         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                                   September 9, 2008 Session

                STATE OF TENNESSEE v. DAVID LYNN JORDAN

                  Direct Appeal from the Circuit Court for Madison County
                          No. 05-431    Roy B. Morgan, Jr., Judge



                     No. W2007-01272-CCA-R3-DD - Filed June 9, 2009


A Madison County jury convicted the defendant, David Lynn Jordan, of three counts of first degree
premeditated murder, two counts of first degree felony murder, two counts of attempted first degree
murder, two counts of aggravated assault, and one count of leaving the scene of an accident. The
trial court merged the felony murder convictions with the premeditated murder convictions involving
the same victims and the aggravated assault convictions with the attempted murder convictions. For
the three first degree murder convictions, the defendant was sentenced to death. Additionally, he
was sentenced as a Range I, standard offender to consecutive terms of twenty-five years for each of
the attempted first degree murder convictions, six years for each of the aggravated assault
convictions, and thirty days for leaving the scene of an accident. The defendant now seeks review
by this court of both his convictions and resulting sentences of death, presenting the following issues
for review: (1) whether the trial court erred by failing to provide a limiting instruction regarding the
use of hearsay statements during the testimony of the State’s expert witness; (2) whether the
defendant was denied a fair trial by the use of interpretations of his confession and alleged comments
which were not videotaped; (3) whether the trial court erred by prohibiting members of the
defendant’s family from remaining in the courtroom during the penalty phase; (4) whether the
prosecutorial misconduct during the penalty phase denied the defendant a fair trial; (5) whether the
trial court erred in admitting certain victim impact testimony; (6) whether the jury instruction on the
felony murder aggravating factor is unconstitutional; (7) whether the trial court erred in admitting
certain photographs during the penalty phase; (8) whether the evidence was sufficient to support the
application of aggravating factors; (9) whether Tennessee’s death penalty statutes are constitutional;
(10) whether cumulative error requires relief; and (11) whether the death sentence in this case is
disproportionate to death sentences in other cases. Following review, we affirm the defendant’s
convictions and the sentences of death.

      Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Circuit Court Affirmed

ALAN E. GLENN , J., delivered the opinion of the court, in which NORMA MCGEE OGLE and CAMILLE
R. MCMULLEN , JJ., joined.

George Morton Googe, District Public Defender, Jackson, Tennessee, and Lloyd Tatum, Henderson,
Tennessee, for the appellant, David Lynn Jordan.
Robert E. Cooper, Jr., Attorney General and Reporter; James E. Gaylord, Assistant Attorney
General; James G. Woodall, District Attorney General; and Jody Pickens, Assistant District Attorney
General, for the appellee, State of Tennessee.

                                           OPINION

                                             FACTS

       The defendant’s convictions arose from a shooting incident on January 11, 2005, at the
Tennessee Department of Transportation (TDOT) facility in Jackson, where the defendant killed
three people: Renee Jordan, his thirty-one-year-old wife who was employed at TDOT; Jerry
Hopper, an employee of the Tennessee Division of Forestry who was at the TDOT office; and
David Gordon, a motorist he ran off the road en route to the TDOT garage. The defendant also
shot and injured two other TDOT employees, James Goff and Larry Taylor.

                                          State’s Proof

        Kenneth Evans, Renee Jordan’s cousin, testified that he was aware that the defendant and
Mrs. Jordan were having martial problems and, on January 10, 2005, Mrs. Jordan called and told
him that “she was about to have a nervous breakdown, and she was scared of [the defendant],
that he was calling threatening her.” Mrs. Jordan told Evans that the defendant “was on his way
out to the house and that he said . . . it didn’t matter how many lawyers she had and how much
money she had, that what he had for her wasn’t going to do her any good.” Evans advised Mrs.
Jordan to leave the house and go to the police department, but she refused to do so, saying that
the defendant had “had run-ins with the police department before. He would shoot me there
whether the police was there or not, and he would probably shoot them, too.” Evans then told
her to come to his house, which she did. After she arrived, they took Mrs. Jordan’s three-year-
old daughter to Mrs. Jordan’s mother’s house. Evans later hid Mrs. Jordan’s car at a friend’s
house, and they returned to Evans’ home around 10:30 p.m.

       The following morning, January 11, 2005, Mrs. Jordan and Evans, also a TDOT
employee, went to work. Mrs. Jordan worked in the office of the TDOT garage, which was
commonly referred to as “the crow’s nest.” That morning, Evans was in the “crow’s nest” with
Mrs. Jordan until approximately 11:10 a.m., when he left to go pick up some parts. Ricky
Simpson and James Goff were in the office with Mrs. Jordan when he left.

        Johnny Emerson testified that he was employed as a mechanic at the TDOT garage where
Mrs. Jordan worked. Emerson said that he and Mrs. Jordan were close friends and that their
relationship had developed beyond a co-worker relationship. Physically, their relationship was
limited to hugging and kissing. Mrs. Jordan told Emerson that she was getting a divorce. On
one occasion, the defendant telephoned Emerson at home regarding his relationship with Mrs.
Jordan. The defendant told Emerson that he was “too old” for Mrs. Jordan and that he “needed
[his] ass whooped.” Emerson agreed with the defendant that he “didn’t have no business doing


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what [he] did.” The defendant also contacted Emerson’s wife on numerous occasions. At some
point prior to January 11, 2005, Emerson informed Mrs. Jordan that he was not going to divorce
his wife. Emerson said he was not at work on January 11, 2005, because he was on medical
leave.

         Linda Sesson Taylor, an attorney in Jackson, testified that Mrs. Jordan hired her on
December 14, 2004, to represent her in divorce proceedings against the defendant. She said she
initially prepared the necessary documents for a contested divorce, and Mrs. Jordan told her she
would have the money to pay her fee after the Christmas holiday. Ms. Taylor said she also
prepared the paperwork to obtain a restraining order against the defendant, and Mrs. Jordan had
an appointment scheduled for January 12, 2005.1 Ms. Taylor identified a page out of her phone
message book indicating that Mrs. Jordan had called her office on January 11, 2005, at 9:56 a.m.
wanting to know how much Ms. Taylor charged for an uncontested divorce.

        Kevin Deberry, the next-door neighbor of the defendant and Mrs. Jordan, testified that
Mrs. Jordan called him on the night of January 10, 2005, and was upset with the defendant.
About an hour later, the defendant came to Deberry’s house and asked Deberry to take Mrs.
Jordan’s dog to their house and get his house key, but Deberry refused to do so. The defendant
then told Deberry if he did not take Mrs. Jordan’s dog to her, he “was gonna take it over there
and shoot it in the driveway.” As the defendant turned to walk away, Deberry noticed what he
believed to be a “snub-nose .38” in the defendant’s back pocket. The defendant then turned
around and told Deberry that he “better watch [his] back, you never kn[o]w which way the
bullets are gonna fly.” Deberry called Mrs. Jordan and told her to take her child and leave the
house because the defendant was on his way over there. Mrs. Jordan told Deberry that the
defendant had left some threatening voicemails on her phone. The defendant later called Deberry
and apologized. Deberry said that he took a half-gallon bottle of vodka to the defendant’s house
at about 1:00 a.m. and that the defendant and his children were still up when he arrived.

        Investigator Jeff Shepherd of the Jackson Police Department testified that, as part of his
investigation, he retrieved and recorded voicemail messages left on Mrs. Jordan’s cell phone.
The audiotape of the messages was entered into evidence and played for the jury. Additionally,
Investigator Shepherd was involved in the booking process of the defendant, during which the
defendant asked him if Mrs. Jordan was “real bad messed up.” The defendant started crying and
told Shepherd that most people probably thought he was crazy, but he was not crazy, he was
“driven to crazy.” The defendant also said that the assault rifle he used in the shooting belonged
to his brother-in-law, Dale Robinson.

      Vernon L. Stockton, Sr. testified that on January 11, 2005, he was employed as an
equipment mechanic at the TDOT garage which was located in the same building as the crow’s
nest where Mrs. Jordan worked. He said he knew that Mrs. Jordan and the defendant were


        1
          On direct examination, Ms. Taylor testified that Mrs. Jordan’s appointment w as scheduled for January 11,
2005, but, on cross-examination, after reviewing her statement, she agreed that the date was January 12.

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having marital problems. Between 9:30 and 10:00 a.m. on the morning of January 11, Mrs.
Jordan handed Stockton her portable phone when it rang and asked him to answer it. Stockton
recognized the caller’s voice as that of the defendant. The defendant asked to speak to Mrs.
Jordan, but Stockton told him that she was in the restroom because she did not want to talk to
him. Stockton said he later left TDOT to pick up some parts and was not present when the
shooting occurred.

        Sonny Grimm testified that he and Paul Forsythe were driving westbound on Lower
Brownsville Road on January 11, 2005, and a green car was traveling in front of them. As they
approached Angus Lane, Grimm saw the defendant, who was driving a red pickup truck, run a
stop sign and strike the green car, knocking it off the road. Grimm wrote down the license plate
number of the defendant’s vehicle and said the defendant continued traveling toward the TDOT
garage. Grimm, Forsythe, and the driver of the green car followed the defendant to the garage
where Grimm saw people running everywhere. Forsythe gave the driver of the green car the
license plate number of the red pickup truck. The defendant came out of the garage and told the
driver of the green car to leave, but he refused to do so. The defendant then reached inside his
truck, pulled out a rifle, and shot the driver.

         Walter Paul Forsythe testified that he and Grimm left their place of employment around
9:30 a.m. on January 11, 2005, to go to HCI on Lower Brownsville Road to purchase some
starter fluid for their backhoe. They were traveling west on Lower Brownsville Road behind a
green car when they saw a red Mazda pickup truck come down Anglin Lane, run a stop sign, and
strike the green car, knocking it off the road. Forsythe followed the truck to get its license plate
number for the driver of the green car. Because he was driving, Forsythe called out the license
number to Grimm who wrote it down. The pickup truck then ran a four-way stop and turned into
the main entrance of TDOT. Forsythe called 911 and pulled into the TDOT parking lot. The
green car then pulled up, and Forsythe gave the driver, David Gordon, the tag number of the
pickup truck. As Gordon was walking back to his car, the defendant came out of the TDOT
building and told Gordon to leave, but he refused to do so. The defendant then reached inside his
truck and pulled out a long gun. Gordon threw his hands up in the air and told the defendant,
“Please don’t shoot. Wait a minute.” However, the defendant started shooting, and Forsythe and
Grimm fled the scene.

        Randy Joe Perry, a TDOT employee, testified that on January 11, 2005, the defendant
came to the TDOT garage and pushed Perry out of his way as he approached the steps leading up
to the crow’s nest where Mrs. Jordan worked. David Pickard, another TDOT employee who was
standing near Perry, said, “Who was that son-of-a-bitch?” The defendant, who had his right hand
in his coat pocket, turned around and gave Perry and Pickard a “hard look” before going upstairs
to the crow’s nest. Perry then heard three or four gunshots and saw the defendant pointing a gun
at Jerry Hopper who was sitting in a chair. Perry heard another gunshot and saw Hopper slump
over. Hearing more gunshots, Perry ran outside the building and got behind his truck. Shortly
thereafter, the defendant calmly walked outside to his vehicle. Perry next noticed a man get out
of another vehicle and walk toward the defendant. The defendant reached inside his truck and


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retrieved a rifle. The man who had been walking toward the defendant stopped and raised his
hands. A few seconds later, the defendant fired several shots at the man and then got in his truck
and drove toward the front gate.

        David Thomas Pickard testified that he was standing near the stairs with Randy Perry and
other employees when the defendant came in the garage and shoved him and Perry backwards as
he walked past the group of men. Pickard responded by saying, “Who does that crazy son-of-a-
bitch think he is?” The defendant, who smelled of alcohol, turned around and got in Pickard’s
face “like he wanted to whoop [him].” The defendant then proceeded upstairs to the crow’s nest
where Mrs. Jordan was facing the window. Pickard saw the defendant shoot Mrs. Jordan and
described the shooting, “The first time it went ‘Pow’ and she went like this and come back and
he went ‘Pow, Pow, Pow’, like that.” Pickard ran out of the garage to his office located across
from the garage. After instructing the employees in his office to lock the door, Pickard went
back outside and saw the defendant, pistol in hand, exit the garage and go to his truck and
retrieve a rifle. Pickard went back inside the office and, a few minutes later, saw the defendant
leave in his truck. Pickard then went to the crow’s nest where he saw Mrs. Jordan and Jerry
Hopper lying on the floor. He said he looked at Mrs. Jordan and knew she was dead, but Hopper
was still alive and a man was trying to resuscitate him. Outside in the parking lot, Pickard saw
another man lying on the ground. He said the man was not dead at that time, but he “was turning
real yellow-looking and blood was everywhere.”

       James Goff testified that he was in the crow’s nest with Mrs. Jordan, Larry Taylor, and
Jerry Hopper when the defendant came in, raised his shirt, and pulled out what appeared to be a
nine-millimeter pistol. Mrs. Jordan had her back to the door, and the defendant called out her
name. Mrs. Jordan turned around, and the defendant started shooting. The defendant shot Mrs.
Jordan in the chest and fired additional shots, including what appeared to be a shot to the
forehead. The defendant then shot Hopper. Taylor dove under a desk, and the defendant shot
Goff in the leg, the right side of the neck, the arm, and the stomach. Although he did not see
Taylor being shot, Goff heard two more shots and heard Taylor grunt. As the defendant was
leaving the crow’s nest, Goff heard him mutter, “I love you, Renee.”

        After the defendant left the room, Goff got up and asked Taylor about his condition. He
saw Hopper lying on the floor “in bad shape” and Mrs. Jordan was dead. Goff was then able to
make his way to the main office for help. He said he was hospitalized for three days as a result
of his injuries.

        Larry Taylor testified that he was ending a telephone call inside the crow’s nest when the
defendant entered the room, stood there “for a moment or so,” pulled his coat back, and
brandished a weapon. The defendant then called Mrs. Jordan by name and, when she turned to
face him, shot her. She fell back in a chair, and the defendant fired two additional shots, with the
third one striking her in the head. Mrs. Jordan fell to the floor, and Taylor could tell that she was
dead. Taylor dove under a desk for protection, heard more gunshots, and saw Goff fall. He then
heard more gunshots and felt pain in his legs. Taylor heard the door close, and Goff asked him if


                                                -5-
he was all right before leaving the room. Taylor then got up and saw Hopper on the floor on his
knees with his face in his hands and saw Mrs. Jordan on the floor with her face in a pool of
blood. He called 911 and was trying to assist Hopper when he heard the door open and saw the
defendant with “a rifle-type gun.” Taylor looked the defendant “square in the eye” and stood
back up, holding both his hands in front of him. He asked the defendant if he could leave, and,
after a brief pause, the defendant said, “Yeah, you can go out now.” After Taylor got downstairs,
he heard gunshots in rapid succession and hurriedly went out the door. He saw Goff, who was
“kind of delirious” and holding a towel to his neck, and told another employee, Alvin Harris, to
drive Goff to the hospital in the parts truck. Taylor then got in his car and drove himself to the
hospital where he was treated for the gunshot wounds to his legs.

         Freddie Ellison, a reserve deputy and a mechanic at TDOT, testified that when he
returned to the garage from his lunch break around 11:30 a.m., people were running out of the
garage. He then observed the defendant, whom he had known for approximately twenty years,
walk out the roll-up doors of the garage with two semiautomatic handguns underneath his shirt.
The defendant raised his shirt and had his hand on one of the pistols. Ellison asked the defendant
what he was doing, and the defendant told him to “[b]ack off.” Ellison retreated to the back of
the building where he observed David Gordon pull up in a green car. Gordon announced that
“[t]he guy in the red pickup truck has run over me,” and Ellison advised Gordon to “back off”
because the defendant had a gun. Gordon refused, stating that he had the police on the way.
Ellison then heard “automatic” gunfire and called the Madison County Sheriff’s Department for
assistance. He and Willie Martin left TDOT and went “out to 223.” He saw the defendant leave
in his red pickup truck, headed toward Jackson.

        Shortly thereafter, Ellison observed an unmarked police unit and advised dispatch to
instruct the unit to follow the defendant. Ellison then returned to the TDOT garage and saw
David Gordon on the ground. Gordon had been shot multiple times. Inside the crow’s nest,
Ellison discovered “blood all over the floor” and saw Mrs. Jordan lying on the floor with
multiple gunshot wounds. He described Mrs. Jordan as being “shot all to pieces,” including
being shot in the forehead. Jerry Hopper had been shot several times in the chest.

        Alvin Harris, a store clerk at TDOT, testified that he heard gunshots and went to the
garage where he encountered Goff who was holding his throat and bleeding. He also saw Taylor
who was “real panicky” and pointed to his legs when Harris asked him if he was hurt. Taylor
told Harris that the defendant had shot Mrs. Jordan and that she was “gone.” Because Goff was
losing a lot of blood and Harris feared death was imminent, Harris decided to drive Goff to the
hospital rather than wait for the ambulance.

       Darrell Vaulx, a TDOT mechanic, testified that as he was leaving the shop on January 11,
2005, he saw the defendant, Mrs. Jordan, Hopper, and Taylor through the glass window in the
crow’s nest. The defendant pointed a gun at Mrs. Jordan, and she fell. Vaulx heard two more
gunshots and saw the defendant turn toward the men in the crow’s nest. Vaulx said he and other
employees ran outside to the parking lot where Vaulx saw the defendant’s red Mazda pickup


                                               -6-
truck. Vaulx then saw the defendant come outside and calmly walk to his truck. Thinking that
the defendant was leaving, Vaulx ran inside to the crow’s nest where he found Mrs. Jordan on
the floor with three gunshot wounds to the head. Someone yelled, “He’s coming back,” and
Vaulx ran back outside to the parking lot and noticed that the defendant’s truck was still there.
He then heard a noise that sounded like an airgun or a rifle. After someone said the defendant
was getting in his truck and leaving, Vaulx went back inside and found Hopper who was
“breathing just a little bit” and “squirming” like he was in pain. Vaulx administered CPR to
Hopper until the paramedics arrived.

        George Washington Bond, a TDOT employee who worked in the car wash room in the
garage, testified that he heard “three pops,” looked out the window in the garage door, and saw
the defendant standing over “the victim.” The defendant then looked at Bond and shook his
head, which Bond interpreted to mean “[d]on’t get involved.” Bond saw what appeared to be the
grip of a gun in the defendant’s hand. The defendant then came inside the garage and went to the
crow’s nest. Bond saw the defendant pointing a long gun where Mrs. Jordan sat. Bond then ran
to another building and did not return to the garage. On cross-examination, Bond acknowledged
that he did not see the defendant shoot “the victim.”

