further examined this issue under the doctrine of curative admissibility. Under
this doctrine, “‘where a defendant has injected an issue into the case, the State may be allowed to
admit otherwise inadmissible evidence in order to explain or counteract a negative inference raised
by the issue defendant injects’.” State v. Land, 34 S.W.3d 516, 531 (Tenn. Crim. App. 2000)
(citations omitted). “In other words, ‘if A opens up an issue and B will be prejudiced unless B can
introduce contradictory or explanatory evidence, then B will be permitted to introduce such evidence,
even though it might otherwise be improper.’” Id. (quoting People v. Manning, 695 N.E.2d 423, 433
(Ill. 1998) (citations omitted)).

        The rule is derived form the fundamental guarantee of fairness.... “[This] rule
        operates to prevent an accused from successfully gaining exclusion of inadmissable
        prosecution evidence and then extracting selected pieces of this evidence for his own
        advantage, without the Government being able to place them in their proper context.”
        Lampkins v. United States, 515 A.2d 428, 431 (D.C. 1986). However, it “is limited



        5
            But for the d iscovery viola tion exclusion , this evidence w ould have been clear ly admissible.


                                                          -10-
       by the necessity of removing prejudice in the interest of fairness.” Crawford v.
       United States, 198 F.2d 976, 979 (D.C. Cir. 1952)


Id. The trial court must proceed with caution, however, as the evidence permitted to be introduced
is limited to that “which is necessary to dispel the unfair prejudice.” Id. Finally, the court must
weigh the good that is derived from evidence that is to be used to correct the negative inference
against the harm that is likely to occur from the use of the excluded evidence. Id.; see also 27 Fed.
Prac. & Proc. Evid. § 6096 (1990).

         This court is of the opinion that when the defense began to question the officer about the
duration of the Defendant’s interview, whether a video or audio tape was made of the interview, and
whether he took notes during the interview, the defense entered into an area that the prosecution was
prohibited from entering into by the trial court. It is inarguable that when defense counsel began to
solicit testimony from the officer that was directly related to the evidence the prosecution was
prohibited from using the defense was “extracting selected pieces of evidence for its own
advantage.” The questions posed by defense counsel attempted to create the appearance that the
police interviewed the Defendant for four and a half hours and walked away from the interview with
nothing to show for the lengthy period of interrogation. This is precisely the scenario that the
doctrine of curative admissibility was intended to rectify by allowing otherwise inadmissible
evidence to be used in order to cure the negative inference that was unleashed when the defense
proceeded with its line of questioning.

        This court must now address whether the harm that resulted from allowing the Defendant’s
statement to be considered by the jury outweighed the good that resulted from it. The prosecution
points out that the statement given to the police by the Defendant was primarily an alibi statement.
We agree and do not find that the overall statement caused any harm to the Defendant. This court
is not convinced, however, that there was no harm at all in allowing the Defendant’s statement to
be considered by the jury. Therefore, we must focus our attention on those areas that are potentially
harmful to the Defendant; specifically, the Defendant’s statement that the victims could not be dead
because the police did not have a body and the fact that the police had not yet told the Defendant that
they did not have a body.

        We first turn our attention to the harm that was caused by allowing these two pieces of
evidence to be heard by the jury. At the time the potentially harmful portion of the Defendant’s
statement was heard by the jury, a vast quantity of damaging testimony had already been given by
several different witnesses. Specifically, testimony was given that the Defendant had made death
threats concerning the victim on past occasions; that the Defendant had past convictions for violence
against the victim (i.e. aggravated assault and rape); that the Defendant stole a maroon Honda
automobile; that the victim was killed between 1:30 a.m. and 3:10 a.m. on the morning of February
8, 1997, and that during the time period in which the victim was killed, the maroon Honda
automobile stolen by the Defendant was seen in front of the motel where the victim worked; that a
large amount of blood was found at the victim’s work place; that around 9:00 a.m. on the morning
the victim was killed the Defendant arrived at his brother’s house in a maroon Honda automobile;

                                                -11-
that the Defendant’s shoes were muddy; that the car was muddy, and that there was a shovel in the
back of the car; that the Defendant asked his brother to help him clean some blood out of the back
of the car; that the Defendant was arrested in Indiana in the stolen maroon Honda automobile, and
that there was a large reddish-brown stain in the back seat that looked like a dried blood stain; and
that the victim’s family never saw the victim again after she left for work during the late hours of
February 7, 1997.

