         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                                     March 13, 2001 Session

               STATE OF TENNESSEE v. PAUL DENNIS REID, JR.

                 Direct Appeal from the Criminal Court for Davidson County
                         No. 97-C-1834    Cheryl Blackburn, Judge



                      No. M1999-00803-CCA-R3-DD - Filed May 31, 2001


Paul Dennis Reid, Jr. was found guilty by a jury of two counts of first-degree murder and one count
of especially aggravated robbery. Reid’s convictions stem from the execution style murders of two
Captain D’s employees and the especially aggravated robbery of one of the employees. The jury
returned a sentence of death for each of the homicides based upon its finding of three aggravating
factors, i.e., (i)(2), prior violent felony; (i)(6), murder committed for the purpose of avoiding
prosecution; and (i)(7), murder committed during commission of robbery. The Davidson County
Criminal Court subsequently imposed a twenty-five-year sentence for the especially aggravated
robbery conviction and ordered this sentence to be served consecutively to the two death sentences.
In this appeal as of right, Reid presents numerous issues for our review, including (1) issues arising
from suppressed evidence; (2) challenges to the selection of jurors; (3) the sufficiency of the
convicting evidence; (4) the admission and exclusion of evidence at both the guilt and penalty
phases; (5) the propriety of the prosecution’s closing argument during the guilt phase; (6) the failure
to instruct on lesser-included offenses; (7) the trial court’s act of holding court into late hours of the
evening without cause; (8) the admissibility in general and the introduction of specific victim impact
evidence; (9) prosecutorial misconduct during closing argument; (10) the propriety of the jury
instructions; (11) whether application of the (i)(7) aggravator violates State v. Middlebrooks; (12)
the propriety of a twenty-five-year sentence for especially aggravated robbery; (13) the
constitutionality of Tennessee’s death penalty statutes; and (14) whether the sentences of death
imposed by the jury are proportionate sentences. After a careful review of the record, we affirm
Reid’s convictions for two counts of first-degree murder and one count of especially aggravated
robbery. Additionally, we affirm the imposition of the sentences of death and the accompanying
sentence for especially aggravated robbery.

                Tenn. R. App. P. 3; Judgment of the Criminal Court Affirmed.

DAVID G. HAYES, J., delivered the opinion of the court, in which JOHN EVERETT WILLIAMS, J.,
joined; JAMES CURWOOD WITT, JR. filed a concurring opinion.
Jeffrey A. DeVasher, Assistant Public Defender (on appeal); C. Dawn Deaner, Assistant Public
Defender, (at trial and on appeal); J. Michael Engle and David Baker, Assistant Public Defenders,
(at trial), Nashville, Tennessee, for the Appellant, Paul Dennis Reid, Jr.

Paul G. Summers, Attorney General and Reporter, Michael Moore, Solicitor General, Kathy
Morante, Tom Thurman, Roger Moore, Grady Moore, Assistant Attorney Generals, for the Appellee,
State of Tennessee.


                                                      OPINION

         In February 1999, the Appellant, Paul Dennis Reid, Jr., was convicted, in the Davidson
County Criminal Court, of two counts of first-degree murder in the execution style killings of
twenty-five-year-old Steve Hampton and sixteen-year-old Sarah Jackson and of one count of
especially aggravated robbery.1 At the conclusion of the penalty phase of the trial, the jury found the
presence of three aggravating circumstances, i.e., (i)(2), the defendant had previously been convicted
of a felony involving violence to a person; (i)(6), that the defendant committed the murder for the
purpose of avoiding prosecution; and (i)(7), that the murder was committed while the defendant was
committing a felony. Tenn. Code Ann. § 39-13-204(i)(2), (6), and (7) (1997). The jury further
determined that the mitigating circumstances did not outweigh the aggravating circumstances and
imposed sentences of death on each count. The trial court approved the sentencing verdict. At a
separate sentencing hearing, the trial court imposed a sentence of twenty-five years for the especially
aggravated robbery conviction and ordered the Appellant to serve this sentence consecutive to his
sentences of death. In this appeal as of right, the Appellant presents for our review the following
issues:




         1
           On August 26, 1997, an indictment was returned by the Davidson County Grand Jury charging the Appellant
alternatively with two counts of premeditated murder and two counts of felony murder arising from the deaths of Steve
Hampton and Sarah Jackson and one count of especially aggravated robbery of Steve Hampton. The jury returned guilty
verdicts as to all five counts. Upon the State’s motion, the trial court merged the two counts of felony murder into the
two counts of premeditated murder. We note that both premeditated murder and felony murder constitute first-degree
murder, see Tenn. Code Ann. § 39-13 -202(a)(1 ), (2) (199 7); State v. Hurley, 876 S.W .2d 57, 5 8 (Tenn . 1993), cert.
denied, 513 U.S. 933, 115 S. Ct. 328 (199 4), as they are but alternate means by which the offense may be committed.
Hurley, 876 S.W.2d at 58. Indeed, our suprem e court has re cognized that “[t]he perp etration of a felo ny, during which
a homicide occurs, is the legal equivalent of premeditation, deliberation and malice.” Strouth v. Sta te, 999 S.W.2d 759,
768 (Tenn. 1 999), petition for cert. filed, (Jan. 5, 2000) (Holder, J., concurring)(citation omitted). In a case involving
a killing where the jury has found the defendant guilty under both theories of first-degree premeditated murder and
felony murder, the trial court shou ld accept both verdicts but enter only one judgment of conviction, thereby merging
the two verdicts. See Carter v. Sta te, 958 S.W.2d 620, 624 -25 (Tenn. 1997); State v. Addison, 973 S.W.2d 260, 267
(Tenn. Crim. Ap p. 1997 ), perm. to appeal denied, (Tenn. 1998). In the present case, the trial court entered one judgment
of conviction a s to each victim no ting that the two co unts merged with one another. Additionally, we acknowledge that
a general verdict of guilty is sustainable if any one co unt in the indictm ent is sustained b y the proof. See Tenn. Code
Ann. § 40-18-1 11 (199 7). Accordingly, proof of either felony murder or premeditated murder is sufficient to sustain the
conviction.

                                                           -2-
I. Whether the trial court erred in denying the Appellant’s Motions to Suppress the
identification testimony of Michael Butterworth and Mark Farmer and the physical
evidence seized from the Appellant’s residence (Appellant’s Issues I and II);

II. Whether the trial court properly controlled the selection of numerous jurors
(Appellant’s Issues III, V, VI, and VII);

III. Whether the evidence was sufficient to support the Appellant’s convictions for
the first-degree murders of Steve Hampton and Sarah Jackson and his conviction for
especially aggravated robbery (Appellant’s Issue XIV);

IV. Whether the trial court properly admitted testimony during the guilt phase of the
trial (Appellant’s Issues VIII, IX, and X);

V. Whether the State committed prejudicial error, at the guilt phase, by making
improper comments during closing argument (Appellant’s Issues XI and XII);

VI. Whether the trial court’s failure to instruct on lesser-included offenses was error
(Appellant’s Issue XIII);

VII. Whether the trial court committed plain error by holding court into the late
hours of the evening (Appellant’s Issue XXVIII);

VIII. Whether the admission and exclusion of certain testimony during the penalty
phase of the trial constituted error (Appellant’s Issues XVIII, XIX, XX, XXI);

IX. Whether the introduction of victim impact evidence constituted error
(Appellant’s Issues XV, XVI, XVII, and XXIII);

X. Whether the application of the (i)(7) aggravator was appropriate when the jury
found the Appellant guilty of felony murder (Appellant’s Issue XXII);

XI. Whether the trial court properly instructed the jury as to mitigating factors
(Appellant’s Issue XXIV);

XII. Whether the twenty-five-year sentence imposed for especially aggravated
robbery is excessive (Appellant’s Issue XXVII);

XIII. Whether Tennessee’s death penalty statutes are constitutional (Appellant’s
Issue IV); and

XIV. Whether the jury imposed an arbitrary and disproportionate sentence
(Appellant’s Issues XXV and XXVI).


                                         -3-
       Having carefully considered the Appellant’s claims, we find no error of law requiring
reversal. Accordingly, we affirm the Appellant’s convictions, his sentence for especially aggravated
robbery, and the imposition of the death penalty in this case.

                                           Background

                                          A. Guilt Phase
        On Sunday morning, February 16, 1997, sometime between 11:00 a.m. and noon, Sarah
Jackson and Steve Hampton, two employees of a Captain D’s restaurant in Nashville, were
discovered dead lying face down on the floor inside the restaurant’s walk-in cooler. Steve Hampton
was the manager of the Captain D’s restaurant located on Lebanon Road. Sarah Jackson was a high
school student who worked part-time in the restaurant. The deaths were carried out in execution-
style fashion. Jackson was shot four times in the head and once in the back. Two of the gunshot
wounds to the head were superficial and the wound to the back did not strike any major organs or
blood vessels. The medical examiner testified that Jackson may have been able to move if these
were the first shots fired. However, the two wounds to the head incapacitated Jackson and caused
her death. Hampton died as a result of two gunshot wounds to the back of the head and one in the
back. Expert testimony suggested that both victims were lying on the floor when they were shot.
The testimony further suggested, based on the blood patterns, that Jackson attempted to raise herself
after she had been shot. The victims were killed with a .32 caliber weapon, which was probably a
revolver. Seven thousand one hundred forty dollars, which included two hundred fifty dollars in
coins, was taken during the robbery of the restaurant.

       The Appellant was first developed as a suspect on June 12, 1997, after he was arrested in
Cheatham County for attempting to kidnap the manager of a Shoney’s restaurant. The police
obtained the Appellant’s fingerprints as well as his photograph from this encounter. It is this
evidence which ultimately connected him to the robbery and murders at the Captain D’s restaurant.

        Hampton’s driver’s license, credit card, movie video rental card, insurance cards, birth
certificate card, and his children’s identification cards were subsequently found on the ground next
to Ellington Parkway in Nashville, approximately 11.5 miles from the crime scene and 1.2 miles
from the Appellant’s residence. While the Appellant’s fingerprints were not found at the scene,
several unidentified prints were found. The Appellant’s fingerprint, however, was found on
Hampton’s movie rental card. Several shoe prints were photographed on the floor near the safe
inside the restaurant. The tread design of the shoe prints did not match any of the tread designs from
the Appellant’s shoes seized from his house; however, the length of the shoe print at the crime scene
was consistent with the length of the Appellant’s shoes.

        The night before the murders, Sarah Jackson spent the night at the home of Steve Hampton
and his family. Hampton’s wife testified that they ate dinner and rented some movies from Movie



                                                 -4-
Gallery. When Hampton left for work at 6:00 a.m. on Sunday morning, he had approximately $600
in his wallet.

        Michael Butterworth and Jason Carter, two employees of Captain D’s working the night
before the murders, testified that a man came into the restaurant sometime before closing time and
inquired about a job application. The man said that he worked for Shoney’s which was just down
the road. Carter testified that the man asked if anyone would be at the restaurant on Sunday
morning. Carter told the man Hampton would be there but that he would be busy until after lunch.
Butterworth saw the man leave in a dark colored car.

        During trial, both Carter and Butterworth identified the Appellant as the man who came into
Captain D’s the night before the murders. About a week after the murders, Butterworth, Carter and
James Cassidy, another employee who was present the night before the murders, assisted in
preparing a sketch of the man they saw. Butterworth stated that the man’s hair was “pulled straight
back.” Butterworth did not include a moustache in his sketch. Carter stated that the man wore a
ponytail but no moustache. The Appellant apparently, however, had a moustache at that time. In
June 1997, the police showed Butterworth and Carter a photographic lineup of six individuals,
including one of the Appellant. Butterworth could not make a positive identification at that time.
Carter, however, positively identified the Appellant from his photo.

        Shortly thereafter, Butterworth saw the Appellant during a televised news report after the
Appellant was arrested. Butterworth contacted the police and informed them that the Appellant was
the man who came into Captain D’s the night before the murders. Butterworth testified that he was
sure of his identification of the Appellant after he had the opportunity to hear the Appellant’s voice,
see the way his lips moved when he talked, and see the way the Appellant walked during the news
report.

         Jerry Marlin drove by the Captain D’s restaurant at approximately 8:45 a.m. on the morning
of the murders. Marlin observed a blue Ford station wagon “parked at a funny angle toward the rear
of the building.” Marlin testified that the car had some damage to its front left end and possibly its
left rear quarter panel. The Appellant’s light blue 1988 Ford Escort station wagon was appraised by
an insurance company on February 3, 1997. The car had damage to the left side of its front end.
Marlin testified that the Appellant’s car as pictured in the photographs of the insurance company was
similar to the car he observed in the Captain D’s parking lot that morning.

         Debbie Hines also drove by the Captain D’s at approximately 8:50 a.m. that Sunday morning
on her way to church. She observed a man standing inside the doorway of the restaurant, later
identified as Steve Hampton, talking to a man standing outside the door. The man outside had pieces
of white paper in his hand. Hines described the man as having dark hair and as being five inches
taller than the employee. The Appellant is approximately 6'3" and weighs approximately 200 lbs.
Hampton was 5'8" and weighed 189 lbs.




                                                 -5-
        Mark Farmer drove by Captain D’s at approximately 9:30 a.m. on his way to breakfast that
same Sunday morning. He noticed “a car that sort of looked out of place.” According to Farmer,
the small to medium-sized car was parked about a car-length away from the front of the building in
the opposite direction of the drive-thru arrows painted on the lot. Farmer initially remembered that
it was a light blue car, but at trial he also stated it may have been painted a “pinkish plum color.”
Farmer also observed a man walking away from the restaurant toward the car. Farmer testified that
the man was walking in a hurried manner and he stopped at the passenger side of the car. Farmer
then stated the man “elevated his face and . . . it seemed like our eyes sort of caught one another,
and when he saw that I was watching him, he dropped his head, just completely down in a suspicious
way.” The man then got in the passenger side of the car. Farmer described the man as tall with a
muscular build and large neck. The man had dark eyebrows and dark eyes, a full head of hair which
was slicked back, and he was wearing a white t-shirt and white tennis shoes. Farmer saw the
Appellant on television after the Appellant’s arrest in June 1997. Farmer then called the police and
identified the Appellant as the man he saw at Captain D’s that morning.

        Prior to the murders in this case, the Appellant asked Jeffrey Potter, his co-worker at
Shoney’s, where he could get a gun. The Appellant also told Potter he was dissatisfied with his job
at Shoney’s and stated he could make more money committing a robbery. Danny Wayne Tackett,
another friend and co-worker of the Appellant, testified that the Appellant was scheduled to work
February 16, 1997, but did not come in to work. Tackett also testified that, prior to the murders, the
Appellant asked Tackett and his wife to purchase a handgun for him. Arrangements were also made
with another Shoney’s employee for the Appellant to buy a gun. The Appellant was unsuccessful
in both of these attempts and apparently secured the services of another individual. Tackett testified
that he and the Appellant discussed robbing fast food restaurants. Tackett stated, however, that he
assumed the discussion was simply hypothetical and did not believe the Appellant was being serious.
Tackett mentioned that the Appellant was experiencing financial difficulties. After the murders at
Captain D’s, Tackett observed the Appellant with a stack of approximately $100 to $200 in five
dollar bills and a new red car. In fact, on February 18, 1997, the Appellant paid $2,000 down in cash
on a new Ford automobile. On February 20, 1997, the Appellant paid the remaining $3,127.92 of
the purchase price for the car. When the salesman asked where the Appellant obtained this large
amount of cash, the Appellant responded: “Well, I’ve been very good at saving and my dad is going
to be helping me.”

        On February 4, 1997, the Appellant obtained a loan for $200 using his car title as collateral.
The loan was paid off in cash on February 21, 1997. On December 19, 1996, the Appellant had
$742.61 in his checking account. On January 22, 1997, the Appellant had $134.45 in his account.
On February 12, 1997, the Appellant had $139.35 in his account. On February 27, 1997, the
Appellant had $803.67 in his account. The bank employee testified that the Appellant maintained
fairly consistent checking transactions during this period and that to his knowledge the Appellant
did not have any other bank accounts.




                                                 -6-
        Bernie Billingsly and the Appellant belonged to the same fitness center. During either the
last week of February 1997 or the first week of March 1997, the Appellant told Billingsly that he had
about $3,000 and he asked Billingsly some questions about investing in the stock market.

      After the murders in this case, Robert Bolin sold the Appellant two .25 automatic pistols.
The Appellant informed Bolin that he “had a .32 revolver and he didn’t like the way it shot. He
wanted something that had a clip that holded [sic] more shells.”

       After the Appellant was arrested in June 1997, the police seized four one-gallon jugs full of
coins from the Appellant’s residence. The coins appeared to be layered according to their
denomination. The jugs contained a little over $1,000.

         In defense, the Appellant presented the testimony of TBI Agent Samera Zavaro. Zavaro
testified that her DNA examination of the cigarette butts discovered at the restaurant did not match
the DNA profiles obtained from the Appellant, Sarah Jackson, or Steve Hampton.

                                       B. Sentencing Phase
        In 1984, the Appellant was previously convicted on one count of aggravated robbery in
Texas. The parties stipulated that aggravated robbery is a crime that involves the use of violence to
the person. In 1978, two felony indictments returned against the Appellant in Texas were dismissed
based upon a finding of permanent incompetence and the Appellant was judicially committed to
psychiatric care. According to the testimony, under Texas law, after the defense files a motion and
evidence is presented, the issue of competency is decided by a jury before trial commences on the
charged offenses. A jury found the Appellant incompetent in 1978; however, a separate jury found
him to be competent in the 1984 case, resulting in the aggravated robbery conviction.

        Deanna Hampton, Steve Hampton’s wife, testified on behalf of the State at the sentencing
hearing. Steve Hampton was twenty-five years old when he died and had three young children. Mrs.
Hampton testified that Steve Hampton was a good father. She further testified that after her
husband’s murder she withdrew from everybody, including her children. Both she and her children
have received counseling as a result. Paula Sue Guidry, Steve Hampton’s mother, also offered
victim impact evidence. Hampton was an only child. Ms. Guidry explained to the jury how the loss
affected her psychologically and testified that she will not be able to get over his death.

        Sarah Jackson’s parents both testified at the sentencing hearing. They have suffered
psychologically as a result of the murder and have received counseling. Both feel guilty about
having allowed their daughter to take a job when she was sixteen. They told the jury nothing can
change what has happened and that nothing can replace their daughter. Wayne Jackson, Sarah
Jackson’s brother, testified that he had a good relationship with his sister and the murder made him
extremely angry. He told the jury he will miss having an adult relationship with his sister. Wayne
Jackson testified that the holidays are hard on the family and he stated that his younger brother is in
denial about the murder.



                                                 -7-
        The Appellant solicited testimony from Gloria Shettles, a private investigator who prepared
the Appellant’s social history which was provided to the mental health experts in this case. Her
account of the Appellant’s background came from interviews with the Appellant’s family members.
The Appellant was born in November 1957. His father died in May 1997. The Appellant’s mother
has fifteen brothers and sisters. The Appellant has two older sisters. The Appellant’s parents
divorced when he was about three years old. The Appellant and one of his sisters resided with their
father and grandmother. Apparently their father was frequently away from home so the grandmother
served as primary caretaker. The Appellant’s mother remarried and had two more daughters. The
Appellant apparently became unruly as a child and, at age eight, he was sent to a “boys’ home” for
about two years. There were reports that the Appellant stole mail from his neighbors’ mailboxes,
took clothes off the neighbors’ clotheslines, set his grandmother’s bed on fire and beat their dog to
death with a baseball bat. According to Shettles, the Appellant’s father wanted to put the Appellant
up for adoption. The Appellant’s mother retrieved the Appellant from the “boys’ home” and allowed
him to live with her. The Appellant’s mother divorced her second husband when the Appellant was
about thirteen years old. Shettles testified that this man was sexually abusing the Appellant’s older
sister. The Appellant left home when he was sixteen years old.

        Shettles discovered that the Appellant was arrested for auto theft in 1975, for which he was
placed on probation. He was also charged with passing forged checks. The Appellant was married
but divorced in 1984. According to Shettles, one of the Appellant’s sisters warned the Appellant’s
ex-wife not to marry him. The Appellant lived with another woman in 1994. This woman told
Shettles that the Appellant had a temper; he threw her cat across the room and held a pillow over her
face on the couch. Furthermore, Shettles testified that one of the Appellant’s sisters feared the
Appellant because he had previously threatened to kill her.

         Janet Kirkpatrick, the Appellant’s sister, testified on his behalf at sentencing. She stated that
their father drank and was frequently out of town on business, thus, he relied on the grandmother to
take care of the children. The Appellant started school at age seven. According to Kirkpatrick, their
grandmother financially supported the family. Kirkpatrick further testified that their grandmother
experienced severe discipline problems with the Appellant. The Appellant would throw things at
his grandmother. When the Appellant left the “boys’ home” and moved in with his mother, his
mother changed his name to Leon Morez, the surname of her second husband, because the name
“Paul Reid” reminded her of her ex-husband, the Appellant’s father. The Appellant suffered a skull
fracture as a result of a minibike accident in 1971. The Appellant also hit his head against the
windshield of a car and also slipped at work and hit his head on the ground. The Appellant
occasionally used drugs. Kirkpatrick testified that her brother became paranoid after he was
imprisoned in Texas. Kirkpatrick also testified that the Appellant tried to sexually molest her, her
sisters and their mother.

       Patsy Casey Allen, a speech and language pathologist, reviewed the Appellant’s medical and
school records during her evaluation of the Appellant. Allen observed a language disorder in the
Appellant which she associated with the head injury he suffered when he was young. Allen also
noted that the Appellant suffered from a hearing loss. Furthermore, having reviewed the records,


                                                   -8-
Allen believed that the Appellant had learning disabilities during his school years. Allen concluded
that the Appellant does not have a good vocabulary or knowledge of language rules. Allen opined
that the Appellant’s speech and language problems were characteristic of people with traumatic brain
injuries rather than people with developmental delay. The earliest record reviewed by Allen reflects
a traumatic head injury at the age of five.2 The most severe injury was the skull fracture in 1971,
which stemmed from a minibike accident. Allen also testified that the Appellant’s lack of consistent
schooling and his hearing loss are contributive to his problems.

        Dr. Pamela Mary Auble, a clinical neuropsychologist, testified on the Appellant’s behalf.
Based upon her evaluation of the Appellant, Dr. Auble opined that the Appellant suffers from brain
damage in the left temporal lobe which impairs his behavior in a pervasive manner. She also opined
that the Appellant has a secondary psychotic disorder, a cognitive disorder and personality changes
from his brain injuries. Dr. Auble indicated that the Appellant meets some of the criteria for
antisocial personality disorder as well. Her evaluation entailed more than eight hours of interviews
over the course of a year and the administration of eighteen standardized tests. She also reviewed
the Appellant’s medical and school records and interviewed the Appellant’s mother and two sisters.
Apparently, the Appellant also has a history of mental illness on his mother’s side of the family.