       Barbara Surratt, Mrs. Jordan’s former mother-in-law, testified that, even after Mrs. Jordan
and her son divorced, she remained close with Mrs. Jordan. During the first part of 2005, Mrs.
Jordan was staying with Surratt at her home on Old Pinson Road. On January 11, 2005, at
approximately 1:30 a.m., Surratt received a telephone call from the defendant. The defendant
told her that he knew Mrs. Jordan was not there and asked her to tell Mrs. Jordan “happy
birthday” the next time she saw her. Surratt stated that Mrs. Jordan’s birthday was not until
February. Around 11:30 a.m., Surratt telephoned Mrs. Jordan at work and, during their
conversation, heard an “ungodly racket, loud noises” and a sound like “a chair go across the
room.” She screamed Mrs. Jordan’s name, but she did not answer. Surratt then heard the
defendant say, “Renee. Renee. I hate you.”

        Jackson Police Sergeant Mike Thomas testified that he was on patrol in an unmarked
cruiser on Vann Drive when he received a call about the shooting at the TDOT garage. En route
to the scene, Sergeant Thomas was advised that the suspect had a machine gun. Before reaching
the TDOT garage, he observed a red Mazda pickup truck matching the description of the
suspect’s vehicle and began pursuit of the truck. The truck ran a stop sign. Shortly thereafter, a
marked patrol unit, driven by Sergeant Sain, passed the truck on Anglin Lane. Sergeant Sain
turned his cruiser around and joined the pursuit. Another unmarked unit, driven by Captain
Priddy, joined the pursuit as well. The suspect’s vehicle forced Captain Priddy’s vehicle off the
road. Officer Maxwell placed his patrol cruiser in position to do a partial roadblock. The
suspect’s vehicle hit Officer Maxwell’s car, and Sergeant Thomas pulled in behind it to block it
from leaving. The suspect, identified as the defendant, was taken into custody. A search of the
defendant’s person revealed a loaded .45 caliber pistol and a loaded nine-millimeter pistol.
Inside the defendant’s truck, the officers discovered a rifle and a shotgun.



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        Officer Ted Maxwell of the Jackson Police Department testified that he responded to a
call concerning the shooting at the TDOT garage. En route to the scene, he encountered the
defendant, driving a red pickup truck, followed by two police units. Officer Maxwell said he was
traveling north on Anglin Lane, and the defendant was traveling south. Ultimately, Maxwell
managed to stop the defendant by ramming the front of his vehicle. The defendant got out of his
vehicle, and Maxwell noticed a gun in the small of his back under his belt. Sergeants Sain and
Thomas placed the defendant on the ground and removed two handguns from him that were
identified as an Intra Arm Star .45-caliber semi-automatic with a clip containing six live rounds
and one live round inside the chamber and an Intra Arm Star nine-millimeter semi-automatic
with a clip containing two live rounds and one live round in the chamber. Maxwell said that
eight .45-caliber and nineteen nine-millimeter rounds were recovered from the defendant’s
pockets.

        Tennessee Highway Patrol Sergeant Johnny Briley testified that he initially received a
call regarding a hit-and-run accident on Lower Brownsville Road at Anglin Lane involving a red
Mazda pickup truck. While proceeding to that location, he received another call about the
shooting at the TDOT garage. He received information that there were multiple victims
involved. Before he reached the TDOT garage, he observed that the suspect vehicle had been
pulled over by Jackson police officers. He stopped at the scene. Sergeant Briley said that he had
known Mrs. Jordan and her family for thirty years and also knew the defendant. As the
defendant stood up, he told Sergeant Briley, “She fucked me over, Johnny.” Sergeant Briley
responded, “No, she didn’t, David.” Sergeant Briley, who was standing within a foot of the
defendant, detected an odor of alcohol on the defendant’s person. The defendant was
subsequently placed in the backseat of a police car.

        Jackson Police Officer Rodney Anderson testified that en route to the scene of the
shooting, he received another call that the suspect was headed down Anglin Lane. Officer
Anderson turned onto Anglin Lane where he observed a vehicle matching the description of the
suspect’s vehicle between two patrol cars. The driver of the vehicle, the defendant, was taken
into custody and placed in the backseat of Officer Greer’s marked police unit. As Officers Greer
and Anderson were transporting the defendant to the Criminal Justice Complex, the defendant
told them that:

       he could have cut the police in half with his weapon, that he had full auto. He
       stated this[,] his wife’s dead and she’s full of holes. He stated she drove him
       crazy . . . by fucking around on him, and he advised that he shot her with her
       brother’s gun. He also stated that he feels sorry for his daughters, and that Mrs.
       Jordan wouldn’t be fucking around on anybody else.

The defendant said that the other people “just got in the way” and asked how many people were
hurt. The defendant also said that his wife “hurt him and tore his heart out” and that he had been
“going crazy” for a month. Officer Anderson said that the defendant smelled of alcohol.



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        Trent Harris, a paramedic at Jackson-Madison County General Hospital, testified that he
and Corey Shumate, an emergency medical technician, responded to the scene at the TDOT
garage, arriving at 11:39 a.m. They first attended David Gordon who was lying on his back in
the parking lot and appeared to have gunshot wounds to the upper right and upper left portion of
his abdomen. Gordon was not breathing but had a faint pulse. Harris intubated Gordon and
immediately began transportation to the hospital. En route, Gordon lost a pulse and CPR was
initiated. Upon their arrival at the hospital, Gordon’s care was transferred to the hospital’s
trauma team.

        Eric Leath, a paramedic with the Medical Center EMS, testified that he was also
dispatched to the TDOT garage. Upon his arrival, he was directed inside to an office where he
observed a man lying on the floor on his back and a woman lying inside the door to the left. The
woman had “a massive . . . injury to her head that had blood tissue lying all around, pooled
around her head” and had no signs of life. The other victim, Jerry Hopper, was very pale and had
“some gasping or . . . agonar, gasping-type breaths, just very shallow, slow.” Hopper had a faint
carotid pulse. Leath inserted a breathing tube, but Hopper was unresponsive. A Jackson police
officer offered assistance to Leath and began CPR. Hopper was then moved to an ambulance and
transported to the hospital. Upon arrival at the hospital, Hopper exhibited no signs of life.

        Dr. David James testified that he treated Larry Taylor at the Jackson-Madison County
General Hospital. Taylor had suffered gunshot wounds to both of his legs. Dr. James also
treated Jerry Hopper who had two gunshot wounds to his abdomen. Upon Hopper’s arrival at the
hospital, he was not breathing and all attempts at resuscitation were unsuccessful. Hopper was
pronounced dead at 12:34 p.m.

       Dr. Tony R. Emison, the medical examiner and coroner for Madison County, testified that
he requested autopsies on the bodies of the three deceased victims. The bodies were sent to the
state medical examiner’s office in Nashville.

       Dr. Staci Turner testified that she performed the autopsy on Mrs. Jordan at the medical
examiner’s office in Nashville. Dr. Turner found that Mrs. Jordan had sustained eleven gunshot
wounds to the head, torso, and right leg. Dr. Turner found injuries to the scalp, the skull, the
bones of the face, the brain, multiple ribs, the right lung, the diaphragm, the liver, the right
kidney, the stomach, the small intestine, the urinary bladder, and the uterus. Dr. Turner
recovered multiple bullets, bullet jackets, bullet cores and white plastic disk fragments during the
autopsy. One gunshot wound to the head was fired from within a foot of the body.

        Dr. Turner discovered a visible bullet in a partial exit wound in the back of Mrs. Jordan’s
head. She recovered the bullet and the jacket that had separated from the bullet. The bullet was
identified as a Black Talon-type bullet, one fired from a handgun. She described the bullet as
having a bullet core and a jacket, “and when it enters the body, the jacket usually opens and
forms sharp points that look like talons.” However, other fragments discovered in Mrs. Jordan’s
body were identified as coming from a high-powered assault rifle. Two notes were found in the


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victim’s clothing, both addressed to Mrs. Jordan and signed by the defendant. Dr. Turner
concluded that the cause of Mrs. Jordan’s death was multiple gunshot wounds.

       Dr. Amy R. McMaster testified that she performed the autopsy on Jerry Hopper. Hopper
had suffered multiple gunshot wounds and had multiple abrasions and lacerations resulting from
these wounds. Dr. McMaster discovered a gunshot wound to the right wrist and two gunshot
wounds to the right side of his abdomen. She recovered two projectiles from Hopper’s body.
The projectiles were large caliber deformed hollow point bullets, which were consistent with
those fired from a nine-millimeter weapon. Dr. McMaster concluded that the cause of Jerry
Hopper’s death was multiple gunshot wounds.

        Dr. McMaster said that she also performed the autopsy on David Gordon. Gordon had
multiple gunshot wounds and injuries associated with the wounds. Although no exact number of
wounds could be determined, Gordon had been shot at least thirteen times. He had wounds to his
right thigh, right forearm, right lower abdomen, right and left sides of the torso, buttocks, and left
hip. These wounds caused additional injury after entering Gordon’s body. Dr. McMaster
concluded that the cause of Gordon’s death was multiple gunshot wounds.

         Dr. Herbert Lee Sutton, a trauma surgeon at Jackson-Madison County General Hospital,
testified that he treated James Goff on January 11, 2005, for multiple gunshot wounds which he
described as “a gunshot wound to the neck, a gunshot wound to the left arm, . . . a gunshot
wound to the abdomen, a gunshot wound to the left thigh.” There was also a gunshot wound to
the submandibular region of the neck which “went anterior to the trachea and the carotid vessels
which are the main vessels that go[] to his brain and went anterior to the trachea.” However, the
bullet did not hit any major arteries or veins. Dr. Sutton stated that Goff remained hospitalized
until January 13, 2005.

        Dr. Sutton testified that he also tried to save David Gordon’s life once he arrived at the
hospital. Dr. Sutton was able to regain a heartbeat on Gordon and performed surgery to try to
stop the bleeding in his abdomen and perineum. Dr. Sutton described what he saw when he
surgically opened Gordon’s abdomen: “[T]he blast injury from what he was shot with had
almost morselized his intestines. It was like soup. And I’m quite sure even if I had stopped him
from bleeding and he had regained everything, he probably wouldn’t have had any small intestine
left from what I could see.” Despite all of Dr. Sutton’s lifesaving procedures, Gordon died at
12:47 p.m.

       Sergeant Mike Turner of the Jackson Police Department testified that he collected
evidence from the red Mazda pickup truck. Among the items he recovered were: a loaded
Norinco SKS 7.62 assault rifle with twenty-six rounds in the magazine and one in the chamber; a
black racing bag containing a large quantity of assorted ammunition; a loaded Mossberg twelve-
gauge shotgun with two rounds in the magazine and one in the chamber; loose ammunition; a
7.62 magazine with fourteen rounds of ammunition; a 7.62 spent casing; and a .38 special caliber



                                                -10-
Winchester spent casing. The defendant’s clothing, which was covered in blood, was also
collected.

       Agent Cathy Ferguson of the Tennessee Bureau of Investigation (TBI) testified that on
January 11, 2005, she was employed as a violent crimes investigator with the Jackson Police
Department. She said she responded to the scene at the TDOT garage and was directed to the
crow’s nest area where she found Mrs. Jordan lying in a large pool of blood that contained brain
matter. Realizing that she could not help Mrs. Jordan, Ferguson assisted with the CPR on Jerry
Hopper. Ferguson subsequently recovered evidence found inside the crow’s nest and outside the
garage, including nine-millimeter and 7.62 shell casings, bullet fragments, and a note on which
Grimm had written the defendant’s license tag number. She said that fifteen 7.62 shell casings
were recovered from the exterior crime scene and four from inside the crow’s nest. Nine nine-
millimeter shell casings and one live nine-millimeter round were found inside the crow’s nest.

       TBI Agent Scott Lott testified that he and other agents executed a search warrant at the
defendant’s house on January 11, 2005. Among the items recovered were: a Thompson Center
Firearms .50 caliber muzzleloader, a Montgomery Ward 30/30 rifle, a Remington 20-gauge
pump shotgun, a Remington 30.06 rifle, a Remington Caliber .243 rifle, a Ruger .22-caliber rifle,
a Savage Firearms .22-caliber rifle, a Ruger .44 magnum rifle, a Springfield .410-gauge shotgun,
a Pioneer 750 .22-caliber rifle, a Bauer Firearms .25-caliber automatic handgun, a .38 Special
revolver, five live rounds of Winchester .38 Special ammunition, and a trigger group assembly.

         TBI Agent Shelly Betts, accepted by the trial court as an expert in ballistics, testified that
she examined evidence collected from the TDOT garage, including a 12-gauge shotgun, a
Norinco SKS rifle, a Star .45-caliber pistol, and an Inter Arms Star nine-millimeter
semiautomatic pistol. She said that the safety feature functions on the SKS rifle had been
converted to fire in fully automatic mode, rather than the semi-automatic mode, which was how
it had been manufactured to function. She explained that several modifications had been made to
the rifle’s trigger housing assembly, causing the weapon to fire continuously once the trigger was
pulled. Agent Betts tested several cartridge cases recovered from the crime scene and determined
that they had been fired in the SKS rifle. Additionally, she tested nine-millimeter cartridge cases
recovered from the interior crime scene and determined that they had been fired in the Star pistol.
She examined bullet fragments recovered from David Gordon’s right thigh and determined that
one had “conclusively been fired through the barrel of the SKS rifle.” Agent Betts further
determined that some of the fragments recovered from Gordon’s right hip and abdomen had been
fired through the barrel of the SKS rifle. She also examined nine-millimeter projectiles
recovered from Jerry Hopper’s back and pelvis and determined they had been fired in the Star
pistol. Her examination of the nine-millimeter projectiles recovered from Renee Jordan’s leg and
uterus revealed they had been fired in the Star pistol. Agent Betts said that the nine-millimeter
projectile recovered from Mrs. Jordan’s brain had “probably” been fired in the Star pistol. Two
fragments recovered from Mrs. Jordan’s liver, as well as three fragments recovered from her
chest, were conclusively identified to the SKS rifle. Agent Betts explained that the 7.62 rounds
found in the bodies of Mrs. Jordan and David Gordon were hollow point bullets, meaning that as


                                                 -11-
soon as they struck the skin they fragmented into numerous pieces. She examined the 7.62
magazine found inside the defendant’s truck and described it as “an SKS-type detachable
magazine that would function in this SKS rifle, and it holds approximately 31 rounds.”

        Madison County Sheriff’s Department Sergeant Chad Lowery testified that shortly after
the defendant was apprehended, he went to the defendant’s home to check on the welfare of any
children who may have been at the home, but no children were present when he arrived.
Sergeant Lowery discovered a loaded pistol on top of the refrigerator and saw several other
weapons in the home. On the kitchen counter, Sergeant Lowery observed a handwritten note,
which stated: “Renee got what she deserved. Bitch. I’m sorry. I love you. Thanks for being so
good to me. Love you Shelby, Sydney, Deanna. Thanks, Mom and Dad. You did all you
could.”

                                         Defense Proof

        Jackson Police Investigator Tyreece Miller testified that he interviewed the defendant at
approximately 3:35 p.m. on the day of the shooting. The defendant waived his right to an
attorney and volunteered to speak with Investigator Miller. During their conversation, the
defendant asked how many people he had shot and if Mrs. Jordan was dead. The defendant
provided a urine sample and consented to give a blood sample which was drawn at
approximately 9:50 p.m. The defendant said he had consumed approximately five shots of vodka
but “was not under the influence.” The defendant also provided the following statement to
Investigator Miller:

       I’ve been married to Renee Jordan for five years. She has a son named Tyler
       Surratt. He is my stepson. She has a daughter named Sydney Jordan. She is my
       daughter also by Renee. I have three others by two other women who are my
       former wives. Back in the summer 2002, Renee’s son Tyler molested my
       daughter, Shelby Jordan. He was 10 years old and she was 8 years old at the time.
       [Department of Children’s Services] was involved, and Tyler had to go to
       counseling. On December the 11th, 2004, Tyler was in Lindsey’s bedroom. He
       was lying on his back and he had something in his hand. He was playing with
       Lindsey. He was trying to let her get whatever it was out of his hand, but he had a
       tight grip on it. She was reaching for it. He would let her grab his hand, and then
       he would pull her across his body. He didn’t know it, but I was watching him. It
       looked like he was pulling her across his penis. I saw him do this three times
       before I stopped him. I went in the room. I cursed him. I told him that I was
       going to stick my foot up his ass if he ever touched one of my daughters again. I
       left and went deer hunting. When I got back, Renee was on the phone with some
       man. My mother showed up, and Renee left and never came back home. We did
       spend Christmas Eve, New Year’s Eve and this past Sunday night together.

             Back in September 2004, Renee started having an affair with Johnny
       Emerson. He works in a building where she works. He works in the shop and

                                              -12-
Renee works in the office. . . . I found out about their affair in October. She
admitted to it and I forgave her. This morning I woke up and had no intentions of
hurting Renee.

        She called me from work. I was at home. She was acting like a bitch. I
had been begging and bending over backwards to make this work up to this point.
She unexpectedly told me that me and my daughters from another marriage have
until the first of February to get out of her house. She said that she was going to
see her lawyer tomorrow and she was going to have me evicted. . . . Renee hung
up on me before I had a chance to say a word. This made my blood boil. I started
loading my guns.         I loaded my 12-gauge shotgun, a Star .45 caliber
semi-automatic handgun and an SKS fully automatic rifle with a folding stock. I
put a 33-round clip in it. I left a note on the counter stating that if something
happens to me, I love my mother, father and four daughters. I didn’t know if I
was going to do anything to Renee or not. I was thinking more of killing myself.

        I got in my 1991 Mazda truck, red, and I was going to Renee’s workplace
at TDOT. On the way there I broad-sided a green four-door vehicle. I was going
down Anglin Lane. I was driving fast and couldn’t stop soon enough. I T-boned
the green car that was going down Lower Brownsville Road. I didn’t stop. I went
on up to TDOT. I pulled up to where Renee works. I left the 12-gauge and the
SKS in the truck. I had the .45 in a holster on my hip, the nine-millimeter was in
my back.

        I walked in the office. Renee said, “What the fuck are you doing here?”
She was sitting in the chair at her desk. I didn’t say a word to her. I pulled out
the .45 and I shot her in the leg. I shot her in the leg because I wanted her to look
at me. She hollered. The guy that was sitting in the corner got up and came at
me. I shot him and he fell to the floor. I think he was James Goff . . . . I heard
him moaning. Larry Taylor was in the office. I patted him on the back with the
pistol and told him that he needed to get out of there. He left. I looked back at
Renee, and she was already dead I think. I can’t remember if I had shot her more
than just in the leg. I remember the last time that I shot her was in the top of the
head with the .45. I didn’t want to shoot her in the face.

        I walked back out to my truck and I saw the guy in the green car that I had
hit. He was parked behind me. I got in the truck. He was pointing his finger and
coming at me. I grabbed the SKS and I fired it at him. He went to the ground. I
don’t remember going back to the office with the SKS, but if there was a shell
casing there, I must have fired it in the office. I got in my truck and left. I had
intentions of killing myself when I got back home, but the police hit me head on.