       The testimony set forth above clearly painted a damaging picture well before the Defendant’s
statement was allowed into evidence by the trial court. The Defendant’s statement only served to
support the damage that was already done by the testimony that had already been given by several
witnesses. As such, we believe that the portion of the Defendant’s statement that was potentially
harmful was minimally harmful.

        We now turn our attention in this balancing analysis to the good that came from allowing the
jury to hear the Defendant’s statement. Time and time again this court has excluded evidence that
has tended to mislead the jury. Such exclusionary practices by this court are evidence of the great
lengths we go to in order to ensure that our juries are not mislead by evidence presented to them at
trial. The flip side of the coin is the importance of correcting evidence that has tended to mislead
or has the potential of misleading the jury. As set forth above, the line of questioning engaged in by
the defense had the tendency or potential to mislead the jury. Thus, we find that there was clearly
a much greater good in allowing the Defendant’s statement to be considered by the jury in order to
correct the misleading portrait the defense counsel attempted to paint for the jury.

       Under the doctrine of curative admissibility, the Defendant’s statement would have been
proper. The harm associated with admitting the Defendant’s statement did not outweigh the good
that was derived from allowing it into evidence. This issue is without merit.

                          5. PROSECUTOR’S CLOSING ARGUMENT

        In his closing argument, the prosecutor conducted a long narrative encompassing such issues
as the Defendant’s cross-country flight following the murder and the victim’s body lying in an
unmarked grave. The Defendant avers that the argument was blatantly improper in that it was
intended to appeal to the sympathy, prejudice and emotion of the jury. He asks this court to find
plain error in the trial court’s failure to undertake curative measures. The State claims that the
argument was entirely proper in light of the evidence presented at trial and that Defendant’s rights
were not violated by the prosecutor.

        Generally, the scope of a closing argument is subject to the trial court’s discretion. State v.
Middlebrooks, 995 S.W.2d 550, 557 (Tenn. 1999). The parties should be granted wide latitude
provided the argument is “temperate, predicated on evidence introduced during the trial, relevant to
the issues being tried, and not otherwise improper under the facts or law.” Id.; State v. Bigbee, 885
S.W.2d 797, 809 (Tenn. 1994). Nothing about the prosecutor’s closing argument violated these
principles. This issue is without merit.


                                                -12-
     6. ILLEGALITY AND UNCONSTITUTIONALITY OF DEATH PENALTY STATUTE

        While acknowledging the determination of the issues, the Defendant preserves the following
statute constitutionality issues for subsequent review:6
        (1) The statute fails to meaningfully narrow the class of death eligible defendants
            (challenging (i)(2), (5), (6) & (7) aggravating circumstances);
        (2) The prosecutor’s unlimited discretion in deciding to seek the death penalty;
        (3) The discriminatory imposition of the death penalty based upon economics,
            race, geography and gender;
        (4) The lack of uniform procedures for jury selection in capital cases (i.e., no
            requirement of individual voir dire);
        (5) The effect of a death qualification process that results in a prosecution-prone,
            guilt-prone jury;
        (6) The lack of opportunity to address popular misconceptions about sentencing
            (i.e., relative costs of incarceration and execution; deterrent effect);
        (7) The jury instructions requiring a unanimous verdict to impose a life sentence
            and prohibiting instruction on the effect of a non-unanimous verdict;
        (8) The effect of Tenn. Code Ann. §39-13-204(g) that the jury is not required to
            make the ultimate determination that death is appropriate penalty;
        (9) The denial of final closing argument at sentencing; and
        (10) The constitutionally inadequate appellate review process.

        The State correctly asserts that this same litany of claims has been previously rejected by the
State’s appellate courts. See State v. Nesbit, 978 S.W.2d 872 (Tenn. 1998), cert denied,119 S. Ct.
1359 (1999); State v. Cribbs, 967 S.W.2d 773 (Tenn. 1998), cert. denied, 119 S. Ct. 343 (1998);
State v. Mann, 959 S.W.2d 503 (Tenn. 1997), cert. denied, 118 S.Ct. 2376 (1998).