         Dr. Auble testified that the damage to the left temporal lobe manifests itself by causing the
person to have delusions and other disorders associated with their thinking. Also, a person with this
type of damage has a compulsion to talk and write excessively. Dr. Auble noticed these traits in the
Appellant. Dr. Auble stated, as did Allen, that the Appellant uses words that are not real words and
that he uses words inappropriately. Dr. Auble believed that the Appellant has shown abnormalities
in his functioning since childhood and that those abnormalities were worsened by the head injuries
he suffered. Also, Dr. Auble found it significant that the Appellant was born with a malformation
of his left ear. In making her diagnosis of the Appellant, she also reviewed and considered the
evaluations performed on the Appellant after he started school, finding that the Appellant exhibited
functioning problems, had trouble learning and relating to other children, and had behavior problems.
Dr. Auble testified that people with brain damage need a more structured and stable environment
than others, and that the Appellant did not have this growing up.

       Dr. Auble testified that his Texas prison records reflect that the Appellant responded well to
medication for treatment of his psychosis. She related to the jury letters the Appellant wrote to the
Governor of Texas and the editor of the Washington Post explaining how he was being monitored
by the government. Also, the Appellant’s sisters and ex-girlfriend informed Dr. Auble that the
Appellant told them he was being monitored by the government. According to Dr. Auble, these
instances, as well as the statements the Appellant made to the police in this case and the statements
he made to Dr. Auble during the interviews about being monitored by the government, support the
conclusion that the Appellant is delusional.




       2
           This injury allegedly resulted from the Appellant’s mother striking him on the head with a brick.

                                                          -9-
        Dr. Auble testified that the Appellant was very polite and eager to please and perform well
during their interviews. Based on standardized testing, Dr. Auble concluded that the Appellant has
a below average I.Q.; in the nineteenth percentile. This score was consistent with scores from the
Appellant’s childhood. Dr. Auble opined that the Appellant was defensive about his shortcomings,
attempted to avoid his feelings, and acted insecure. However, Dr. Auble admitted that neither the
Minnesota Multiphasic Personality Inventory (MMPI) nor Rorschach personality test revealed
evidence of psychosis in this case. Dr. Auble also stated that the Appellant does have a history of
some malingering.

        The Appellant also solicited testimony from Dr. Robert M. Kessler, a neuroradiologist. Dr.
Kessler performs imaging of the brain to diagnose the presence of disease. Dr. Kessler performed
Magnetic Resonance Imaging (MRI) and Positron Emission Tomography (PET) scans on the
Appellant. Dr. Kessler opined that the Appellant suffered shrinkage and acquired damage to the left
temporal lobe of the brain which was likely caused by an injury to his head after age six or seven.
Dr. Kessler further opined that the Appellant exhibits mild to moderately severe functional
abnormality in the left temporal lobe of his brain. According to Dr. Kessler, this portion of the brain
is responsible for visual and auditory processing, as well as emotional processing and memory. Dr.
Kessler testified that the Appellant lost brain material after his brain had achieved normal
development.

         Dr. Xavier F. Amador, a clinical psychologist, also evaluated the Appellant and testified as
to his findings. Dr. Amador was approached by the Appellant’s pastor and eventually volunteered
to evaluate the Appellant. Dr. Amador concluded that the Appellant suffers from paranoid
schizophrenia, continuous type, as well as cognitive disorder. Dr. Amador opined that the Appellant
has personality change, combined type, which is caused by the Appellant’s head injuries. Dr.
Amador conducted a total of twenty hours of interviews with the Appellant, interviewed the
Appellant’s mother and sister, and reviewed all of the records provided to him by the defense.

         Dr. Amador testified that the Appellant maintains longstanding delusions about government
surveillance and that there is evidence in the Appellant’s medical records that he has at times been
evaluated and treated for some type of brain dysfunction or psychotic disorder. The Appellant’s
medical records reflect that he has been prescribed at least eight different antipsychotic drugs over
his lifetime which improved his behavior in most cases. When he was nine and one-half years old,
a committee in the Appellant’s school district recommended that he be enrolled in special education
classes for children with brain damage. Dr. Amador testified that schizophrenia usually develops
in men in their late teens to early twenties and this coincides in time with the Appellant’s records that
reflect when he started having these delusions about government surveillance. Like Allen and Dr.
Auble, Dr. Amador also noticed problems regarding the Appellant’s speech pattern. And like Dr.
Auble, Dr. Amador testified that the Appellant attempted to perform well and act as normal as
possible during their meetings.

        Dr. Amador testified that the records reflect that after the Appellant suffered the minibike
injury at age thirteen, he encountered more behavior problems and his performance in school


                                                  -10-
dropped. Dr. Amador opined that the Appellant’s mental illness and inability, due to his brain
damage, to control his anger and emotions and impulses, combined with the lack of socialization and
guidance received as a child, renders the Appellant “very ill-equipped to deal with reality.” When
asked about the results of the tests administered by Dr. Auble, Dr. Amador testified that the MMPI
and Rorschach tests are adjunct tools and are not the primary diagnostic tools used in clinical
practice. Dr. Amador testified that during the commission of the crimes, the Appellant was under
the influence of his delusions.

        Joe Ingle, an ordained minister in the United Church of Christ, started visiting the Appellant
in prison shortly after the Appellant’s arrest in June of 1997. Reverend Ingle primarily participates
in prison ministries. After counseling the Appellant and learning about his history, Reverend Ingle
contacted the Appellant’s sister and mother and discovered that the Appellant’s version of his
upbringing was not consistent with reports Reverend Ingle received from the Appellant’s family.
As a result, Reverend Ingle contacted Dr. Amador for his expert assistance in understanding the
Appellant’s thought processes.

        The State introduced several witnesses in rebuttal. Raymond Lackey, Jr. is the attorney who
represented the insured of the insurance company the Appellant sued in April 1997 over an
automobile accident involving his blue Ford Escort. The Appellant represented himself at trial and,
according to Lackey, the Appellant performed as well as anyone he had seen represent themselves.
Lackey testified that the Appellant acted friendly and respectful before and during the proceeding.
Lackey, however, only had contact with the Appellant briefly before and during the relatively short
trial. The Appellant’s claim was unsuccessful.

        Janice Roar, Director of Admissions at Volunteer State Community College, testified that
the Appellant registered to attend the school in January of 1997. The Appellant enrolled in three
remedial and developmental courses, which are considered college preparatory classes. According
to the school’s records, the Appellant was deficient in English, math, foreign language, and visual
and performing arts. The Appellant scored an A in all three classes.

         The State recalled Brian Johnson, who testified earlier in the sentencing phase regarding the
Appellant’s prior conviction in Texas. Johnson served as the prosecutor in that trial. Johnson
testified that during the competency hearing the Appellant fell over backwards in his chair, shot
pieces of paper in the air with a rubber band, and made a paper hat and placed it on his attorney’s
head. All of this was in the presence of the jury. After he was convicted and placed in prison, the
Appellant wrote Johnson a letter stating that he was not crazy and that he apologized for his behavior
in the courtroom. The Appellant told Johnson that he felt threatened in prison and asked Johnson
if he could assist him in getting his sentence reduced.

       Dr. Helen Mayberg, a professor of psychiatry and neurology at the University of Toronto,
focuses on studying behavior using brain imaging. The State solicited Dr. Mayberg to review the
MRI and PET scans utilized by Dr. Kessler in his evaluation. Dr. Mayberg, in her evaluation, also
reviewed the Appellant’s records. Dr. Mayberg concurred with Dr. Kessler’s finding that the


                                                -11-
Appellant’s left temporal lobe displayed some abnormality. However, given the fact that the
Appellant was born with a malformed left ear, and after reviewing the scans, Dr. Mayberg was of
the opinion that the abnormalities to the temporal lobe were not associated with trauma. According
to Dr. Mayberg, the condition of the Appellant’s brain was congenital rather than acquired. Dr.
Mayberg agreed with Dr. Kessler that there is decreased metabolism in the left temporal lobe;
however, she did not notice any abnormalities in the other areas of the brain connected to this portion
of the temporal lobe. Given the literature in her field of expertise, Dr. Mayberg did not believe
schizophrenia could be associated with this type of abnormality. She also testified that this type of
brain condition has not been associated with the act of premeditated murder. In other words, Dr.
Mayberg stated that there was nothing impulsive about these crimes to suggest they related to this
condition of the brain. Dr. Mayberg testified on cross-examination, however, that although it would
be speculative, it is possible there is a cause and effect between the Appellant’s brain condition and
his behavior. Dr. Mayberg did not meet with or interview the Appellant. Accordingly, she testified
that she could not offer a diagnosis about whether the Appellant is schizophrenic or not.

         Dr. Dan Martell, a forensic neuropsychologist, also testified for the State. Dr. Martell is
employed by a private forensic consultation firm. Dr. Martell studies the relationship between brain
disorders and violent behavior. Dr. Martell interviewed the Appellant over two days for about
twelve hours and also reviewed all of the Appellant’s records and reports from the other experts in
this case. Dr. Martell was asked by the State to determine whether the Appellant was suffering from
an extreme mental or emotional disturbance at the time he committed the murders and whether the
Appellant’s capacity to appreciate the wrongfulness of his conduct or to conform his conduct to the
requirements of the law was substantially impaired as a result of the mental disease or defect. Dr.
Martell concluded that the Appellant suffers from a mild neurocognitive disorder, antisocial
personality disorder, and a delusional disorder. Dr. Martell opined that the Appellant’s mental status
did not affect his ability to conform or appreciate his conduct at the time of the crimes. The
Appellant’s cognitive disorder impairs his speech pattern; but Dr. Martell testified that this disorder
would not affect his ability to plan the crimes in this case. Antisocial personality is characterized
by the failure to conform to social norms, deceitfulness, irritability and aggressiveness, and lack of
remorse. Dr. Martell testified that the Appellant exhibits all of these traits. Moreover, Dr. Martell
testified that this condition is not related to his brain disorder.

        Dr. Martell testified that there were some reports where the Appellant tested low on his I.Q.
exams. According to Dr. Martell, the Appellant told him he was attempting to perform poorly on
these tests. Dr. Martell also noticed two medical reports which indicated the Appellant was
malingering. However, Dr. Martell testified on cross-examination that he believed the Appellant
does suffer from a delusional disorder. According to Dr. Martell, persons suffering from delusional
disorders experience peaks and valleys, in that there are times when the disorder is in remission.
During their interview, the Appellant was hesitant to talk about the government surveillance because
he did not want this information made known to the jury. Dr. Martell testified that, if the Appellant
was in a delusional state, he would probably not have committed the crimes because of his fear of
being noticed by the government surveillance. Dr. Martell suggested that the disorder may have been
in remission at the time. Other than the delusional disorder, which can affect one’s behavior, Dr.


                                                 -12-
Martell found no other evidence that the Appellant is suffering from a psychosis. Dr. Martell
testified that the other experts who diagnosed the Appellant as having schizophrenia were incorrect
in their diagnoses. Given the facts presented in this case, Dr. Martell opined that the Appellant’s
capacity to plan, execute, and cover-up these crimes was not impaired. To the contrary, according
to Dr. Martell, these facts demonstrate the Appellant was able to effectively use his cognitive
abilities.


                                      I. Motion to Suppress

                           A. Admissibility of Identification Testimony
        The Appellant argues that the trial court erred by denying his motion to suppress the
identification testimony of witnesses Michael Butterworth and Mark Farmer. Specifically, he argues
that the procedures that led to the identifications were unduly suggestive and violative of his due
process rights. Following an evidentiary hearing and argument of counsel, the trial court denied the
Appellant’s motion and admitted the testimony of both Butterworth and Farmer.

       The standard by which an appellate court reviews a trial court's findings of fact on
suppression issues is as follows:

       Questions of credibility of the witnesses, the weight and value of the evidence, and
       resolution of conflicts in the evidence are matters entrusted to the trial judge as the
       trier of fact. The party prevailing in the trial court is entitled to the strongest
       legitimate view of the evidence adduced at the suppression hearing as well as all
       reasonable and legitimate inferences that may be drawn from that evidence. So long
       as the greater weight of the evidence supports the trial court's findings, those findings
       shall be upheld. In other words, a trial court's findings of fact in a suppression
       hearing will be upheld unless the evidence preponderates otherwise.

State v. Daniel, 12 S.W.3d 420, 423 (Tenn. 2000); State v. Odom, 928 S.W.2d 18, 23 (Tenn.1996).
The application of the law to the facts found by the trial court, however, is a question of law, which
this court reviews de novo. State v. England, 19 S.W.3d 762, 766 (Tenn. 2000); State v. Yeargan,
958 S.W.2d 626, 629 (Tenn.1997).

                             1. Testimony of Michael Butterworth
        On February 15, 1997, the night before the murders, the Appellant entered the Captain D’s
restaurant on Lebanon Road and requested a job application from employee, Michael Butterworth.
According to Butterworth, he spoke with the Appellant a few minutes before the Appellant left the
restaurant. Approximately four months later, in June of 1997, Butterworth was shown a
photographic lineup which contained a photo of the Appellant and five other persons. Butterworth,
while not excluding any of the photographs, was unable to identify any of the photos as the person
he had seen at Captain D’s the night before the murders. The next day, Butterworth was watching
the news when he saw coverage of the Appellant’s arrest on television. He immediately recognized


                                                 -13-
the Appellant and phoned police to tell them that the Appellant was the person he spoke with at
Captain D’s the night before the murders. The police never instructed Butterworth to watch the
newscast.

                                   2. Testimony of Mark Farmer
        On the morning the murders were committed, at approximately 9:30 a.m., Mark Farmer was
driving by Captain D’s and noticed a car parked in an unusual manner outside the restaurant. As he
glanced at the restaurant, he noticed a man exiting the building. As they made eye contact, the man
looked down quickly in a suspicious manner. After hearing about the crime, Farmer phoned police
on three separate occasions to report seeing a man at the restaurant on the morning of the murders.
Police, however, never responded or contacted Farmer about what he saw. In June of 1997, Farmer
was watching the news when he saw coverage of the Appellant’s arrest on television. He instantly
recognized the Appellant as the person he saw leaving the restaurant on the morning of the murders
and phoned police.

                                               3. Analysis
        In support of his arguments, the Appellant cites to Neil v Biggers, 409 U.S. 188, 93 S. Ct.
375 (1972), wherein the United States Supreme Court established a two-part analysis to assess the
validity of a pretrial identification, namely: (1) the court must determine whether the procedure used
to obtain the identification was unduly suggestive and (2) if the identification was unduly suggestive,
the court must determine, under the totality of the circumstances, whether the identification is
nevertheless reliable.3 The Appellant argues that this court must apply the above test in order to
determine if the testimony should have been admitted. Specifically, he asserts the procedure by
which the witnesses identified him were “unduly suggestive.” In addition to his argument that the
television identification itself was unduly suggestive, the Appellant contends that Butterworth only
“instantly recogniz[ed]” him on television because he had seen his picture in the photo array the
previous day.

        The Appellant’s reliance on Biggers is misplaced. While Tennessee law has long recognized
that any identification procedure initiated or designed by police which is inherently suggestive
violates the accused’s due process rights, see State v. Thomas, 780 S.W.2d 379 (Tenn. Crim. App.
1989); State v. Beal, 615 S.W.2d 77 (Tenn. Crim. App. 1981); Sloan v. State, 584 S.W.2d 461
(Tenn. Crim. App. 1978), it has also long been recognized that a defendant’s constitutional rights
cannot be violated where the State is not involved in the alleged suggestive activity. A private party
acting for a reason independent of a governmental purpose does not implicate the Fourth
Amendment. State v. Burroughs, 926 S.W.2d 243, 246 (Tenn. 1996).

       In Bishop v. State, 582 S.W.2d 86, 91 (Tenn. Crim. App. 1979), this court held that no state
action was involved where a witness, who had seen the defendant at her neighbor’s home prior to
the murder, first identified the defendant by use of a single picture in a local newspaper and
subsequently reported the identification to police. Similarly, in State v. Mosby, 639 S.W.2d 672,


       3
           The Tennessee Supreme Court adopted the Biggers test in Bennett v. S tate, 530 S.W.2d 511 , 514 (Tenn. 1975).

                                                         -14-
673 (Tenn. Crim. App. 1982), the victims’ neighbor heard one of the victims describing the assailant,
went home, and returned with a photograph. Police had yet to arrive at the scene. Upon viewing the
photograph, both victims identified the person in the picture as their assailant. On appeal, the
defendant argued that the identification should be suppressed because the neighbor’s actions of
showing the photograph to the victims were “impermissibly suggestive.” This court disagreed and
held that because there was no evidence suggesting that the neighbor was connected to law
enforcement, “there was no state involvement in his showing the single photograph to [the victims].”
Id. As such, the court held that the identification testimony was properly admitted. See also State
v. Dixon, 656 S.W.2d 49, 51 (Tenn. Crim. App. 1983)(absent evidence that police arranged to stage
a confrontation between the defendant and the victim, identification resulting from the observation
was not induced by an inherently suggestive show up).

         In the present case, both Butterworth and Farmer were exposed to the Appellant through
spontaneous or inadvertent viewing on television. Butterworth testified that once he saw the
Appellant “walk, talk and his lips move,” he was absolutely sure that the Appellant was the person
he had spoken with at the restaurant the night before the murders. There was absolutely no evidence
introduced at the hearing which suggested that either witness was told by law enforcement officers
to view the broadcast. In fact, both witnesses testified that no one told them to watch the news. As
the trial court correctly noted, “such accidental or inadvertent showings do not raise a constitutional
issue.” Thus, these issues are without merit.

         Additionally, the Appellant argues that law enforcement should have used a physical lineup
rather than a photographic lineup, arguing that a physical lineup is more reliable. He contends that
the use of a photographic lineup, when a physical lineup was possible, was unduly suggestive. At
the suppression hearing, Detective Postiglione, the officer who conducted the photographic lineup,
testified that he, too, would have preferred a physical lineup. However, Detective Postiglione
testified that a physical lineup was not feasible at the time because the Cheatham County Jail, where
the Appellant was being housed, did not contain a sufficient number of prisoners to conduct a
physical lineup. Instead, Detective Postiglione traveled to Cheatham County to get a photograph of
the Appellant and returned to Nashville to conduct the photographic lineup. Detective Postiglione
stated that anything other than a photographic lineup would have taken “several hours,” which was
an unreasonable amount of time under the circumstances.

        After examining the photographic lineup which was introduced into evidence, we note that
the exhibit contained photographs of six white males of approximately the same age. The Appellant's
photograph was not distinctive from the others in any manner. Eyewitness identification at trial,
following a pretrial identification by photograph, will not be set aside on that ground unless the
photographic identification procedure was so impermissibly suggestive as to give rise to a very
substantial likelihood of irreparable misidentification. Simmons v. United States, 390 U.S. 377,
384, 88 S. Ct. 967, 971 (1968). We find, under these circumstances, that the photographic
identification was not impermissibly suggestive. The Appellant has failed to make the required
showing that the identification was unreliable. See State v. Sanders, 842 S.W.2d 257, 259 (Tenn.
Crim. App. 1992). Thus, the procedure was proper and this issue is also without merit.


                                                 -15-
        Lastly, the Appellant argues that the identification testimony was suggestive because law
enforcement officers failed to shield him from television and media coverage when transporting him
to court for arraignment. First, we note that the Appellant cites no authority for the proposition that
the officers had the duty to shield his face from media coverage during his transportation and
subsequent court appearance. As such, this issue is waived. See State v. Dickerson, 885 S.W.2d
90, 93 (Tenn. Crim. App. 1993); Tenn. R. App. P. 27(a)(7). Notwithstanding, we find this issue to
be without merit. At the suppression hearing, Detective Postiglione testified that prior to
transporting the Appellant, he explained that the Appellant could cover his head with a jacket during
transportation and later, in court, could face the wall so that television cameras and observers would
not be able to see his face. Initially, the Appellant agreed. Just before exiting the jail, however, the
Appellant changed his mind and stated, “This is going to be the Paul Reid trial.” He did not cover
his head during transportation and, at court, turned completely around and faced everyone in the
room during the entire course of proceedings. The Appellant was given the option to conceal his
identity and declined the opportunity. He cannot now complain that the identification testimony of
Butterworth and Farmer was suggestive based upon his failure to mask his identity in front of news
cameras. See generally Tenn. R. App. P. 36(a).

                 B. Admissibility of Items Seized from the Appellant’s Residence
        The Appellant argues that the trial court erred by denying his motions to suppress items
seized from his residence pursuant to search warrants 146 and 149. The Appellant raises three issues
which are common to both search warrants 146 and 149: (1) that his federal and constitutional rights
were violated because the items seized were not particularly described in the warrant; (2) that the
affidavits to each warrant do not state probable cause because there is no nexus between the criminal
activity and the place searched; and (3) that the Appellant was not personally delivered a copy of the
warrants served in violation of Tenn. R. Crim. P. 41(c). Additionally, the Appellant contends that
warrant 149 was invalid because the attachment, entitled “Affidavit of Probable Cause,” was not
expressly incorporated by reference into the warrant.

        Again, we note that a trial court's factual findings on a motion to suppress are conclusive on
appeal unless the evidence preponderates against them. Daniel, 12 S.W.3d at 423; Odom, 928
S.W.2d at 23. Nonetheless, this court is not bound by the trial court's conclusions of law. State v.
Simpson, 968 S.W.2d 776, 779 (Tenn. 1998). The application of the law to the facts as determined
by the trial court is a question of law which is reviewed de novo on appeal. Yeargan, 958 S.W.2d
at 629. Furthermore, the Appellant bears the burden of demonstrating that the evidence
preponderates against the trial court's findings. See Odom, 928 S.W.2d at 22-23.

                          1. Particularity of Items Described in Warrant
        First, the Appellant argues that the items seized from his residence pursuant to warrants 146
and 149 should have been excluded from evidence because they were not particularly identified in
the warrants. Specifically, the Appellant contends that none of the items seized belonged to either
the restaurants or the victims and that none of the items seized could have caused the deaths of the
victims.



                                                 -16-
       Search warrant 146 was issued on June 3, 1997, and authorized the following search of the
Appellant’s residence:

         Items which may be identified as property belonging to Captain D’s restaurant or
         McDonald’s Corp.[4] Items belonging to the victim’s of each restaurant/crime scene
         located at 2633 Lebanon Road and 3470 Lebanon Road. Any items which may be
         used to cause the death of the victims of each establishment. These crimes were
         committed on 2/16/97 and 3/23/97.

Warrant 149, which was issued on June 5, 1997, used the same language as warrant 146, but
additionally included, “any and all financial records to include those indicating monies paid out by
[the Appellant] on an automobile lease during the time period that any of the restaurant murders
occurred.”5 An affidavit was attached to each warrant setting forth the nature and circumstances of
the respective crimes. The affidavits noted that several items had been taken from the restaurants,
including bank bags. With respect to warrant 146, officers seized four jars full of coins, six pairs
of shoes, one duffle bag, one brown carry bag, assorted photos, one Bible, three knives, and three
hats. With respect to warrant 149, officers seized a box of photo albums, a bag containing photos
and negatives, a bag of assorted letters and mail, women’s toiletry items, keys, teeth molds, and
assorted magazines, papers, and notes.