       I have made this statement openly and freely. I have not been promised
anything, and I have not been threatened in any way. I am sorry that this
happened. Renee didn’t deserve to die.

                                        -13-
        TBI Special Agent John W. Harrison testified that he analyzed the urine and blood
samples submitted by the defendant. The result of the blood sample, taken at 9:50 p.m., was “no
alcohol present.” Agent Harrison agreed that if a person consumed five shots of vodka in the
early morning hours but did not give a blood sample until 9:50 p.m., the alcohol could have
metabolized by that time. He explained that if a person consumed five shots rapidly together
within an hour, the person’s blood-alcohol level would be approximately .10%, but about five
hours later, the level would be down to 0. The result of the urine sample, taken at 3:35 p.m., was
.17%. However, Harrison said not much significance should be attached to that result because it
did not indicate how much the defendant had had to drink. He acknowledged that all the urine
sample really revealed was that, sometime prior to the collection of the sample, there had been
alcohol in the defendant’s bloodstream. Pursuant to the TBI’s normal operating procedure, the
samples were preserved “for a period of time and then destroyed.”

        TBI Agent Kelly Hopkins testified that she performed a drug screen on the urine and
blood samples submitted by the defendant. The urine sample was positive for Citalopram, an
antidepressant, and Benzodiazepines, which include antidepressant and anti-anxiety medications,
such as Xanax. The blood sample was positive for Citalopram but negative for Benzodiazepine.
Agent Hopkins explained that after a drug is ingested, it first goes into the person’s bloodstream
and is later metabolized in the urine. She said that the sample was destroyed on January 3, 2006.

        Officer Tikal Greer of the Jackson Police Department testified that when he and Officer
Anderson transported the defendant to the Criminal Justice Complex, he noticed a strong odor of
alcohol on the defendant’s person. The defendant told the officers that “his wife was dead, full
of holes” and that she had driven him crazy by “fucking around on him.” The defendant also
said that “he hated people got in the way” and that his wife “got a taste of his .45 and her
brother’s gun.” Once they arrived at the Criminal Justice Complex, the defendant admitted “to
killing or hurting four people.”

       Sergeant Marneina Murphy of the Madison County Sheriff’s Department testified that
she supervised the defendant’s booking process at the jail. She estimated that she was around the
defendant for thirty minutes to one hour and described his demeanor as “more confused, maybe
not focusing, probably dazed a little bit.” She acknowledged that another officer asked the
defendant the questions on the intake questionnaire.

        Dr. Dennis Wilson, a clinical psychologist, testified that he evaluated the defendant,
meeting with him on four different occasions for a total of eleven hours. He conducted clinical
interviews, IQ testing, and some brief personality testing. Dr. Wilson determined that the
defendant was competent to stand trial and that a defense of insanity was not available.
However, in Dr. Wilson’s professional opinion, the defendant lacked substantial capacity when
the crimes were committed, meaning the defendant was unable to exercise restraint or judgment
and unable to reflect or premeditate.

        In formulating his opinion, Dr. Wilson discovered that the defendant was brought up in a
stable family. His parents were good parents and were active in the community. Dr. Wilson


                                              -14-
opined that the defendant was determined to set up a loving, stable environment for his children
whom he clearly loved. Dr. Wilson also noted that the defendant had been divorced twice and
suffered from depression and anxiety. As a result, the defendant began self-medicating with
alcohol and drugs, including methamphetamine and crack cocaine. In 1986, the defendant was
injured in a car accident. He had a broken back and ribs and injuries to his knee, ankle, and
pelvis. He developed chronic headaches and various pains. He was prescribed narcotic
medications, including Hydrocodone, Oxycodone, Vicodin, Lortab, and Darvocet. In 2000, the
defendant was prescribed Xanax, an anti-anxiety medication, and Ambien, for insomnia. The
defendant, at various times, was given medications for depression and agitation.

        At the time of his marriage to Mrs. Jordan in 2000, the defendant had stopped using
illegal drugs and was only a moderate beer drinker. By the following year, however, their
marriage had begun to deteriorate. They attended marriage counseling. Later, Mrs. Jordan told
him that she desired other male companionship and, in October 2004, she started going to bars,
staying out late, and coming home intoxicated. Mrs. Jordan also told the defendant about her
relationship with a male co-worker and said she wanted to have sex with this co-worker.
Divorce was imminent, and the defendant’s family structure was crumbling. During this time,
Mrs. Jordan continued her intimate relationship with the defendant but also shared the details of
her encounters with other men with him. The defendant was confused and upset about her
extramarital activities. The defendant’s doctor increased his dose of Xanax on January 4, 2005.
Mrs. Jordan then gave the defendant a deadline of February 1 for him and his two daughters to
move out of the house. Dr. Wilson opined that this was the end of whatever was left of the
defendant’s dream of creating a happy home for his children.

       Dr. Wilson further testified that on the date of the shooting, the defendant drank alcohol
and had not slept for three days. His world had collapsed, and he could no longer control his
behavior. The defendant started talking to himself. People observing the defendant after the
shooting described him as being “out of it.” The defendant expressed remorse over the incident
and cooperated with the authorities. Dr. Wilson concluded:

       [The defendant] has a major depressive disorder, recurrent episodes. It was
       moderate over his lifespan. He had generalized anxiety disorder, alcohol abuse
       and a borderline personality disorder. This is by definition someone who has a
       hard time maintaining interpersonal relationships, dealing with problems, coping
       with stress. He just never was any good with any of that stuff. At the time of the
       crime, it is my opinion that he was intoxicated with alcohol, and it is my opinion,
       I believe, that he was also intoxicated with anxiolytics which was the Xanax.
       These two drugs, alcohol and the Xanax, potentiate each other, and anything can
       happen if you take both of those things together. . . . [T]hey sort of multiply each
       other. They can easily do brain damage. . . .

              . . . [D]issociative disorder is when someone . . . [t]here’s a disruption in
       the usually integrated functions of consciousness, memory or perception of the
       environment. That’s from the Diagnostic & Statistical Manual. . . .

                                              -15-
                 You also have symptoms of what we call derealization. That’s as if you’re
       detached and you’re an outside observer. It’s like you’re watching someone else
       do it. . . .

              I don’t think he was in control of his faculties when all this happened. I
       don’t know if it was from the stress, from the depression, the anxiety, the
       dissociation, the intoxication, or, most likely a combination of all of the above.

Dr. Wilson opined that the defendant was substantially impaired to the extent that he was unable
to form premeditation.

        Asked on cross-examination if the defendant was in control at the time of the shooting,
Dr. Wilson said that the defendant “was in control sometime before the crime and he became in
control again after the crime, but during the crime he was not. I’m not sure. It’s a gray area, a
gradual change. I just don’t know.” Dr. Wilson opined that the defendant was not capable of
forming intent at the time of the shooting. He said that the defendant “knew the difference
between right and wrong. He was not insane. He was just incapacitated.” Dr. Wilson explained
that the defendant’s “behavior was inconsistent and out of control. He was in and out of
consciousness there. He knew some things, remembered some things and not others, but I don’t
think he was at all in control the whole time.”

                                         Rebuttal Proof

        In rebuttal, the State recalled Investigator Tyreece Miller. Miller reiterated that, at the
time the defendant gave his statement, the defendant said he had been drinking but was not under
the influence of any drugs or alcohol. He said that the defendant walked steadily, was able to
answer the questions he asked, and was “very coherent.” Miller said that the defendant did not
appear to be under the influence of drugs or alcohol. The defendant consented to give a urine
sample but initially refused to provide a blood sample because he did not like needles.
Following the department’s standard operating procedures, Miller wrote down the defendant’s
statement as he talked and allowed him to review it before he signed it. Asked if the defendant
made any additional comments that were not included in his statement, Miller said the defendant
told him, “Today is Renee’s father’s birthday. I guess I gave him a hell of a birthday present.”
According to the driver’s license belonging to Mrs. Jordan’s father, his date of birth was January
11, 1932. Miller asked the defendant if he could include the birthday present comment in the
statement, but the defendant said, “I don’t want that in there.” The defendant also told Miller,
“[Mrs. Jordan] was in a pool of blood the last time I shot her.”

        On cross-examination, Investigator Miller said that the defendant signed a waiver of his
rights at 3:50 p.m. and signed his statement at 5:35 p.m. The defendant eventually gave his
consent for a blood sample at 9:50 p.m. Miller acknowledged that a breathalyzer test was not
performed on the defendant and that the defendant told him he was taking medication. Miller
said that although the police department had video equipment, he did not have it brought to the
Criminal Justice Center to videotape the defendant’s interview because it was against


                                               -16-
departmental policy and not standard operating procedure. Miller said he was not aware of the
availability of any video equipment in the booking area of the Criminal Justice Center.

        Dr. Daryl Matthews, a forensic psychiatrist, testified that he evaluated the defendant on
April 24, 2006. Dr. Matthews spent approximately six hours with the defendant, during which
he conducted a psychiatric interview and a mental status evaluation. As a result of his
examination of the defendant, Dr. Matthews did not find a severe mental disorder and said, “I
don’t believe [the defendant] has ever had a severe mental disorder.” Dr. Matthews concluded
that the defendant “was able at the time of the offense . . . to act intentionally and to act with
premeditation.” He added that the defendant was able to conform his behavior to the
requirements of the law.

        In reaching his determination that the defendant had the capacity to premeditate, Dr.
Matthews said he reviewed, among other things, the note the defendant wrote to Mrs. Jordan, the
recorded messages the defendant left on Mrs. Jordan’s cellular telephone, the statements of
various witnesses at the scene, and the police reports. The messages the defendant left on Mrs.
Jordan’s phone included sarcastic comments about her obtaining a restraining order and
statements such as: “I hope you go to work tomorrow, bitch, ‘cause you’ll be there one day. It
may not be tomorrow, but I will catch up with your raggedy ass. Your day is coming. . . . Your
ass is gonna pay.” Dr. Matthews said that the defendant’s ability to recognize someone he knew
at the scene, Freddie Ellison, implied that he “had the ability in memory to keep in mind people
that he knew, and most importantly . . . he had the ability not to . . . shoot Mr. Ellison.” Dr.
Matthews disagreed with Dr. Wilson that the defendant was dissociated at the time of the
shooting, saying that dissociation is very common, mostly pertains to memory, and has nothing
to do with intent or premeditation.

      Among the witness statements Dr. Matthews reviewed was that of Walter Forsythe,
which Dr. Matthews recited:

       The driver of the red truck told the driver of the green car to get out of here. The
       driver of the green car said, “No, you hit me.” The driver of the red truck folded
       the seat forward on the truck and he said, “You will.” He pulled out a black rifle
       with a silencer or something on the end of the barrel. He fired at the driver of the
       green car.

Dr. Matthews also recited the statement of George W. Bond, Sr.: “The man with the gun was
white. He looked up and saw me and shook his head as if to tell me he didn’t want me
involved.” Dr. Matthews said that the defendant’s statement to Sergeant Johnny Briley, “Renee
fucked me over, Johnny,” showed that the defendant recognized Briley and indicated the
intactness of his mental capacity. Dr. Matthews read the statement of Freddie Ellison: “When I
saw [the defendant], he had a gun and was trying to hide it. I said, ‘David, what are you doing?’
He said, ‘Just go on.’ I said, ‘What’s the matter? He said, ‘Just go on.’” Dr. Matthews
concluded that the defendant was able to control himself at the time of the shooting.



                                              -17-
       The jury convicted the defendant of the first degree premeditated murder of Renee
Jordan, the first degree premeditated murder of Jerry Hopper, the first degree felony murder of
Jerry Hopper, the first degree premeditated murder of David Gordon, the first degree felony
murder of David Gordon, the attempted first degree murder of James Goff, the aggravated assault
of James Goff, the attempted first degree murder of Larry Taylor, the aggravated assault of Larry
Taylor, and leaving the scene of an accident. The trial court merged the convictions for the
felony murder and premeditated murder of Jerry Hopper into a single conviction for first degree
murder and, similarly, merged the convictions for the felony murder and premeditated murder of
David Gordon into a single conviction for first degree murder. The court also merged the two
aggravated assault convictions with the two attempted first degree murder convictions.

                                           Penalty Phase

        Donald Roberson, Renee Jordan’s father, testified that she was the youngest of his three
children and his only daughter. One son died of cystic fibrosis when he was seven years old, and
the other son died at age thirty-three. Roberson related that Renee’s daughter, Sydney, was four
years old at the time of her mother’s death and that he and his wife currently had custody of her.
He said that Sydney still asks for her mother. Since Renee’s death, Roberson has experienced
“attacks, anxiety and depression.” Roberson added that Renee was murdered on his birthday,
and he is no longer able to celebrate his birthday.

        Robert E. Lee Gordon, Jr., the older brother of David Gordon, testified that David was
one of four brothers and that his other two brothers were deceased at the time of David’s death.
Gordon, Jr. explained the impact of the death of his last remaining brother on him and his family.
He said that he has difficulty sleeping and that his brother’s death is “all I think about, the way he
died.” One of David’s sons was in college and the other in high school, but both gave up on
school as a result of their father’s death. Gordon, Jr. said he had buried two brothers and his
mother in the past two years. He related that David was a hard worker, a good father, and “very
well respected . . . a fine man.”

        Shane Gordon, the eighteen-year-old son of David Gordon, testified that he was a junior
in high school when his father was killed. He said that he thought about his father’s death “all
the time and it gets me down. . . . It’s just something that’s hard to deal with.” He said that his
father was a hard worker and was kind to everyone.

       Renee Dawson testified that David Gordon was her fiancé and best friend. On the date of
his murder, Ms. Dawson and Gordon had a lunch date planned. The couple had moved into a
new home together on Thanksgiving Day, but Ms. Dawson was unable to keep the home after
Gordon’s death. Ms. Dawson stated, “I would say that my life is empty and my life ended that
day as well.”

       Emma Hopper, the wife of Jerry Hopper, testified that they had been married twenty-nine
years. She explained that losing her husband was like “losing half of myself.” Mr. Hopper


                                                -18-
worked for the Tennessee Division of Forestry and had been a state employee for twenty-eight
years. At the time of his murder, Mr. Hopper had already been making plans for retirement.
Mrs. Hopper explained that the couple planned on spending more time with their young
granddaughter, who was eighteen months old at the time of Mr. Hopper’s death. She said that
she had not been able to spend a single night in their home since his death and had been living
with her daughter and her family. Mrs. Hopper testified that her granddaughter still asks, “Where
is my papaw?”

        Misty Ellis, the daughter of Jerry Hopper, testified that she had worked with victims of
crimes in the past. She described her experience dealing with her father’s death as an “[a]bsolute
nightmare.” Ellis said that it was “just torture” to know that one day she would have to explain
to her daughter why her grandfather was no longer here.

       TBI Agent Cathy Ferguson testified that, at the time of the shooting, she was a violent
crimes investigator with the Jackson Police Department. Agent Ferguson identified photographs
of the victims. Exhibit 179 was a photograph of James Goff depicting the bullet wound to his
abdomen. Exhibit 180 was a photograph of James Goff depicting the bullet wound to his neck.
Exhibits 181 and 182 were photographs of Larry Taylor depicting the gunshot wounds to his
legs. The photographs of Goff and Taylor were taken at the emergency room. Exhibit 183 was a
photograph depicting Renee Jordan as she was found in the crow’s nest at the TDOT garage.

        Dr. Amy McMaster testified that Dr. Staci Turner performed the autopsy on Renee
Jordan. Identifying exhibit 184 as a photograph depicting a gunshot wound Mrs. Jordan’s
forehead, Dr. McMaster stated that the wound was inflicted from a close range. She explained
that it was a “close range wound because there’s soot,” or burnt gunpowder. She said that the
wound to the forehead was a fatal wound. The autopsy further revealed a gunshot wound to the
back of Mrs. Jordan’s head, which went through her head and exited on her face. Exhibit 185
was a photograph depicting the gunshot wound to the back of the head. Dr. McMaster stated that
this wound also would have been fatal.

        Dr. McMaster also identified nine entrance wounds on Mrs. Jordan’s torso. She stated
that there was significant injury to the abdominal area, which was a potentially fatal wound. Dr.
McMaster said that this wound would have been painful. She explained, “[I]n general terms, the
body has about 30 seconds’ worth of reserve of oxygen in the brain. So assuming your heart
stops immediately, you’ve got about 30 seconds left of oxygen in your brain that will allow you
to remain conscious.” She affirmed that, during this time, one could experience pain. She added
that, depending on other factors such as adrenaline, this time period could be longer. Dr.
McMaster additionally stated that the wounds were from two different caliber bullets. She said
there was no indication that any of the wounds were received post-mortem.

      Regarding the autopsy of Jerry Hopper, Dr. McMaster testified that he had two gunshot
wounds to his abdomen, which injured segments of bowel and also segments of the aorta. Dr.
McMaster stated that these wounds would not have been immediately fatal but would have been


                                              -19-
painful. Hopper also sustained a gunshot wound to his right wrist. Dr. McMaster was unable to
determine the order in which the wounds were inflicted.

        Dr. McMaster testified that she performed the autopsy on David Gordon. Gordon had “at
least 13 entrance wounds” which were inflicted from the front, the side, and the back of the body.
Gordon sustained injury to his bowel area, specifically, the natal cleft. The wounds sustained to
the buttocks and natal cleft could be consistent with Gordon being facedown on the pavement.
She opined that the number of wounds were more than that necessary to cause death. She added
that the wounds would have been painful and that Gordon would have eventually lost
consciousness.

         In mitigation, the defendant presented the following testimony. Larry Jordan, the
defendant’s brother, testified that, during their childhood, he and the defendant played ball and
went fishing and hunting. Their father was their Little League coach. Larry Jordan stated that he
would be devastated if his brother was sentenced to death. He added that, if his brother received
a sentence of life without parole, he would maintain his relationship with him. Larry Jordan
testified that the defendant has a close relationship with his four daughters.

         Suzie Silas, a guidance counselor at Malesus Elementary School, testified that the
defendant had obtained custody of Shelby and Lindsey, his daughters from a previous marriage.
She characterized the defendant as a concerned parent and said that he regularly checked on his
children. After the defendant was incarcerated, Lindsey wrote a letter expressing her desire to
spend a day with the defendant because “I miss my daddy very much.” Ms. Silas also received a
letter from the defendant after his incarceration, thanking her for helping his children.

        Michael Lee Merriwether testified that he met the defendant while incarcerated at the
Criminal Justice Complex. He stated that he and the defendant often read Christian literature.
Merriwether added that it was a benefit to him to have this interaction with the defendant. He
opined that the defendant has the ability to do some good while in jail, including ministering to
others.

       Cheryl Fisher testified that she dated the defendant before his marriage to Renee Jordan.
They remained friends after their romantic relationship ended. She opined that, if the defendant
received a sentence of life, his children would benefit. She explained that the defendant was a
very good father and that his children idolized him. Ms. Fisher related how the defendant’s
children were having difficulty rationalizing the potential punishment of death.