                    7. PROPORTIONALITY REVIEW Tenn. Code Ann. § 39-13-206(c)(1)

        The Defendant claims that considering the nature of the crime and legal precedents, the
sentence of death in his case is excessive and disproportionate. The State disagrees and contends
that the Defendant’s trial was conducted pursuant to statutory procedures and that the sentence was
not imposed arbitrarily. 7



          6
            The State contests the Defendant’s standing to challenge the (i)(5), (6) & (7) aggravators since he was not
subjected to their application. Nevertheless, the constitutionality of these provisions are addressed in State v. Vann, 976
S.W.2d 93, 110 (T enn. 1998).


          7
           As discussed in Part I I below and in the separate opinion of Judge Witt and joined by Judge Hayes, the
majority holds that due to errors in the sentencing phase of the trial, the defendant must receive a new sentencing hearing.
However, it is the duty of this cou rt to addres s all appellate issu es, due to the possibility of further appeal of our decision.
See, e.g., State v. Pendergrass , 13 S.W.2d 389, 39 5 (Tenn. Crim. App. 1999).


                                                              -13-
        According to the Defendant, in cases where no body was found, common law courts refused
to convict for capital murder to assure that a homicide was actually committed. He argues that we
should refuse to execute a man without the same assurance. Specifically, he claims that the lack of
a body and/or an eyewitness to the crime prevents a proper proportionality review by this court as
required by State v. Bland, 958 S.W.2d 651, 667 (Tenn. 1997). He seeks to have this court set aside
the death sentence and impose a life sentence.

        Tennessee Code Annotated section 39-13-206 provides that the court reviewing the
imposition of a death sentence must determine whether (1) it was imposed in an arbitrary fashion;
(2) the evidence supports jury’s finding of statutory aggravating circumstances; (3) the evidence
supports the jury’s finding that aggravating circumstances outweigh the mitigators; and (4) the
sentence is not excessive or disproportionate to penalties imposed in similar cases considering the
nature of crime and the defendant. Tenn. Code Ann. § 39-13-206. The purpose of a comparative
proportionality review is “to eliminate the possibility that a person will be sentenced to death by the
action of an aberrant jury and to guard against the capricious or random imposition of the death
penalty.” Bland, 958 S.W.2d at 665.

       In comparing similar cases, we consider such factors as (1) the means of death; (2) the
manner of death; (3) the motivation for the killing; (4) the place of death; (5) the similarity of the
victims’ circumstances including age, physical and mental conditions, and the victims’ treatment
during the killing; (6) the absence or presence of premeditation; (7) the absence or presence of
provocation; (8) the absence or presence of justification; and (9) the injury to and effects on non-
decedent victims. Id. at 667.

       In comparing defendants, we consider (1) the defendant’s prior criminal record or prior
criminal activity; (2) the defendant’s age, race, and gender; (3) the defendant’s mental, emotional
or physical condition; (4) the defendant’s involvement or role in the murder; (5) the defendant’s
cooperation with authorities; (6) the defendant’s remorse; (7) the defendant’s knowledge of
helplessness of victim(s); and (8) the defendant’s capacity for rehabilitation. Id.

        Evidence at trial revealed that the victim, the Defendant’s former girlfriend, suffered a violent
death given the huge amount of blood in the bathroom and the broken bathroom fixtures; that the
Defendant harbored a strong desire for revenge against the victim; and that the murder occurred
during perpetration of a robbery wherein $600 and several sets of sheets were stolen from the
victim’s place of business. Testimony also established a continuing obsession and hatred for the
victim, which undoubtedly factored into the robbery of the establishment where the victim worked
and was a prime factor in the victim’s murder.

        At sentencing the jury received conclusive, undisputed evidence of the Defendant’s
convictions for prior violent felonies. The Defendant refused to allow counsel to present any
mitigating evidence, and instead forced counsel to rely on evidence presented at trial for mitigation
purposes. Such evidence was extremely limited and weak. Further, the jury was aware that the
victim’s body was never recovered and was free to consider that as a mitigating factor.