         Our federal constitution provides that no warrants shall issue except those "particularly
describing the place to be searched." U.S. Const., amend. IV. A warrant meets this requirement if
it describes the place to be searched with such particularity that the searching officer can, with
reasonable effort, ascertain and identify the intended place. See Steele v. United States, 267 U .S.
498, 502, 45 S. Ct. 414 (1925); see also United States v. Gahagan, 865 F.2d 1490, 1496 (6th Cir.
1989). Likewise, Tennessee law prohibits general warrants, see Tenn. Const., art. I, § 7, and
provides that a search warrant must be supported by an affidavit "particularly describing the property,
and the place to be searched." Tenn. Code Ann. § 40-6-103 (1997). This requirement is satisfied
if the description "particularly points to a definitely ascertainable place so as to exclude all others,
and enables the officer to locate the place to be searched with reasonable certainty without leaving
it to his discretion." State v. Smith, 868 S.W.2d 561, 572 (Tenn.1993), cert. denied, 513 U.S. 960,
115 S. Ct. 417 (1994). The description of the place to be searched is adequate if it designated the
property accurately enough that the officer conducting the search of the premises of one person under
a warrant would be prevented from searching instead the premises of another person. See State v.
Cannon, 634 S.W.2d 648, 650 (Tenn. Crim. App.1982) (citing Lea v. State, 181 S.W.2d 351 (Tenn.
1944)). Additionally, Tenn. R. Crim. P. 41(b) provides:


         4
           At the time of this investigation, the Appellant was also under investigation for the murders, robbery and
assault of emp loyees of a N ashville Mc Donald ’s restaurant.

         5
           Law enforcement officers executed five other search warrants in addition to the two at issue above. All seven
warrants were challenged by the defense in pretrial motions. The State, however, gave notice prior to trial that it did not
intend to introduce the evidence seized pursuant to the other five warrants and did not seek admission of this evidence
at trial. Thus, on appeal, the Appellant only challenges evidence introduced from warrants 146 and 149.

                                                          -17-
        (b) Property Which May Be Seized with a Warrant. — A warrant may be issued
        under this rule to search for and seize any:

                (1) Property that constitutes evidence of the commission of a criminal
                offense; or
                (2) Contraband, the fruits of crime, or things otherwise criminally
                possessed;
                (3) Property designed or intended for use or which is or has been used
                as the means of committing a criminal offense; or
                (4) Person for whose arrest there is probable cause or who is
                unlawfully restrained.

        In State v. Meeks, 867 S.W.2d 361, 372 (Tenn. Crim. App. 1993), this court recited the
language found in Lea v. State, 181 Tenn. at 378, S.W.2d at 352-53, wherein our supreme court
distinguished between the character and the identity of the targeted item during a search as follows:

        Thus, where the purpose of the search is to find specific property, it should be so
        particularly described as to preclude the possibility of seizing any other. On the other
        hand, if the purpose [is] to seize not specified property, but any property of a
        specified character which, by reason of its character, and of the place where and the
        circumstances under which it may be found, if found at all, would be illicit, a
        description, save as to such character, place and circumstances, would be necessary,
        and ordinarily impossible.

Here, as in Lea, the type of evidence that the officers were looking for was of a specific character,
rather than a specific property. The officers were looking for items that might have been taken from
either the victims or the restaurants. It would have been impossible to provide a particular
description of everything which might have been taken from the restaurants or victims. Thus, we
find the warrants sufficiently set forth the character of the items which were the subject of the search.

         Finally, if during the lawful search the officers find items that are not specified in the warrant,
but which are immediately apparent to be contraband, fruit of the crime, or evidence of criminal
conduct, their right to seize these items is governed by the plain view exception to the warrant
requirement. Meeks, 867 S.W.2d at 373; see also Horton v. California, 496 U.S. 128, 136-141, 110
S. Ct. 2301, 2308-2310 (1990). The plain view doctrine is applicable where the items seized are in
plain view, and the viewer has a right to be in the position to see the items. Horton, 496 U.S. at 137,
110 S. Ct. at 2308; State v. Hoerner, 605 S.W.2d 835, 836 (Tenn. Crim. App. 1990).
         In the present case, Detectives Postiglione and Roland testified about their reasons for seizing
the items found in the Appellant’s apartment. With respect to warrant 146, Detective Postiglione
testified that he seized the four jars of coins because of the large quantity involved and because
change had been taken in both robberies. Six pairs of shoes were seized for comparison to shoe
prints found at the two restaurants. Knives were seized because one victim had been stabbed and
three hats were taken because the suspect was portrayed wearing a hat in two of the composite


                                                   -18-
drawings. Finally, Detective Postiglione testified that he took large numbers of photographs because
some of the photos were pictures of various intersections in Nashville and he felt the photos might
be tied to other robberies. With respect to warrant 149, Detective Roland testified that he seized
numerous photos, some of which also contained pictures of various Nashville intersections.
Detective Roland testified that all photos were seized because it would have been impossible to sort
through all of the photos to determine if they were incriminating at the time of the search. The
women’s toiletry items were seized because he felt the items might belong to one of the female
victims. The keys were seized because the keys to Captain D’s had been missing since the crime.
Finally, the magazines, notes, and assorted papers were taken in an effort to uncover the financial
records described in warrant 149. As the trial court correctly found, “the items sought were
described with particularity and items recovered were in plain view.” Thus, this issue is without
merit.

                               2. Nexus Between Residence and Crime
        The Appellant next argues that the items seized should have been suppressed because “there
is no connection stated in the warrants or supporting affidavits between the criminal activity and the
. . . defendant’s residence.” Specifically, the Appellant contends that “the crimes had been
committed several months prior to the issuance of the warrants so that the information provided in
the affidavits is too stale to establish the nexus.” The Appellant further asserts that the affidavits
provided no information which would give officers probable cause to believe that evidence
concerning the crimes would be located at the Appellant’s residence.

        In State v. Longstreet, 619 S.W.2d 97, 99 (Tenn.1981), our supreme court held that to
establish probable cause an affidavit must set forth facts from which a reasonable conclusion may
be drawn that the evidence will be found in the place to be searched pursuant to the warrant. State
v. Vann, 976 S.W.2d 93, 105 (Tenn. 1998), cert. denied, 526 U.S. 1071, 119 S. Ct. 1467 (1999).
Accordingly, the nexus between the place to be searched and the items to be seized may be
established by the type of crime, the nature of the items, and the normal inferences where a criminal
would hide the evidence. Smith, 868 S.W.2d at 572; see United States v. Jacobs, 715 F.2d 1343,
1346 (9th Cir. 1983). The affidavit must contain information which will allow a magistrate to
determine whether the facts are too stale to establish probable cause at the time issuance of the
warrant is sought. Vann, 976 S.W.2d at 105. Although the lapse of time between the occurrence
of a crime and the issuance of a search warrant may affect the likelihood that incriminating evidence
will be found, probable cause must be determined on a case by case basis. State v. Meeks, 876
S.W.2d 121, 125 (Tenn. Crim. App. 1993); see also Sgro v. United States, 287 U.S. 206, 210-11,
53 S. Ct. 138, 140 (1932). In making this decision, the issuing magistrate should consider (1)
whether the criminal activity under investigation was an isolated event or of a protracted and
continuous nature, (2) the nature of the property sought, and (3) the opportunity those involved
would have had to dispose of incriminating evidence. Meeks, 876 S.W.2d at 125; see United States
v. Steeves, 525 F.2d 33, 38 (8th Cir. 1975).

       In the present case, the warrants issued sought to include any items that may have been used
to cause the death of the victims. The warrants also sought to recover any property that may have


                                                -19-
been taken from the victims or the restaurant. The attached affidavits set forth the facts surrounding
both the Captain D’s and McDonald’s robberies, including the fact that all of the victims had been
killed with the exception of one who had been stabbed numerous times. Furthermore, the affidavits
noted that the Appellant’s fingerprint had been recovered from an item found belonging to one of
the Captain D’s victims. As stated above, probable cause is determined on a case by case basis.
Meeks, 876 S.W.2d at 125. It is neither unreasonable nor unlikely that a perpetrator, who believes
his identity to be unknown, would keep items he or she has taken or the instruments used to commit
the crime at his or her residence. See Smith, 868 S.W.2d at 572. In this instance, it is apparent from
the facts that the Appellant eluded capture for some time and intended to leave no witnesses to his
crimes. Therefore, it is likely the Appellant would have concluded that his identity was unknown
to police, dispelling the necessity of disposing of any incriminating items. Although a few months
passed between the crimes and the search, we find a sufficient nexus between the items sought and
the Appellant’s residence. This issue is without merit.


                                    3. Tenn. R. Crim. P. 41(c)
       The Appellant argues that a violation of Tenn. R. Crim. P. 41(c) occurred when law
enforcement officers failed to personally deliver to him a copy of search warrants 146 and 149 when
each was executed. At the time the warrants were issued, the Appellant was incarcerated at the
Cheatham County Jail.6 Tenn. R. Crim. P. 41(c) reads in pertinent part as follows:

         [T]he failure of the serving officer where possible to leave a copy with the person or
         persons on whom the search warrant is being served, shall make any search
         conducted under said search warrant an illegal search and any seizure thereunder an
         illegal seizure.

(Emphasis added). At the suppression hearing, Detective Postiglione and Detective Roland both
acknowledged that they were aware of the Appellant’s incarceration and knew where he could be
found when both search warrants were issued. In both cases, however, the detectives testified that
they left a copy of the search warrant locked inside the Appellant’s residence. There was no one
present on whom the officers could serve the warrant or with whom they could leave a copy as
required by Tenn. R. Crim. P. 41(c). The Rule requires the officers to leave a copy with the person,
not personally deliver a copy to the person if he or she is not present. Thus, we do not read the
provisions of Rule 41(c), concerning the leaving of a copy of the warrant with the person served, to
prevent a search when no person is present or in occupancy of the premises to be searched. See
generally Poole v. State, 467 S.W.2d 826, 832 (Tenn. Crim. App. 1971). This issue is without merit.

                 4 . Failure to Incorporate Affidavit by Reference in Warrant
       Lastly, the Appellant argues that search warrant 149 is invalid because the language of the
warrant does not incorporate by reference the affidavit of probable cause that appears on a separate


         6
          As previously noted, the Appellant’s incarceration in the Cheatham County Jail stemmed from another incident
where he atte mpted to kidnap the m anager of a Shoney’s res taurant.

                                                        -20-
page. An affidavit is an indispensable prerequisite to the issuance of a search warrant. State v.
Lowe, 949 S.W.2d 300, 303 (Tenn. Crim. App. 1996). Despite this fact, however, in Tennessee,
an affidavit is not considered an actual part of the warrant. Id. Tennessee Code Annotated section
40-6-103 provides that “[a] search warrant can only be issued on a probable cause, supported by
affidavit, naming or describing the person, and particularly describing the property, and the place to
be searched.” See also Tenn. R. Crim. P. 41(c). Neither the statute nor the rule requires that the
affidavit, which is used to establish probable cause, must be incorporated by reference. Rather, case
law holds that an affidavit must be incorporated by reference where the search warrant inadequately
describes the location to be searched. See Lowe, 949 S.W.2d at 303; see also Hackerman v. State,
223 S.W.2d 194, 196 (Tenn. 1949); State v. Smith, 836 S.W.2d 137, 141(Tenn. Crim. App. 1992).
In the present case, the search warrant adequately described the location of the place to be searched.
Further, the affidavit was properly attached to the warrant and presented to the magistrate for a
determination of probable cause. No additional requirements are provided by law. Thus, this issue
is without merit.

                                    II. Voir Dire of the Venire

                                      A. Use of Religious Tests
        Prior to trial, the Appellant filed a motion requesting that the court prohibit the use of
“religious tests” during jury selection. He argued that the removal for cause of prospective jurors
who oppose the imposition of the death penalty because of “sincerely held” religious, moral or
philosophical beliefs violates Article I, section 6 of the Tennessee Constitution. He further asserted
that the question, “whether the juror’s ‘sincerely held’ religious, moral, or philosophical beliefs
would preclude them from following their oath as jurors,” violates Article I, sections 3, 4, 6, 8, and
17 and Article XI, section 8 of the Tennessee Constitution. Indeed, the Appellant argued that the
only inquiry which is constitutionally permissible when a prospective juror expresses an opposition
to the death penalty upon religious, moral or philosophical grounds is that of determining whether
the belief is sincerely held. The trial court denied the Appellant’s motion. The Appellant now
contends that this denial was error.

        A person otherwise competent may not be disqualified as a juror because of his or her
religious beliefs. In other words, no religious test shall be put forth to the person. Religious tests
probe religious beliefs. See Wolf v. Sundquist, 955 S.W.2d 626, 631 (Tenn. App.), perm. to appeal
denied, (Tenn. 1997) (citing Torcaso v. Watkins, 367 U.S. 488, 494, 81 S. Ct. 1680, 1683 (1961);
Patty v. McDaniel, 547 S.W.2d 897, 908 (Tenn. 1977), rev’d on other grounds, 435 U.S. 618, 98 S.
Ct. 1322 (1978)). For example, a person may not be excluded from jury service because of their lack
of belief in a Supreme Being nor may a judge coerce a prospective juror to take an oath which
includes a reference to God where the prospective juror is an atheist. See generally 47AM . JUR. 2d,
Jury § 177 (1995). However, the exclusion by a trial court of prospective jurors because of their
moral or religious-based reluctance to impose the death penalty is not error. In this regard, potential
jurors are removed for cause not because of their religious opinion or affiliation but because the
jurors are unable to view the proceedings impartially and perform their duties in accordance with the
juror’s oath. See generally State v. Jones, 789 S.W.2d 545, 547 (Tenn.), cert. denied, 498 U.S. 908,


                                                 -21-
111 S. Ct. 280 (1990); State v. Bobo, 727 S.W.2d 945, 949 (Tenn.), cert. denied, 484 U.S. 872, 108
S. Ct. 204 (1987). The Court of Appeals, in Wolf v. Sundquist, reaffirmed this principle, stating:

         It is now settled that a criminal defendant’s constitutional rights are not violated by
         excusing prospective jurors for cause when their personal beliefs concerning the
         death penalty would prevent or substantially impair their performance as a juror in
         accordance with their instructions and their oath.

Wolf v. Sundquist, 955 S.W.2d at 629 (citing Wainwright v. Witt, 469 U.S. 412, 424, 105 S. Ct. 844,
852 (1985); Adams v. Texas, 448 U.S. 38, 45, 100 S. Ct. 2521, 2526 (1980); State v. Hutchinson,
898 S.W.2d 161, 167 (Tenn. 1994), cert. denied, 516 U.S. 846, 116 S. Ct. 137 (1995); State v. Alley,
776 S.W.2d 506, 518 (Tenn. 1989), cert. denied, 493 U.S. 1036, 110 S. Ct. 758 (1990)). The court
further held that questioning jurors concerning their religious beliefs with regard to the death penalty
does not amount to a religious test.7 Wolf v. Sundquist, 955 S.W.2d at 631. In sum, the court held
that the exclusion of jurors who because of their religious beliefs cannot apply the law to the facts
of a particular case is not error.8 Wolf v. Sundquist, 955 S.W.2d at 633. This issue is without merit.

                                B. Other Issues Concerning Voir Dire
        The Appellant raises additional issues regarding the trial court’s direction of voir dire within
the jury selection process in his case. Specifically, the Appellant contends that the court improperly
limited the Appellant’s ability to learn about potential jurors’ attitudes toward mental health
evidence, improperly questioned jurors concerning opinions about the death penalty, and improperly
commented that the court expected the Appellant to be found guilty. The State asserts that the
Appellant has waived any challenge related to jury composition based upon his failure to exhaust
all peremptory challenges. With regard to challenges to specific jurors,9 we agree that the Appellant
 has waived any challenge on appeal. See generally State v. Howell, 868 S.W.2d 238, 248 (Tenn.
1993), cert. denied, 510 U.S. 1215, 114 S. Ct. 1339 (1994); State v. Middlebrooks, 840 S.W.2d 317,
329 (Tenn. 1992); State v. Teel, 793 S.W.2d 236, 247 (Tenn.), cert. denied, 498 U.S. 1007, 111 S.
Ct. 571 (1990). It is only where a defendant exhausts all of his peremptory challenges and is
thereafter forced to accept an incompetent juror can a complaint about the jury selection process have
merit. State v. Coury, 697 S.W.2d 373, 379 (Tenn. Crim. App. 1985) (citing Hale v. State, 198


         7
          Like the State, we ar e strained to find logic behind the Appe llant’s assertion that the only appropriate inquiry
is whether a relig ious belief is “since rely held.” Ac cordingly, we find it unnecessa ry to addre ss this compla int.

         8
         The Appellant recognizes the Court of Appeals’ decision in Wolf v. Sundq uist as dispositive of this issue.
Notwithstanding, he asserts that “ Wolf is incorrectly decided.” As the State acknowledges, the Appellant fails to offer
any argument for his position. We agree with the Court of Appeals’ rationale in Wolf . Accordingly, we reject the
Appellant’s contention that the court’s decision is flawed.

         9
          The Ap pellant’s brief makes reference to Prospective Juror Gerald Hodges in his challenge to the limitation
of questioning in to mental health issues. Additionally, within his challenge to the trial court’s questioning the jurors
regarding their opinion of the death pena lty, the Appellant makes specific reference to prospective jurors William Nelson,
Gerald Hodges, Gary Hixson, Terry McN abb, Troy Calloway, Willie King, Patricia Anderson, Justin Law and Robert
Brown. The se challenges are waived for failure to exha ust all peremptory challenges.

                                                           -22-
Tenn. 461, 281 S.W.2d 51 (1955); McCook v. State, 555 S.W.2d 411, 413 (Tenn. Crim. App.
1977)). Further, the record shows that the jury that heard the case was fair and impartial. There is
nothing in the record to show that any prejudice resulted to the Appellant by the manner of the
selection process utilized. Accordingly, we find no error. However, because of the manner in which
the remaining challenges are phrased, we choose to address the challenges on their merits.

       1. Limitation of Inquiry into Mental Health Evidence as Mitigating Circumstance
        Tennessee Rule of Criminal Procedure 24(a), in pertinent part, states that the trial court "shall
permit questioning by the parties for the purpose of discovering bases for challenge for cause and
enabling an intelligent exercise of peremptory challenges." It further states that "[t]he court . . . may
direct that any portion of the questioning of a prospective juror be conducted out of the presence of
the tentatively selected jurors and other prospective jurors." Although the rule provides no test for
determining whether the scope of questioning is adequate to fulfill the rule's purpose, Tennessee
courts have held that "the scope and extent of voir dire is entrusted to the discretion of the trial judge,
and his actions will not be disturbed unless clear abuse of discretion is shown." State v. Harris, 839
S.W.2d 54, 65 (Tenn. 1992), cert. denied, 507 U.S. 954, 113 S. Ct. 1368 (1993); see also State v.
Smith, 993 S.W.2d 6, 28 (Tenn.), cert. denied, 528 U.S. 1023, 120 S. Ct. 536 (1999). Thus, the
method of voir dire, i.e., individual or group,10 the questions that may be asked, and the scope of
inquiry are all within the discretion of the trial court.11

        In the present case, the trial court, prior to the commencement of jury selection, instructed
counsel that individual voir dire would be limited to issues surrounding pretrial publicity and death
qualification, “unless there has been something on that questionnaire that we need to deal with
individually.” Defense counsel informed the court that, from the questionnaires,

         an amazingly large number of jurors recorded for us mental health issues related to
         themselves or to their family. As this obviously would be a subject of voir dire
         where they have indicated something which is innately a personal topic, I wonder if
         the Court would like to consider those questions. [12]


         10
           Howell , 868 S.W.2d at 247; State v. Van Tran, 864 S.W .2d 465 , 473-47 4 (Tenn . 1993), cert. denied, 511
U.S. 1046, 114 S. Ct. 1577 (19 94).

         11
            State v. Smith, 857 S.W.2 d 1, 19-2 0 (Tenn . 1993), cert. denied, 510 U.S. 996 , 114 S. C t. 561 (19 93); State
v. Irick, 762 S.W .2d 121 , 125 (T enn. 198 8), cert. denied, 489 U.S. 1072, 109 S. Ct. 1357 (1989); State v. Poe, 755
S.W.2d 41, 45 (T enn. 198 8), cert. denied, 490 U.S. 1085, 109 S. C t. 2111 (1 989); Kenned y v. State, 186 Tenn. 310,
319, 21 0 S.W .2d 132 , 136 (19 47), cert. denied, 333 U.S. 846, 68 S. Ct. 659 (1948 ).

         12
           The ven ire comp leted an exte nsive questio nnaire prio r to voir dire. Pursuant to the Appellant’s request, the
questionnaire included multiple inquiries regarding mental health issues. Of relevance to this issue:

         Question Numbe r 44 Do you believe that diagnosis o r treatment p rovid ed by a psychiatrist or
         psycholog ist or other qu alified profess ional might b e helpful?
         Question Number 45 Have you, anyone in your family or close personal friend ever received any type
                                                                                                       (continued ...)

                                                           -23-
The court denied the Appellant’s request to question jurors during individual voir dire regarding
mental health issues, but stated, “that is something that you can deal [with] within the general voir
dire.” The trial court additionally informed defense counsel that during the individual voir dire they
could ask the general question, “Will you consider all mitigation?” and also permitted the parties to
question the potential jurors regarding any matters that the jurors had designated as “private” on their
questionnaires. Regarding group voir dire, the trial court limited inquiry into mental health issues,
requiring any question to be an attempt to clarify a position stated in the questionnaire or be a general
inquiry regarding the juror’s ability to consider mental health testimony.13 The Appellant now
contends that the limitations placed on voir dire prevented him from developing possible cause
challenges against jurors who had already expressed negative attitudes about mental health
evidence,14 thereby rendering the limitations essentially meaningless.

        We cannot conclude that the trial court abused its discretion. Defense counsel had access to
the questionnaires of the prospective jurors. The questionnaires combined with the permissible
inquiries as to mental health issues during individual and group voir dire provided the Appellant with
ample background information from which to exercise peremptory challenges. Accordingly, we find
that the limited restrictions placed upon the parties by the trial court were reasonable and were well
within the trial court’s discretion. This issue is without merit.

                        2. Court Implied to Venire that Appellant was Guilty
         The Appellant cites to numerous statements by the trial court which he asserts “implicitly
conveyed that the court expected the [Appellant] to be found guilty of first-degree murder, so that
a penalty phase would necessarily occur thereafter.” The Appellant contends that the inference from
the trial court’s directions to the venire implied that the court “viewed the [Appellant’s] convictions
as a foregone conclusion.” Accordingly, he avers that the court’s comments resulted in prejudice
to the judicial process requiring reversal. See Tenn. R. App. P. 36(b).