         Madison County Deputy Andre Denice Hays, a jailer at the Criminal Justice Complex,
testified that she had frequent contact with the defendant and described him as quiet and polite.
Deputy Hays opined that the defendant would make a good prisoner and would be able to serve a
sentence of life without parole without being a risk to any prisoner, guard, or other human being.




                                              -20-
       Sergeant Neina Murphy, also assigned to the Criminal Justice Complex, testified that she
had not had any problems with the defendant since his incarceration. She affirmed that the
defendant had not demonstrated to her that he would be a threat to any prisoner, guard, or other
human being. She added that she would be disturbed if the defendant received the death penalty.

        Madison County Deputy Jason Walker, a jailer at the Criminal Justice Complex, testified
that the defendant often mentioned his family. Deputy Walker stated that the defendant’s
demeanor was pleasant, he never complained, and he did what he was told to do. He described
the defendant as one of the better inmates. Deputy Walker opined that the defendant would make
a good prisoner in the penitentiary and would not be a threat to other individuals.

        Deanna Jordan, the defendant’s oldest daughter, testified that she was a junior at Freed-
Hardeman University. She said that she had three sisters, Lindsey, Shelby, and Sydney, and that
they all loved their father and knew that he loved them. She stated that her father will not be able
to walk her down the aisle, however, she would like for him to be able to meet his grandchildren
some day. She stated that she wanted the defendant to have a part in their lives, even if it was
just visitation.

        Dr. Dennis W. Wilson presented a PowerPoint presentation regarding the psychological
point of view of the mitigating factors. He explained that the defendant started life in a stable
and loving family but later suffered from depression, anxiety, and insomnia. He stated that the
defendant began using drugs and alcohol. Dr. Wilson told of the defendant’s two failed
marriages before marrying Renee. He mentioned the defendant’s four children. He described the
defendant’s health problems and prescription medications. Dr. Wilson testified regarding the
disintegration of the defendant’s marriage to Mrs. Jordan. He said the defendant took too much
Xanax, drank vodka, lost control, and “fell apart.”

        Dr. Wilson also described the defendant’s remorse expressed very soon after the incident.
He verified the defendant’s status as a model prisoner. He added that the defendant was fully
aware that he will spend the rest of his life in prison. Dr. Wilson opined that the structured
setting of incarceration was good for the defendant because the stressors of every day life were
gone. The defendant had adjusted well to the environment. Dr. Wilson added that the defendant
had been a loving and active father.

       Dr. Wilson provided his opinion as a clinical psychologist:

       [The defendant] was under a lot of stress. He has a long history of not being able
       to deal with stress or change, and he was disturbed at the time of this crime.

              . . . [H]e was impaired also due to that chronic depression and anxiety,
       plus the intoxication. He just wasn’t used to drinking that much. He took the
       Xanax in an attempt to try to sleep or calm down. He wasn’t trying to get
       intoxicated, but the net effect was that he became impaired. . . .


                                               -21-
              . . . Confinement is -- No one will ever have to worry about him doing
       something like this ever again, and even inside the prison system, he’s likely to
       have a calming effect. . . . And importantly, he will be punished for what he did.

        Gary Morris, the pastor of Bemis United Methodist Church, testified that the defendant’s
parents were members of his congregation. Since the incident, Morris had visited the defendant
at the jail between thirty-five and fifty times. He recalled that, the day after the defendant’s
arrest, the defendant appeared dazed and confused. The defendant was very tearful and
emotional and asked Morris to attend Mrs. Jordan’s funeral. Morris stated that the defendant had
expressed his repentance and remorse. He added that it would be devastating to the family if the
defendant received a sentence of death.

       At the close of the proof, the trial court instructed the jury on the following statutory
aggravating circumstances:

              Number 1: The Defendant knowingly created a great risk of death to two
       or more persons other than the victim murdered during the act of murder. That
       aggravating circumstance could possibly apply to Count 1, 2 or 3.

              Number 2: The murder was especially heinous, atrocious or cruel in that it
       involved torture or serious physical abuse beyond that necessary to produce death.
       Counts 1, 4 or 5 possibly.

               Number 3: The murder was committed for the purpose of avoiding,
       interfering with or preventing a lawful arrest or prosecution of the Defendant or
       another. Consideration of Counts 2, 3, 4 and 5.

               Number 4: The murder was knowingly committed, solicited, directed or
       aided by the Defendant while the Defendant had a substantial role in committing
       or attempting to commit first degree murder. Knowingly means that a person acts
       knowingly with respect to the conduct or to circumstances surrounding the
       conduct when the person is aware of the nature of the conduct or that the
       circumstances exist. A person acts knowingly with respect to a result of the
       person’s conduct when the person is aware that the conduct is reasonably certain
       to cause the result. The requirement of knowingly is also established if it is
       shown that the Defendant acted intentionally.

              Intentionally means that a person acts intentionally with respect to the
       nature of the conduct or to a result of the conduct when it is the person’s
       conscious objective or desire to engage in the conduct or cause the results.

              That one is for consideration on Counts 1 through 5.



                                             -22-
              Number 5: The Defendant committed mass murder which is defined as the
       murder of three or more persons, whether committed during a single criminal
       episode or at different times within a 48-month period. For consideration of
       Counts 1 through 5.

               Number 6: The Defendant knowingly mutilated the body of the victim
       after death. For consideration in Count 1.

See, generally, Tenn. Code Ann. § 39-13-204(i)(3),(5), (6), (7), (12), (13). The trial court
additionally instructed the jury as to applicable mitigating circumstances as follows:

       Tennessee law provides that in arriving at the punishment, the jury shall consider .
       . . any mitigating circumstances raised by the evidence which shall include, but
       are not limited to the following:

              Number 1: The murder was committed while the Defendant was under the
       influence of extreme mental or emotional disturbance.

               Number 2: The capacity of the Defendant 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 mental disease or defect or intoxication which
       was insufficient to establish a defense to the crime but which substantially
       affected his judgment.

               Number 3: The Defendant has adjusted well to the structure of prison life.

              Number 4: The Defendant has expressed remorse, has accepted
       responsibility for his actions and is willing to accept punishment for his crimes.

               Number 5: The Defendant has a loving and supportive family.

              Number 6: 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 Defendant’s character or
       record or any aspect of the circumstances of the offense favorable to the
       Defendant which is supported by the evidence.

See, generally, Tenn. Code Ann. § 39-13-204(j)(2), (8), (9). After receiving further instructions
from the court, the jurors retired from open court to begin their deliberations.

        As to the first degree murder of Renee Jordan, the jury returned a verdict of death, finding
that the State had proven the following statutory aggravating circumstances beyond a reasonable
doubt:


                                               -23-
              Number 1: The Defendant knowingly created a great risk of death to two
       or more persons other than the victim murdered during the act of murder.

              2: The murder was especially heinous, atrocious or cruel [in] that it
       involved torture or serious physical abuse beyond that necessary to produce death.

              4: The murder was knowingly committed, solicited, directed or aided by
       the Defendant while the Defendant had a substantial role in committing or
       attempting to commit that first degree murder. . . .

               5: The Defendant committed mass murder which is defined as the murder
       of three or more persons, whether committed during a single criminal episode or
       at different times within a 48-month period.

                And 6: The Defendant knowingly mutilated the body of the victim after
       death.

The jury further found that these aggravating circumstances outweighed any mitigating
circumstances beyond a reasonable doubt.

       As to the first degree murder of Jerry Hopper, the jury returned with its verdict of death,
finding that the State had proven the following statutory aggravating circumstances beyond a
reasonable doubt:

              1: The Defendant knowingly created a great risk of death to two or more
       persons other than the victim murdered during the act of murder.

              3: The murder was committed for the purpose of avoiding, interfering with
       or preventing a lawful arrest or prosecution of the Defendant or another.

              4: The murder was knowingly committed, solicited, directed or aided by
       the Defendant while the Defendant had a substantial role in committing or
       attempting to commit first degree murder. . . .

                ....

               5: The Defendant committed mass murder which is defined as the murder
       of three or more persons, whether committed during a single criminal episode or
       at different time[s] within a 48-month period.

The jury further found that these aggravating circumstances outweighed any mitigating
circumstances beyond a reasonable doubt.



                                              -24-
       As to the first degree murder of David Gordon, the jury returned with its verdict of death,
finding that the State had proven the following statutory aggravating circumstances beyond a
reasonable doubt:

                2: The murder was especially heinous, atrocious or cruel in that it involved
        torture or serious physical abuse beyond that necessary to produce death.

               3: The murder was committed for the purpose of avoiding, interfering with
        or preventing a lawful arrest or prosecution of the Defendant or another.

               4: The murder was knowingly committed, solicited, directed or aided by
        the Defendant while the Defendant had a substantial role in committing or
        attempting to commit first degree murder.

                 ....

               5: The Defendant committed mass murder which is defined as . . . [the
        murder] of three or more persons, whether committed during a single criminal
        episode or at different times within a 48-month period.

The jury further found that these aggravating circumstances outweighed any mitigating
circumstances beyond a reasonable doubt.

         A sentencing hearing on the noncapital offenses was held at a later date. At the
conclusion of that hearing, the trial court imposed a twenty-five-year sentence for each of the
attempted first degree murder convictions (Counts 6 and 8); a six-year sentence for each
aggravated assault conviction (Counts 7 and 9); and a thirty-day sentence for leaving the scene of
an accident (Count 10). The trial court merged Counts 6 and 7 and Counts 8 and 9. The court
ordered that the two twenty-five-year sentences be served consecutively for an effective sentence
of fifty years.

                                                  ANALYSIS

                                            I. Guilt Phase Issues

                                      A. Sufficiency of the Evidence

       The defendant does not challenge the sufficiency of the evidence to support his
convictions for first degree murder.2 Notwithstanding, we have reviewed the evidence
introduced at trial and conclude that there is sufficient evidence contained in the record to


        2
         The defendant also did not challenge the sufficiency of the evidence for his convictions of attempted first
degree murder and leaving the scene of an accident.

                                                       -25-
support a finding by the trier of fact that the defendant was guilty of first degree murder on all
three counts beyond a reasonable doubt. Tenn. R. App. P. 13(e).

                                     B. Limiting Instruction

        The State’s expert, Dr. Matthews, testified that he relied “a great deal” on the “statements
of the various people who were at the scene” regarding statements made by the defendant. The
defendant objected to the use of these statements. The trial court stated, “If it goes to the basis of
forming his opinion, I will allow it.” Dr. Matthews then related the statement made by Walter
Forsythe:

               This is . . . an interview that was conducted of Mr. Walter Forsythe, and in
       Mr. Forsythe’s statement he said, “The driver of the red truck told the driver of
       the green car to get out of here. The driver of the green car said, “No, you hit
       me.” The driver of the red truck folded the seat forward on the truck and he said,
       “You will.” He pulled out a black rifle with a silencer or something on the end of
       the barrel. He fired at the driver of the green car.

The defendant again objected, complaining that there was no silencer on the weapon and asking
for a limiting instruction. The trial court stated that the “jury will be told they’ve got to look to
the basis . . . of the expert’s opinion, how he formed his opinion, what he relied on. All that’s in
the charge. They’re going to get it at the proper time.” Dr. Matthews continued to testify about
statements of witnesses he referred to in making his opinion and quoted facts from those
statements. The defendant continued to object to the use of the statements. The defendant
objected to the jury charge, which failed to instruct the jury not to consider hearsay as
substantive evidence:

       THE COURT: Anything further gentlemen?

       [DEFENSE COUNSEL]: . . . We need more of a limiting instruction on expert
       testimony that deals with this situation where we’ve got hearsay that the expert is
       relying upon. The jury needs to be . . . instructed that that evidence only goes to
       show . . . what weight to give that expert’s opinion and . . . they’re not to consider
       that hearsay information as substantive evidence in the case, and we’ve got
       numerous examples of that in this case, especially with Dr. Matthews, and we
       need that limiting instruction, I think.

       ....

       THE COURT: I’ve got the TPI, the pattern jury instruction, and I’m not limiting
       what counsel argues or points out to the jury as they present their argument to the
       jury about . . . what the expert relied upon in forming the opinion. In fact, the TPI
       is very clear in 42.02, “. . . that part of that decision will depend on your judgment
       about whether the witness[’s] background or training and experience is sufficient
       for the witness to give the expert opinion that you heard. You must also decide

                                                -26-
       whether the witnesses’ opinions were based on sound reasons, judgment and
       information.” And that’s the pattern TPI, not a – in its entirety, but as I pointed
       out earlier, counsel can make any argument to this jury they wish to make.

The defendant complains that the jury charge failed to caution the jury about hearsay related by
experts.

        Tennessee Rule of Evidence 703 provides that an expert may base an opinion upon
inadmissible hearsay, if the type of hearsay is one that would be reasonably relied upon by
experts in that situation. The Advisory Committee Comment to Rule 703 provides: “If the
bases of expert testimony are not independently admissible, the trial judge should either prohibit
the jury from hearing the foundation testimony or should deliver a cautionary instruction.” The
State concedes, and we agree, that the better practice would have been for the lower court to give
a jury instruction that these statements should be used solely to understand and assess the
expert’s testimony.

        The question then becomes whether the trial court’s failure to provide the instruction is
harmless error. The Tennessee Rules of Appellate Procedure provide for harmless error review.
See Tenn. R. App. P. 36(b). However, “[a]ll errors are not the same, nor do they have the same
effect on the judicial process in general or on a particular trial.” State v. Rodriguez, 254 S.W.3d
361, 371 (Tenn. 2008). Tennessee law places the burden on the defendant who is seeking to
invalidate his or her conviction to demonstrate that the error “more probably than not affected the
judgment or would result in prejudice to the judicial process.” Tenn. R. App. P. 36(b). While
substantial evidence of the defendant’s guilt makes it difficult for “the defendant to demonstrate
that a non-constitutional error involving a substantial right more probably than not affected the
outcome of the trial,” harmless error inquiry “does not turn upon the existence of sufficient
evidence to affirm a conviction or even a belief that the jury’s verdict is correct.” Rodriguez, 254
S.W.3d at 372 (citations omitted). Rather, “the crucial consideration is what impact the error
may reasonably be taken to have had on the jury’s decision-making. Id. (citations omitted).

        Dr. Matthews utilized the witness statements of Barbara Surratt, George Bond, and
Freddie Ellison. These witnesses testified at trial. There was no meaningful difference between
the contents of their statements and their live testimony. Dr. Matthews also utilized the
statements of the police officers. These officers testified at trial. There was no meaningful
difference between the contents of their statements and the officers’ live testimony. Dr.
Matthews also referred to a statement of police officers in which the defendant expressed a desire
for a death sentence. Based upon review of the record and specifically the testimony of Dr.
Matthews, we cannot conclude that there is a reasonable probability that a limiting instruction on
the hearsay used as the basis of Dr. Matthews’ opinion would have altered the jury’s view of Dr.
Matthews’ opinion. The defendant is not entitled to relief on this issue.

                                    II. Penalty Phase Issues

                              A. Failure to Videotape Statements

                                               -27-
         The defendant contends that his rights to a fair trial, including his right to confrontation,
were violated by the interpretations of his confession to the investigator which was not
videotaped. Investigator Tyreece Miller testified that the defendant was not under the influence
at the time of his interview. He added that the defendant was bragging and proud. The defendant
asserts that the police department had video recording equipment. At trial, Investigator Miller
testified that it would have been against standard operating procedure for him to take the video
equipment to the Criminal Justice Complex. As a result, the defendant’s statement was
comprised of the answers to the questions Investigator Miller asked him, which Miller wrote
down. The defendant argues that had the jurors been privy to the defendant’s actual demeanor
when giving his statement, they could have determined for themselves if the expressions of the
defendant were really those of regret rather than bragging. The defendant concludes that the
denial of electronic or video recording denied the trier of fact an essential tool in determining a
life or death sentence.

        In State v. Rollins, 188 S.W.3d 553, 564-65 (Tenn. 2006), our supreme court held that
there was no state or federal constitutional right requiring the electronic recording of
interrogations. Indeed, the court wrote:

                In State v. Godsey, 60 S.W.3d 759 (Tenn. 2001), this Court rejected the
        argument that failing to electronically record interrogations requires suppression
        of any statements resulting from the interrogations. We acknowledged that courts
        in Alaska and Minnesota require interrogations to be electronically recorded, id. at
        771, but we pointed out that courts in fifteen other states had refused to impose
        such a requirement, id. at 772 n.7. More importantly, we emphasized that “neither
        the state nor the federal constitution requires electronic recording of
        interrogations.” Id. at 771.

                Although we found no constitutional or statutory authority mandating that
        interrogations be electronically recorded, we recognized in Godsey that such a
        rule would reduce the amount of time spent in court resolving disputes over what
        occurred during interrogations and relieve the judiciary of the burden of resolving
        such disputes. Id. at 772. We further opined that given “the slight inconvenience
        and expense associated with electronically recording custodial interrogations,
        sound policy considerations support its adoption as a law enforcement practice.”
        Id. Ultimately, however, we held that “the issue of electronically recording
        custodial interrogations ‘is one more properly directed to the General Assembly.’”
        Id. (quoting State v. Odom, 928 S.W.2d 18, 23-24 (Tenn. 1996)). In so holding,
        we emphasized that “‘[t]he determination of public policy is primarily a function
        of the legislature.’” Id. (quoting Griffin v. Shelter Mut. Ins. Co., 18 S.W.3d 195,
        200-01 (Tenn. 2000)).

Id. at 564.

        Our supreme court opined that:

                                                -28-
       whether, as a matter of public policy, Tennessee should mandate electronic
       recording of custodial interrogations is a question for the General Assembly, not
       this Court. A defendant’s statement need not be suppressed because a law
       enforcement agency has adopted a policy against recording interrogations. Such a
       policy does not violate the heightened due process concerns that apply in capital
       cases.

Id. at 565. Accordingly, we cannot conclude that the defendant’s rights to a fair trial were
violated by the failure to have his statement videotaped. The defendant is not entitled to relief on
this issue.

                    B. Trial Court’s Application of Rule of Sequestration

        The defendant contends that the trial court should have permitted members of his family
to remain in the courtroom and testify during the sentencing phase of the trial, since the victims’
family members were permitted to do so. Specifically, he complains that it was unfair for the
trial court to apply the rule of sequestration to prevent Larry Jordan and Deanna Jordan, who
both testified during the penalty phase, from remaining in the courtroom during the guilt phase,
and his parents, Don and Kay Jordan, from testifying at the penalty phase because they had
attended the guilt phase of the trial. The defendant argues that the trial court’s exclusion of his
family members pursuant to the rule of sequestration violated his rights to a fair and public trial,
equal protection under the laws, and individualized sentencing. He further argues that Tennessee
Code Annotated section 39-13-201(c), which provides that a victim’s family members or
representatives may offer victim impact testimony at sentencing despite having attended the guilt
phase of a defendant’s trial, violates the doctrine of separation of powers, as the legislature’s
enactment of the statute amended the rule of sequestration, thereby encroaching upon the powers
of the judiciary.