                                                 -14-
        The Defendant, who was 31 years old at the time he committed the murder in the instant case,
has a criminal record consisting of convictions for rape, two counts of aggravated assault, and assault
with intent to commit robbery with a deadly weapon. With regards to the Defendant’s mental or
emotional history, there is no evidence in the record to support such a showing. Further, the
Defendant showed no remorse at the trial or sentencing hearing, and never revealed the location of
the victim’s body. The Defendant’s refusal to divulge the location of victim’s body is callous in this
court’s opinion, and in choosing to withhold such information, the Defendant has done much more
than commit murder in this case. Indeed, his refusal to divulge the location of the victim’s body
effectively perpetrates on the victim’s family a never-ending victimization. The Defendant’s refusal
to give closure to the victim’s family, instead choosing to hide behind lies set forth in his idle claims
of innocence, obviously demonstrated to the jury the cold, heartless nature of the Defendant.

        Based upon our review, we conclude that the following cases in which the death penalty has
been imposed have many similarities with the instant case. See State v. Smith, 993 S.W.2d 6 (Tenn.
1999) (the murder of a store owner during a robbery, with similar aggravating circumstances); State
v. Cribbs, 967 S.W.2d 773 (Tenn. 1998) (the murder of a woman during the burglary of her home,
with similar aggravating circumstances); State v. Hodges, 944 S.W.2d 346 (Tenn. 1997) (the murder
of a man in his home after he was robbed, with similar aggravating circumstances); State v. Jones,
789 S.W2d 545 (Tenn. 1990) (the murder of a man in his home during an armed robbery, with
similar aggravating circumstances); State v. Goad, 707 S.W.2d 846 (Tenn. 1986) (the murder of a
store merchant during an armed robbery, with similar aggravating circumstances); State v. Buck, 670
S.W.2d 600 (Tenn. 1984) (the murder of a woman working as a clerk at a self serve gas station after
she was kidnaped and raped, with similar aggravating circumstances).

        In accordance with Tennessee Code Annotated § 39-13-206(c) and the principles adopted in
prior decisions, this court has reviewed the entire record, giving due weight and consideration as
mandated. After an in-depth and thorough review, we conclude that the Defendant’s sentence of
death is not arbitrary or disproportionate to sentences imposed in similar cases considering the nature
of the crime and the Defendant. Further, the evidence supports the jury’s findings of the statutory
aggravating circumstances that gave rise to and warranted the imposition of a sentence of death in
this case. While the facts of the instant case are not identical to the facts in the cases set forth above,
the cases set forth in the proportionality review demonstrate that the sentence of death in the instant
is not aberrant.

       A sentence of death is not disproportionate unless, taken as whole, the case plainly lacks
circumstances consistent with those in cases where death is imposed. Bland, 958 S.W.2d at 665.
Hence, the fact that no body was recovered does not preclude the imposition of the death penalty,
and meaningful appellate review of the sentence was accomplished in spite of the absence of a body.
The record shows that the trial in this case was conducted according to all statutory mandates. The
sentence was not imposed arbitrarily, and the evidence supported the jury’s application of the (i)(2)
& (7) statutory aggravating circumstances. There have been numerous cases in which the death
penalty was imposed based on the application of the (i)(2) & (7) aggravating circumstances.
Furthermore, the record supports a finding that the aggravating circumstances outweighed the


                                                  -15-
mitigating factors highlighted by defense counsel during the guilt phase of trial. This issue is
without merit.


                                               Part II

                              (Minority Position of Judge Williams)

    This section addresses the defendant’s issues relative to the sentencing phase of the trial and his
complaint of cumulative error. The majority of the panel concludes that prejudicial errors occurred
in the sentencing phase of the trial which require that this case be reversed and remanded for a new
sentencing hearing. The views of the majority are expressed in a separate opinion authored by Judge
Witt and joined by Judge Hayes. However, the author of this lead opinion disagrees with the
majority’s conclusions, and as set forth below, would affirm the sentence of death.

                        1. AGGRAVATING FACTOR § 39-13-204 (i)(2)

    I have concluded that the jury verdict reflects two statutory aggravating circumstances, (i)(2) and
(i)(7), and their verdict of death should be affirmed.

     The evidence of guilt is overwhelming. Although the defense attempts to raise doubts about the
death of the victim due to the fact that the body has not been found, I conclude the jury had before
it sufficient evidence about the crime scene, the amount of blood found, the medical testimony, the
DNA testimony, and the testimony from the defendant’s brother to conclude beyond a reasonable
doubt that the defendant brutally murdered the victim and buried her with the shovel that the
defendant’s brother destroyed at the defendant’s request.