         12
           (...continued)
         of inpatient or out-patient me ntal health cou nseling or trea tment?
         Question Number 46 Have you, any member of your family . . . or close personal friend ever taken
         any type of psychotropic drug or other medications for depression, anxiety or any other psychological
         or psychiatric problem or disorder?
         Question Number 47 Have you ever had an unpleasant experience or confrontation with someone who
         suffered from any type of mental illness o r emotiona l disorder, o r someon e who has lo st control of
         their behavior?
         Question Number 48 Do you hold an opinion about de fendants who use mental health as an excuse
         for their actions?


         13
            The court’s restrictions during group voir dire arose from the court’s concern over the recent case of State
v. Reid , 981 S.W .2d 166 (Tenn. 1 998)(no tice requirements of intent to use mental health evidence as mitigation and
ability to withdraw notice of intent at any time prior to presenting such evidence), and unfair disadvantage to the State.

         14
            The App ellant specifically refers to prospective jurors Ho dges and Fears. Again, base d upon h is failure to
exercise all available peremp tory challenges, the Appellant has waived any challenge to individual jurors.

                                                          -24-
        Without reiterating verbatim the challenged language of the trial court to the venire, we
acknowledge that the court, for example, used the term “until he is found guilty beyond a reasonable
doubt of murder in the first-degree” rather than the term “unless he is found guilty beyond a
reasonable doubt of murder in the first-degree.” The Appellant argues prejudice without considering
the context in which the court’s statements were provided. Indeed, one challenged comment of the
court, placed in full context of the court’s instruction, provided:

       Mr. Reid hasn’t been found guilty of anything. That is what the trial is about, so I
       want to make certain that you understand he is presumed innocent as he sits in front
       of you, and that presumption stays with him until he is found guilty after you hear the
       proof in the case, so just because we are asking you questions with regard to the
       possible punishments in this case, I want to make certain you keep in mind that he
       has not been found guilty of anything, but the reason we have to ask you these
       questions is that we must have jurors who can consider all three possible
       punishments.

We disagree with the Appellant’s argument that this instruction compels the finding that the court
implied to the jury the Appellant’s guilt. Given the entire context of the voir dire, we conclude that
no reasonable juror could have believed that the court was instructing him or her to return a guilty
verdict. This issue is without merit.


                                 III. Sufficiency of the Evidence

       The Appellant argues that the evidence presented at trial is insufficient to support his
convictions for two counts of first-degree murder and one count of especially aggravated robbery.
Specifically, the Appellant asserts that the “physical evidence and the testimony of prosecution
witnesses raise reasonable doubts as to his identity as the perpetrator.” We disagree and find the
evidence more than sufficient to support the verdicts.

         A jury conviction removes the presumption of innocence with which a defendant is cloaked
and replaces it with one of guilt, so that on appeal, a convicted defendant has the burden of
demonstrating that the evidence is insufficient. State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982).
In determining the sufficiency of the evidence, this court does not reweigh or reevaluate the
evidence. State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). Likewise, it is not the duty of this
court to revisit questions of witness credibility on appeal, that function being within the province of
the trier of fact. See generally State v. Adkins, 786 S.W.2d 642, 646 (Tenn. 1990); State v.
Burlison, 868 S.W.2d 713, 718-19 (Tenn. Crim. App. 1993). Instead, the defendant must establish
that the evidence presented at trial was so deficient that no reasonable trier of fact could have found
the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307,
319, 99 S. Ct. 2781, 2789 (1979); State v. Cazes, 875 S.W.2d 253, 259 (Tenn. 1994), cert. denied,
513 U.S. 1086, 115 S. Ct. 743 (1995); Tenn. R. App. P. 13(e). Moreover, the State is entitled to the
strongest legitimate view of the evidence and all reasonable inferences which may be drawn


                                                 -25-
therefrom. Harris, 839 S.W.2d at 75. In State v. Matthews, 805 S.W.2d 776, 779 (Tenn. Crim.
App.), perm. to appeal denied, (Tenn. 1990), this court held these rules applicable to findings of guilt
predicated upon direct evidence, circumstantial evidence, or a combination of both direct and
circumstantial evidence.

        The Appellant was convicted of two counts of premeditated first-degree murder, two
counts of felony murder and one count of especially aggravated robbery. Initially, we note that,
where the jury returns guilty verdicts as to alternative counts of first-degree murder, the two
verdicts merge into one count of first-degree murder. See Carter, 958 S.W.2d at 624-625; see
also supra, at footnote 1. Accordingly, a general verdict of guilty is sustainable if any one count
in the indictment is supported by the proof. See Tenn. Code Ann. § 40-18-111; see also supra, at
footnote 1. Thus, proof of either felony murder or premeditated murder is sufficient to sustain
the conviction. See supra, at footnote 1. First-degree murder is the “premeditated and
intentional killing of another.” Tenn. Code Ann. § 39-13-202(a)(1) (1997). Tennessee Code
Annotated section 39-13-202(d) defines premeditation as follows:

        As used in subdivision (a)(1) 'premeditation' is an act done after the exercise of
        reflection and judgment. 'Premeditation' means that the intent to kill must have
        been formed prior to the act itself. It is not necessary that the purpose to kill
        pre-exist in the mind of the accused for any definite period of time. The mental
        state of the accused at the time the accused allegedly decided to kill must be
        carefully considered in order to determine whether the accused was sufficiently
        free from excitement and passion as to be capable of premeditation.

The element of premeditation is a question of fact to be resolved by the jury and may be
established by proof of the circumstances surrounding the killing. State v. Suttles, 30 S.W.3d
252, 260 (Tenn. 2000). Furthermore, robbery is the “intentional or knowing theft of property
from the person of another by violence or putting the person in fear.” Tenn. Code Ann. § 39-13-
401 (1997). In order for the robbery to be elevated to especially aggravated robbery, the robbery
must be accomplished with a deadly weapon and the victim must suffer serious bodily injury.
Tenn. Code Ann. § 39-13-403(a)(1)(2) (1997).

        We agree with the Appellant that the identity of the defendant as the perpetrator is
certainly an indispensable element of any crime. The determination of identity is a question of
fact for the jury after a consideration of all competent evidence. See Biggers v. State, 219 Tenn.
553, 411 S.W.2d 696, 697 (Tenn.), cert. granted, 390 U.S. 404, 88 S. Ct. 979 (1968) (affirmed on
other grounds); Marable v. State, 203 Tenn. 440, 313 S.W.2d 451 (Tenn. 1958); State v.
Crawford, 635 S.W.2d 704 (Tenn. Crim. App. 1982). The evidence offered to prove identity,
however, can be either direct or circumstantial. State v. Thompson, 519 S.W.2d 789, 793 (Tenn.
1975); State v. Shelley, 628 S.W.2d 436, 438 (Tenn. Crim. App. 1981). Before an accused may
be convicted upon circumstantial evidence alone, the facts must be "so clearly interwoven and
connected that the finger of guilt is pointed unerringly at the defendant and the defendant alone."
Howell, 868 S.W.2d at 253-254. Additionally, the determination of whether all reasonable


                                                 -26-
theories are excluded by the circumstantial evidence presented is primarily a question of fact for
the jury. Pruitt v. State, 460 S.W.2d 385 (Tenn. Crim. App. 1970).

        This case is based entirely upon circumstantial evidence. Upon reviewing the record, we
find the evidence legally sufficient to support the jury's verdict of both premeditated first-degree
murder and especially aggravated robbery. The record reflects that the Appellant told a co-
worker prior to the crime that there were additional ways to make money, such as robbing fast
food restaurants. The Appellant had also asked a friend to help him obtain a .32 caliber revolver
prior to the crimes. After the crimes, the Appellant told a friend he owned a .32 caliber revolver
and did not like the way it shot. Both victims were killed using a .32 caliber weapon. The
Appellant worked near the location of the murders, was familiar with the location, and was a
restaurant employee. The night before the murders, the Appellant obtained a job application
from a Captain D’s employee, who informed him to come back the next day and speak with the
manager, Steve Hampton. The Appellant and his vehicle were identified by two witnesses as
being outside Captain D’s on the morning of the murders. Approximately $7,140 in cash and
coins was taken during the Captain D’s robbery. Although the Appellant was experiencing
serious financial trouble prior to the crime, he spent in excess of $6,000 in cash approximately
two weeks after the crime. A large amount of coined money was taken during the crime, and
over $1,000 in coins was found at the Appellant’s residence. Moreover, the Appellant’s
fingerprint was found on Steve Hampton’s movie card which had been discarded on a nearby
road. Considering these facts in the light most favorable to the State, we conclude that the proof
in the record points the finger of guilt unerringly at the Appellant and the Appellant alone, and
that the proof was sufficient for a jury to have found the essential elements of the offenses
beyond a reasonable doubt. This issue is without merit.


                               IV. Evidentiary Issues: Guilt Phase

                        A. Admissibility of Testimony of Sergeant Hunter
        The Appellant argues that the trial court erred by permitting Sgt. Johnny Hunter to testify
as an expert witness in the field of blood spatter analysis. Specifically, the Appellant contends
that this testimony violated his constitutional right to a fair trial because the defense was unfairly
surprised. We disagree and find no error.

        Sgt. Hunter was qualified by the court to testify as an expert on fingerprint analysis and
comparison, as well as blood spatter analysis. The Appellant complains that he received no
advance notice that the State was intending to introduce expert testimony in the field of blood
spatter analysis and that he was denied the opportunity to effectively cross-examine the witness.
Sgt. Hunter’s report, which was provided to the defense prior to trial, mentioned that no visible
blood spatter was found, with the exception of a small amount of blood on the floor around the
victims. At trial, Sgt. Hunter testified about blood patterns found on the floor and surrounding
area, specifically noting the absence of blood spattering. Sgt. Hunter further testified that the
absence of blood spattering indicated that the victims were lying on the ground when they were


                                                 -27-
shot. He further stated that the blood pattern on a shelf to the right of one of the victims, Sarah
Jackson, indicated that she had attempted to lift herself up after being shot.

        The Appellant is not contesting Sgt. Hunter’s qualifications, but rather insists that he was
surprised by his testimony in this respect. Although the Appellant argues that he had no notice
that Sgt. Hunter would testify about blood spattering at trial, the Appellant fails to explain how
he was prejudiced by this testimony. Over a year before trial, the Appellant was provided with a
copy of Sgt. Hunter’s report, which stated that a small amount of blood was found on the floor
near the victims. The Appellant cannot complain about Sgt. Hunter’s testimony simply because
he failed to find any significance in the report which was properly and timely provided to him by
the State. This issue is without merit.


        B. Testimony of TBI Agent Linda Littlejohn Regarding Length of Shoes Seized
        The Appellant argues that the trial court erred by allowing Tennessee Bureau of Investigation
Agent, Linda Littlejohn, to testify that the length of the shoes seized from the Appellant’s apartment
were within the range of the unidentified shoe print left at the scene of the crime. Specifically, he
contends that the technique used in “measuring” the enlarged photographic negative was not shown
to meet the standards of admissibility for expert testimony set forth in McDaniel v. CSX Transp.,
955 S.W.2d 257 (Tenn. 1997). Additionally, the Appellant asserts that the admission of Agent
Littlejohn’s testimony violated Tenn. R. Evid. 702 and 401.

         Determinations of the admissibility of expert testimony are made within the sound discretion
of the trial court. State v. Ballard, 855 S.W.2d 557, 562 (Tenn. 1993). The standard of review on
appeal is whether the trial court abused its discretion in excluding the expert testimony. The abuse
of discretion standard contemplates that, before reversal, the record must show that a judge "applied
an incorrect legal standard, or reached a decision which is against logic or reasoning that caused an
injustice to the party complaining." State v. Shirley, 6 S.W.3d 243, 247 (Tenn. 1999); State v.
Shuck, 953 S.W.2d 662, 669 (Tenn. 1997).

        In the present case, Agent Littlejohn testified that a ruler was placed near the shoe print found
at the crime scene before the photograph was taken. The negatives were later developed and “one
to one photographs were made, and that would be where the negative is enlarged to where the ruler
in the photograph is actually the same size of the ruler next to the print at the scene, so the
photographs . . . would be exactly the same size as the print at the crime scene.” Both tread and
length were determined using this same technique. After comparing the photograph and the shoes,
Agent Littlejohn testified that none of the treads on the shoes recovered from the Appellant’s
apartment matched the print left at the crime scene. Although Agent Littlejohn testified that she
could not speculate as to the actual size of the shoe worn by the perpetrator because different styles
and brands would vary slightly in length, she did testify, however, that the length of the shoe print
found at the scene fell within the range of lengths of the nine pairs of shoes seized from the
Appellant’s apartment. Specifically, she testified that the shoe print found at the scene measured 12



                                                  -28-
and 3/8 inches in length. The shoes taken from the Appellant’s apartment ranged from 11 13/16
inches to 12 ½ inches in length.

        First, the Appellant contends that the trial court erred in admitting Agent Littlejohn’s
testimony regarding the length of the shoe print because it did not comport with standards for expert
testimony set forth in McDaniel, 955 S.W.2d at 257. We note that the Appellant does not contest
this measurement technique with respect to the tread identification testimony, which was favorable
to him. Rather, he only attacks this technique with respect to the length of the shoe print. The
Appellant further argues that the trial court erred by violating Tenn. R. Evid. 702, which reads, “[i]f
scientific, technical, or other specialized knowledge will substantially assist the trier of fact to
understand the evidence or to determine a fact in issue, a witness qualified as an expert by
knowledge, skill, experience, training, or education may testify in the form of an opinion or
otherwise.”

        In McDaniel, the Tennessee Supreme Court held that a trial court may consider the following
factors when determining the reliability of scientific evidence: (1) whether scientific evidence has
been tested and the methodology with which it has been tested; (2) whether the evidence has been
subjected to peer review or publication; (3) whether a potential rate of error is known; (4) whether,
as formerly required by Frye, the evidence is generally accepted in the scientific community; and
(5) whether the expert's research in the field has been conducted independent of litigation.
McDaniel, 955 S.W.2d at 265. In this instance, the following dialogue took place during a jury-out
hearing:

       THE COURT:              Well, let me ask Ms. Littlejohn a
                               couple of questions. Ms. Littlejohn,
                               the training that you had in terms of
                               the conclusions that you drew, were
                               these standard procedures used in that
                               field?

       LITTLEJOHN:             Yes, I mean - -

       THE COURT:              Okay, and it is the blowing up, the
                               one-on-one comparison - -

       LITTLEJOHN:             Uh-huh.

       THE COURT:              - - and is that what your training
                               indicates?

       LITTLEJOHN:              . . .yes, ma’am.




                                                   -29-
       THE COURT:              And is that the standard used in your
                               field?

       LITTLEJOHN:             Yes, it is.

       THE COURT:              All right, and is there scientific
                               literature with regard to this, I mean - -

       LITTLEJOHN:             Yes, there is.

       THE COURT:              - - and is this subject to being able to
                               be proven or disproved?

       LITTLEJOHN:             Yes.

       THE COURT:              Okay, so there are scientific principles
                               behind this?

       LITTLEJOHN:             Yes.

       THE COURT:              So you blow it up one-on-one, which
                               is the exact size of the print, and then
                               you just make a comparison of both in
                               tread and otherwise, and apparently
                               you did that in this case that [defense
                               counsel] does not object to?

       LITTLEJOHN:             Yes, your honor.

       DEFENSE:                Correct.

       THE COURT:              Okay, so yo u used that same
                               methodology to compare the prints,
                               the tread, and that, that you used to
                               make the size comparison?

       LITTLEJOHN:             Basically. . . .


       We conclude that the above text, along with other testimony presented at the jury-out hearing,
more than satisfies the factors set forth in McDaniel. The evidence presented at both the jury-out
hearing and trial indicated that the technique used by Agent Littlejohn was standard procedure and
widely accepted in the field of shoe and footprint comparison. Agent Littlejohn properly qualifies


                                                  -30-
as an expert in shoe and footprint comparison and her testimony would have substantially assisted
the trier of fact due to her education, experience, and training. See Tenn. R. Evid. 702. Moreover,
the Appellant was able to solicit testimony during cross-examination that the length of the print
found would be fairly common among the general population. This issue is without merit.

        The Appellant also argues that Agent Littlejohn’s testimony concerning range of length was
irrelevant. See Tenn. R. Evid. 401 and 402. Tennessee Rules of Evidence 401 defines relevant
evidence as “evidence having any tendency to make the existence of any fact that is of consequence
to the determination of the action more probable or less probable than it would be without the
evidence.” Clearly, testimony concerning the shoe prints found at the crime scene as compared to
the shoes seized from the Appellant’s apartment is relevant evidence that was properly admitted.
This issue is without merit.

          C. Admissibility of Cash Register Receipts Seized from Appellant’s Residence
        The Appellant argues that the trial court erred in admitting into evidence cash register
receipts seized from the Appellant’s residence that were not properly authenticated pursuant to Tenn.
R. Evid. 901. Specifically, he contests the authentication of the receipts because the prosecution
failed to call as witnesses representatives of the respective businesses to testify as to the legitimacy
and accuracy of the receipts. The prosecution, through the testimony of Detective Postiglione,
introduced three cash register receipts seized from the Appellant’s residence: (1) a Wal-Mart receipt
in the amount of $78.34, dated February 17, 1997; (2) a Wal-Mart receipt dated the same day in the
amount of $69.29; and (3) a receipt from Jumbo Sports dated February 18, 1997, for $97.41. The
purpose for the introduction of these receipts was to show that the Appellant had spent a large
amount of money in a short period of time after the murders despite the fact that he was in dire
financial trouble at the time. At trial, defense counsel objected to the introduction of the receipts,
arguing that the receipts had not been properly authenticated. The trial court overruled the objection
and found the cash register receipts admissible. Upon reviewing this issue, we agree that the receipts
were admissible.

          Rule 901(a) of the Tennessee Rules of Evidence provides that “[t]he requirement of
authentication . . . is satisfied by evidence sufficient to the court to support a finding by the trier of
fact that the matter in question is what its proponent claims.” Notwithstanding, Rule 902(7) states
that extrinsic evidence of authenticity is not required as a condition precedent to admissibility when
the item or items sought to be admitted are “[i]nscriptions, signs, tags, or labels purporting to have
been affixed in the course of business and indicating ownership, control or origin.” In the present
case, two of the receipts were from Wal-Mart and one receipt was from Jumbo Sports. All three
receipts were in printed form, bearing the retailer’s name, address, and other relevant information.
This printed material constitutes an “inscription” for purposes of satisfying Rule 902(7). See, e.g.,
United States v. Hing Shair Chan, 680 F. Supp. 521, 526 (E.D.N.Y. 1988)(a hotel record on hotel
stationary was held to be self-authenticating); State v. Deleon, No. CA 17574, 2000 WL 646502
(Ohio App. 2d. May 19, 2000)(bill of sale for automobile bearing dealer’s name and address held
to be self-authenticating); Neil P. Cohen, et. al., Tennessee Law of Evidence §§ 9.02[9] (4th ed.
2000). Thus, the cash register receipts were self-authenticating and properly admitted at trial. This
issue is without merit.

                                                  -31-
                              V. Closing Argument at Guilt Phase

                  A. Prosecutorial Comment on Appellant’s Failure to Testify
        The Appellant argues that the trial court erred by denying defense counsel’s motion for a
mistrial when, during closing arguments of the guilt/innocence phase, the prosecution commented
on the Appellant’s failure to testify. A prosecutor is strictly prohibited from commenting on the
defendant's decision not to testify. State v. Coker, 911 S.W.2d 357, 368 (Tenn. Crim. App. 1995).
However, a prosecutor's statement that proof is unrefuted or uncontradicted is not an improper
comment upon a defendant's failure to testify. State v. Thomas, 818 S.W.2d 350, 364 (Tenn. Crim.
App.1991); Coury, 697 S.W.2d at 378.

        In the present case, the Appellant did not testify at trial. However, a videotaped statement
to the detectives following the Appellant’s arrest was played before the jury. In this tape, the
Appellant stated that he did not know how his fingerprint got on Hampton’s Movie Gallery card.
Nonetheless, he also told detectives “I’m not surprised that it is on there.” During closing arguments
of the guilt/innocence phase, defense counsel made the following statements:

       I believe the evidence showed that card was found the next day, over 24 hours after
       the robbery happened. You heard that it was found on Ellington Parkway, about a
       mile from [the Appellant’s] house. You heard that [the Appellant] had a car that
       broke down all the time. If a person was near something and your car breaks down
       and you walk by something, you might pick that up and throw it back down. Four
       months after the fact, you may not even remember that.

Additionally, defense counsel questioned the prosecution’s reasoning for playing the videotaped
statement during trial. In its closing arguments, the prosecution responded to defense counsel’s
comments as follows:

       [Defense counsel] talked about why did the State put in the statement. Because he
       gave it, and you, as jurors, have a right to hear it. You did hear it, and we put in on
       for one reason; because he was given chance after chance to explain how his
       fingerprint could have gotten on that card. He said I’m not surprised it is on there.
       Would he ever have an explanation? [Defense counsel] grabbed one out of the air,
       and there is no basis in fact or evidence for anything else, and said, well maybe his
       car broke down.

(Emphasis added). The Appellant maintains that the prosecution’s statement of “When would he
ever have an explanation?” clearly commented upon the fact that the Appellant failed to explain
during his statement to police the presence of his fingerprint on property that had been in the
possession of one of the victims. Additionally, he contends that the prosecutor wrongfully
commented on the Appellant’s failure to take the witness stand and offer an explanation at trial. We
disagree. This was clearly rebuttal argument directed toward defense counsel's earlier argument that
the Appellant could have picked up the movie card while walking after his car broke down. We do


                                                -32-
not find that the statement can be fairly characterized as a comment on the Appellant’s failure to
testify. At most, the comment was mere argument by the prosecution that its proof was unrefuted
or uncontradicted. See Coury, 697 S.W.2d at 378. This issue is without merit.

                     B. Prosecutorial Comment During Closing Arguments
        The Appellant argues that the trial court erred by overruling defense counsel’s objection to
the prosecution’s statement during closing argument that the Appellant’s foot was the “same size”
as shoe prints left at the scene. Specifically, the Appellant contends that the comment was
prejudicial “because the prosecutor’s comments constituted a misstatement of the evidence on a
crucial matter.”

          Closing arguments are an important tool for the parties during the trial process.
Consequently, the attorneys are usually given wide latitude in the scope of their arguments, see State
v. Bigbee, 885 S.W.2d 797, 809 (Tenn. 1994), and trial judges, in turn, are accorded wide discretion
in their control of those arguments, see State v. Zirkle, 910 S.W.2d 874, 888 (Tenn. Crim. App.
1995). Notwithstanding such, arguments must be temperate, based upon the evidence introduced
at trial, relevant to the issues being tried, and not otherwise improper under the facts or law. Coker
v. State, 911 S.W.2d 357, 368 (Tenn. Crim. App. 1995). To justify a reversal on the ground of
improper argument of counsel, it must affirmatively appear that the improper conduct affected the
verdict to the prejudice of the defendant. Harrington v. State, 385 S.W.2d 758, 759 (Tenn. 1965);
State v. McBee, 644 S.W.2d 425, 428 (Tenn. Crim. App. 1982). Furthermore, the following factors
must be considered by this court in making such a determination: 1) the conduct complained of,
viewed in light of the facts and circumstances of the case; 2) the curative measures undertaken by
the court and the prosecutor; 3) the intent of the prosecutor in making the improper statement; 4) the
cumulative effect of the improper conduct and any other errors in the record; and 5) the relative
strength or weakness of the case. Bigbee, 885 S.W.2d at 809; State v. Buck, 670 S.W.2d 600, 609
(Tenn. 1984).