       Tennessee Code Annotated section 39-13-204(c) provides, in pertinent part:

       The court shall 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 other
       relevant persons. The evidence may be considered by the jury in determining
       which sentence to impose. The court shall permit members or representatives of
       the victim’s family to attend the trial, and those persons shall not be excluded
       because the person or persons shall testify during the sentencing proceeding as to
       the impact of the offense.

       Tennessee Rule of Evidence 615, “Exclusion of Witnesses,” provides in pertinent part:

               At the request of a party the court shall order witnesses, including rebuttal
       witnesses, excluded at trial or other adjudicatory hearing. In the court’s
       discretion, the requested sequestration may be effective before voir dire, but in


                                               -29-
       any event shall be effective before opening statements. The court shall order all
       persons not to disclose by any means to excluded witnesses any live trial
       testimony or exhibits created in the courtroom by a witness. This rule does not
       authorize exclusion of (1) a party who is a natural person, or (2) a person
       designated by counsel for a party that is not a natural person, or (3) a person
       whose presence is shown by a party to be essential to the presentation of the
       party’s cause.

The rule may be invoked at any time and is mandatory. State v. Anthony, 836 S.W.2d 600, 605
(Tenn. Crim. App. 1992). The purpose of the rule of sequestration is to prevent witnesses from
altering their version of events after hearing the testimony of another. State v. Harris, 839
S.W.2d 54, 68 (Tenn. 1992).

        The defendant first argues that the trial court’s application of the rule of sequestration to
exclude certain of his family members from his trial violated his rights to a public trial. We
respectfully disagree.

         The Sixth Amendment to the United States Constitution and Article I, Section 9 of the
Tennessee Constitution afford an accused the right to a “public trial.” See In re Oliver, 333 U.S.
257, 68 S. Ct. 499 (1948); State v. Schiefelbein, 230 S.W.3d 88, 114 (Tenn. Crim. App.), perm.
to appeal denied (Tenn. 2007); State v. Sams, 802 S.W.2d 635 (Tenn. Crim. App. 1990). This
right is regarded as “a shared right of the accused and the public, the common concern being the
assurance of fairness.” Press-Enterprise Co. v. Superior Court, 478 U.S. 1, 7, 106 S. Ct. 2735,
2739 (1986). “Transparency,” it has been said, “is essential to maintaining public respect for the
criminal justice system, ensuring its integrity, and protecting the rights of the accused.” Smith v.
Doe, 538 U.S. 84, 99, 123 S. Ct. 1140, 1150 (2003). One purpose of a public trial is to allow a
defendant the presence of a friend “who might give him legitimate assistance or comfort without
interfering” with the proceedings. Commonwealth v. Marshall, 253 N.E.2d 333, 334 (Mass.
1969).

        The right to a public trial is not absolute, however, and in certain cases must yield to other
rights or interests. See Waller v. Georgia, 467 U.S. 39, 45, 104 S. Ct. 2210, 2215 (1984). In this
case, the trial court did not exclude all of the defendant’s relatives. The defendant’s brother and
daughter were excluded from the courtroom as both testified during the penalty phase. Because
Larry Jordan and Deanna Jordan were potential witnesses, they were no longer considered
members of the general public for purposes of exclusion from the courtroom. See Tharp v. State,
763 A.2d 151, 160 (Md. 2000).

        The defendant cites State v. Sams, 802 S.W.2d 635 (Tenn. Crim. App. 1990), in support
of his argument that the exclusion of his family members from the courtroom violated his right to
a public trial. Sams, however, is readily distinguishable from the case at bar. In that case, the
prosecutor issued subpoenas for five members of the defendant’s family in the middle of trial,
solely to have them excluded from the courtroom under Rule 615 and without any serious
intention of calling them as witnesses. Id. at 640-41. Barring such rare circumstances, exclusion

                                                -30-
of witnesses pursuant to Rule 615 does not violate a defendant’s right to a public trial. See Neil
P. Cohen et al., Tennessee Law of Evidence § 6.15[10] (5th ed. 2005) (“Despite the lack of
authorities on point, it is clear that sequestration of witnesses in the ordinary case does not
violate a right to a public trial.”). As such, we conclude that the trial court did not err by
excluding the defendant’s mitigation witnesses from the guilt phase of the trial, or by excluding
the defendant’s parents from testifying at the sentencing phase after they had attended the guilt
phase.

        The defendant also contends that the trial court’s order unfairly prohibited him from
introducing the potential mitigating evidence that would have been offered by his parents. He
argues that forcing him to choose between having his parents’ supportive presence at trial or their
mitigation testimony at sentencing deprived him of his right to individualized consideration of
mitigating factors, in violation of the holding in Skipper v. South Carolina, 476 U.S. 1, 106 S. Ct.
1669 (1986). We, again, respectfully disagree.

        Under Skipper, a defendant has a right to place before the sentencer “relevant evidence in
mitigation of punishment,” which includes evidence of the nature and circumstances of the crime
as well as the defendant’s character and background. 476 U.S. at 4, 106 S. Ct. at 1671. The
defendant cites a number of cases in support of the proposition that relevant mitigation evidence,
such as the kind that would have presumably been offered by his parents, should be admitted at
the sentencing phase of a capital trial. He cites no case law, however, for the proposition that the
rule of sequestration should not be applied to exclude potential mitigation witnesses from
attending the guilt phase of a trial. Nor has he offered any rationale to show that the purpose
behind the rule – to prevent witnesses from adjusting their testimony based on the evidence
otherwise presented at trial – does not exist for mitigation witnesses. We conclude, therefore, that
the defendant is not entitled to relief on the basis of this claim.

        Finally, the defendant contends that the provision of Tennessee Code Annotated section
39-13-204(c) that permits members of the victims’ families to both attend the guilt phase of the
trial and testify during the sentencing proceeding violates separation of powers principles. Our
supreme court, however, has rejected this argument. See State v. Odom, 137 S.W.3d 572, 604
(Tenn. 2004) (adopting in appendix this court’s conclusion that the provision “does not violate
the separation of powers clauses of either the Constitution of the State of Tennessee or the
Constitution of the United States of America”).

                                  C. Prosecutorial Misconduct

        The defendant contends that the prosecution committed misconduct by (1) misleading the
jury about its role in the sentencing decision; (2) making inflammatory arguments during the
penalty phase of the trial; and (3) destroying urine and blood samples, which violated his right to
a reliable sentencing determination. A prosecutor commits misconduct by the use of deceptive
or reprehensible methods in an attempt to persuade either the court or the jury. See State v.
Rimmer, 250 S.W.3d 12, 41 (Tenn. 2008) (citing People v. Strickland, 523 P.2d 672 (1974)),
cert. denied, __ U.S. __, 129 S. Ct. 111 (2008).

                                               -31-
                                               1. Argument to Jury

       The defendant first contends that the prosecution misled the jury about its role in
sentencing by arguing that the defendant, not the jury, was responsible for the sentence of death.3
He cites the following excerpt from the prosecution’s closing argument:

                Defense counsel would talk about the guilt trip he’s putting on you with
         God and judgment. Let me tell you, ladies and gentlemen, what takes care and
         addresses that argument by defense counsel, is rendering unto Caesar that which
         is Caesar’s and unto God, that which is God’s. I represent Caesar, and I have the
         duty and responsibility, as you do, to follow the instructions given to you by the
         Court and that codified by the State of Tennessee, and I suggest to you and I tell
         you, and I know you’ll follow that law and instructions given to you by the Court.

                    ....

                 If you vote – And I think it’s appropriate, and I’m asking you based upon
         the law and the evidence to impose the death penalty in this case. You’re not
         putting the Defendant to death. Don’t go for that trip. I’m not putting that
         Defendant to death. The State of Tennessee is not putting that Defendant to death.
         His actions, his conduct, his repeated conduct is such that makes him responsible
         for his own conduct and the consequences of that conduct. There’s a part of that
         conduct, deliberate, premeditated. The one that Sydney wrote about, that “My
         mama is in heaven, an angel,” and the one the death angel wrote about that’s
         contained by the State of Tennessee in the law and evidence that will be instructed
         to you about aggravating circumstances.

                    ....

                . . . It’s been difficult. It’s difficult for me to make the decision that I
         thought this was appropriate, but I did much the same, based upon the information
         provided by the angel of death, that delineate and record and file the aggravating
         circumstances.

The defendant argues that these comments “misled the jury into feeling less responsible than it
should have been for the sentencing decision it had to make” and violated the principles
established by the Supreme Court in Caldwell v. Mississippi, 472 U.S. 320, 105 S. Ct. 2633
(1985).

        In Caldwell, the prosecutor argued that the jury’s decision to impose the death penalty “is
not the final decision. . . . Your job is reviewable. . . . [T]he decision you render is automatically


         3
             Although the defendant failed to object during closing argument, he raised the issue in his motion for new
trial.

                                                          -32-
reviewable by the Supreme Court.” 472 U.S. at 325-26, 105 S. Ct. at 2637-38. The High Court
held that “it is constitutionally impermissible to rest a death sentence on a determination made by
a sentencer who has been led to believe that the responsibility for determining the
appropriateness of the defendant’s death rests elsewhere.” Id. at 328-29, 105 S. Ct. at 2639. In
the later case of Romano v. Oklahoma, 512 U.S. 1, 9, 114 S. Ct. 2004, 2010 (1994), the United
States Supreme Court noted that it had:

       read Caldwell as “relevant only to certain types of comment-those that mislead the
       jury as to its role in the sentencing process in a way that allows the jury to feel less
       responsible than it should for the sentencing decision.” Darden v. Wainwright,
       477 U.S. 168, 184, n.15, 106 S. Ct. 2464, 2473, n.15 (1986). Thus, “[t]o establish
       a Caldwell violation, a defendant necessarily must show that the remarks to the
       jury improperly described the role assigned to the jury by local law.” Dugger v.
       Adams, 489 U.S. 401, 407, 109 S. Ct. 1211, 1215 (1989); see also Sawyer v.
       Smith, 497 U.S. 227, 233, 110 S. Ct. 2822, 2826-2827 (1990).

        In the present case, the prosecutor used phrases such as “[d]efense counsel would talk
about the guilt trip he’s putting on you with God and judgment”; “[y]ou’re not putting the
Defendant to death”; “[d]on’t go for that trip”; “I’m not putting that Defendant to death”; “[t]he
State of Tennessee is not putting that Defendant to death”; and “[h]is actions, his conduct, his
repeated conduct is such that makes him responsible for his own conduct and the consequences
of that conduct.” We agree that these statements could, arguably, be read as an attempt by the
prosecutor to diminish in the eyes of the jury its responsibility in imposing the death penalty.
Similar statements, such as “keep in mind, you don’t impose the sentence, the law provides the
sentence,” State v. West, 767 S.W.2d 387, 399 (Tenn. 1989), and “[the defendant] is responsible
for her death, no one else,” and “it is she, the defendant, that has signed her own death warrant,”
Buttrum v. Black, 721 F. Supp. 1268, 1316 n.11 (N.D. Ga. 1989), have been construed as
minimizing in the jury’s eyes its role in imposing the death penalty.

        However, when reviewing the propriety of argument in a capital sentencing proceeding,
the ultimate question we must consider is whether the prosecutor’s comments affected the
sentencing decision. State v. Irick, 762 S.W.2d 121, 131 (Tenn. 1988). “If the Court cannot say
the comments had no effect on the sentencing, then the jury’s decision does not meet the standard
of reliability required by the Eighth Amendment.” Id. (citing Caldwell, 472 U.S. 320, 105 S. Ct.
at 2646). The prosecutor’s comments must be evaluated in the context of the total argument by
the parties and, of course, the trial court’s instructions to the jury about its obligations under the
law. See State v. Bush, 942 S.W.2d 489, 517 (Tenn. 1997); State v. Nichols, 877 S.W.2d 722,
733 (Tenn. 1994). Additional factors that we consider in reviewing this issue include whether
the trial court endorsed the improper remarks and whether other portions of the prosecutor’s
argument properly set forth the jury’s role.

       Applying the above principles, we note that the prosecutor did not refer the jury to
another authority as the one having the final say in the death sentence. We further note that this
court has previously concluded that a similar comment by a prosecutor “could be construed to

                                                -33-
have violated the dictates of Caldwell,” but also could “just as easily be interpreted as an
expression of the appellant’s burden of responsibility for his own actions.” State v. James
Blanton, No. 01C01-9307-CC-00218, 1996 WL 219609, at *35 (Tenn. Crim. App., at Nashville,
Apr. 30, 1996), aff’d, 975 S.W.2d 269 (Tenn. 1998). Moreover, the trial court did not endorse
the improper remarks, and it properly instructed the jury about its role according to the law. In
light of the entire argument and the proof as a whole, we simply cannot conclude that the
prosecutor’s comments affected the jury’s sentencing decision. The defendant is not, therefore,
entitled to relief on this claim.

                    2. Inflammatory Remarks During Closing Argument

       The defendant next contends that the prosecutor made various inflammatory comments
during closing argument. Specifically, he cites as error the prosecutor’s repeated references to
the angel of death, as well as his reference to God and Judgment, Caesar and himself. The State
responds by arguing that the defendant has waived appellate review of any challenge to the
prosecutor’s statement by not raising a contemporaneous objection at trial. See Tenn. R. Crim.
P. 33, 36(a). The State further argues that the defendant has failed to establish that this court
should review the claims under plain error as he has not met his burden of demonstrating that any
alleged error affected the outcome of the trial proceedings.

        Although the defendant raised the issue in his motion for new trial, he failed to make a
contemporaneous objection at trial. The failure to object to closing argument at trial waives our
consideration of this issue on appeal. See Tenn. R. App. P. 36(a) (providing that relief is not
required for a party who failed to take reasonably available action to prevent or nullify an error);
State v. Stephenson, 195 S.W.3d 574, 601 (Tenn. 2006); State v. Thomas, 158 S.W.3d 361, 413
(Tenn. 2005); State v. Little, 854 S.W.2d 643, 651 (Tenn. Crim. App. 1992) (holding that the
defendant’s failure to object to the State’s alleged misconduct during closing argument waives
that issue). Thus, the defendant is not entitled to relief on appeal unless the remarks constitute
“plain error.” See Tenn. R. App. P. 36(b); Tenn. R. Crim. P. 52(b); State v. Smith, 24 S.W.3d
274, 282 (Tenn. 2000).

        In determining whether an alleged trial error constitutes “plain error,” we consider five
factors: (1) the record must clearly establish what occurred at trial; (2) a clear and unequivocal
rule of law must have been breached; (3) a substantial right of the defendant must have been
adversely affected; (4) the defendant did not waive the issue for tactical reasons; and (5)
consideration of the error is “necessary to do substantial justice.” See State v. Adkisson, 899
S.W.2d 626, 641-42 (Tenn. Crim. App. 1994). Ultimately, the error must have “had an unfair
prejudicial impact which undermined the fundamental fairness of the trial.” Id. at 642.

       The record in this case clearly establishes what occurred at trial. During closing
argument, defense counsel quoted a passage from Shakespeare’s The Merchant of Venice about
the power of mercy, which included the line “earthly power shows most like God’s when mercy
seasons justice.” The prosecutor responded by telling the jury that “what takes care and
addresses that argument by defense counsel, is rendering unto Caesar that which is Caesar’s and

                                               -34-
unto God that which is God’s. I represent Caesar.” The prosecutor also referred numerous times
to the “angel of death” during closing argument, suggesting to the jury a scenario in which the
“angel of death” was present at the crime scene to witness the shootings and to record each
aggravating circumstance associated with the murders.

        Trial courts have substantial discretionary authority in determining the propriety of final
argument. State v. McCary, 119 S.W.3d 226, 252-53 (Tenn. Crim. App. 2003). Although
counsel is generally given wide latitude, courts must restrict any improper argument. Id. (citing
Sparks v. State, 563 S.W.2d 564 (Tenn. Crim. App. 1978)). Generally speaking, closing
argument “‘must be temperate, must be predicated on evidence introduced during the trial of the
case, and must be pertinent to the issues being tried.’” Id. at 252 (quoting State v. Sutton, 562
S.W.2d 820, 823 (Tenn. 1978)). To merit a new trial, the argument must be so inflammatory or
improper as to affect the verdict. Id. at 253 (citing Harrington v. State, 215 Tenn. 338, 385
S.W.2d 758 (1965)). We have recognized five general areas of prosecutorial misconduct in
closing argument: (1) intentionally misstating the evidence or misleading of the jury on the
inferences it can draw; (2) expressing personal beliefs or opinions; (3) inflaming or attempting to
inflame the passions or prejudices of the jury; (4) adding outside issues to the guilt or innocence
issue; and (5) arguing or referring to outside facts. State v. Goltz, 111 S.W.3d 1, 5-6 (Tenn.
Crim. App. 2003).

        Tennessee Rule of Criminal Procedure 29.1(b) allows a closing argument to address any
evidence introduced at trial. In addition to addressing the evidence, parties may also argue
“reasonable inferences.” State v. Chico McCracken, No. W2001-03176-CCA-R3-CD, 2003 WL
1618082, at *8 (Tenn. Crim. App., at Jackson, Mar. 24, 2003), perm. to appeal denied (Tenn.
Sept. 2, 2003). When there is improper argument, the court must determine whether the
inflammatory statement negatively impacted the defendant. To measure this impact, five factors
should be considered: (1) the facts and circumstances of the case; (2) any curative measures
undertaken by the court and the prosecutor; (3) the intent of the prosecution; (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. Goltz, 111 S.W.3d at 5-6 (citing Judge v. State, 539 S.W.2d 340, 344
(Tenn. Crim. App. 1976)).

       In our view, the prosecutor’s reference to the Biblical quotation about rendering unto
Caesar that which is Caesar’s was an acceptable response to defense counsel’s argument that the
jury should show the defendant mercy. The prosecutor began by reminding the jurors that they
had agreed to follow the law and the instructions of the court and then launched into the
quotation without specifically identifying it as a Biblical verse.4 We believe that the prosecutor’s




       4
           The quotation comes from the book of M atthew, chapter 22, verse 21.

                                                       -35-
remarks permissibly sought to differentiate between God’s laws and man’s laws, so as to counter
the argument made by defense counsel regarding God’s mercy.5

         The prosecutor’s lengthy tirade about the angel of death’s having recorded the
defendant’s deeds, however, is a completely different matter. The depiction of the angel of death
attending and witnessing the murders, which was certainly not based on any evidence presented
at trial, clearly constituted improper inflammatory remarks designed to incite the religious fervor
and passion of the jury. Nonetheless, in light of the overwhelming evidence of the defendant’s
guilt, we cannot conclude that a substantial right of the defendant was adversely affected or that
consideration of the issue is necessary to do substantial justice in this case. Therefore, while we
do not condone the prosecutor’s use of such language, we find the error to be harmless. See
Tenn. R. App. P. 36(b); Tenn. R. Crim. P. 52(a).