    The evidence of aggravating circumstances is also overwhelming.

   The State confined its argument during the sentencing phase to facts and circumstances
appropriate for the jury’s consideration in finding the statutory aggravating circumstances.

        MS. MOSLEY: Let’s talk about some of those aggravators. 1985, this man
        committed yet another aggravated assault before he ever knew Ricci. Pled guilty to
        it. Is there any reasonable doubt about that? No.

        Assault with the intent to commit robbery with a deadly weapon.               Another
        aggravator. Any doubt at all about that? He pled guilty to it. No.

        Let’s remember Ricci, the aggravated assault against her in 1989 or ‘88. Again, he
        pled guilty to that. Is there any doubt about that?

        How about that rape? Another one. Pled guilty to. Is there any doubt about that?
        No.

                                                -16-
       Another aggravator that you can consider, and these are all outlined by law, is the fact
       that this crime, this murder, this brutal death of Ricci Ellsworth was committed while
       he committed another felony that other robbery. You can consider that as yet another
       aggravator. Again, there’s no doubt about that. You’ve already found him guilty of
       that. You’ve found him guilty of that murder and you found him guilty of that
       robbery. Those are all aggravators that you can consider. And there is no doubt
       about any of them.

       The burden when it comes to aggravators and mitigators is on us, the State. We have
       to prove the aggravators beyond a reasonable doubt, and we have to prove to you that
       they outweigh any mitigation that the Defense might offer beyond a reasonable
       doubt.

    The defendant did not desire to put on any mitigating testimony during the sentencing phase.
The trial court found this was a knowing and intelligent waiver. Therefore, the closing argument of
the defendant’s counsel during the sentencing phase consisted of two pages of transcript, which
focused primarily upon the mitigating evidence, however minimal, that was available for the jury
to consider. Defense counsel also focused on the State’s burden of proving beyond a reasonable
doubt that the aggravating circumstances outweigh the mitigating circumstances.

       The State, in rebuttal to defense counsel’s argument about mitigating evidence, said:

       MR. HENDERSON: If so, how much weight do you give that compared to four
       prior violent convictions, two separate times of guilty pleas, one in ‘85, one in ‘88.
       Four-time loser. And we’re to balance that against the fact that for two weeks he was
       a good and reliable worker.

       ...

       We do have a lot of aggravating factors. The fact is [this murder] was done during
       the perpetration of a felony, robbery. The fact that he has a prior conviction for
       assaulting someone with the intent to commit robbery with a deadly weapon. The
       fact that he’s committed two different aggravated assaults and a rape.

    The trial court then charged the jury as follows as relates to the statutory aggravating
circumstance:

       Tennessee law provides that no sentence of death or sentence of imprisonment for
       life without possibility of parole shall be imposed by a jury but upon a unanimous
       finding that the state has proven beyond a reasonable doubt the existence of one (1)
       or more of the statutory aggravating circumstances, which shall be limited to the
       following:



                                                -17-
            1. The defendant was previously convicted of one (1) or more felonies, other
               than the present charge, the statutory elements of which involve the use of
               violence to the person. The state is relying upon the crime of Assault to Rob
               in indictment #85-0048, Aggravated Assault in indictment #85-00449,
               Aggravated Assault in indictment #89-02737 and Rape in indictment #89-
               02738, which are felonies involving the use of violence to the person.

            2. The murder was knowingly committed, solicited, directed, or aided by the
               defendant, while the defendant had a substantial role in committing or
               attempting to commit, or was fleeing after having a substantial role in
               committing or attempting to commit, any robbery.

     The jury was provided with three verdict forms and returned the following, signed by all
members:

        (1) We, the jury, unanimously find the following listed statutory aggravating
        circumstance or circumstances:

            (Here list the statutory aggravating circumstance or circumstances so found,
        which must be limited to those enumerated for your consideration by the court in
        these instructions.)

        Guilty of murder in the 1st degree, aggravated assault with intent to commit robbery,
        theft Nov. 7, 1998; 1st degree Burglary, aggravated assault, and rape - June 6, 1989;
        and assault with intent to commit robbery with a deadly weapon and aggravated
        assault, June 10, 1985

        (2) We, the jury, unanimously find that the state has proven beyond a reasonable
        doubt that the statutory aggravating circumstance or circumstances so listed above
        outweigh any mitigating circumstances.