        In the present case, Agent Littlejohn testified that the unidentified shoe print found at the
crime scene was within the range of the length of shoes seized from the Appellant’s residence. She
also testified that it is common for the same “shoe sizes” to vary in length based upon the brand
name and manufacturer of the shoe. Accordingly, Agent Littlejohn declined to specifically identify
the shoe print as being a particular size. Because the shoes taken from the Appellant’s apartment
ranged in length from 11 and 13/16 inches to 12 and ½ inches, Agent Littlejohn testified that she had
no doubt that the shoe print found at the scene, which measured 12 and 3/8 inches in length, fell
within the range of length of shoes taken from the Appellant’s apartment. Thus, the Appellant could
not be excluded from having left the print.

        During closing arguments of the guilt/innocence phase, the prosecution made the following
three comments with respect to the Appellant’s “shoe size”:




                                                -33-
        More than likely, it was the killer, and could that print have excluded [the Appellant]
        if it [sic] was the killer? Of course, if it was a size 7 or a size 8 or a size 9, but it fit
        in the size of the shoe [the Appellant] wears.

                                            ***
        The footprint could have excluded him. The same size of [the Appellant].

                                               ***
        Who has a footprint the same size as the one left at the crime scene? [The Appellant].

(Emphasis added). The Appellant argues the above comments made by the prosecution were
prejudicial and misrepresented the proof. We disagree. The prosecutor never referred to the
unidentified shoe print as being a particular size. While it might have been more preferable for the
prosecution to use the terminology “within range of length of [ the Appellant’s] shoes” instead of
“same size,” it is clear from the record before us that the prosecution was simply referring to Agent
Littlejohn’s testimony where she explained that the crime scene shoe print fell within the range of
shoes seized from the Appellant. As the trial court correctly noted, “the State did nothing more than
argue its position that, because the length of the unknown print was not inconsistent with the length
of the [Appellant’s] shoes, the [Appellant] could not be excluded as the perpetrator.” Moreover, we
note that the trial court also cautioned the jury that “Statements, arguments, and remarks of counsel
are intended to help you in understanding the evidence and applying the law, but they are not
evidence. If any statements were made that you believe are not supported by the evidence, you
should disregard them.” As such, we find no evidence of prosecutorial misconduct, nor do we find
error which prejudiced the Appellant. Thus, this issue is without merit.


                           VI. Instructions on Lesser-Included Offenses

        The Appellant argues that it was error for the trial court to deny his request for jury
instructions as to the lesser-included offenses of facilitation of first-degree murder and facilitation
of especially aggravated robbery. With respect to the premeditated first-degree murder charges, the
court instructed the jury on the lesser-included offense of second-degree murder. With respect to
the especially aggravated robbery charges, the court instructed the jury on the lesser-included offense
of aggravated robbery. The trial court, however, declined to instruct the jury on the lesser-included
offense of facilitation.

        Initially, we note that, in Tennessee, irrespective of a party’s request for a lesser-included jury
instruction, “[I]t is the duty of all judges charging juries in cases of criminal prosecutions for any
felony . . . to charge the jury as to all of the law of each offense included in the indictment.” Tenn.
Code Ann. § 40-18-110(a) (1997). Moreover, as the State concedes, facilitation is a lesser-included
offense of both first-degree murder and especially aggravated robbery. See generallyState v. Burns,
6 S.W.3d 453 (Tenn. 1999). This fact alone, however, is not dispositive of whether error occurred.
See generally Burns, 6 S.W.3d at 463.


                                                    -34-
        Determining whether a lesser-included offense must be charged in the jury instructions is a
two-part inquiry. Burns, 6 S.W.3d at 469. First, the court must determine whether any evidence
exists that reasonable minds could accept as to the application of a lesser-included offense. Id. In
making this determination, the trial court must view the evidence liberally in the light most favorable
to the existence of the lesser-included offense without making any judgments on the credibility of
such evidence. Id. Second, the trial court must determine if the evidence, viewed in this light, is
legally sufficient to support a conviction for the lesser-included offense. Id. at 467-469.

       Criminal responsibility for facilitation of a felony is defined in Tenn. Code Ann. § 39-11-403
(1997) and reads as follows:

       (a) A person is criminally responsible for the facilitation of a felony if, knowing that
       another intends to commit a specific felony, but without the intent required for
       criminal responsibility under § 39-11-402(2), the person knowingly furnishes
       substantial assistance in the commission of the felony.

        We are unable to conclude under the test announced in Burns that reasonable minds could
find that anyone other than the Appellant was involved in this crime. Neither the prosecution nor
the defense advanced the theory that the Appellant was criminally responsible for facilitating the acts
of another at trial. To the contrary, it was the prosecution’s theory that the Appellant was solely
responsible for both the murders and the robbery. At trial, the Appellant, in his defense, asserted the
position that the prosecution failed to establish his identity as the perpetrator.

        On appeal, the Appellant gives several reasons why he was entitled to the lesser-included
instructions. First, the Appellant points to his statement to police where he says, “I am not the
triggerman.” This statement, however, in no way indicates the participation of another person.
Second, the Appellant points to his statement where he says he did not know the victims but was
“not surprised” his fingerprint was on the victim’s Movie Gallery card. He also insists the
bloodhounds’ tracking of a scent from the location of the card to a nearby residence implicates the
involvement of another person. Once again, we do not interpret this to mean another person was
involved. Moreover, no evidence was presented at trial to support this contention. Third, the
Appellant argues that another person could have been involved because there were many unidentified
fingerprints left at the crime scene. The crime scene was a public restaurant and it is expected that
many unidentifiable fingerprints would be found at such a location. Fourth, the Appellant points
to the fact that one shoe print was never identified. Once again, it is expected in a public restaurant
to have many prints, whether fingerprints or shoe prints, that belong to unidentified persons. Fifth,
the Appellant maintains that cigarettes were found in an ashtray in the restaurant. The proof at trial,
however, indicated that the cigarettes were found at the employees’ break station and had not been
removed the night before when the employees went home. Sixth, the Appellant argues that his
friend, Danny Tackett, testified that he and the Appellant had previously discussed committing
robberies against fast food restaurants. Seventh, the Appellant points to the testimony of Mark
Farmer, who testified at trial that it was “possible” that someone else could have been in the driver’s
side of the car. However, he did not testify that there was, or that he thought there was another


                                                 -35-
person in the car. Instead, he only acknowledged that it would have been possible. Finally, the
Appellant argues that the composite drawings do not resemble him. The evidence at trial, however,
indicates that the drawings were similar and that many features between the composite drawings and
the Appellant match.

        We find that no reasonable juror could have accepted that the evidence presented in any
manner established the commission of the lesser-included offense of facilitation. To the contrary,
the entire case is centered around the Appellant as the sole perpetrator and the Appellant’s defense
of not being involved. Thus, the trial court properly declined to instruct the jury on the lesser-
included offenses of facilitation of first-degree murder and facilitation of especially aggravated
robbery. This issue is without merit.


                                  VII. Late Night Court Sessions

        The Appellant argues that the trial court committed reversible error by holding numerous
“late night” court sessions. Specifically, the Appellant maintains that the late night sessions caused
his attorneys to be tired and less effective than they normally would have been had they been given
the opportunity for more rest. In State v. Parton, 817 S.W.2d 28, 33 (Tenn. Crim. App. 1991), this
court addressed the issue of “late night” court sessions as follows:

        It is clear in this state that late night court sessions should be scheduled "only when
        unusual circumstances require it." McMullin, 801 S.W.2d at 832. Regardless of
        whether counsel or any juror objects, the late night sessions should be avoided; and
        they must be justified because of unusual circumstances. If the requisite unusual
        circumstances do exist and late night sessions are scheduled because of necessity,
        good practice would be to also let the record affirmatively reflect that all counsel and
        all jurors expressly agree. But the threshold question which must always be
        determined by the court is whether the circumstances justify the unusual session.

First, we note that this issue has been waived for failure of defense counsel to object to the late hours
at trial and for defense counsel’s failure to raise this issue in the motion for new trial. See Tenn. R.
App. P. 36(a). Notwithstanding the waiver, however, we find that the record does not support the
Appellant’s argument that the court kept excessively late hours during trial. During the two and one-
half weeks of trial, sessions ran “late” on five of the thirteen nights. On the five “late nights,” two
of which were jury selection, court concluded between 8:30 and 9:25 p.m. We also note that during
this period, there were five “off days” where neither counsel nor the litigants had to report to court.
Further, this was a sequestered jury from a distant county. The Tennessee Supreme Court has held
that a determination of how long into the evening a trial should last is a matter within the discretion
of the trial court. See Poe, 755 S.W.2d at 47. Although these five days may exceed the “normal
eight hour day,” we do not find the sessions to be unreasonable in this particular case. This issue is
without merit.



                                                  -36-
                                VIII. Evidentiary Issues at Penalty Phase

                               A. Dr. Martell as Expert Witness
        During the penalty phase of the Appellant’s trial, the State called Dr. Daniel Martell as a
rebuttal witness and sought to qualify Dr. Martell as an expert in “forensic neuropsychology.”15
During voir dire of Dr. Martell, the State elicited testimony that Dr. Martell obtained both his
master’s degree and his Ph.D. at the University of Virginia and completed a forensic internship at
Bellevue Hospital in New York City. After his internship, he was awarded a postdoctoral fellowship
to do advanced study and research in forensic neuropsychology. From this fellowship, Dr. Martell
founded the Forensic Neuropsychology Laboratory at Kirby Forensic Hospital in New York City,
where he remained as director for the next eight years. Dr. Martell then joined the clinical faculty
at the Neuropsychiatric Institute at UCLA and also engaged in private consultation practice.
Throughout his career, Dr. Martell has authored numerous papers outlining the relationship between
neuropsychology and criminal law and has limited his professional practice to forensic
neuropsychology.

        Dr. Martell testified that board certification was currently unavailable in the field of “forensic
neuropsychology” and there is no professional association for “forensic neuropsychologists.” Dr.
Martell admitted that, although there is Board Certification and Recognition in the field of
neuropsychology, he has never applied for board certification in the field of neuropsychology. On
this basis, the Appellant, while conceding Dr. Martell’s qualifications as an expert witness in the
field of psychology, objected to his qualification as an expert in the field of “forensic
neuropsychology.” The trial court overruled the objection, accepting Dr. Martell’s qualifications
as an expert in the field of forensic neuropsychology. The Appellant now challenges this ruling,
alleging that “an expert is competent to testify ‘only as to matters within the limited scope of his or
her expertise and licensure.’” Appellant’s Brief at 260 (citing Bolton v. CNA Ins. Co., 821 S.W.2d
932, 935 (Tenn. 1991)). He contends that the “State never sufficiently established that Dr. Martell
was an expert in the field of ‘forensic neuropsychology.’” Appellant’s Brief at 261.

         The determination of the qualifications of an expert witness and the relevancy and
competency of expert testimony are matters generally entrusted to the sound discretion of the trial
court. State v. Anderson, 880 S.W.2d 720, 728 (Tenn. Crim. App.), perm. to appeal denied, (Tenn.
1994); see also Tenn. R. Evid. 104(a). This court will not overturn the trial court's decision absent
a clear abuse of discretion. Anderson, 880 S.W.2d at 728 (citing State v. Williams, 657 S.W.2d 405,
411 (Tenn. 1983), cert. denied, 465 U.S. 1073, 104 S. Ct. 1429 (1984)).

        Rule 702 of the Tennessee Rules of Evidence provides “that in order to testify as an expert
and thus be permitted to give conclusions and opinions on a matter involving scientific, technical
or other specialized knowledge, a witness must possess sufficient ‘knowledge, skill, experience,
training, or education.’” Neil P. Cohen et al, Tennessee Law of Evidence § 7.02[4] at 7-21 (emphasis


         15
           Dr. Martell ex plained that “fo rensic neuro psycholog y” is “the study of b rain dama ge, and ho w it affects
violent behavior.”

                                                          -37-
added). The witness may acquire the necessary expertise through formal education or life
experiences. Id. However, the witness must have such superior skill, experience, training,
education, or knowledge within the particular area that his or her degree of expertise is beyond the
scope of common knowledge and experience of the average person. Id. (citations omitted).

         The record in the present case clearly establishes that forensic neuropsychology is a
recognized sub-specialty of psychology regardless of the availability of board certification in this
area. It is equally clear that Dr. Martell is more than qualified to testify in this area of practice.
Moreover, the issue of whether the courts of this state recognize experts in the area of forensic
neuropsychology is not an issue of first impression. The courts of this state have previously
permitted experts to testify in this area. See, e.g., Coe v. State, 17 S.W.3d 193, 205 (Tenn.), cert.
denied, 529 U.S. 1034, 120 S. Ct. 1460 (2000) (defense presented Dr. Walker as expert witness in
field of forensic neuropsychology); Victor James Cazes v. State, No. 02C01-9801-CR-00002 (Tenn.
Crim. App. at Jackson, Dec. 8, 1999) (Dr. Martell testified as expert in field of forensic
neuropsychology). Accordingly, we cannot conclude that the trial court abused its discretion in
qualifying Dr. Martell as an expert in forensic neuropsychology.16

                                B. Cross-Examination of Dr. Martell
        Prior to Dr. Martell’s testimony, the Appellant requested that he be permitted to question Dr.
Martell regarding a letter written by Dr. Martell in 1997 to the United States Department of Justice.
Relying upon Rule 405 of the Tennessee Rules of Evidence as grounds for the letter’s admission,
he argues that the letter was relevant to the witness’ credibility and bias. The eight-page letter was
Dr. Martell’s request for a Department of Justice investigation into an incident that had led to rumors
of unprofessional and possibly illegal conduct by Dr. Martell in a federal death penalty case.17 In
his letter, Dr. Martell repeatedly asserted his innocence of any wrongdoing and sought an
investigation so that he could receive a letter of exoneration from the Department of Justice.
Specifically, he emphasized that these allegations had damaged his professional reputation and
threatened his “financial status.” The allegations concerned an affidavit Dr. Martell had signed in
a federal case. This affidavit was discussed by the attorneys and the judge in chambers.18 Dr.
Martell was denied the opportunity to hear the allegations or to defend himself if needed.



         16
            Within his argument, the Appellant additionally alleges that the court’s acceptance of Dr. Martell as an expert
in the field of forensic neuropsychology undoubtedly resulted in prejudic e to his case. Sp ecifically, he asserts tha t,
although he called Dr. Auble, a psychologist with similar training to that of Dr. Martell, he did not seek to qualify her
as an expert in fo rensic neuro psycholog y. Accordingly, he argues that the jury likely gave Dr. Martell’s testimony greater
weight than Dr. Auble’s testimony. Nothing prevented the Appellant from seeking to qualify Dr. Auble as an expert in
forensic neuropsyc hology. He cannot no w comp lain about an action which he failed to pursue. Tenn. R. App. P. 36(a).


         17
           Members of the National Network of Capital Defense A ttorneys alleged that, in the case o f United States v.
Spivey, Dr. Ma rtell signed a false a ffidavit.

         18
            The Appellant acknowledges that the allegation against Dr. Martell was by defense counsel in that matter and
that there is no evidence that the allegation by defense counsel did, in fact, occur.

                                                           -38-
        In denying admission of Dr. Martell’s letter, the trial court found, in relevant part:

        It says I must determine that the questions are proposed in good faith rather than an
        effort to place before the jury unfairly prejudicial information supported only by
        unreliable rumors. I’m going to determine that there is no reasonable factual basis
        for that inquiry.

The Appellant challenges the trial court’s ruling, asserting that this information was admissible to
show Dr. Martell’s credibility and “goes to the prospect of bias.” Like other evidentiary rulings, an
appellate court reviews a trial court's ruling under Tenn. R. Evid. 608(b) using an abuse of discretion
standard. See Ingram v. Earthman, 993 S.W.2d 611, 639 (Tenn. App. 1998), cert. denied, 528 U.S.
986, 120 S. Ct. 445 (1999); State v. Blanton, 926 S.W.2d 953, 959-60 (Tenn. Crim. App. 1996).

        Character evidence may be used in limited circumstances to impeach a witness. See Tenn.
R. Evid. 404(a)(3) (evidence of character of witness admissible as provided in Rules 607, 608 and
609). However, extrinsic evidence of conduct other than criminal conviction may not be used to
attack the character of a witness. See Tenn. R. Evid. 608(b). Accordingly, Dr. Martell’s letter was
properly excluded as extrinsic evidence of Dr. Martell’s character.

        Moreover, certain conditions must be satisfied before allowing inquiry on cross-examination
of the witness about specific instances of conduct probative solely of truthfulness or untruthfulness.
See Tenn. R. Evid. 608(b). First, upon request, the court must hold a hearing outside the jury’s
presence and must determine that the alleged conduct has probative value and that a reasonable
factual basis exists for the inquiry. See Tenn. R. Evid. 608(b)(1). If these requirements are met, the
court must then determine that the conduct, within limited exceptions, must have occurred no more
than ten years before commencement of the action or prosecution. See Tenn. R. Evid. 608(b)(2).

        In the present case, the court determined that no “reasonable factual basis” existed for the
Appellant’s inquiry. We agree. The Appellant offered no evidence of conduct by Dr. Martell
evidencing untruthfulness. Rather, the only proof offered was a letter written by Dr. Martell
requesting exoneration because of false rumors. The letter itself is not proof of Dr. Martell’s
untruthfulness. Where there is no factual basis for an inquiry into prior conduct of a witness, the
court shall bar any such attempt to interrogate a witness based on mere speculation or rumor. See
State v. Philpott, 882 S.W.2d 394, 404 (Tenn. Crim. App. 1994)( “An attempt to communicate by
innuendo through questions which are answered in the negative is impermissible when the questioner
has no evidence to support the question.”); see also State v. Bowling, 649 S.W.2d 281, 283 (Tenn.
Crim. App. 1983); Neil P. Cohen et al., Tennessee Law of Evidence § 6.08[7][d]. Accordingly, we
conclude that the trial court did not abuse its discretion in preventing inquiry into Dr. Martell’s letter
to the Department of Justice. Finally, we fail to see how the letter written by Dr. Martell establishes
that Dr. Martell is biased in favor of the State or prejudiced against the Appellant. See Tenn. R.
Evid. 616. This issue is without merit.

        C. Court’s Refusal to Admit Tape-Recording to Rebut Dr. Martell’s Testimony


                                                  -39-
        During his testimony, Dr. Martell opined that the Appellant suffered from “delusional
disorder, mixed type with persecutory and grandiose themes, in substantial remission.” He qualified
his diagnosis, however, noting that the Appellant has a lengthy history of malingering mental illness
and that, in his opinion, the Appellant’s delusional disorder was in remission. During cross-
examination, defense counsel requested permission to introduce an audiotape of a June 1997
interview by Detective Postiglione of Ms. Dorothy Meadlin, the Appellant’s former landlord. Dr.
Martell, in forming his opinions of the Appellant, testified that he had reviewed and considered the
contents of the audio taped interview. The trial court denied defense counsel’s request, finding that
the contents of the tape constituted hearsay and were “not appropriate.” Specifically, the court
stated:

       Mr. Engle, I’m not going to let you do this. It is just flat out not appropriate. I still
       don’t understand why – why you don’t call her as a witness? You could have called
       her as a witness, or you could call Detective Postiglione, if you had reason, in order
       to put that, in order to authenticate the tape, but to try to get the information of what
       she has to say in through [Dr. Martell], who is testifying as an expert about Mr.
       Reid’s mental condition, I mean, just exactly what rule of evidence do you think this
       belongs to?

        Defense counsel then sought to introduce a transcript of Ms. Meadlin’s testimony provided
by the State. The State objected, noting that the State had not provided defense counsel a transcript
of the audio taped interview. At this point, defense counsel conceded that the transcript was supplied
by the District Attorney’s Office in another judicial district. In response to further inquiry by the
court, defense counsel stated that he intended to ask Dr. Martell about the tape, whether he
considered the tape in making his conclusions, and how he evaluated the tape. Defense counsel
further added that he did not call Ms. Meadlin as a witness because she is sixty-eight years old and
infirm. Although defense counsel conceded that he could have sought a deposition from Ms.
Meadlin, he stated that he would rather seek admission of the interview through Dr. Martell. The
court again refused admission of the tape.

       The Appellant challenges the trial court’s exclusion of the audiotape during the cross-
examination of Dr. Martell. Specifically, the Appellant relies upon the premise that the rules of
evidence do not preclude, at a capital sentencing hearing, evidence which establishes or rebuts an
aggravating circumstance.

        The Appellant is correct in his argument that evidence is not excluded at a capital sentencing
hearing merely because the evidence is hearsay. See Tenn. Code Ann. § 39-13-204(c). Thus, as long
as evidence or testimony is relevant to the circumstances of the murder, the aggravating
circumstances of the murder, or the mitigating circumstances and has probative value in the
determination of punishment, such evidence is admissible. See State v. Teague, 897 S.W.2d 248,
250 (Tenn. 1995); see also State v. Hall, 8 S.W.3d 593, 602 (Tenn. 1999), cert. denied, – U.S. –, 121
S. Ct. 98 (2000). The admission of evidence, however, is not without constraints. Evidence may
properly be excluded if it is so unduly prejudicial that it renders the trial fundamentally unfair. See


                                                 -40-
State v. Vincent C. Sims, No. W1998-00634-CCA-R3-DD (Tenn. Crim. App. at Jackson, Mar. 14,
2000), aff’d by, No. W1998-00634-SC-DDT-DD (Tenn. at Jackson, Apr. 17, 2001) (citing State v.
Burns, 979 S.W.2d 276, 282 (Tenn. 1998), cert. denied, 527 U.S. 1039, 119 S. Ct. 2402 (1999); State
v. Nesbit, 978 S.W.2d 872, 891 (Tenn. 1998), cert. denied, 526 U.S. 1052, 119 S. Ct. 1359 (1999)).
Additionally, the admissibility of evidence ultimately is entrusted to the sound discretion of the trial
court. State v. Vincent C. Sims, No. W1998-00634-CCA-R3-DD (citing Hutchinson, 898 S.W.2d
at 172). Absent an abuse of that discretion, such rulings will not be reversed on appeal. State v.
Vincent C. Sims, No. W1998-00634-CCA-R3-DD (citing State v. Caughron, 855 S.W.2d 526, 541
(Tenn.), cert. denied, 510 U.S. 979, 114 S. Ct. 475(1993)).