        The defendant also finds fault with the prosecutor’s alleged “belittling [of] the mitigating
factors.” Specifically, he challenges the following:

               What mitigating factors is he pointing to? He expresses remorse. That
       doesn’t make this any better. That doesn’t make those three people any less dead.
       That doesn’t take away from the pain and suffering of Larry Taylor and James
       Goff. “I’m sorry” just won’t cut it. That’s not going to mitigate the seriousness of
       this offense and what has happened out there at the TDOT facility. Saying I’m
       sorry is just not going to get it.

               Now I know his children love him. I would expect that from his children.
       That doesn’t make this any better. Most people’s children love them, but that
       doesn’t mean that these three people are any less dead, and that does not mean
       that these people aren’t suffering just the same. That doesn’t make it any better.
       That doesn’t make it anymore understandable. It has absolutely nothing to do
       with what happened out there.

              He adjusted well to prison life. That doesn’t make this any better. He
       might live on in prison. That doesn’t weigh anything. That doesn’t make this
       anymore understandable.

       5
           The quotations read by defense counsel during closing argument included the following:

                  It is twice blessed. It blesses him that gives and him that receives.
                  It’s mightiest in the mighty. It becomes the throned monarch better than His
                  crown. His scepter shows the force of earthly power, the tribute to H is awe and
                  majesty.
                  Wherein doth sit the dread and fear of kings. But mercy is above this sceptered
                  way. . . . It is a tribute to God Himself.
                  Earthly power shows most like God’s when mercy seasons justice.




                                                       -36-
               Well let me tell you what weighs heavily against all of those mitigating
       factors in this case. That this Defendant left his house that morning with the
       intent of murdering his wife in cold blood, and it had special meaning to him
       because he was gonna do it with her brother’s gun. He had a special purpose there
       to make sure that when she turned around after being shot in the leg, she knew she
       was dying with her brother’s gun. That’s what’s weighty in this case.

        We conclude that the prosecutor’s statements regarding the mitigating factors went to the
weight that should be given to each mitigating factor and, as such, were proper. The defendant,
therefore, is not entitled to relief on this claim.

                          3. Destruction of Urine and Blood Samples

        The defendant claims that his rights to a reliable sentencing determination, as well as his
rights to confrontation, due process, and to present a defense, were violated by the State’s
destruction of urine and blood samples. The defendant asserts that the question of premeditation
and issues regarding sentencing and mitigation were directly affected by his mental state and
involved what effects alcohol and drugs could have had on that mental state. The defendant
contends as constitutional error the fact that the Tennessee Bureau of Investigation destroyed the
blood and urine samples which rendered them unavailable for further testing and made it
impossible to accurately judge his alcohol and blood content through separate analysis.

        In State v. Ferguson, 2 S.W.3d 912, 914 (Tenn. 1999), the Tennessee Supreme Court
addressed the issue as to what factors guide the determination of the consequences that flow from
the State’s loss or destruction of evidence which the accused contends would be exculpatory.
The supreme court answered that the critical inquiry was whether a trial, conducted without the
destroyed evidence, would be fundamentally fair. Id. In reaching its decision, the Ferguson
court noted that its inquiry was distinct from one under Brady v. Maryland, 373 U.S. 83, 87, 83
S. Ct. 1194, 1196 (1963), and United States v. Agurs, 427 U.S. 97, 110-11, 96 S. Ct. 2392, 2401
(1976), because those two cases addressed “plainly exculpatory” evidence, while Ferguson
addressed a situation “wherein the existence of the destroyed videotape was known to the defense
but where its true nature (exculpatory, inculpatory, or neutral) can never be determined.” 2
S.W.3d at 915.

        The court went on to explain that the first step in the analysis is determining whether the
State had a duty to “preserve” the evidence. Id. at 917. “Generally speaking, the State has a duty
to preserve all evidence subject to discovery and inspection under Tenn. R. Crim. P. 16, or other
applicable law.” Id. (footnote omitted). However,

       “[w]hatever duty the Constitution imposes on the States to preserve evidence, that
       duty must be limited to evidence that might be expected to play a significant role
       in the suspect’s defense. To meet this standard of constitutional materiality,
       evidence must both possess an exculpatory value that was apparent before the


                                               -37-
       evidence was destroyed, and be of such a nature that the defendant would be
       unable to obtain comparable evidence by other reasonably available means.”

Id. (quoting California v. Trombetta, 467 U.S. 479, 488-89, 104 S. Ct. 2528, 2533-34 (1984)).
Only if the proof demonstrates the existence of a duty to preserve and further shows that the State
has failed in that duty must a court turn to a balancing analysis involving consideration of the
following factors: “1. The degree of negligence involved; 2. The significance of the destroyed
evidence, considered in light of the probative value and reliability of secondary or substitute
evidence that remains available; and 3. The sufficiency of the other evidence used at trial to
support the conviction.” Id. (footnote omitted).

         The record reflects that the defendant’s blood and urine samples were taken on January
11, 2005, and destroyed on January 3, 2006. Between the offense date and the time the samples
were destroyed, the defendant failed to file a motion to preserve the evidence. During the trial,
the defense presented the testimony of Special Agent John W. Harrison, an analytical
toxicologist with the TBI. Special Agent Harrison testified that the result of the defendant’s
urine test was .17, a reading reflecting the consumption of alcohol. TBI Agent Kelly Hopkins
testified that the defendant’s urine was positive for Citalopram and Benzodiazepines. Special
Agent Harrison also testified extensively as to the metabolism of alcohol.

        First, the State is not required to preserve samples taken for the limited purpose of
determining the defendant’s blood-alcohol level. See Trombetta, 467 U.S. at 491, 104 S. Ct. at
2535. It is common knowledge that human blood is perishable, and specimens of blood can only
be maintained for a short period of time. Also, such evidence would not be expected to play a
significant role in the accused’s defense. Id. Moreover, it appears from the record that the TBI
acted in good faith and apparently destroyed the blood specimen in conformity with the
established procedures of the laboratory. State v. Brownell, 696 S.W.2d 362, 363-64 (Tenn.
Crim. App. 1985); State v. Dowell, 705 S.W.2d 138, 141-42 (Tenn. Crim. App. 1985). The
evidence did not possess any exculpatory value that was apparent prior to its destruction, as the
test results were available. Accordingly, the TBI had no duty to preserve the evidence beyond its
established procedures. Moreover, even if the State had a duty to preserve the blood sample and
failed to do so, the defendant has failed to demonstrate that his right to a fair trial was affected by
the destruction of the evidence. See Ferguson, 2 S.W.3d at 917. “[T]he mere loss or destruction
of evidence does not constitute bad faith.” Edward Thompson v. State, No. E2003-01089-CCA-
R3-PC, 2004 WL 911279, at *2 (Tenn. Crim. App. Apr. 29, 2004), perm. to appeal denied (Tenn.
Oct. 4, 2004).

        The second factor is the significance of the missing evidence. The defendant has not
offered any proof that the State acted improperly in collecting or testing his blood. It is
undisputed that the defendant consented to have his blood drawn and the specimen provided to
the officer for the purpose of drug and alcohol testing. At trial, the defendant presented the
testimony of Special Agent Harrison, as we have stated, and there was no evidence of tampering



                                                 -38-
prior to testing. The defendant has failed to offer any evidence that the test results reported by
Agent Harrison do not accurately reflect the contents of his blood and urine.

        Finally, because there is no indication that additional testing of the defendant’s blood and
urine would have yielded results different from those found by the TBI, it cannot be said that
evidence critical to the defense was excluded. Moreover, as it was the defendant who introduced
the test results at trial, he cannot complain that he was deprived of his right to present a defense.
The defendant is not entitled to relief on this claim.

                             D. Improper Victim Impact Evidence

        The defendant contends that the number of victim impact witnesses was excessive. In
this regard, the defendant complains that Renee Dawson should not have testified because she
was not a member of the victim’s immediate family.

        Six witnesses testified to victim impact evidence: Donald Roberson (Renee Jordan’s
father), Emma Hopper (Jerry Hopper’s wife), Misty Ellis (Jerry Hopper’s daughter), Robert E.
Lee Gordon, Jr. (David Gordon’s brother), Shane Gordon (David Gordon’s son), and Renee
Dawson (David Gordon’s fiancée). The defendant complains that there is no provision in
Tennessee Code Annotated section 39-13-204(c) for a friend of the victim to testify. In this
regard, he asserts that Renee Dawson’s testimony should have been excluded. The defendant
also contends that having the brother, the son, and the fiancée of David Gordon testify was an
excessive number of witnesses for victim impact and prejudiced the jury.

       Neither the United States Constitution nor the Tennessee Constitution prohibits the use of
victim impact evidence in a capital sentencing proceeding. State v. McKinney, 74 S.W.3d 291,
308-09 (Tenn. 2002) (citing Payne v. Tennessee, 501 U.S. 808, 827, 111 S. Ct. 2597, 2609
(1991)). However, the introduction of such evidence is not unrestricted. State v. Berry, 141
S.W.3d 549, 589 (Tenn. 2004). “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.” Id. (citing State v. Nesbit, 978 S.W.2d 872,
891 (Tenn. 1998)). Our supreme court has provided guidance as to the nature and extent of
evidence that may be admitted as “victim impact” evidence:

               Generally, 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 and footnote omitted); see also State v. Reid, 91 S.W.3d
247, 280 (Tenn. 2002). “[T]here is no bright-line test, and the admissibility of specific types of


                                                -39-
victim impact evidence must be determined on a case-by-case basis.” Nesbit, 978 S.W.2d at 891.
However, “such evidence . . . should be closely scrutinized and restrained so as not to be unduly
prejudicial or appeal to the emotions or sympathies of the jury.” McKinney, 74 S.W.3d at 309.

         The defendant first complains that the victim impact evidence related to David Gordon
was excessive because three witnesses testified as to the impact of his murder on their lives.
David Gordon’s brother testified as to how Gordon’s death had impacted him and his nephews
and said that Gordon was a hard worker and good father. Gordon’s son testified as to how his
father’s death had impacted him and Gordon’s grandson. He also testified that Gordon was a
hard worker and a good father. Gordon’s fiancée testified that Gordon was her best friend and
related how his death had impacted her. The victim impact evidence was limited to the victim’s
role as brother, father, and fiancée. This evidence is of the nature contemplated by Nesbit. We
cannot conclude that the victim impact evidence in this case was cumulative, unduly prejudicial,
or that its probative value did not substantially outweigh any prejudicial impact.

        The defendant additionally challenges the propriety of permitting Renee Dawson to
testify because she was David Gordon’s fiancée, and not a family member as contemplated by
Tennessee Code Annotated section 39-13-204(c), which provides in relevant part:

       The court shall 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 other
       relevant persons. The evidence may be considered by the jury in determining
       which sentence to impose. The court shall permit members or representatives of
       the victim’s family to attend the trial, and those persons shall not be excluded
       because the person or persons shall testify during the sentencing proceeding as to
       the impact of the offense.

Tenn. Code Ann. § 39-13-204(c). We note that the Victims’ Bill of Rights contemplates that a
person residing with a deceased victim may exercise the victim’s rights. See Tenn. Code Ann. §
40-38-302(4)(A)(iii)(b). While section 39-13-204 does not specifically designate a fiancée as
one of the family members encompassed as one impacted by the death of a victim, this court
concludes that our legislature would not specifically exclude a fiancée of the victim, one who
shared a home with the victim, as a person impacted by the victim’s death. In this regard, we
conclude that there was no error in admitting the testimony of Renee Dawson as victim impact
evidence. The defendant is not entitled to relief in this regard.

              E. Felony Murder Aggravating Circumstance Jury Instruction

        The defendant asserts that the jury instruction as to the felony murder aggravator
improperly employed definitions in the listing of the aggravator, were overly broad,
unconstitutionally vague, and reduced the burden of proof that should have been employed. The
trial court provided the following definition as to the felony murder aggravating circumstance:


                                               -40-
               Number 4: The murder was knowingly committed, solicited, directed or
       aided by the Defendant while the Defendant had a substantial role in committing
       or attempting to commit first degree murder. Knowingly means that a person acts
       knowingly with respect to the conduct or to circumstances surrounding the
       conduct when the person is aware of the nature of the conduct or that the
       circumstances exist. A person acts knowingly with respect to a result of the
       person’s conduct when the person is aware that the conduct is reasonably certain
       to cause the result. The requirement of knowingly is also established if it is
       shown that the Defendant acted intentionally.

              Intentionally means that a person acts intentionally with respect to the
       nature of the conduct or to a result of the conduct when it is the person’s
       conscious objective or desire to engage in the conduct or cause the results.

The defendant complains that the extensive instructions on “knowing” went beyond the language
of the death penalty statute which simply lists the aggravator itself. The defendant adds that the
extensive definition gave the jury much more “lee-way” to find the felony murder aggravator. It
appears that the defendant complains that the addition of a definition of a legal term to an
instruction on an aggravating factor amounts to an amendment of the aggravating factor. We
disagree. We have reviewed the instruction and conclude that the instruction was not error.

                               F. Introduction of Photographs

       The defendant argues that the photographs admitted during the penalty phase were
“overly prejudicial and gruesome.” Specifically, the defendant argues that exhibit 141, a
photograph of the TDOT office depicting blood in the corner was “gruesome and prejudicial.”
Without singling out any of the other photographic exhibits, the defendant argues, without
elaboration, that they are “overly prejudicial and gruesome.”

        Before entry into evidence of the photographs that the defendant argues were prejudicial,
the trial court conducted a lengthy hearing, during which the court examined each of the
photographs which the State sought to enter, heard the arguments of counsel as to each
photograph, and then ruled as to each photograph. As to all of the photographs, the State
explained what each depicted and its relevance to the State’s burden of proof. The defense
responded that, as to the injuries to the deceased victims, the autopsy reports sufficiently
explained the nature and extent of the injuries so that the photographs, some of which defense
counsel described as “gory,” would prejudice the defendant.

        As to the photographs of the deceased victim, David Gordon, the court required that the
State remove several of the photographs intended to be entered into evidence and explained the
relevance of the others:

             I don’t want any duplication on the Gordon photos. For example, the last
       two photos in the area that [defense counsel] was not certain if he was

                                              -41-
       pronouncing it right, take one or two of those out, and there might be one other
       one that shows the same thing. But definitely on the last two I want the State to
       make a decision.

               I want to make it very clear that as I view the diagram referred to by
       [defense counsel], there’s such a substantial difference in appreciating the type of
       injuries sustained in the diagram versus seeing in the photos, and again the Court
       finds that it is very probative in this case, and since we’re at a sentencing hearing
       and the State’s arguing certain aggravators, . . . probative value outweighs the
       prejudicial effect under these circumstances.

               General, show us which one you’re going to pull out. Take it out. And at
       the very first there might have been two that were somewhat of a duplication.

       As to the two photographs of the wounded victim, David Goff, the court explained why
these would be admitted:

               Well[,] the aggravating factor [the prosecutor] stated was the Defendant
       knowingly created a great risk of death to two or more persons other than the
       victim murdered during the act of murder, and that’s the one alluded to, and the
       State says this would be relevant to that particular aggravator.

              Under the circumstances for again the reasons I stated earlier, I believe it
       would be appropriate because the State wants to use it toward the proof of
       aggravator. There are only two photos here.

      The court explained why the two photographs of the wounded victim, Larry Taylor,
would be admitted:

              The Court’s viewing those two photos of Larry Taylor. It’s very limited
       photos in that there’s a draping, a white cloth around each of the leg wounds.
       There is a small amount of blood on the white cloth, but it’s certainly not
       grotesque or something that would in itself outrage the jury. Again, we’re at a
       sentencing hearing, and since the State is wanting to use these two photos for the
       same reason, I’ll stand on the basis I stated earlier when we first talked about
       photos and let those two photos be introduced at this time, but again, note
       [defense counsel] now raises the same objection that he stated when we began.

       As to the photographs of the deceased victim, Donna Renee Jordan, the court determined
that certain of the photographs would not be admitted because they were duplicative and
required that portions of others be covered. The court allowed only one photograph of the
victim’s body at the crime scene and explained why others were admissible:

              Again, under the Leach case, it was certainly made clear that certain
       photos might be very unpleasant, but again, we’re dealing with the sentencing

                                               -42-
       phase, and we’re dealing with the burden on the State. The jury has heard quite a
       bit of detail through the guilt phase before they found this Defendant guilty of
       first degree murder about what took place, the firing sequence. I just believe
       when you weigh probative and prejudicial in this case, again noting it’s the
       sentencing phase, it’s highly, highly probative as the aggravators that the State has
       pointed out and must prove. I’ll allow the one photo in. And I’ll note, this is the
       only one from the crime scene that the State is asking to show under these
       circumstances.

        The admission of photographs is generally discretionary with the trial court and, absent an
abuse of that discretion, will not result in the grant of a new trial. State v. Banks, 564 S.W.2d
947, 949 (Tenn. 1978). However, a photograph must be relevant to an issue that the jury must
decide before it may be admitted into evidence. State v. Vann, 976 S.W.2d 93, 102 (Tenn.
1998); State v. Braden, 867 S.W.2d 750, 758 (Tenn. Crim. App. 1993); see also Tenn. R. Evid.
401, 402. Evidence that is not relevant to prove some part of the prosecution’s case should not
be admitted solely to inflame the jury and prejudice the defendant. Additionally, the probative
value of the photograph must outweigh any unfair prejudicial effect that it may have upon the
trier of fact. Vann, 976 S.W.2d at 102-03; see also Tenn. R. Evid. 403 (“Although relevant,
evidence may be excluded if its probative value is substantially outweighed by the danger of
unfair prejudice[.]”).

        While it can be said that photographs of crime victims who suffer serious bodily injury
are prejudicial by their very nature, a prejudicial photograph is not per se excludable. What is
excluded is evidence which is unfairly prejudicial, in other words, evidence which has an undue
tendency to suggest a decision on an improper basis, frequently, though not necessarily, an
emotional one. Banks, 564 S.W.2d at 951.

        Exhibit 141 is a photograph of the crime scene which shows a puddle of blood on the
floor and Renee Jordan’s arm. The trial court determined that the photograph was relevant and
not prejudicial. We agree. Moreover, this court cannot conclude that Exhibit 141 was
particularly gruesome or inflammatory. Thus, we conclude that the probative value of the
photograph is not outweighed by its prejudicial effect, and the trial court did not abuse its
discretion in allowing its admission. Further, it does not affirmatively appear that the “admission
of the photograph[ ] has affected the results of the trial.” See Banks, 564 S.W.2d at 953. The
defendant is not entitled to relief on this issue.