        (3) Therefore, we, the jury, unanimously find that the punishment for the defendant,
        Michael Dale Rimmer, shall be death.

        I conclude that the jury, by listing Guilty of murder in the first degree, aggravated assault with
intent to commit robbery, theft November 7, 1998, found the (i)(7) statutory aggravating
circumstance: that the murder was committed during the perpetration of a felony. The inclusion of
the theft is surplus and harmless beyond a reasonable doubt.

        The remaining list of felonies, I conclude, establish the (i)(2) statutory aggravating
circumstance: prior felony convictions. The listing of the first degree burglary was surplus and
harmless beyond a reasonable doubt. During the guilt phase, the jury was made aware that this
burglary involved violence. Indeed, it was during this burglary that the defendant raped and
assaulted the victim in 1989. Further, defense counsel did not object to the jury considering the first

                                                  -18-
degree burglary conviction during the sentencing phase when they requested Exhibit Number 41,
which contained a copy of the conviction judgments for the defendant’s 1989 convictions of first
degree burglary, aggravated assault and rape, to be delivered to the jury room.

        I express concern over the verdict form that juries across this state are asked to use. Not
every jury recognizes what information a reviewing court would like for them to include in the four
blank lines they are given. For instance, had the jury in this case wished to write verbatim the
statutory aggravating circumstances, they would have found inadequate space exists on the form to
accomplish such a task. I think it would be a rare case for any citizen of this state to be asked to
consider a death verdict more than once in their life, which clearly explains their unfamiliarity with
what is expected of them.

        I agree with the majority that the trial judge has the duty and the power to assure the jury
reports a proper verdict.

                             2. CUMULATIVE EFFECT OF ERRORS

        The Defendant argues that the heightened reliability requirements of Eighth Amendment
jurisprudence mandates that all errors in the penalty phase of capital proceedings be considered
cumulatively under a constitutional harmless error standard. He frames the issue as: Can it be said
beyond a reasonable doubt that the errors had no effect on the jury’s weighing process?

        The Defendant claims that harmless error should rarely be found in the sentencing phase of
a capital case due to the difficulty in assessing the effect of any error on the jury’s decision to return
a death sentence. He characterizes the Court’s review of a capital sentence as an appellate court’s
highest moral calling, requiring the Court to be honest about what can and cannot be achieved
through the review process. Due to the heightened reliability requirements and the “value-based”
nature of death penalty decisions, the Court should be reluctant to affirm the imposition of a death
sentence where there have been multiple errors.

       The Defendant maintains that it is impossible to conclude beyond a reasonable doubt that the
numerous penalty phase errors did not enter into the jury’s evaluation when it imposed the death
penalty. Therefore, the sentence should either be set aside or reversed and remanded for a new
sentencing hearing.

       The State asserts that a death penalty case does not require a different cumulative error
standard and that combining errors would not require a different result. Herrera v. Collins, 113 S.
Ct. 853, 863 (1993) (refusing to apply different standard of review on federal habeas corpus cases
involving death sentences). The Defendant challenges the applicability of Herrera since it was a
habeas corpus case and did not indicate that increased reliability dictated by the Eighth Amendment
should not be applied to cumulative error analysis as well.

      Having found no errors in the issues raised by the Defendant, this court need not address
whether or not there should be a higher standard for cumulative errors in a capital case.

                                                  -19-
       For reasons set forth above, and after completing my review as required under Tennessee
Code Annotated section 39-13-206(c)(1), I conclude that the sentence of death was not imposed in
an arbitrary fashion, that the evidence supports the jury’s finding of statutory aggravating
circumstances, that the evidence supports the jury’s finding that the aggravating circumstances
outweigh the mitigating circumstances, and that the sentence of death is not disproportionate to the
penalty imposed in similar cases. Accordingly, I would affirm the jury verdict of death.

                                         CONCLUSION

        Therefore, we affirm the conviction for murder in the first degree, however, for the reasons
set forth in the separate opinion of Judge Witt and joined by Judge Hayes, we reverse the sentence
of death and remand this case for re-sentencing.




                                                         _________________________________
                                                         JOHN EVERETT WILLIAMS, JUDGE




                                               -20-