        Initially, we acknowledge that the record belies the Appellant’s assertion that the audiotape’s
admission was sought to rebut the testimony of Dr. Martell. The record is abundantly clear that the
Appellant had every opportunity to question Dr. Martell regarding his consideration of the audiotape
interview of Ms. Meadlin in making his diagnosis of the Appellant, yet he failed to avail himself of
such opportunity. See generally Tenn. R. App. P. 36(a). Additionally, the Appellant fails to offer
any valid reason as to why a deposition of Ms. Meadlin was not requested or as to why Detective
Postiglione was not called to testify regarding his interview of Ms. Meadlin. See generally Tenn.
R. App. P. 36(a). Finally, we fail to comprehend the Appellant’s assertion that Ms. Meadlin’s
statement would rebut Dr. Martell’s conclusion that the Appellant’s delusional disorder was in
substantial remission in the late 1990's when the incidents discussed by Ms. Meadlin occurred in the
early 1990's. For these reasons, we cannot conclude that the trial court abused its discretion in
excluding introduction of the audiotape interview of Ms. Meadlin. This issue is without merit.

                             D. Cross-Examination of Janet Kirkpatrick
        Prior to trial, the defense team interviewed the Appellant’s sisters. A summary of the joint
interview was provided to the Appellant’s experts, the State’s experts, and the prosecuting attorneys.
During the penalty phase of the trial, the Appellant’s sister, Janet Kirkpatrick, testified for the
defense. Ms. Kirkpatrick, on direct examination, discussed many of the same topics mentioned
during her prior interview, including her acknowledgment that the Appellant had previously been
incarcerated. Prior to cross-examination of Ms. Kirkpatrick, the State approached the bench and
inquired whether the witness could be impeached with other information provided during the
interview since the defense had questioned her about information obtained from the interview.

        During cross-examination, the prosecutor asked Ms. Kirkpatrick whether, during her
interview with the defense team, she had indicated that she “was aware that during an attempt to rob
a restaurant, [the Appellant] was putting one of the victims in the freezer.”19 At this point, the
defense team objected and a jury-out hearing was conducted. Ms. Kirkpatrick denied making any
such statement during the interview. Rather, she stated that her sister made the statement based upon
a newspaper article she had read. Although she agreed that the report indicated both sisters’
knowledge of the incident, Ms. Kirkpatrick maintained that she merely agreed with her sister.



       19
            This incident which resulted in the Ap pellant’s arrest and conviction occu rred in Texas.

                                                          -41-
Defense counsel then moved for a mistrial. The trial court ruled that the prosecutor’s comment was
improper but denied the Appellant’s request for a mistrial.

        When the jury returned to the courtroom, the trial court provided the following curative
instruction:

        Ladies and gentlemen of the jury, before you went upstairs for your afternoon break,
        General Thurman had asked a question of this witness. I sustained an objection, and
        that information is now stricken from the record. You may not consider that for any
        reason, and you must treat it as if you had never known it.

        Again, I remind you that you may not consider allegations of criminal behavior or
        prior crimes with regard, that you’ve been hearing this afternoon, except as to how
        it relates to the mental health of the defendant. The State is relying upon the prior
        conviction for its aggravating circumstance involving the robbery charge that was
        committed on the dates on the certified copy, and you may not consider other crimes
        or other criminal behavior for any reason, other than the mental condition of the
        defendant.

Despite the instruction, the Appellant submits that the trial court erred in denying his motion for a
mistrial. Specifically, he contends that the prosecutor’s question informing the jury that the
Appellant had previously attempted to commit a crime under circumstances almost identical to the
instant case was so prejudicial that the trial court’s curative instruction could not remove the taint
of the statement.

         The decision of whether to grant a mistrial is within the sound discretion of the trial court.
See State v. McKinney, 929 S.W.2d 404, 405 (Tenn. Crim. App. 1996). "Generally, a mistrial will
be declared in a criminal case only when there is a 'manifest necessity' requiring such action by the
trial judge." State v. Millbrooks, 819 S.W.2d 441, 443 (Tenn. Crim. App. 1991). In reviewing a trial
court's denial of a motion for mistrial, this court will not disturb that decision unless there is an abuse
of discretion. Adkins, 786 S.W.2d at 644; Williams, 929 S.W.2d at 388.

        In the present case, the Appellant has shown no manifest necessity that would require a
mistrial. We cannot conclude that the information was so prejudicial that a mistrial should have been
granted. In measuring the prejudicial impact of any misconduct on behalf of the prosecutor in asking
the question, this court should consider the facts and circumstances of the case; any curative
measures undertaken by the court and the prosecutor; the intent of the prosecutor; the cumulative
effect of the improper conduct and any other errors; and the relative strength or weakness of the case.
 Judge v. State, 539 S.W.2d 340, 344 (Tenn. Crim. App. 1976); see also Buck, 670 S.W.2d at 609.
In the present case, there was considerable evidence regarding the Appellant’s culpability in other
violent crimes prior to the question of the State. The Appellant had already been found guilty by the
jury and the jury had already been presented with substantial proof of the aggravating circumstances.
The Appellant does not contest the aggravating circumstance, previous conviction for a violent


                                                   -42-
felony. Finally, the trial court provided the jury with an instruction that they were to disregard the
information of the felony charge. We presume that the jury followed the trial court's explicit
instruction not to consider the inappropriate evidence. State v. Smith, 893 S.W.2d 908, 923 (Tenn.
1994), cert. denied, 516 U.S. 829, 116 S. Ct. 99 (1995).

        Under these circumstances, we hold that the trial court did not abuse its discretion when it
denied the motion for a mistrial. The record does not support a conclusion that a miscarriage of
justice occurred by continuing the trial after the prosecutor’s improper questions. See State v.
McPherson, 882 S.W.2d 365, 370 (Tenn. Crim. App. 1994). This issue has no merit.


                           IX. Introduction of Victim Impact Evidence

        In State v. Nesbit, 978 S.W.2d at 889, our supreme court held that “victim impact evidence
and argument is [not] barred by the federal and state constitutions.” See also Payne v. Tennessee,
501 U.S. 808, 827, 111 S. Ct. 2597, 2609 (1991) (holding that the Eighth Amendment erects no per
se bar against the admission of victim impact evidence and prosecutorial argument); State v.
Shepherd, 902 S.W.2d 895, 907 (Tenn. 1995) (holding that victim impact evidence and prosecutorial
argument not precluded by the Tennessee Constitution). Notwithstanding the holding that victim
impact evidence is admissible under Tennessee’s death penalty sentencing scheme, the introduction
of such evidence is not unrestricted. Nesbit, 978 S.W.2d at 891. Victim impact evidence may not
be introduced if (1) it is so unduly prejudicial that it renders the trial fundamentally unfair; or (2) its
probative value is substantially outweighed by its prejudicial impact. See Nesbit, 978 S.W.2d at 891
(citations omitted); see also State v. Morris, 24 S.W.3d 788, 813 (Tenn. 2000) (Appendix), cert.
denied, – U.S.–, 121 S. Ct. 786 (2001). Additionally, our supreme court has established certain
procedural guidelines which must be followed before victim impact evidence may be admitted by
the trial court. First, the State must notify the trial court of its intent to produce victim impact
evidence. Nesbit, 978 S.W.2d at 891. Second, upon receiving the State’s notification, the trial court
must hold a hearing outside the presence of the jury to determine the admissibility of the evidence.
Id. Finally, the trial court should not permit introduction of such evidence until the court determines
that evidence of one or more aggravators is already present in the record. Id.

         At the sentencing hearing, the State presented the testimony of Deanna Hampton, the wife
of victim Steve Hampton, and Pamela Sue Guidry, Steve Hampton’s mother. Deanna Hampton
testified that Steve Hampton was twenty-five years old at the time of his murder. He was the father
of three young children. Deanna Hampton testified that the death of her husband caused her to
withdraw from everybody, including her children, and that both she and her children have received
counseling. Pamela Sue Guidry testified that Steve Hampton was her only child. She stated that she
will never be able to get over her son’s death. Additionally, members of victim Sarah Jackson’s
family testified as to how her death has devastated their lives. Both of Sarah Jackson’s parents
testified that they have suffered psychologically because of her death. Both parents feel guilty about
permitting their daughter to take a job when she was sixteen. Sarah Jackson’s brother, Wayne,
testified that his sister’s murder has made him extremely angry. He explained the difficulty his


                                                   -43-
family was having during the holidays coping with his sister’s loss. Wayne Jackson also stated that
his younger brother was in denial about the murder. The Appellant challenges admission of this
victim impact evidence on grounds that (1) State v. Nesbit should not have been applied in this case;
(2) the instruction mandated in State v. Nesbit conflicts with the statute and, therefore, should not
have been given; and (3) the victim impact evidence provided in the instant case exceeds the
parameters established in State v. Nesbit.

                                 A. Application of State v. Nesbit
        The Appellant acknowledges that neither the Tennessee Constitution nor the United States
Constitution bar the introduction of victim impact evidence. Nesbit, 978 S.W.2d at 899 (citing
Shepherd, 902 S.W.2d at 907; State v. Brimmer, 876 S.W.2d 75, 86 (Tenn.), cert. denied, 513 U.S.
1020, 115 S. Ct. 585 (1994)). Nonetheless, he argues that State v. Nesbit, is inapplicable because
the crimes for which he was convicted occurred prior to the supreme court’s decision in Nesbit. This
argument is advanced notwithstanding the fact that the statute reviewed by our supreme court in
Nesbit is the same statute applicable in this case.20

        In State v. Nesbit, our supreme court, analyzing the statute in effect in 1997, determined that
“the language of the statute is broad.” Nesbit, 978 S.W.2d at 891. Indeed, the court, although
cognizant of its holding in Cozzolino v. State, 584 S.W.2d 765, 768 (Tenn. 1979)(evidence is
relevant to the punishment, and thus admissible, only if it is relevant to an aggravating circumstance,
or to a mitigating factor raised by the defendant), found that the court had consistently recognized
that “a sentencing jury must be permitted to hear evidence about the nature and circumstances of
the crime even though the proof is not necessarily related to a statutory aggravating circumstance.”
Nesbit, 978 S.W.2d at 890 ( citing State v. Harris, 919 S.W.2d 323, 331 (Tenn. 1996); Teague, 897
S.W.2d at 251; State v. Nichols, 877 S.W.2d 722, 731 (Tenn. 1994); Bigbee, 885 S.W.2d at 813
(citing cases)) (emphasis in original). In this regard, the court held that “the impact of the crime on
the victim’s immediate family is one of those myriad of factors encompassed within the statutory
language nature and circumstances of the crime.” Nesbit, 978 S.W.2d at 890 (emphasis in original).

         20
             At the time the A ppellant’s offen ses were co mmitted, the fo llowing statute wa s in effect:
          In the sentencing proceeding, evidence may be presented as to any matter that the court deems relevant
          to the punishment and may include, but not be limited to, the nature and circumstances of the crime;
          the defendant’s character, background histo ry, and physica l condition; an y evidence te nding to
          establish or rebut the a ggravating cir cumstance s enumera ted in subsec tion (i); and any evidence
          tending to establish or rebut any mitigating factors. Any such evidence which the court deems to have
          probative value on the issue of punishment ma y be received regard less of its admissibility under the
          rules of evidence; provided that the defendant is accorded a fair opportunity to rebut any hearsa y
          statements so admitted. However, this subsection shall not be construed to authorize the introduction
          of any evidence secured in violation of the constitution of the United States or the constitution of
          Tennessee.
Tenn. Code A nn. § 39-1 3-204(c ). In 1998 , the capital sente ncing statute was ame nded spe cifically to perm it victim
impact testimony. See Tenn. Code Ann. § 39-13-204 (Supp. 1998) (“The court may permit a member or members, or
a representative or representatives of the victim’s family to testify at the sentencing hearing about the victim and about
the impact of the murder on the family of the victim and o ther relevant persons. Such evidence may be considered by
the jury in determ ining which sen tence to impose.”). In the present case, the State agreed not to rely upon the amended
statute to introduce victim impact evidence.

                                                          -44-
Accordingly, under the court’s holding, the 1997 statute permitted the introduction of victim impact
testimony as part of the nature and circumstances of the murder. In making his argument, the
Appellant is essentially asking this court to overrule the Tennessee Supreme Court which we are
obviously unable to do.

        Within his challenge to the applicability of State v. Nesbit, the Appellant contends that the
application of State v. Nesbit in his case violates his right to be free from ex post facto laws. See
generally Tenn. Const. Art. I, § 11. Both the United States Constitution, in Article I, sections 9 and
10, and the Tennessee Constitution, in Article I, section 11, forbid the passage of any ex post facto
law by Congress or the General Assembly. See State v. Rogers, 992 S.W.2d 393, 401 (Tenn. 1999),
cert. granted, 529 U.S. 1129, 120 S. Ct. 2004 (2000). The United States Supreme Court has
extended the constitutional provisions to not only apply to acts of Congress, but also to apply to any
“judicial construction of a criminal statue [that] is unexpected and indefensible by reference to the
law which has been expressed prior to the conduct in issue.” Rogers, 992 S.W.2d at 402 (citing
Bouie v. City of Columbia, 378 U.S. 347, 354, 84 S. Ct. 1697, 1703 (1964) (internal quotations and
citations omitted)); accord Marks v. United States, 430 U.S. 188, 191-192, 97 S. Ct. 990, 992-93
(1977).

       An ex post facto law within the meaning of the federal and state constitutions has been
defined as one that

       makes an action done before the passing of the law, and which was innocent when
       done criminal; and punishes such action. Second, every law that aggravates a crime,
       or makes it greater than it was when committed. Third, every law that changes the
       punishment, and inflicts a greater punishment, than the law annexed to the crime,
       when committed. Fourth, every law that alters the legal rules of evidence, and
       receives less, or different, testimony, than the law required at the time of the
       commission of the offense, in order to convict the offender.

Rogers, 992 S.W.2d at 401-402 (citing Calder v. Bull, 3 U.S. (3 Dall.) 386, 1 L. Ed. 648 (1798); see
also State v. Pearson, 858 S.W.2d 879, 881 (Tenn. 1993); Miller v. State, 584 S.W.2d 758, 761
(Tenn. 1979)(adopting the categories identified in Calder and stating that “every law which, in
relation to the offense or its consequences, alters the situation of a person to his disadvantage”
constitutes an ex post facto law)) (emphasis added); see also Carmell v. Texas, – U.S. –, 120 S. Ct.
1620, 1627 (2000); State v. Bragan, 920 S.W.2d 227, 241 (Tenn. Crim. App. 1995). An ex post
facto law contains two critical elements: (1) the law must apply to events occurring before its
enactment and (2) it must disadvantage the offender affected by it. See State v. Ricci, 914 S.W.2d
475, 480 (Tenn. 1996); see generally State v. Rickman, 972 S.W.2d 687, 693 (Tenn. Crim. App.
1997).

       The rule announced in State v. Nesbit is neither an unexpected nor unforeseen judicial
construction of a principle of criminal law. As the Nesbit court acknowledged, prior to the Nesbit
decision, evidence about the nature and circumstances of the crime was admissible in a capital


                                                -45-
sentencing hearing regardless of the fact that “the proof is not necessarily related to a statutory
aggravating circumstance.” Nesbit, 978 S.W.2d at 890 (citing Harris, 919 S.W.2d at 331; Teague,
897 S.W.2d at 251; Nichols, 877 S.W.2d at 731; Bigbee, 885 S.W.2d at 813). The rule announced
in Nesbit merely clarified existing practice in admitting victim impact testimony and established
specific guidelines to be followed in admitting such testimony. Moreover, the United States
Supreme Court has consistently held that laws which change a rule of evidence, but which do not
increase the punishment nor change the elements of the offense or the ultimate facts necessary to
establish guilt, but only remove existing restrictions on the competency of certain classes of evidence
or of persons as witnesses do not constitute ex post facto laws. See Carmell v. Texas, – U.S. at –,
120 S. Ct. at 1632-1633; Bragan, 920 S.W.2d at 241 (citing Thompson v. Missouri, 171 U.S. 380,
18 S. Ct. 922 (1898); Hopt v. Utah, 110 U.S. 574, 4 S. Ct. 202 (1884)). Indeed, laws which change
rules of procedure but which do not affect any substantial right of a defendant are not ex post facto
laws. Bragan, 920 S.W.2d at 241. Victim impact testimony does not reduce the quantum of
evidence necessary to return a death sentence. Victim impact testimony does not eliminate the
necessity of finding the presence of a statutory aggravating circumstance(s) nor does it eliminate the
necessity of finding that the aggravator(s) outweigh any applicable mitigating circumstances.
Finally, victim impact testimony does not lower the burden of the State’s proof. For these reasons,
Nesbit’s application to the Appellant’s case does not violate the Appellant’s right to be free from ex
post facto laws. Additionally, we note that, although the offenses in the present case occurred prior
to the court’s decision in Nesbit, it is undisputed that the Nesbit ruling was established prior to the
Appellant’s trial. See generally State v. Pilkey, 776 S.W.2d 943, 945 (Tenn. 1989), cert. denied, 494
U.S. 1046, 110 S. Ct. 1510 (1990) (trial occurred after effective date of statute authorizing use of ex
parte videotaped statement of child victim, thus, no ex post facto claim). This claim is without merit.


          B. Victim Impact Evidence Irrelevant within Capital Sentencing Structure
       Next, the Appellant avers that victim impact testimony is irrelevant within the capital
sentencing structure established by Tenn. Code Ann. § 39-13-204(g)(1) and State v. Nesbit, 978
S.W.2d at 892. Essentially, he asserts that a contradiction exists between Tenn. Code Ann. § 39-13-
204(g)(1) and the victim impact jury instruction promulgated in Nesbit. He concludes that this
contradiction necessarily renders victim impact evidence irrelevant.

       Tenn. Code Ann. § 39-13-204(g)(1) provides:

       If the jury unanimously determines that

               (A) At least one (1) statutory aggravating circumstance or several
               statutory aggravating circumstances have been proven by the state
               beyond a reasonable doubt; and

               (B) Such circumstance or circumstances have been proven by the
               state to outweigh any mitigating circumstances beyond a reasonable
               doubt; then the sentence shall be death.


                                                 -46-
The instruction promulgated by the supreme court and suggested for use in all capital murder cases
in which victim impact evidence is admitted provides:

         The prosecution has introduced what is known as victim impact evidence. This
         evidence has been introduced to show the financial, emotional, psychological, or
         physical effects of the victim’s death on the members of the victim’s immediate
         family. You may consider this evidence in determining an appropriate punishment.
         However, your consideration must be limited to a rational inquiry into the culpability
         of the defendant, not an emotional response to the evidence.

         Victim impact evidence is not the same as an aggravating circumstance. Proof of an
         adverse impact on the victim’s family is not proof of an aggravating circumstance.
         Introduction of victim impact evidence in no way relieves the State of its burden to
         prove beyond a reasonable doubt at least one aggravating circumstance which has
         been alleged. You may consider this victim impact evidence in determining the
         appropriateness of the death penalty only if you first find that the existence of one or
         more aggravating circumstances has been proven beyond a reasonable doubt by
         evidence independent from the victim impact evidence, and find that the aggravating
         circumstances found outweigh the finding of one or more mitigating circumstances
         beyond a reasonable doubt.

State v. Nesbit, 978 S.W.2d at 892. The statute directs that once the jury has found the existence of
an aggravating circumstance beyond a reasonable doubt and that the aggravating circumstance(s)
outweighs any mitigating circumstances, the jury shall return a verdict of death. The Nesbit
instruction tells the jury that it may not consider victim impact evidence until after it has found that
at least one aggravating circumstance exists, and that the aggravating circumstance(s) outweighs the
mitigating circumstances beyond a reasonable doubt. Essentially, the Appellant concludes that “the
role of victim impact evidence has been mooted” and serves no purpose in the sentencing scheme.

        The State is correct in its assertion that the jury charge provided in the instant case was that
charge mandated by the supreme court in Nesbit. See Nesbit, 978 S.W.2d at 892. As an
intermediate appellate court, this court has a duty to apply the law as promulgated by our Legislature
or as announced by our supreme court. We are without the authority to overrule the holdings of our
supreme court. See Reimann v. Huddleston, 883 S.W.2d 135, 137 (Tenn. App. 1993), cert. denied,
513 U.S. 825, 115 S. Ct. 91 (1994). Notwithstanding, the Appellant, again, argues that the victim
impact instruction “moots” the use of victim impact testimony. Accrediting the Appellant’s
argument, we are unable to discern the extent to which the Appellant is detrimentally affected.21 A
defendant may not complain of error which benefits him. See State v. Carter, 714 S.W.2d 241



         21
           W e reject the Appellant’s argument that the jury would more likely than not disregard the court’s instructions
and improperly consider victim impact evidence to the Appellant’s prejudice. The Appellant has failed to offer any
plausible reason for this court to conclude that the jury would summarily disregard the court’s instruction.

                                                          -47-
(Tenn. 1986), cert. denied, 479 U.S. 1046, 107 S. Ct. 910 (1987). The Appellant has failed to
demonstrate any resulting prejudice. The issue is overruled.

                           C. Admission of Victim Impact Testimony
       The Appellant’s challenge to the introduction of victim impact evidence is limited to the
testimony of Gina Jackson, Wayne Jackson, Jerry Jackson, and Deanna Hampton. The victim impact
testimony complained of is as follows:

       1. Gina and Wayne Jackson both testified that they knew that Sarah had suffered and
       was afraid. The Appellant contends that this testimony does not address any “unique
       characteristics” about the victim, but rather, it offers “characterizations and opinions
       about the crime.”

       2. Gina Jackson testified that she believed that her daughter, Sarah, was safe while
       working at Captain D’s. The Appellant contends that this testimony does not address
       any “unique characteristics” about the victim, nor any other relevant aspect of victim
       impact evidence. Instead, it is more akin to a comment on the circumstances of the
       crime, and it is substantially more prejudicial than probative.

       3. Deanna Hampton testified that her young daughter had asked her who would walk
       her down the aisle. Jerry Jackson commented that it was difficult for him to see other
       fathers march their children down the aisle at weddings. The Appellant contends that
       this testimony was “extremely emotional testimony,” but “only marginally relevant
       to the emotional impact of the crimes upon certain family members.”

       4. Gina Jackson testified that at family celebrations they would set out a picture of
       Sarah and light a candle in her memory. The Appellant contends that this testimony
       is “very emotionally wrenching, and its prejudicial effect greatly outweighs its
       probative value.”

       5. Jerry and Wayne Jackson both testified as to the overwhelming guilt felt by both
       Jerry and Gina Jackson over their daughter’s murder. The Appellant contends that
       “[t]his is yet another example of testimony that is properly characterized as emotional
       or psychological impact evidence.” “[Its] prejudicial effect was substantially
       outweighed by its probative value (sic). The trial court should have excluded it due
       to the danger that it would create undue prejudice against the [Appellant], thereby
       creating fundamental unfairness during the sentencing hearing.”