        As to the remaining photographs which are not specifically challenged on appeal, this
court takes notice of the following proceedings in the trial court. See Tenn. R. App. P. 27. Out
of the presence of the jury, the prosecution revealed to the trial court the collective photographs it
planned to introduce during the penalty phase. The first set of photographs was described as
follows:

       1. A photograph of David Gordon, post-mortem, showing an abrasion to the right
       side of his forehead taken at the medical examiner’s office.

                                                -43-
       2. A photograph of David Gordon on a table showing injuries to his right arm and
       right abdomen. A surgical scar is also visible.

       3. A photograph of David Gordon revealing in detail impact of a wound resulting
       from asphalt. The photograph also shows injuries to the abdomen, showing the
       gunshot wounds.

       4. A photograph of the right hip area of David Gordon showing gunshot wounds
       and also evidence of an intermediate target striking his legs.

       5. A photograph of David Gordon showing injury to the left abdomen, showing
       approximately three gunshot wounds. Also, there is evidence of surgical scars
       present in the photograph.

       6. A photograph of David Gordon’s buttocks’ region, showing in detail the
       gunshot wounds. Also visible are wounds to the left hip and left torso area.

       7. A photograph of David Gordon’s buttocks’ region. Also visible are wounds to
       the right hip and upper right thigh.

       8. A photograph showing a close-up of the wounds of David Gordon showing
       injuries to the peritoneum, the area between the scrotum and the rectum.
Defense counsel objected to this set of photographs stating that “some of these photographs are
quite gory.” A specific complaint was made to the photograph of David Gordon’s peritoneum.
In reviewing this set of photographs, the trial court determined that the photographs were
probative in regards to establishing the type of injuries sustained. In this regard, the lower court
found that the probative value outweighed the prejudicial effect.

       A second set of photographs was described as follows: “photograph taken at the ER
showing James Goff, and particularly the injury to his submandibular region.” The defendant
objected to this set of photographs, stating that the photographs were not those of the deceased.
He added that it was prejudicial and improper to show a photograph of a wounded person to the
jury in this case. The trial court determined that the photograph was relevant to the State’s
alleged aggravator that the defendant knowingly created a great risk of death to two or more
persons other than the victim murdered.

       A third set of photographs depicted injuries sustained to Larry Taylor. The trial court
determined that the photograph was relevant to the State’s alleged aggravator that the defendant
knowingly created a great risk of death to two or more persons other than the victim murdered.

       A fourth set of photographs was described as follows:

       1. A photograph of Renee Jordan showing the gunshot wound to the forehead.


                                               -44-
       2. A photograph of Renee Jordan depicting the entry wound to the back of the head.

       3. A photograph of Renee Jordan depicting an exit wound to the face, specifically
       the side of the nostril.

       4. A photograph of Renee Jordan depicting the entrance wound to the forehead
       and the exit wound.

       5. A photograph of the total body of Renee Jordan depicting multiple bullet
       wounds to the abdomen and right breast.

       6. A close-up shot of Renee Jordan’s breast.

Reviewing the photographs, the trial court removed duplicitous photographs and determined that
the photographs were admissible in support of the aggravators alleged by the State.

       Additionally, a photograph showing Renee Jordan at the scene lying on the floor with
blood surrounding her head was admitted. The trial court determined that the photograph was
highly probative of the aggravators alleged by the State.

        Photographs of a corpse are admissible in murder prosecutions if they are relevant to the
issues at trial, notwithstanding their gruesome and horrifying character. See Banks, 564 S.W.2d
at 950-51. In this respect, photographs of murder victims are prejudicial by their very nature.
However, prejudicial evidence is not excludable per se. If this were true, all evidence of a crime
would be excluded at trial. Rather, what is excluded is evidence which is unfairly prejudicial, in
other words, evidence which has an undue tendency to suggest a decision on an improper basis,
frequently, though not necessarily, an emotional one. Id. at 951.

       The photographs admitted by the trial court were relevant to supplement the testimony of
the medical examiner and to support the aggravating circumstances alleged by the State. See,
generally, State v. Cole, 155 S.W.3d 885, 913 (Tenn. 2005) (Appendix). We conclude that the
probative value of the photographs was not outweighed by their prejudicial effect, and the trial
court did not abuse its discretion in allowing their admission. Further, it does not affirmatively
appear that the “admission of the photographs has affected the results of the trial.” See Banks,
564 S.W.2d at 953. The defendant is not entitled to relief on this issue.

                    G. Jury Instruction as to Aggravators and Mitigators

        The defendant contends that it was a violation of his right to a jury trial under both the
Tennessee and United States Constitutions and to a reliable result under the Eighth Amendment
for the jury to be instructed that “if aggravators outweigh mitigators beyond a reasonable doubt,
the sentence shall be death.” In the defendant’s view, this instruction removes jury discretion in
the sentencing decision. This argument was addressed and rejected in State v. Boyd, 797 S.W.2d


                                              -45-
589, 596 (Tenn. 1990), where our supreme court found that “[t]here is no likelihood that this
statutory language imposes a ‘presumption of death.’” See State v. Howell, 868 S.W.2d 238, 258
(Tenn. 1993); State v. Wright, 756 S.W.2d 669, 674 (Tenn. 1988); State v. Teague, 680 S.W.2d
785, 790 (Tenn. 1984). Accordingly, the defendant is not entitled to relief on this issue.

                       H. Sufficiency of Aggravating Circumstances

       The defendant attacks the sufficiency of the evidence to support the aggravating
circumstances found by the jury as to the murders of Renee Jordan, Jerry Hopper, and David
Gordon. Within his argument, the defendant not only challenges the sufficiency of the evidence
of the aggravating circumstances but also asserts the application of some aggravating
circumstances was duplicitous and inconsistent.

                                       1. Renee Jordan

       As to the murder of Renee Jordan, the jury found the presence of five aggravating
circumstances:

       (a) The defendant knowingly created a great risk of death to two or more persons,
       other than the victim murdered, during the act of murder. Tenn. Code Ann. § 39-
       13-204(i)(3).

       (b) The murder was especially heinous, atrocious, or cruel, in that it involved
       torture or serious physical abuse beyond that necessary to produce death. Tenn.
       Code Ann. § 39-13-204(i)(5).

       (c) The murder was knowingly committed, solicited, directed, or aided by the
       defendant while the defendant had a substantial role in committing or attempting
       to commit first degree murder. Tenn. Code Ann. § 39-13-204(i)(7).

       (d) The defendant committed “mass murder” which is defined as the murder of
       three or more persons, whether committed during a single criminal episode or at
       different times within a 48-month period. Tenn. Code Ann. § 39-13-204(i)(12).

       (e) The defendant knowingly mutilated the body of the victim after death. Tenn.
       Code Ann. § 39-13-204(i)(13).

“In determining whether the evidence supports the jury’s findings of statutory aggravating
circumstances, we view the evidence in a light most favorable to the State and ask whether a
rational trier of fact could have found the existence of the aggravating circumstances beyond a
reasonable doubt.” State v. Rollins, 188 S.W.3d 553, 571 (Tenn. 2006) (citing State v. Reid, 164
S.W.3d 286, 314 (Tenn. 2005)).



                                             -46-
                                      a. (i)(3) aggravator

        The first aggravating circumstance the jury found was that the defendant knowingly
created a great risk of death to two or more persons in the course of murdering the victim. See
Tenn. Code Ann. § 39-13-204(i)(3). Our supreme court has previously held that this aggravating
circumstance “‘contemplates either multiple murders or threats to several persons at or shortly
prior to or shortly after an act of murder upon which the prosecution is based.’” Johnson v. State,
38 S.W.3d 52, 60 (Tenn. 2001) (quoting State v. Cone, 665 S.W.2d 87, 95 (Tenn. 1984)). “Most
commonly, this aggravating circumstance ‘has been applied where a defendant fires multiple
gunshots in the course of a robbery or other incident at which persons other than the victim are
present.’” Id. (quoting State v. Henderson, 24 S.W.3d 307, 314 (Tenn. 2000)). “In many of the
cases upholding application of the (i)(3) aggravator, the defendant fired random shots with others
present or nearby, the defendant engaged in a shootout with other parties, or the defendant
actually shot people in addition to the murder victim.” Id. at 60-61 (footnotes omitted). We
conclude that the proof was more than sufficient to support application of the (i)(3) factor.

                                         b. (i)(5) factor

        The jury also found that the murder was “especially heinous, atrocious, or cruel in that it
involved torture or serious physical abuse beyond that necessary to produce death.” Tenn. Code
Ann. § 39-13-204(i)(5). This aggravating circumstance may be applied if the evidence is
sufficient to support either torture or serious physical abuse beyond that necessary to produce
death. State v. Suttles, 30 S.W.3d 252, 262 (Tenn. 2000).

       Our supreme court has defined “serious physical abuse beyond that necessary to produce
death” as follows:

       The word “serious” alludes to a matter of degree. The abuse must be physical, as
       opposed to mental, and it must be “beyond that” or more than what is “necessary
       to produce death.” “Abuse” is defined as an act that is “excessive” or which
       makes “improper use of a thing,” or which uses a thing “in a manner contrary to
       the natural or legal rules for its use.”

State v. Odom, 928 S.W.2d 18, 26 (Tenn. 1996) (quoting Black’s Law Dictionary 11 (6th ed.
1990)). By the defendant’s confession, he first shot Renee Jordan in the leg to attract her
attention. He then shot James Goff. The defendant then turned to Larry Taylor and told him to
get out of the office. Renee Jordan suffered numerous other gunshot wounds to her head and at
least nine bullet wounds to her torso. The wounds to the victim’s head were fatal. Clearly, there
was more injury to the victim beyond that necessary to produce death. The proof is more than
sufficient to support the jury’s finding of this aggravating circumstance.

                                             c. (i)(7)



                                               -47-
        The defendant asserts that there is no evidence to support the felony murder aggravator as
to the murder of Renee Jordan. Specifically, he asserts that because the wound to the victim’s
forehead would have been immediately fatal, it is apparent that she was murdered before the
other victims were killed. The (i)(7) aggravating factor requires evidence that “[t]he murder was
knowingly committed, solicited, directed, or aided by the defendant, while the defendant had a
substantial role in committing or attempting to commit . . . any first degree murder[.]” Tenn.
Code Ann. § 39-13-204(i)(7). The defendant’s own statement supports the application of this
factor. The defendant stated that he shot Renee Jordan first in the leg. He then shot James Goff.
The defendant told Larry Taylor that he could leave the room. He then continued shooting. The
proof clearly established that Renee Jordan was killed “while” the defendant was committing
other murders.

                                            d. (i)(12)

        In State v. Reid, 213 S.W.3d 792, 819 (Tenn. 2006), our supreme court acknowledged
that for this factor to apply, “‘the State must show beyond a reasonable doubt (1) that the
defendant had been convicted of three or more murders, including the one for which he has just
been tried, (2) within the State of Tennessee, (3) within a period of forty-eight (48) months, (4)
perpetrated in a similar fashion, and (5) in a common scheme or plan.’” Id. (quoting Black, 815
S.W.2d at 183). As the Reid court acknowledged, the application has been approved in a case
where the defendant shot his four children in the garage of his residence, see State v. Holton, 126
S.W.3d 845, 865 (Tenn. 2004); in a case where the defendant stabbed, shot, and disemboweled
his estranged wife and her two children, see Smith, 868 S.W.2d at 582; in a case where the
defendant killed his girlfriend and her children, see Black, 815 S.W.2d at 184; in a case where
the defendant killed three people during the robbery of a restaurant, see State v. Van Tran, 864
S.W.2d 465, 478 (Tenn. 1993); and in a sentence of life without parole where the defendants
killed three members of the same family at a rest stop, see State v. Howell, 34 S.W.3d 484, 509
(Tenn. Crim. App. 2000). In the instant case, the defendant shot and killed Renee Jordan, Jerry
Hopper, and David Gordon at the TDOT garage in Jackson, Tennessee, on January 11, 2005.
The facts of these murders satisfy the application of the mass murder aggravating factor.

                                             e. (i)(13)

        The jury found that the defendant knowingly mutilated the victim’s body after death.
This court has held that the term “mutilation” is broadly defined and encompasses “to cut up or
alter radically so as to make imperfect.” State v. Thompson, 43 S.W.3d 516, 526 (Tenn. Crim.
App. 2000); see Merriam-Webster’s Collegiate Dictionary, 768 (10th ed. 1994); Webster’s Third
New International Dictionary, 1493 (1993)). Indeed, this court has previously stated that the
legislative intent underlying mutilation as an aggravating circumstance must be “that the General
Assembly . . . meant to discourage corpse desecration.” State v. Price, 46 S.W.3d 785, 828
(Tenn. Crim. App. 2000). “Desecrate” is defined as: “1. To violate the sanctity of . . . 2. to treat
disrespectfully, irreverently, or outrageously.” Merriam-Webster’s Collegiate Dictionary 312
(10th ed. 1994). The mutilation must occur after death. Dr. McMaster testified that there was no


                                               -48-
indication in the autopsy of post-mortem wounds. However, lay testimony indicated that the
defendant returned to the office with a different weapon, the assault rifle, and shot Renee Jordan
additional times. The proof indicated that the wound to her forehead was fatal and that she
would have died within thirty seconds of sustaining this wound. This wound was inflicted with a
handgun. Accordingly, the proof supports the conclusion that the defendant returned and
inflicted more gunshots to the victim’s lifeless body. The evidence is sufficient to support
application of the (i)(13) aggravating factor.

                                        2. Jerry Hopper

       As to the murder of Jerry Hopper, the jury found the presence of five aggravating
circumstances:

       (a) The defendant knowingly created a great risk of death to two or more persons,
       other than the victim murdered, during the act of murder. Tenn. Code Ann. § 39-
       13-204(i)(3).

       (b) The murder was committed for the purpose of avoiding, interfering with, or
       preventing a lawful arrest or prosecution of the defendant or another. Tenn. Code
       Ann. § 39-13-204(i)(6).

       (c) The murder was knowingly committed, solicited, directed, or aided by the
       defendant while the defendant had a substantial role in committing or attempting
       to commit first degree murder. Tenn. Code Ann. § 39-13-204(i)(7).

       (d) The defendant committed “mass murder” which is defined as the murder of
       three or more persons, whether committed during a single criminal episode or at
       different times within a forty-eight-month period. Tenn. Code Ann. § 39-13-
       204(i)(12).

                                      a. (i)(3) aggravator

       The first aggravating circumstance the jury found was that the defendant knowingly
created a great risk of death to two or more persons in the course of murdering the victim. See
Tenn. Code Ann. § 39-13-204(i)(3). Upon review of the evidence in the instant case, we
conclude that the proof was more than sufficient to support application of the (i)(3) factor.

                                            b. (i)(6)

       The jury also found that the State had established that the defendant killed Jerry Hopper
in order to avoid his arrest and prosecution. See Tenn. Code Ann. § 39-13-204(i)(6). This
aggravating circumstance focuses on a defendant’s motives in killing the victim. Reid, 164 at
315; Terry v. State, 46 S.W.3d 147, 162 (Tenn. 2001). Although there must be some “particular


                                              -49-
proof” supporting this aggravating circumstance, State v. Hartman, 42 S.W.3d 44, 58 (Tenn.
2001), the State need not prove that the defendant’s desire to avoid prosecution was his sole
motive in murdering the victim. Terry, 46 S.W.3d at 162. This court cannot conclude that there
is some “particular proof” supporting this aggravating circumstance. The defendant allowed
other persons in the TDOT office to leave, specifically, Larry Taylor. He knew many of the
persons by name, yet made no attempt to “stop” them to avoid his arrest. Accordingly, the proof
is insufficient to support application of this factor as to Jerry Hopper.

                                            c. (i)(7)

       The defendant asserts that there is no evidence to support the felony murder aggravator as
to the murder of Jerry Hopper. The record clearly established that the murder of Jerry Hopper
was committed while the defendant was committing the murder of Renee Jordan. The evidence
supports the application of this aggravating factor.



                                           d. (i)(12)

      In the instant case, the defendant shot and killed Renee Jordan, Jerry Hopper, and David
Gordon at the TDOT garage in Jackson, Tennessee, on January 11, 2005. The facts of these
murders satisfy the application of the mass murder aggravating factor.

                                       3. David Gordon

       As to the murder of David Gordon, the jury found the presence of five aggravating
circumstances:

       (a) The murder was especially heinous, atrocious, or cruel in that it involved
       torture or serious physical abuse beyond that necessary to produce death. Tenn.
       Code Ann. § 39-13-204(i)(5).

       (b) The murder was committed for the purpose of avoiding, interfering with, or
       preventing a lawful arrest or prosecution of the defendant or another. Tenn. Code
       Ann. § 39-13-204(i)(6).

       (c) The murder was knowingly committed, solicited, directed, or aided by the
       defendant, while the defendant had a substantial role in committing or attempting
       to commit first degree murder. Tenn. Code Ann. § 39-13-204(i)(7).

       (d) The defendant committed “mass murder” which is defined as the murder of
       three or more persons, whether committed during a single criminal episode or at



                                              -50-
       different times within a forty-eight-month period. Tenn. Code Ann. § 39-13-
       204(i)(12).

                                         a. (i)(5) factor

        The jury found that the murder was “especially heinous, atrocious, or cruel, in that it
involved torture or serious physical abuse beyond that necessary to produce death.” Tenn. Code
Ann. § 39-13-204(i)(5). This aggravating circumstance may be applied if the evidence is
sufficient to support either torture or serious physical abuse beyond that necessary to produce
death. Medical testimony at trial established that the number of wounds were more than that
necessary to cause death. The testimony further established that the wounds sustained to David
Gordon’s buttocks and natal cleft were consistent with him being facedown on the pavement.
The proof is more than sufficient to support the jury’s finding of this aggravating circumstance.

                                            b. (i)(6)

        The jury also found that the State had established that the defendant killed David Gordon
in order to avoid his arrest and prosecution. See Tenn. Code Ann. § 39-13-204(i)(6). To support
application of this factor, there must be some “particular proof” supporting this aggravating
circumstance. The defendant shot Gordon outside the TDOT garage. There was obviously a
confrontation between Gordon and the defendant. One bystander witnessed Gordon raise his
hands before being shot by the defendant. This court cannot conclude that there is some
“particular proof” supporting this aggravating circumstance. The defendant let other persons in
the TDOT office go, specifically, Larry Taylor. He knew many of the persons by name, yet made
no attempt to “stop” them to avoid his arrest. Accordingly, the proof is insufficient to support
application of this factor as to David Gordon.

                                            c. (i)(7)

        The defendant asserts that there is no evidence to support the felony murder aggravator as
to the murder of David Gordon. The overwhelming proof at trial established that the murder of
Gordon was committed while the defendant was committing the act of first degree murder. The
evidence supports the application of this aggravating factor.

                                           d. (i)(12)

      In the instant case, the defendant shot and killed Renee Jordan, Jerry Hopper, and David
Gordon at the TDOT garage in Jackson, Tennessee, on January 11, 2005. The facts of these
murders satisfy the application of the mass murder aggravating factor.