       6. Deanna Hampton testified about how her three-year-old son did not want to
       celebrate his birthday a year after the murders, because he associated his birthday
       with his father’s death. She also testified that her husband, Steve, was a good father.
       Jerry Jackson testified that Sarah was very intelligent and had a lot of potential.
       Wayne Jackson testified that he cannot accept what his sister went through, there was


                                                -48-
       not reason for her to suffer. The Appellant contends that this testimony had not been
       part of the jury-out hearing and was unduly prejudicial.

        In Nesbit, our supreme court determined that “victim impact evidence should be limited to
information designed to show those unique characteristics which provide a brief glimpse into the life
of the individual who has been killed, the contemporaneous and prospective circumstances
surrounding the individual’s death, and how those circumstances financially, emotionally,
psychologically or physically impacted upon members of the victim’s immediate family.” Nesbit,
978 S.W.2d at 891 (citations omitted). The victim impact evidence complained of by the Appellant
is clearly of the nature contemplated in Nesbit. See generally Smith, 993 S.W.2d at 17. The fact
that the death of a loved one is devastating requires no proof. See Morris, 24 S.W.3d at 813
(Appendix). Moreover, although the testimony at the sentencing hearing may not be verbatim to that
offered at the jury-out hearing, the testimony offered was not different in kind or scope from that
offered at the jury-out hearing. Accordingly, we cannot conclude that the admission of the victim
impact testimony was unduly prejudicial. This issue is without merit.

                                 D. Prosecutor’s Closing Argument
        The Appellant also contends that the prosecutors engaged in improper closing argument
regarding the function of victim impact evidence upon the jury. Accordingly, he argues that the trial
court erred by failing to grant a mistrial. Specifically, the Appellant asserts:

        1. The prosecutor improperly instructed the jury that they were to consider the victim
        impact evidence in relation to the impact the victims’ deaths had to both the
        community and their families.

        2. The prosecutor impermissibly asked the jury “to show [the Appellant] the same
        mercy that he showed to Steve and Sarah. Absolutely none.”

       3. The State’s closing argument misrepresented to the jurors that they should
       consider the victim impact evidence during the weighing process, and not after they
       have completed the weighing process, as Nesbit instructs.

        As previously stated, the decision of whether to grant a mistrial is within the sound discretion
of the trial court. See McKinney, 929 S.W.2d at 405. "Generally, a mistrial will be declared in a
criminal case only when there is a 'manifest necessity' requiring such action by the trial judge."
Millbrooks, 819 S.W.2d at 443. In reviewing a trial court's denial of a motion for mistrial, this court
will not disturb that decision unless there is an abuse of discretion. Adkins, 786 S.W.2d at 644; State
v. Williams, 929 S.W.2d 385, 388 (Tenn. Crim. App. 1996).

       As asserted by the State, the Appellant failed to make a contemporaneous objection to the
prosecutor’s comments that the jury could consider what the victim’s death “meant to the
community” and that the jury should “show [the Appellant] the same mercy that he showed to Steve
and Sarah.” See State v. Green, 947 S.W.2d 186 (Tenn. Crim. App. 1997); State v. Little, 854


                                                 -49-
S.W.2d 643, 651 (Tenn. Crim. App. 1992) (failure to object to prosecutor’s alleged misconduct
during closing argument waives later complaint). The failure to object to the prosecutor’s statements
results in waiver on appeal. See generally State v. Thornton, 10 S.W.3d 229, 234 (Tenn. Crim. App.
1999) (citing Tenn. R. App. P. 36(a)). Because these complaints are procedurally defaulted, we
decline review of the merits.22

        The Appellant also contends that, during rebuttal closing argument, the prosecutor
improperly argued to the jury how it was to weigh the victim impact evidence in relation to the
mitigation evidence offered by the Appellant in direct violation of the supreme court’s mandate in
State v. Nesbit, 978 S.W.2d at 894. Indeed, in Nesbit, our supreme court cautioned that victim
impact evidence “does not carry the force of and effect of an aggravating circumstance in the
sentencing calculation.” Nesbit, 978 S.W.2d at 894. Accordingly, victim impact evidence may not
be classified as such and the jury may not be instructed to weigh and balance the victim impact
evidence against mitigating proof. Id.

         The challenged argument and the Appellant’s objection follows:

         GENERAL THURMAN: Aggravating circumstances. We’ve talked about those.
         General Moore talked about them, and they are really not an issue. Mr. Engle admits
         that all those aggravating circumstances are present in this case, so that is not the
         issue now.
         Now you have the weighing issue, and if you weigh what we’ve talked about, if you
         weigh it, any mitigation you found for Mr. Reid, and I submit it is very slight, I think
         there is but one verdict under the law. You weigh it in your mind. What is the
         verdict?
         When you weigh it, I want you to consider the facts about these aggravating
         circumstances, the facts that this is a robbery, the facts that they were killed in cold
         blood because they were witnesses. You’ve seen that picture a lot, but when you
         weigh the circumstances of this crime, you have to think what was in Steve
         Hampton’s mind, when he was shot and when he was still alive and was
         reaching up? What was he thinking in the last few seconds? And you weigh that
         against the mitigation.
         Sarah Jackson - -

         MR. ENGLE: Objection, Your Honor, you cannot, the law doesn’t allow the
         weighing of the facts of the crimes as against the mitigating evidence.

         THE COURT: Sustained. Rephrase.

         22
           Although the issue is waived, we acknowledge that this court has previously found that “the State went beyond
the bounds of acceptable argument by telling the jury to show the petitioner the same mercy that he had sho wn his
victim.” See Harold Wayne Nichols v. S tate, No. E1998-00562-CCA-R3-PD (Tenn. Crim. App. at Knoxville, Jan. 19,
2001) (citing Bigbee, 885 S.W.2d at 811). Notwithstanding, this court held that “these improper comments [did not
amount to] reversible error.” Id.

                                                         -50-
GENERAL THURMAN: They can consider all the facts and circumstances of the
crime, which I’m asking.

THE COURT: They can consider. I will – ladies and gentlemen of the jury, I will
instruct you as to how you are to weigh things.

GENERAL THURMAN: But you can consider that. You consider what Sarah
Jackson had to go through in considering these aggravating factors, after she
was shot, after she had to wait knowing Steve Hampton was being shot, and she was
next, and how after she was shot, she was struggling to get up, thinking maybe,
maybe I’ve survived, maybe he is gone, and when you are weighing his background,
his childhood, weigh what kind of man could stand there and calmly reload, one
shell at a time, in that pistol while she is struggling there, and what kind of man
cannot have pity, and what kind of man did walk in there an execute that young
girl?

This kind of man, and he can’t blame his mother. He can’t blame his father. He
can’t blame the Texas Department of Correction. He is responsible. This man. That
is the man the expert witnesses for the defense didn’t want you to see. That is the
man that suffered from this psychosis that can’t hardly deal with the world. That is
the man. Paul Reid celebrating, spending his money, shopping. It looks like he is
functioning pretty well; doesn’t it? While he is toasting his margarita and you are
weighing the circumstances, think about the three children that are saying
where is my daddy? Think about the parents struggling to get through one
more day while he is celebrating.

Now even though a lot of this case is about Paul Reid and the mitigation that
you have to consider, you don’t have to forget those faces, those lives, and the
lives that were destroyed, besides those two, of the families. The Judge will tell
you you can consider that. You consider that when you weigh those aggravating
circumstances. They were real people with real dreams - -

MR. ENGLE: Your Honor, I’m sorry, but, again, this is a misstatement of the law.

GENERAL THURMAN: It is not a misstatement of the law. They can consider that,
Your Honor.

THE COURT: Consider it – I will instruct the jury in terms of how they should
consider this.

GENERAL THURMAN: But don’t forget all the lives, not only theirs, that were
destroyed by Paul Reid, and it’s time for him to face the responsibility for that. It’s



                                         -51-
         time for him to have the ultimate punishment. Each of you know what that is. It’s
         time for justice. Thank you.

(Emphasis added). Out of the presence of the jury, the Appellant then moved for a mistrial based
upon (1) photographs of the victims lying in the restaurant cooler being displayed during closing
argument; (2) the statement that the jury, when weighing the circumstances, could consider “what
she [Sarah Jackson] was thinking, what she had to go through”; (3) the statement that the jury, when
weighing the circumstances, could “think about the three children who are asking where is my
daddy”; and (4) the statement that the jury could, when weighing the aggravating circumstances,
“weigh what kind of man would execute these people.” In essence, the Appellant argued that “the
State’s argument misrepresented to the jurors that they should consider the victim impact evidence
during the weighing process, and not after they have completed the weighing process, as Nesbit
instructs.” Appellant’s Brief at 279 (emphasis added).

       The trial court denied the motion, concluding that (1) the photographs of the victims were
evidence and could be used in closing argument and (2) the prosecutor never argued that the jury
could weigh victim impact evidence in determining the existence of aggravating circumstances.23
The court clarified its ruling by explaining that the court would instruct the jury that

         [y]ou may consider this victim impact evidence in determining the appropriateness
         of the death penalty or life without the possibility of parole only if you first find the
         existence of one or more aggravating circumstances has been proven beyond a
         reasonable doubt by evidence independent from the victim impact evidence, and find
         that the aggravating circumstances found outweigh the finding of one or more
         mitigating circumstances beyond a reasonable doubt, so the charge does include that
         statement, so they consider it for whatever they want to consider it for.

       In evaluating the prejudicial effect of the prosecutor’s statement upon the verdict, we must
consider:

         1. The conduct complained of viewed in light of the facts and circumstances of the
         case;
         2. The curative measures undertaken by the court and the prosecution;
         3. The intent of the prosecutor in making the improper arguments;
         4. The cumulative effect of the improper conduct and any other errors in the record;
         and
         5. The relative strength and weakness of the case.

Nesbit, 978 S.W.2d at 894. Any impropriety in the prosecutor’s closing argument is slight. In fact,
the only improper statement is the statement that “You consider that when you weigh those


         23
            The court subse quently mo dified its ruling, finding that the argument was improper at times when the
prosecuto r implied “tha t the jury could ‘weigh’ the victim im pact testimo ny as oppo sed to just ‘co nsidering’ it.”

                                                        -52-
aggravating circumstances. They were real people with real dreams –.” Though the prosecutor
mischaracterized the function of victim impact evidence, there is no indication that the prosecutor
acted in bad faith. See generally Nesbit, 978 S.W.2d at 894. Moreover, the jurors were properly
instructed by the trial court regarding the function of victim impact evidence and that the jury was
to apply the law as provided by the court. Id.; see also State v. Walker, 910 S.W.2d 381, 397 (Tenn.
1995), 519 U.S. 826, 117 S. Ct. 88 (1996) (jury presumed to follow the instructions of the court).
With consideration of this mischaracterization of the function of victim impact testimony, the
curative measure of the trial court, and the strength of the aggravating circumstances proven by the
State, we cannot conclude that the improper argument by the State affected the verdict to the
Appellant’s prejudice. See generally Nesbit, 978 S.W.2d at 894. Therefore, the error does not
require reversal.


                          X. Use of Felony Murder Aggravating Circumstance

        The jury returned verdicts finding the Appellant guilty of both premeditated murder and
felony murder. The trial court properly merged the verdicts into one count of first-degree murder.
At the subsequent sentencing hearing, the State proceeded to the penalty phase intending to prove
the felony murder aggravating circumstance, Tenn. Code Ann. § 39-13-204(i)(7). The Appellant’s
objection was overruled and the State was permitted to use the (i)(7) aggravator. The jury
subsequently found the aggravating circumstance applied beyond a reasonable doubt.

        In State v. Carter, 958 S.W.2d 620, 624 (Tenn. 1997), our supreme court approved the use
of the felony murder aggravating circumstance to a general verdict of first-degree murder. While
acknowledging the decision in State v. Carter, 958 S.W.2d at 624, the Appellant contends that the
court erred by permitting the State to rely on the felony murder aggravating circumstance to seek a
sentence of death because the use of the (i)(7) factor “violates the principles of death-sentencing as
outlined by the Tennessee Supreme Court in Middlebrooks.”24 Essentially, the Appellant invites
this court to overrule our supreme court’s decision in State v. Carter and adopt the position that the
use of the felony murder aggravating circumstance in any case where the defendant is convicted of
felony murder is unconstitutional. We decline to do so.




         24
             W e note that both the State and the Appellant acknowledge the legislature’s response to Middlebrooks in its
1995 amendment to the (i)(7) ag gravator. The ame nded aggravator is ap plicable where the murd er “was knowin gly
committed, solicited, directed, or aided by the defendant, while the defendant had a substantial role in committing or
attempting to commit [a specific enumerated felony].” Tenn. Code Ann. § 39-13-204(i)(7) (emphasis added). This court
has concluded that the amended aggravator, even applied in cases where the sole verdict is that of felony murder,
sufficiently narrows the class of death-eligible defendants, thereby creating no Middlebrooks problem . See State v.
James P. Stout, No. 02C01-9812 -CR-003 76 (Te nn. Crim. Ap p. at Jackso n, Feb. 20 , 2000), perm. to appeal granted,
(Tenn.). The Appellant disputes this court’s review of the amended statute, arguing that the Middlebrooks analysis is
still applicab le even with the c urrent langua ge. We find no sound reason to overrule this court’s holding in State v. James
P. Stout.

                                                            -53-
                      XI. Failure to Instruct on Non-Statutory Mitigators

        During the penalty phase of the trial and acting pursuant to statutory authority, the Appellant
filed a request for non-statutory mitigating circumstances to be included in the jury charge.
Specifically, the non-statutory mitigating circumstances asserted in the request were:

       1. Mr. Reid suffers from brain damage.
       2. Mr. Reid sustained several brain injuries as a child.
       3. Mr. Reid never received adequate treatment for his brain injuries as a child.
       4. Mr. Reid has not received adequate treatment for his brain injuries as an adult.
       5. Mr. Reid was born with a deformed ear, along with a hearing impairment.
       6. Mr. Reid never received adequate medical treatment for his deformed ear and
       resulting hearing impairment.
       7. Mr. Reid suffers from the specific mental illness of schizophrenia.
       8. Mr. Reid is unaware that he suffers from schizophrenia.
       9. Mr. Reid has never received adequate medical treatment for his schizophrenia.
       10. At the time of the offenses, Mr. Reid was not involved in any course of treatment
       for his schizophrenia.
       11. At the time of the offenses, Mr. Reid was not taking any medication to control
       his schizophrenia.
       12. When Mr. Reid was released from prison in Texas, he was not placed on any
       plan of follow-up medical care for his schizophrenia.
       13. As a child, Mr. Reid lacked substantial guidance, discipline, and love from his
       parents.
       14. Mr. Reid’s parents were divorced when he was still very young.
       15. Mr. Reid was taken from his mother’s care at a very early age.
       16. Mr. Reid’s father was absent a great deal during his early childhood years.
       17. Mr. Reid did not start school until he was almost seven years old.
       18. Mr. Reid was placed in a boys’ home at age eight.
       19. Mr. Reid was a social outcast as a child.
       20. Throughout his childhood years, Mr. Reid had only sporadic school attendance.
       21. As a child, Mr. Reid was aware of his sister’s sexual abuse at the hands of one
       of his stepfathers.
       22. Mr. Reid lacked any substantial family support as a child, and he continues to
       lack that support as an adult.
       23. In spite of his brain damage, mental illness, and difficult childhood, Mr. Reid has
       tried to lead a normal lifestyle.
       24. Mr. Reid has made efforts to better himself.
       25. Mr. Reid obtained his GED, and he then attended college at age 39.
       26. In his daily tasks, Mr. Reid is polite and courteous to others.
       27. STRICKEN
       28. Mr. Reid does well in a structured environment, such as prison.
       29. Mr. Reid’s convictions in this case were based upon circumstantial evidence.


                                                 -54-
The trial court denied the Appellant’s request to instruct the jury verbatim to the proposed
instruction. Instead, the trial court, relying upon State v. Odum and State v. Hodges, found that a
verbatim reading of the Appellant’s instruction would amount to an unconstitutional comment upon
the evidence. The trial court, instead, instructed the jury on the requested mitigators in general
categories, including:

       3.   History of childhood.
       4.   Mental illness or mental or emotional disturbance.
       5.   Brain injury or damage.
       6.   Educational history.
       7.   Performance in a structured environment.
       8.   Family history and relationships.

In addition to instructions on specific statutory mitigating circumstances and the above mentioned
non-statutory mitigating circumstances, the court provided the jury the following:

       9. Any aspect of the defendant’s background or character which [you] believe
       reduces the defendant’s blameworthiness.

       10. Any other mitigating factor which is raised by the evidence produced by either
       the prosecution or defense at either the guilt or sentencing hearing; that is, you shall
       consider any aspect of the circumstances of the offense favorable to the defendant
       which is supported by the evidence.


        The Appellant complains that the court committed reversible error in refusing to instruct the
jury on the specific non-statutory mitigating circumstances set forth in his request. He additionally
contends that the manner in which the trial court instructed the jury regarding non-statutory
mitigating circumstances did not adequately define for the jury the mitigating evidence presented.

       In State v. Odom, 928 S.W.2d at 31, the supreme court determined that:
       The jury instructions [on mitigating circumstances] are critical in enabling the jury
       to make a sentencing determination that is demonstrably reliable. To ensure this
       reliability, the jury must be given specific instructions on those circumstances offered
       by the capital defendant as justification for a sentence less than death.

The court then recognized the importance of instruction on non-statutory mitigating circumstances
as well as on statutorily enumerated mitigating circumstances. See generally Odom, 928 S.W.2d at
31 (citing Tenn. Code Ann. § 39-13-204(e)(1) (no distinction shall be made between statutory
mitigators and those raised by the evidence)). However, the supreme court explained that instructions
on non-statutory mitigating circumstances must not be fact specific and imply to the jury that the
judge had made a finding of fact in contravention of Article VI, section 9 of the Tennessee
Constitution. See Odom, 928 S.W.2d at 32 (court recognized risk of instruction amounting to


                                                -55-
unconstitutional comment upon evidence); see also State v. Hodges, 944 S.W.2d 346, 356 (Tenn.),
cert. denied, 522 U.S. 999, 118 S. Ct. 567 (1997). Instead, the instructions on non-statutory
mitigating circumstances must be “drafted so that when they are considered by the jury, the statutory
mitigating circumstances are indistinguishable from the non-statutory mitigating circumstances.”
Odom, 928 S.W.2d at 32. In essence, an instruction on a non-statutory mitigating circumstance must
be phrased in general categories similar to the statutory mitigating circumstances. See, e.g., Hodges,
944 S.W.2d at 355-356; Odom, 928 S.W.2d at 33.

         Again, the Appellant essentially complains that the trial court’s lack of specificity and
instruction in general categories defeated the purpose of the instructions and did not convey a fair
picture of the mitigation proof. This identical argument was rejected by our supreme court in State
v. Hodges, 944 S.W.2d at 356. In Hodges, the defendant argued that the trial court erred by denying
his requested instructions on non-statutory mitigating circumstances. Hodges, 944 S.W.2d at 351.
Instead, the trial court had instructed the jury on the following non-statutory mitigating
circumstances: history of childhood; victim of child sex abuse; mental illness or mental or emotional
disturbance; dominance by another person and/or immaturity; drug abuse; and any other aspect of
the defendant's background or character or the circumstances of the offense, which would reduce the
defendant's blameworthiness. Id. at 355. In reviewing the instructions on mitigating circumstances,
the supreme court emphasized that a jury instruction on mitigating circumstances can be found
"prejudicially erroneous" only if "it fails to fairly submit the legal issues or if it misleads the jury as
to the applicable law." Hodges, 944 S.W.2d at 352. The court observed that " '[j]urors do not sit
in solitary isolation booths parsing instructions for subtle shades of meaning in the same way that
lawyers might.' " Id. at 352 (quoting Boyde v. California, 494 U.S. 370, 380-81, 110 S. Ct. 1190
(1990)). Our supreme court explained:

        Jurors interpret the instructions in a common sense manner and in light of the
        evidence presented at the trial. The defense assertion ignores the reality that these
        jurors had heard specific evidence during the sentencing hearing about the
        defendant's childhood, his immaturity, alleged sexual abuse, drug abuse, mental
        illness and emotional disturbance, as well as the dominance by Tina Brown. By their
        breadth, the instructions on non-statutory mitigating circumstances encompassed all
        the evidence presented by the defense at the sentencing hearing . . . . [T]he
        defendant's claim of error is without merit.

Hodges, 944 S.W.2d at 356 (citations omitted). While the instructions specifically requested by the
defendant were not given, other instructions, as enumerated above, were provided to the jury, which
"encompassed all the evidence" the defendant presented. Id.; see also Brimmer v. State, 29 S.W.3d
497, 520-521 (Tenn. Crim. App. 1998).

        In the instant case, the trial court clearly followed the directives of Odom and the example
provided in Hodges. We conclude that the instructions provided by the trial court were substantially
the same as those requested by the Appellant and that the instructions fairly submitted to the jury the
legal issues. See, e.g., Hodges, 944 S.W.2d at 356; State v. Rudolph Munn, No. 01C01-9801-CC-


                                                   -56-
00007 (Tenn. Crim. App. Apr. 1, 1999), perm. to appeal granted, (Tenn. Nov. 9, 1999).
Accordingly, the trial court’s refusal to instruct the jury as to the proffered non-statutory mitigating
circumstances was not error. This claim is without merit.


                       XII. Sentence for Especially Aggravated Robbery

        Following a sentencing hearing, the trial court sentenced the Appellant, as a Range I standard
offender, to twenty-five years for the especially aggravated robbery conviction. The trial court
further ordered that the sentence be served consecutively to the death sentences imposed in this case
and consecutively to a sentence in Texas for which the Appellant was on parole at the time the
offense was committed. On appeal, the Appellant argues that the trial court erred by imposing the
maximum sentence for the especially aggravated robbery conviction and erred in ordering the
especially aggravated robbery conviction to run consecutively to his death sentences.

        The Appellant bears the burden of establishing that the sentence imposed by the trial court
was erroneous. State v. Ashby, 823 S.W.2d 166, 168 (Tenn. 1991); State v. Boggs, 932 S.W.2d 467,
473 (Tenn. Crim. App. 1996); State v. Fletcher, 805 S.W.2d 785, 786 (Tenn. Crim. App. 1991).
Appellate review of a sentence is de novo, with a presumption that the determinations made by the
court from which the appeal is taken are correct. Tenn. Code Ann. § 40-35-401(d) (1997); Ashby,
823 S.W.2d at 169. In determining whether the Appellant has carried the burden, this court must
consider the evidence received at the trial and the sentencing hearing, the pre-sentence report, the
principles of sentencing, the arguments of counsel, the nature and characteristics of the offenses,
existing mitigating and enhancing factors, statements made by the offender, and the potential for
rehabilitation. Tenn. Code Ann. § 40-35-210 (Supp. 1998); Ashby, 823 S.W.2d at 169.