                                      4. Double Counting




                                              -51-
       The defendant argues that the same proof and course of conduct were used to establish
multiple overlapping aggravators. The defendant concedes that the “double counting” of facts
used to establish aggravating factors is not prohibited in Tennessee. Indeed, in State v. Hall, 958
S.W.2d 679, 692 (Tenn. 1997), the Tennessee Supreme Court noted that there is no bar to the use
of the same evidence to establish more than one aggravating circumstance. The court further
noted that, in Hall, the same evidence had not been used to support both aggravators. A review
of the facts used to support the aggravating circumstances fails to support the defendant’s
contention that the same facts were used to support the aggravating circumstances found. The
defendant is not entitled to relief on this claim.

                              I. Lethal Injection Unconstitutional

        The defendant asserts that Tennessee’s lethal injection procedure and protocol violates
principles of cruel and unusual punishment. In support of his claim, the defendant relies upon
the United States Supreme Court’s grant of certiorari in Baze v. Rees, No. 07-5439 (U.S. Sept.
25, 2007) (granting review to determine the constitutionality of Kentucky’s three-drug lethal
injection protocol).

       On April 16, 2008, the United States Supreme Court decided Baze v. Rees, upholding the
State of Kentucky’s lethal-injection protocol as not being violative of the Eighth Amendment.
Baze v. Rees, 553 U.S. ___,128 S. Ct. 1520 (2008). The Supreme Court’s plurality found that
cruel and unusual punishment occurs where lethal injection as an execution method presents a
“substantial” or “objectively intolerable risk of serious harm” in light of “feasible, readily
implemented” alternative procedures. Id. at 1531-32. However, the analysis was focused on the
manner of lethal injection. Id. at 1537. The Baze Court held:

               Kentucky has adopted a method of execution believed to be the most
       humane available, one it shares with 35 other States . . . [which] if administered as
       intended . . . will result in a painless death. The risks of maladministration . . .
       such as improper mixing of chemicals and improper setting of IVs by trained and
       experienced personnel - cannot remotely be characterized as “objectively
       intolerable.” Kentucky’s decision to adhere to its protocol despite these asserted
       risks, while adopting safeguards to protect against them, cannot be viewed as
       probative of the wanton infliction of pain under the Eighth Amendment.

Baze, 553 U.S. at ___, 128 S. Ct. at 1537-38.

        For “the disposition of other cases uncertain,” Chief Justice Roberts stated that “[a] State
with a lethal injection protocol substantially similar to the protocol we uphold today would not
create a risk that meets [the ‘substantial risk’] standard.” Id. at 1537 (emphasis added). The
protocol adopted in Kentucky involves the combination of three drugs: the first, sodium
thiopental, induces unconsciousness when given in the specified amounts and thereby ensures
that the prisoner does not experience any pain associated with the paralysis and cardiac arrest
caused by the second and third drugs, pancuronium bromide and potassium chloride.

                                                -52-
        Among other things, Kentucky’s lethal injection protocol reserves to qualified
        personnel having at least one year's professional experience the responsibility for
        inserting the intravenous (IV) catheters into the prisoner, leaving it to others to
        mix the drugs and load them into syringes; specifies that the warden and deputy
        warden will remain in the execution chamber to observe the prisoner and watch
        for any IV problems while the execution team administers the drugs from another
        room; and mandates that if, as determined by the warden and deputy, the prisoner
        is not unconscious within 60 seconds after the sodium thiopental’s delivery, a new
        dose will be given at a secondary injection site before the second and third drugs
        are administered.

Baze, 553 U.S. at ___, 128 S. Ct. at 1522. Tennessee has adopted a three-drug protocol for
lethal injection similar to that of Kentucky. See, e.g., Baze, 553 U.S. at ___, 128 S. Ct. at 1527;
Workman v. Bredesen, 486 F.3d 896, 902 (6th Cir. 2007); Abdur’Rahman v. Bredesen, 181
S.W.3d 292, 314 (Tenn. 2005). Therefore, we are unable to conclude that Tennessee’s lethal
injection procedure, which appears facially similar to the procedure considered in Baze, is
unconstitutional. The defendant is not entitled to relief on this claim.

                                  J. Cumulative Effect of Errors

       The defendant argues that he was denied a fundamentally fair trial as a result of the
cumulative effect of the errors at his trial. Because we have determined that any errors were
harmless, there is no “cumulative effect of errors” to consider. The defendant is not entitled to relief.

                                     K. Proportionality Review

       Pursuant to Tennessee Code Annotated section 39-13-206(c)(1), we are required to
review the application of the death penalty to determine whether:

        (A) The sentence of death was imposed in any arbitrary fashion;

        (B) The evidence supports the jury’s finding of statutory aggravating circumstance
        or circumstances;

        (C) The evidence supports the jury’s finding that the aggravating circumstance or
        circumstances outweigh any mitigating circumstances; and

        (D) 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.

Tenn. Code Ann. § 39-13-206(c)(1).

                                           1. Arbitrariness


                                                  -53-
      Having thoroughly reviewed the record, we conclude that the sentence of death was not
imposed in an arbitrary fashion.

         2. Sufficiency of Statutory Aggravating Circumstances Found by the Jury

       We have already reviewed the sufficiency of the evidence to support the aggravating
circumstances found by the jury. We have determined that with respect to the murders of David
Gordon and Jerry Hopper the proof was insufficient to support the application of the (i)(6)
aggravating circumstance. Again, as to Renee Jordan, five aggravating circumstances are
applicable: (i)(3), (i)(5), (i)(7), (i)(12), and (i)(13). As to Jerry Hopper, three aggravating
circumstances are applicable: (i)(3), (i)(7), and (i)(12). As to David Gordon, three aggravating
circumstances are applicable: (i)(5), (i)(7), and (i)(12).



                              a. Invalidation of the (i)(6) factor

       In reaching the determination of whether use of an invalid aggravating circumstance is
harmless error beyond a reasonable doubt, our supreme court has concluded that:

              In order to guarantee the precision that individualized sentencing
       considerations demand and provide a principled explanation for our conclusion in
       each case, it is important, when conducting harmless error review, to completely
       examine the record for the presence of factors which potentially influence the
       sentence ultimately imposed. These include, but are not limited to, the number
       and strength of remaining valid aggravating circumstances, the prosecutor’s
       argument at sentencing, the evidence admitted to establish the invalid aggravator,
       and the nature, quality and strength of mitigating evidence.

Howell, 868 S.W.2d at 260-61 (footnote omitted). Even in the absence of the (i)(6) factor, three
aggravating factors are still applicable as to both the murder of Jerry Hopper and David Gordon.
The number and strength of the remaining factors weigh in favor of harmless error. The nature,
quality, and strength of the mitigation evidence is neutral on the issue of harmlessness of the
error. After reviewing the entire record and applying the Howell analysis, we conclude that the
error of charging and allowing the jury to consider the (i)(6) aggravating circumstance was
harmless beyond a reasonable doubt.

                         3. Totality of Aggravating Factors Applied

       With consideration of the evidence before the jury, we conclude that the evidence
supports the jury’s finding that the aggravating circumstances outweighed any mitigating
circumstances beyond a reasonable doubt.


                                             -54-
                                        4. Proportionality

        This court is required by Tennessee Code Annotated section 39-13-206(c)(1)(D) and the
mandates of State v. Bland, 958 S.W.2d 651, 661-74 (Tenn. 1997), to consider whether the
defendant’s sentence of death is disproportionate to the penalty imposed in similar cases. State v.
Godsey, 60 S.W.3d 759, 781-82 (Tenn. 2001). The comparative proportionality review “is
designed to identify aberrant, arbitrary, or capricious sentencing.” State v. Stout, 46 S.W.3d 689,
706 (Tenn. 2001). It does this by determining whether the death penalty in a given case is
“‘disproportionate to the punishment imposed on others convicted of the same crime.’” Bland,
958 S.W.2d at 662 (quoting Pulley v. Harris, 465 U.S. 37, 43, 104 S. Ct. 871, 876 (1984)). If a
case is “‘plainly lacking in circumstances consistent with those in cases where the death penalty
has been imposed,’ then the sentence is disproportionate.” Stout, 46 S.W.3d at 706 (quoting
Bland, 958 S.W.2d at 668).

        In conducting our proportionality review, this court must compare the present case with
cases involving similar defendants and similar crimes. Id.; see also Terry 46 S.W.3d at 163-64.
We select comparison cases only from those 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. State v. Carruthers, 35 S.W.3d 516,
570 (Tenn. 2000); see also Godsey, 60 S.W.3d at 783. This court begins with the presumption
that the sentence of death is proportionate with the crime of first degree murder. Terry, 46
S.W.3d at 163 (citing Hall, 958 S.W.2d at 699). However, this presumption applies only if the
sentencing procedures focus discretion on the “‘particularized nature of the crime and the
particularized characteristics of the individual defendant.’” Id. (quoting McCleskey v. Kemp,
481 U.S. 279, 308, 107 S. Ct. 1756, 1775 (1987) (quoting Gregg v. Georgia, 428 U.S. 153, 206,
96 S. Ct. 2909, 2940-41 (1976)).

        In comparing this case to other cases in which the defendants were convicted of the same
or similar crimes, this court looks “at the facts and circumstances of the crime, the characteristics
of the defendant, and the aggravating and mitigating factors involved.” Id. at 164. Regarding the
circumstances of the crime itself, numerous factors are considered, including the following: (1)
the means of death; (2) the manner of death; (3) the motivation for the killing; (4) the place of
death; (5) the victim’s age, physical condition, and psychological condition; (6) the absence or
presence of provocation; (7) the absence or presence of premeditation; (8) the absence or
presence of justification; and (9) the injury to and effect on non-decedent victims. Stout, 46
S.W.3d at 706; Terry, 46 S.W.3d at 164. Contemplated within the review are numerous other
factors, including a defendant’s: (1) prior criminal record; (2) age, race, and gender; (3) mental,
emotional, or physical condition; (4) role in the murder; (5) cooperation with authorities; (6)
level of remorse; (7) knowledge of the victim’s helplessness; and (8) potential for rehabilitation.
Id. In completing our review, we remain cognizant of the fact that “no two cases involve
identical circumstances.” Id. Thus, our function is not “to limit our comparison to those cases
where a defendant’s death sentence ‘is perfectly symmetrical,’ but only to ‘identify and to
invalidate the aberrant death sentence.’” Id. (quoting Bland, 958 S.W.2d at 665).


                                                -55-
        In the instant case, the facts at trial reveal that, on January 11, 2005, the defendant armed
himself with numerous weapons and ammunition. He then drove to the TDOT garage where his
estranged wife was employed. Once at the TDOT facility, the defendant walked to the crow’s
nest where his wife worked and surveyed the scene. The defendant called his wife’s name and
shot her in the leg. She fell to the floor and was shot at least three more times. Larry Taylor
dove under a desk. The defendant walked over and shot Jerry Hopper twice in the right side of
the abdomen and once in the right wrist. The defendant shot James Goff in the stomach, arm,
leg, and neck. The defendant then shot Taylor twice in the leg. The defendant called out Renee’s
name and left the room.

         On his way out, the defendant encountered Freddie Ellison, whom he knew, and told him
to “back off.” The defendant headed toward his truck where he was confronted by David
Gordon. The defendant told Gordon to leave, and when he refused to do so, the defendant
retrieved an assault rifle from his truck and opened fired on Gordon. Gordon fell to the ground.
The defendant shot Gordon in the buttocks as he lay on the ground. Then, armed with the assault
rifle, the defendant returned to the crow’s nest.

       In the crow’s nest, Larry Taylor was tending to Jerry Hopper. Taylor rose and asked the
defendant if he could leave. The defendant told him to go. The defendant then shot Renee
Jordan again. He returned to his truck and left the TDOT garage.

       The defendant was remorseful for his actions. His four children loved him and missed
him. Numerous persons testified that the defendant would be a model prisoner. The defendant
and his estranged wife had domestic problems. The defendant was diagnosed with dissociative
disorder, major depressive disorder, generalized anxiety disorder, alcohol abuse, and borderline
personality disorder. At the time of the crimes, the defendant had been drinking alcohol. The
defendant had a stable work history and no prior criminal record. The defendant cooperated with
law enforcement officers.

        The sentence of death has been upheld in numerous cases in which the victim was the
defendant’s wife or girlfriend. See, e.g., State v. Faulkner, 154 S.W.3d 48 (Tenn. 2005)
(defendant struck wife in head with iron skillet; (i)(2) aggravating circumstance); State v. Suttles,
30 S.W.3d 252 (Tenn. 2000) (defendant stabbed girlfriend in Taco Bell parking lot; (i)(2) and
(i)(5) aggravating circumstances); State v. Keough, 18 S.W.3d 175 (Tenn. 2000) (defendant
stabbed wife after argument in bar and left her to bleed to death in car; (i)(2) aggravator); State v.
Hall, 8 S.W.3d 593 (Tenn. 1999) (after arguing with wife, defendant beat, strangled, and
drowned her; (i)(5) aggravator); State v. Hall, 958 S.W.2d 679 (Tenn. 1997) (angry that girlfriend
was going to leave him, defendant set fire to her car while she was inside; (i)(5) and (i)(7) (felony
murder) aggravators); State v. Smith, 868 S.W.2d 561 (Tenn. 1993) (defendant stabbed, shot, and
disemboweled wife; (i)(5) and (i)(12) (mass murder) aggravators); State v. Johnson, 743 S.W.2d
154 (Tenn. 1987) (defendant suffocated wife with plastic bag; (i)(2) and (i)(5) aggravators); State
v. Miller, 674 S.W.2d 279 (Tenn. 1984), on remand, 771 S.W.2d 401 (Tenn. 1989) (defendant



                                                -56-
beat girlfriend to death with fists and fire poker and then stabbed her numerous times; death
penalty upheld under (i)(5) aggravating circumstance).

        The sentence of death has been upheld in numerous cases in which the defendant
committed mass murder. See, e.g., State v. Holton, 126 S.W.3d 845 (Tenn. 2004) (defendant
shot and murdered his four children); State v. Carruthers, 35 S.W.3d 516 (Tenn. 2000) (imposing
the death sentence based in part on the mass murder aggravating circumstance where the
defendants shot two men, strangled the mother of one of the men, and buried all three victims
alive); State v. Smith, 868 S.W.2d 561 (Tenn. 1993) (defendant shot and stabbed his wife and
two stepsons).

         The sentence of death has been upheld in numerous cases in which the defendant had
little or no prior criminal history and/or the defendant exhibited psychological problems. See,
e.g., State v. Burns, 979 S.W.2d 276 (Tenn. 1998) (death penalty upheld based on aggravating
circumstances (i)(3) and (i)(6) where defendant shot victim several times during a robbery.
Defendant presented mitigation proof that his father was a minister and that he had been active in
the church. Proof also presented that defendant participated in religious services while in
custody.); State v. Pike, 978 S.W.2d 904 (Tenn. 1998) (imposition of death penalty upheld based
on aggravating circumstances (i)(5) and (i)(6) where defendant hand-selected victim prior to
murder, lured victim to remote area, bludgeoned victim to death, mutilated body, and kept part of
victim’s skull as souvenir. Defendant had no prior criminal history and offered proof that she was
under emotional or mental disturbance at time of the crime); Hall, 958 S.W.2d at 679 (death
penalty upheld based on aggravating circumstances (i)(5) and (i)(7) where defendant doused
girlfriend with gasoline, locked her in her vehicle and set her on fire. Defendant had no prior
criminal history and offered mitigating proof of personality disorder.); State v. Bush, 942 S.W.2d
489 (Tenn. 1997) (death penalty affirmed based on aggravating circumstances (i)(5) and (i)(6)
where defendant savagely beat and stabbed seventy-nine-year-old acquaintance to death.
Defendant later boasted about the murder. Defendant offered evidence of mental disease and
lack of prior criminal record.); Smith, 868 S.W.2d at 561 (death penalty upheld based on
aggravating circumstances (i)(5), (i)(6), (i)(7) and (i)(12) where defendant found guilty of triple
murder of estranged wife and her two children; defendant shot wife twice, slashed her throat, and
stabbed her with knife and ice pick; older son shot three times, stabbed with ice pick and knife;
and younger son had been shot and stabbed in the chest. Defendant offered psychological
evidence of personality disorders.); State v. Zagorski, 701 S.W.2d 808 (Tenn. 1985) (death
sentence upheld based on aggravating circumstances (i)(5) and (i)(7) where defendant presented
himself as a South American mercenary to victim and the two men arranged a large purchase of
marijuana, defendant later shot and killed victim, victim’s throat was slashed evincing depravity
of mind. Defendant had no prior record of violent criminal activity.); State v. Melson, 638
S.W.2d 342 (Tenn. 1982) (death penalty upheld based on aggravating circumstances (i)(5) and
(i)(6) where defendant used hammer to repeatedly beat victim in head, victim had attempted to
defend herself during ordeal, only motive was victim’s discovery of defendant’s theft, defendant
had no significant prior history of criminal activity).



                                               -57-
        In completing our review, we need not conclude that this case is exactly like prior cases
in every respect, nor must this court determine that this case is “more or less” like other death
penalty cases. State v. Thomas, 158 S.W.3d 361, 383 (Tenn. 2005). Rather, this court need only
identify aberrant death sentences by analyzing whether a capital case plainly lacks circumstances
similar to those cases in the pool of cases in which a death sentence has been upheld. The
penalty imposed by the jury in the present case is clearly not disproportionate to the penalty
imposed for similar crimes.

                                        CONCLUSION

         In accordance with the mandate of Tennessee Code Annotated section 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 conclude that the sentence of death was not
imposed arbitrarily. Moreover, we conclude that the erroneous application of the (i)(6)
aggravating circumstance to the murders of Jerry Hopper and David Gordon was harmless. The
evidence supports the jury’s finding of the (i)(3), (i)(5), (i)(7), (i)(12), and (i)(13) statutory
aggravating circumstances to the murder of Renee Jordan; the finding of the (i)(3), (i)(7), and
(i)(12) statutory aggravating circumstances to the murder of Jerry Hopper; and the (i)(5), (i)(7),
and (i)(12) statutory aggravating circumstances to the murder of David Gordon. Moreover, the
evidence supports the jury’s finding that the application of these enumerated aggravating
circumstances outweighed any mitigating circumstances beyond a reasonable doubt. See Tenn.
Code Ann. § 39-13-206(c)(1). Moreover, a comparative proportionality review, considering both
“the nature of the crime and the defendant,” convinces us that the sentences of death were neither
excessive nor disproportionate to the penalty imposed in similar cases. Accordingly, we affirm
the defendant’s convictions for first degree murder and resulting sentences of death imposed by
the trial court. We also affirm the defendant’s convictions for attempted first degree murder and
leaving the scene of the accident, as well as the resulting sentences.


                                                     ___________________________________
                                                     ALAN E. GLENN, JUDGE




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