                                  A. Enhancement Factors
       Especially aggravated robbery is a class A felony. Tenn. Code Ann. § 39-13-403(b). As a
Range I standard offender, the sentencing range for especially aggravated robbery is fifteen to
twenty-five years. Tenn. Code Ann. § 40-35-112(a)(1) (1997). The trial court sentenced the
Appellant to the maximum sentence of twenty-five years for the especially aggravated robbery
conviction. During sentencing, the trial court applied the following seven enhancement factors:

       1.      The defendant has a previous history of criminal convictions or
               criminal behavior in addition to those necessary to establish the
               appropriate range.

        3.     The offense involved more than one victim.

        5.     The defendant treated or allowed a victim to be treated with
               exceptional cruelty.




                                                 -57-
       10.     The defendant had no hesitation about committing a crime when the
               risk to human life was high.

       12.     During the commission of the felony, the defendant willfully inflicted
               bodily injury upon another person, or the actions of the defendant
               resulted in the death of or serious bodily injury to a victim or person
               other than the intended victim.

       13(B). The felony was committed while on any of the following forms of
              release if such release is from a prior felony conviction . . . parole.

       16.     The crime was committed under circumstances under which the
               potential for bodily injury to the victim was great.

Tenn. Code Ann. § 40-35-114(1), (3), (5), (10), (12), (13(b)), (16) (1997). Additionally, the trial
court applied mitigating factor 8 based upon the Appellant’s mental condition, and applied
mitigating factor 13 based upon “the majority of the testimony” developed during the capital penalty
phase, including the Appellant’s childhood history and his family history. Tenn. Code Ann. § 40-35-
113(8), (13) (1997). On appeal, the Appellant only challenges the trial court’s application of
enhancement factors (3), (5), (10), and (16).

        First, the Appellant contests the application of enhancement factor (3), “that the offense
involved more than one victim.” Specifically, the Appellant contends that because only one victim,
Steve Hampton, was named in the indictment upon which he was convicted of especially aggravated
robbery that the other victim, Sarah Jackson, cannot also be considered a victim of especially
aggravated robbery. The Appellant further argues that there was no evidence at trial to prove that
the perpetrator ever robbed or attempted to rob Sarah Jackson. Thus, the Appellant asserts, the trial
court’s application of enhancement factor 3 was erroneous. When applying this factor, however, the
trial court reasoned that Sarah Jackson was also a victim of the robbery. We agree.

        This court has defined "victim," as used in Tenn. Code Ann. § 40-35-114(3), as being
limited in scope to a person or entity that is injured, killed, had property stolen, or had property
destroyed by the perpetrator of the crime. State v. Raines, 882 S.W.2d 376, 384 (Tenn. Crim. App.
1994). This court has also held that factor (3) may not be applied to enhance a sentence when the
Appellant is separately convicted of the offenses committed against each victim. State v.
Williamson, 919 S.W.2d 69, 82 (Tenn. Crim. App. 1995); see State v. Lambert, 741 S.W.2d 127
(Tenn. Crim. App. 1987). Accordingly, statutory enhancement factor (3) does not apply when there
are separate convictions for each victim. State v. Freeman, 943 S.W.2d 25, 31 (Tenn. Crim. App.
1996). Because the Appellant was not convicted of separate offenses against each victim, and
because Sarah Jackson was clearly a victim as defined in Raines, the trial court properly applied
enhancement factor (3) during sentencing. This issue is without merit.




                                                -58-
        Second, the Appellant challenges the trial court’s application of enhancement factor (5), that
“the defendant treated or allowed a victim to be treated with exceptional cruelty during the
commission of the offense.” Specifically, the Appellant contends that “there is no evidence in the
record suggesting that either of the victims were subjected to the type of torture that would justify
the application of § 40-35-114(5).” At sentencing, the trial court applied factor (5) because there was
evidence in the record that Sarah Jackson had moved after she was shot.

        Tennessee Code Annotated section 40-35-114 provides that enhancement factors must be
"appropriate for the offense" and "not themselves essential elements of the offense." Accordingly,
enhancement factors based on facts which are used to prove the offense or which establish the
elements of the offense are excluded. State v. Poole, 945 S.W.2d 93, 98 (Tenn.1997). Moreover,
because "exceptional cruelty" is inherent in some offenses such as aggravated assault, the facts must
demonstrate a culpability distinct from and greater than that incident to the offense. Id. "Exceptional
cruelty," when used as an enhancement factor, denotes the infliction of pain or suffering for its own
sake or from the gratification derived therefrom, and not merely pain or suffering inflicted as the
means of accomplishing the crime charged. Thus, cruelty requires more than the physical infliction
of serious bodily injury upon a victim.

        We first note that "exceptional cruelty" is not an element of especially aggravated robbery.
Tenn. Code Ann. § 39-13-403(a)(2); Poole, 945 S.W.2d at 98. Moreover, proof of serious bodily
injury, which is an element of especially aggravated robbery, does not necessarily establish the
enhancement factor of "exceptional cruelty." Poole, S.W.2d at 98. Exceptional cruelty is usually
found in cases of abuse or torture. State v. Williams, 920 S.W.2d 247, 258 (Tenn. Crim. App. 1995).

         This court has recognized that "exceptional cruelty" is a matter of degree. State v. Moore,
No. 02C01-9306-CC-00126 (Tenn .Crim. App. at Jackson, Jun. 8, 1994). In this regard, we first
note that the taking of a life is not necessary to accomplish the offense of especially aggravated
robbery. Additionally, the proof in this case established that the Appellant forced the victims onto
the floor in the walk-in cooler. The anguish experienced by the victims at this point while they
awaited their execution is unfathomable. Based upon the manner in which this crime was
committed, and its consequences, we find that the Appellant's conduct established not only the
infliction of serious bodily injury but also a calculated indifference toward suffering. Thus, we find
application of enhancement factor (5) appropriate.

        Finally, the Appellant challenges the trial court’s application of enhancement factor (10), that
the defendant had no hesitation about committing a crime when the risk to human life was high, and
enhancement factor (16), that the crime was committed under circumstances under which the
potential for bodily injury to the victim was great. Specifically, the Appellant argues that neither
enhancement factor can apply because both are factors inherent to the offense of especially
aggravated robbery.

       With respect to enhancement factor (10), risk to human life is an essential element of the
crime of especially aggravated robbery and cannot be used to enhance sentencing when the person


                                                 -59-
facing danger is the named victim. See Tenn. Code Ann. § 40-35-114; State v. Nox, 922 S.W.2d
894, 903 (Tenn. Crim. App. 1998). However, this court has held that enhancement factor (10) may
be applied where the defendant creates a high risk to the life of a person other than the named victim.
State v. Bingham, 910 S.W.2d 448, 452-53 (Tenn. Crim. App. 1995). We conclude that the presence
of Sarah Jackson, who was not named in the indictment, during the robbery of Steve Hampton
created a high risk to her life, which ultimately and unfortunately resulted in her death. Accordingly,
the trial court properly applied enhancement factor (10). Enhancement factor (16), however, is
inapplicable to the offense of especially aggravated robbery as bodily injury is an element of the
offense. Nix, 922 S.W.2d at 903. Thus, the trial court erroneously applied factor (16).
Notwithstanding the erroneous application of enhancement factor (16), we believe that the remaining
six enhancement factors balanced against the two mitigating factors, fully support the maximum
twenty-five year sentence imposed by the trial court.

                                     B. Consecutive Sentencing
        The Appellant next argues that the trial court erred by ordering the especially aggravated
robbery conviction to be served consecutively to the death sentences imposed in this case.
Specifically, he asserts that “a sentence to be served consecutively to a sentence of death is not the
least severe sentence necessary to achieve the purposes for which the sentence is imposed.” Our
supreme court has consistently upheld sentences consecutive to a death sentence. See generally
Morris, 24 S.W.3d at 788; State v. Pike, 978 S.W.2d 904, 928 (Tenn. 1998); State v. Black, 815
S.W.2d 166, 170 (Tenn. 1991). Thus, this issue is without merit.

                 XIII. Constitutionality of Tennessee’s Death Penalty Statutes

        The Appellant raises a myriad of challenges to the constitutionality of Tennessee’s death
penalty provisions. The challenges raised by the Appellant have been previously examined and
rejected by case law decisions. The body of law upholding the constitutionality of Tennessee’s death
penalty provisions, specifically that rejecting the claims currently raised by the Appellant, are recited
as follows:

        1. Tennessee’s death penalty statutes meaningfully narrow the class of death eligible
        defendants; specifically, the statutory aggravating circumstances set forth in Tenn.
        Code Ann. § 39-13-204(i)(2), (i)(6), and (i)(7), whether viewed singly or collectively,
        provide a “meaningful basis” for narrowing the population of those convicted of first-
        degree murder to those eligible for the sentence of death. See Vann, 976 S.W.2d at
        117-118 (Appendix); State v. Keen, 926 S.W.2d 727, 742 (Tenn. 1994).

        2. The death sentence is not capriciously and arbitrarily imposed in that

               (a) The prosecutor is not vested with unlimited discretion as to
               whether or not to seek the death penalty. See State v. Hines, 919
               S.W.2d 573, 582 (Tenn. 1995), cert. denied, 519 U.S. 847, 117 S. Ct.
               133 (1996).


                                                 -60-
(b) The death penalty is not imposed in a discriminatory manner based
upon economics, race, geography, and gender. See Hines, 919 S.W.2d
at 582; Brimmer, 876 S.W.2d at 87; Cazes, 875 S.W.2d at 268; Smith,
857 S.W.2d at 23.

(c) Standards or procedures for jury selection exist to insure open
inquiry concerning potentially prejudicial subject matter. See
Caughron, 855 S.W.2d at 542.

(d) The death qualification process does not skew the make-up of the
jury and does not result in a relatively prosecution prone guilty-prone
jury. See Teel, 793 S.W.2d at 246; State v. Harbison, 704 S.W.2d
314, 318 (Tenn.), cert. denied, 470 U.S. 1153, 106 S. Ct. 2261 (1986).

(e) Defendants are not unconstitutionally prohibited from addressing
jurors’ popular misconceptions about matters relevant to sentencing,
i.e., the cost of incarceration versus cost of execution, deterrence,
method of execution. See Brimmer, 876 S.W.2d at 86-87; Cazes,
875 S.W.2d at 268; Black, 815 S.W.2d at 179.

(f) The jury is not instructed that it must agree unanimously in order
to impose a life sentence, and is not prohibited from being told the
effect of a non-unanimous verdict. See Brimmer, 876 S.W.2d at 87;
Cazes, 875 S.W.2d at 268; Smith, 857 S.W.2d at 22-23.

(g) Requiring the jury to agree unanimously to a life verdict does not
violate Mills v. Maryland and McKoy v. North Carolina. See
Brimmer, 876 S.W.2d at 87; Thompson, 768 S.W.2d at 250; State v.
King, 718 S.W.2d 241, 249 (Tenn. 1986), superseded by statute as
recognized by, Hutchinson, 898 S.W.2d at161.

(h) The jury is required to make the ultimate determination that death
is the appropriate penalty. See Brimmer, 876 S.W.2d at 87; Smith,
857 S.W.2d at 22.

(i) The failure to instruct on "the meaning and function of" mitigating
circumstances was considered in State v. Thompson, 768 S.W.2d 239,
251-52 (Tenn. 1989), and found not to constitute error.

(j) The defendant is not denied closing argument in the penalty phase
of the trial. See Brimmer, 876 S.W.2d at 87; Cazes, 875 S.W.2d at
269; Smith, 857 S.W.2d at 24; Caughron, 855 S.W.2d at 542.



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         3. The appellate review process in death penalty cases is constitutionally adequate.
         See Cazes, 875 S.W.2d at 270-71; Harris, 839 S.W.2d at 77. Moreover, the supreme
         court has recently held that, “while important as an additional safeguard against
         arbitrary or capricious sentencing, comparative proportionality review is not
         constitutionally required.” See State v. Bland, 958 S.W.2d 651, 663 (Tenn. 1997),
         cert. denied, 523 U.S. 1083, 118 S. Ct. 1536 (1998).

         4. Electrocution is a constitutionally permissible method of execution.25 See Black,
         815 S.W.2d at 179; see also Hines, 919 S.W.2d at 582.




                                 XIV. Proportionality of Sentences of Death

        Finally, this court is required to consider the imposition of the sentences of death in the instant
case to determine whether: (1) the sentences of death were imposed in any arbitrary fashion; (2) the
evidence supports the jury’s finding of statutory aggravating circumstances; (3) the evidence supports
the jury’s finding that the aggravating circumstances outweigh any mitigating circumstances; and (4)
the sentence of death is excessive or disproportionate to the penalty imposed in similar cases,
considering both the nature of the crime and the defendant. See Tenn. Code Ann. § 39-13-206(c)(1)
(1997); see also State v. Vincent Sims, No. W1998-00634-SC-DDT-DD (Tenn. at Jackson, Apr. 17,
2001) (for publication). There is no dispute that the evidence is sufficient to support the three
aggravating circumstances, i.e., (2) the defendant was previously convicted of a violent felony, (6)
the murder was committed for the purpose of avoiding arrest or prosecution, and (7) the murder was
knowingly committed while the defendant had a substantial role in committing a robbery. See Tenn.
Code Ann. § 39-13-204(i)(2), (6), (7). Additionally, having thoroughly reviewed the record, we find
that the sentences of death were not imposed in any arbitrary fashion and that the evidence supports
the jury’s finding that the aggravating circumstances outweighed the mitigating circumstances beyond
a reasonable doubt.

        Next, we consider whether the sentence of death in this case is disproportionate to the penalty
imposed in similar cases, considering the nature of the crime and the defendant. Tenn. Code Ann.
§ 39-13-206(c)(1)(D). If the imposition of a death sentence in the appealed case is “plainly lacking
in circumstances with those in similar cases in which the death penalty has previously been imposed,”
the sentence of death will be deemed disproportionate. See Bland, 958 S.W.2d at 665. However, just

          25
            Recent legislation in this state has substituted death by lethal injection for d eath by electro cution. See Tenn.
 Code Ann. § 40-23-114 (1998 Sup p.) (changes method of execution from electrocution to lethal injection for those
 persons sentenced to death after J anuary 1, 19 99). The new statute also provides that those per sons sentenc ed to dea th
 prior to January 1, 1999, may choose to be executed by lethal injection by signing a written waiver. Hence, the
 Appellan t’s argument has not only b een rejecte d by prior d ecisions but, no w, also is irreleva nt, as the capital defendant
 is no longer subjected to death by electrocution.

                                                             -62-
because the circumstances of the offense are similar to those of another offense for which the
defendant has received a life sentence does not per se require a finding of disproportionality. Id. at
665. Thus, it is not the duty of the appellate court to “assure that a sentence less than death was never
imposed in a case with similar characteristics,” but to “assure that no aberrant death sentence is
affirmed.” Id.

        In conducting our review, we begin with the presumption that the sentence of death is
proportionate with the crime of first-degree murder. See Hall, 958 S.W.2d at 699; see also State v.
Vincent Sims, No. W1998-00634-SC-DDT-DD; State v. Carruthers, 35 S.W.3d 516 (Tenn. 2000).
Second, while there is no mathematical or scientific formula involved, this court, in comparing
similar cases, should consider: (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 victim’s circumstances, including age,
physical and mental conditions, and the victim’s treatment during the killing; (6) the absence or
presence of provocation; (8) the absence or presence of justification; and (9) the injury to and effects
on non-decedent victims. See Vann, 976 S.W.2d at 107 (citing Bland, 958 S.W.2d at 667); see also
State v. Vincent Sims, No. W1998-00634-SC-DDT-DD. When reviewing the characteristics of the
defendant, we consider (1) the defendant’s prior record or prior criminal activity; (2) the defendant’s
age, race, and gender; (3) 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 the
helplessness of the victim; and (8) the defendant’s capacity for rehabilitation. Id.; see also State v.
Vincent Sims, No. W1998-00634-SC-DDT-DD. Moreover, in conducting our review, “we select
from the pool of cases in which a capital sentencing hearing was actually conducted to determine
whether the sentence should be life imprisonment, life imprisonment without the possibility of parole,
or death.” Carruthers, 35 S.W.3d at 570 (citing Bland, 958 S.W.2d at 666) (emphasis added).

        The circumstances surrounding the murders in light of the relevant and comparative factors
reveal that, on Sunday morning, February, 16, 1997, the Appellant entered a Nashville Captain D’s
restaurant when it was closed. Once inside the restaurant, the Appellant murdered the employees he
encountered inside, i.e., twenty-five-year-old Steve Hampton and sixteen-year-old Sarah Jackson.
There is no indication that either victim resisted or attempted to flee. Rather, the evidence revealed
that both victims were discovered lying face down on the floor inside the restaurant’s walk-in cooler.
Sarah Jackson had been shot at close range four times in the back of the head and once in the back.
Steve Hampton had been shot at close range twice in the back of the head and once in the back. Seven
thousand one hundred forty dollars was taken during the robbery of the restaurant. The crimes were
intentional, well-planned, and absent any indicia of impulse.

        The thirty-nine-year-old Appellant had a prior 1984 conviction for one count of aggravated
robbery in Texas. Additionally, in 1978, two felony indictments returned against the Appellant in
Texas were dismissed based upon a finding of permanent incompetence. At this time, the Appellant
was judicially committed to a psychiatric hospital. As a juvenile, the Appellant received probation
for a theft and assault charge. The Appellant introduced testimony evidencing (1) that he had
suffered through a terrible childhood and (2) that he suffered from mental and behavioral problems
from a very early age. Although the proof established that the Appellant had either congenital or


                                                  -63-
traumatic brain damage, the proof did not establish that such brain damage is causally connected or
predisposes one to commit acts of violence. Rather, the proof revealed that brain damage, such as
that exhibited by the Appellant, does not contribute to criminal behavior. Additionally, although
several mental evaluations of the Appellant indicated that he was schizophrenic and delusional, there
was substantial evidence introduced of the Appellant’s history of malingering and that the
psychological disorder(s) were in remission at the time of the offenses. Finally, no evidence was
presented to show that the Appellant cooperated with the authorities or showed any remorse for the
killings. While no two capital cases and no two defendants are alike, we have reviewed the
circumstances of the present case with similar first-degree murder cases and conclude that the penalty
imposed in the present case is not disproportionate to the penalty imposed in similar cases. See, e.g.,
State v. Chalmers, 28 S.W.3d 913 (Tenn. 2000), cert. denied, – U.S. –, 121 S. Ct. 1367 (2001)
(finding aggravating circumstances (i)(2) and (i)(7) and imposing death where defendant shot and
robbed sixty-nine-year old victim); State v. Cribbs, 967 S.W.2d 773 (Tenn. 1998), cert. denied, 523
U.S. 932, 119 S. Ct. 343 (1998) (a twenty-three-year-old defendant murdered female victim during
robbery, death sentence upheld based upon (i)(2) aggravator); State v. Bush, 942 S.W.2d 489 (Tenn.),
cert. denied, 522 U.S. 953, 118 S. Ct. 376 (1997)(finding (i)(5) and (i)(6) aggravating circumstances,
and imposing death despite evidence that defendant had troubled childhood and mental disease or
defect); Hines, 919 S.W.2d at 573 (finding (i)(2), (i)(5), and (i)(7) aggravating circumstances, and
imposing death despite evidence that defendant had a troubled childhood, was abandoned by his
parents, had abused drugs and alcohol as teenager, and suffered from self-destructive behavior,
paranoid personality disorder, dysthymia, and chronic depression); Shepherd, 902 S.W.2d at 895
(finding the (i)(2), (i)(5), and (i)(7) aggravating circumstances in the rape and murder of sixteen-year-
old victim, and imposing death despite fact that defendant came from impoverished family, was
emotionally scarred as child, and was previously admitted to a mental health facility); Smith, 868
S.W.2d at 561 (finding the (i)(5), (i)(6), (i)(7), (i)(12) aggravating circumstances, and imposing death
despite fact that defendant had been hospitalized for depression, paranoid personality disorder,
chronic depressive neurosis and paranoid delusional disorder); Howell, 868 S.W.2d at 238(twenty-
seven-year-old defendant shot and killed clerk during robbery of convenience store, death sentence
upheld based upon (i)(2) aggravator); State v. Harris, 839 S.W.2d 54 (Tenn. 1992) (thirty-two-year-
old defendant murdered two employees of hotel during robbery; jury imposed death sentences based
upon (i)(2), (i)(5), and (i)(7) aggravating circumstances despite evidence of defendant’s lack of
education and troubled childhood); State v. King, 694 S.W.2d 941 (Tenn. 1985) (thirty-three-year-old
defendant murdered the proprietor of a tavern during the course of a robbery, death sentence upheld
based upon (i)(2) and (i)(7) aggravators); State v. Sample, 680 S.W.2d 447 (Tenn. 1984), cert.
denied, 470 U.S. 1034, 105 S. Ct. 1412 (1985)(finding the (i)(3), (i)(6) and (i)(7) aggravating
circumstances and imposing death penalty where two clerks shot to death during robbery); State v.
McKay, 680 S.W.2d 447 (Tenn. 1984), cert. denied, 470 U.S. 1034, 105 S. Ct. 1412 (1985) (finding
the (i)(2),(i)(3), (i)(6) and (i)(7) aggravating circumstances and imposing death penalty where two
clerks shot to death during robbery); State v. Harries, 657 S.W.2d 414 (Tenn. 1983) (thirty-one-year-
old male defendant shot and killed clerk during robbery of convenience store, death sentence upheld
based upon (i)(2) aggravator).




                                                  -64-
        Our review of these cases reveals that the sentences of death imposed upon the Appellant are
proportionate to the penalty imposed in similar cases. In so concluding, we have considered the entire
record and reach the decision that the sentences of death were not imposed arbitrarily, that the
evidence supports the finding of the (i)(2), (i)(6) and (i)(7) aggravators, that the evidence supports the
jury’s finding that the aggravating circumstances outweigh mitigating circumstances beyond a
reasonable doubt, and that the sentences are not excessive or disproportionate.


                                              Conclusion

         After a thorough review of the issues and the record before us, as mandated by Tenn. Code
Ann. §§ 39-13-206(b), and (c), and for the reasons stated herein, we affirm the Appellant's
convictions for two counts of first-degree murder and one count of especially aggravated robbery and
accompanying sentences of death plus twenty-five years. In accordance with the mandate of Tenn.
Code Ann. § 39-13-206(c)(1) and the principles adopted in prior decisions of the Tennessee Supreme
Court, we have considered the entire record in this cause and find that the sentences of death were not
imposed in any arbitrary fashion, that the evidence supports, as previously discussed, the jury's finding
of the statutory aggravating circumstances, and the jury's finding that the aggravating circumstances
outweighed mitigating circumstances beyond a reasonable doubt. See Tenn. Code Ann. §
39-13-206(c)(1)(A),(C). A comparative proportionality review, considering both “the nature of the
crime and the defendant,” convinces us that the sentences of death are neither excessive nor
disproportionate to the penalty imposed in similar cases. Accordingly, we affirm the Appellant’s
convictions for two counts of first-degree murder and one count of especially aggravated robbery and
the resulting sentences of death plus twenty-five years imposed by the trial court.




                                                         ___________________________________
                                                         DAVID G. HAYES, JUDGE




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