              IN THE TENNESSEE COURT OF CRIMINAL APPEALS

                               AT NASHVILLE              FILED
                           AUGUST 1997 SESSION
                                                            January 15, 1998

                                                       Cecil W. Crowson
STATE OF TENNESSEE,                 )   C.C.A. NO. 01C01-9606-CR-00230
                                                      Appellate Court Clerk
                                    )
      Appellee,                     )   DAVIDSON COUNTY
                                    )   (No. 87-F-1682 Below)
VS.                                 )
                                    )   The Honorable Ann Lacy Johns
DONALD RAY MIDDLEBROOKS,            )
                                    )   (RESENTENCING - DEATH PENALTY)
      Appellant.                    )




FOR APPELLANT:                          FOR APPELLEE:

Lionel R. Barrett, Jr.                  John Knox Walkup
Washington Square Two, Suite 418        Attorney General & Reporter
222 Second Avenue North
Nashville, TN 37201                     Michael E. Moore
                                        Solicitor General
Richard McGee
601 Woodland Street                     Kathy Morante
Nashville, TN 37206                     Deputy Attorney General
                                        425 Fifth Avenue North
                                        Cordell Hull Building, Second Floor
                                        Nashville, TN 37243-0493

                                        Victor S. Johnson III
                                        District Attorney General

                                        Roger D. Moore
                                        Assistant District Attorney General

                                        John C. Zimmerman
                                        Assistant District Attorney General
                                        Washington Square, Suite 500
                                        222 Second Avenue North
                                        Nashville, TN 37201-1649



OPINION FILED: _____________________________


SENTENCE OF DEATH AFFIRMED



CURWOOD WITT
Judge
                                       OPINION



              In this capital case, the appellant, Donald Ray Middlebrooks, was convicted

by a jury in September 1989 of felony murder and sentenced to death by electrocution.

The appellant’s conviction was upheld by our supreme court; however, his sentence was

reversed, and the case was remanded for a new sentencing hearing. See State v.

Middlebrooks, 840 S.W.2d 317 (Tenn. 1992), cert. dismissed, 510 U.S. 805, 114 S.Ct. 651,

(1993).



              At a new sentencing hearing held upon remand, the jury found that the

murder was especially heinous, atrocious, or cruel in that it involved torture or depravity of

mind. See Tenn. Code Ann. § 39-2-203(I)(5)(1982) (repealed 1989). The jury found there

were no mitigating circumstances sufficiently substantial to outweigh this aggravating

circumstance and sentenced the appellant to death by electrocution.



              In this appeal, the appellant raises issues regarding alleged errors occurring

during the resentencing hearing and challenging the constitutionality of the death penalty

statutes. The Court having carefully considered the appellant’s contentions, we find that

none has merit. Accordingly, we affirm the appellant’s sentence of death.



                                    I. BACKGROUND



              The victim’s friend, Shannon Stewart, who was twelve years old at the time,

met the appellant on the Monday before the victim disappeared. The appellant called

himself “Debow.” The woman with the appellant, Tammy Middlebrooks, was introduced

as “Debowa.” The two were selling junk at a flea market in a vacant lot on Gallatin Road.

When Stewart and the victim saw the appellant and Tammy looking through a dumpster

on Sunday morning, April 26, 1987, Stewart introduced them to the victim.



              Around 4:30 or 5:00 p.m. on that day, the victim, Kerrick Majors, walked with



                                              1
his older brother, Kelly Vaden, to a friend’s house to shoot basketball. Around 7:00 p.m.,

Vaden and the victim were walking home when one of Vaden’s friends drove by and asked

him to go riding. The victim said that he was going back to play more basketball.



              Later that evening, Stewart and the victim, along with some other friends,

went to the vacant lot where there was a table with some items set out on it. Stewart was

the last to get there because he was stopped by traffic while trying to cross Gallatin Road.

The woman who identified herself as Debowa shouted “Hey, ya’ll niggers leave our stuff

alone.” The appellant and Roger Brewington, who was selling junk with the appellant and

Tammy Middlebrooks, started chasing the boys. Two of the boys managed to run ahead

of the others. The three slower boys were Stewart, the victim, and Antonio Watson.

Stewart saw Brewington grab the victim in a head lock, and the victim said “Hey man, you

know me.” The appellant ran up and said, “Shut up, nigger.” He then smacked the victim.

Stewart and Watson ran away. Later they met up with the other boys and saw the

appellant walking around like he was looking for them, but they never found the victim.



              Sometime after 9:00 p.m., three boys came to the home where the victim

lived with Vaden and his mother, Deborah Majors. The boys told Majors that a white man

had grabbed and slapped the victim on Gallatin Road. When Vaden then returned home

around 10:00 p.m., Majors called the police, who then came to the house. Vaden went out

looking for the victim’s friends to get information, but he was unsuccessful. The police told

Majors that the victim would probably be brought home for being out after curfew. If not,

the police instructed Majors to go to the Juvenile Department in the morning.



              The next morning, Majors reported her son missing, and she and the family

continued to look for the victim. Vaden found one of the boys, Anthony Covington, who

was with the victim when he was abducted. They, along with Majors and her father, went

to the vacant lot on Gallatin Road where Covington had last seen the victim. Covington

told them about a pathway through a wooded area behind the YMCA. Vaden and

Covington walked up the path which came out at some railroad tracks, but they did not find



                                             2
anything. As Vaden was walking back, he noticed a foam mattress and saw some hair

underneath it. When he raised the mattress, he saw the victim lying there.



              Sergeant Robert Moore was in charge of the investigation into the victim’s

murder. In the area surrounding the victim’s body, he found a jacket and white tennis

shoes which were identified as belonging to the victim. Two beer cans were also located

nearby. The victim’s body was in a drainage ditch covered by a large piece of foam. A pair

of blue shorts were lying beside his head. The victim was completely nude. A woven belt

was wound tightly around his left wrist. Sergeant Moore also observed a large laceration

across the right wrist. Above the victim’s left eye was a gash, and it was bloody and

swollen. There were places about the nose where skin was missing, and it was burned.

The victim’s lips were swollen, and there was bleeding inside the mouth, with lacerations

inside the mouth and around the lips. The nose was also bloody and red. Two lacerations

were made by a sharp instrument that went in an “X” shape across the victim’s chest.

There were also two deep stab wounds into the body a couple of inches apart. The

victim’s testicles were swollen, and there was a large amount of blood on the legs.

Bruises, scrapes, abrasions, and burns could be observed all over the victim’s body. A t-

shirt was tied in a hard knot around the victim’s throat. Blood on the t-shirt, which was

beginning to coagulate at the time Sergeant Moore investigated the scene, was consistent

with blood coming from the mouth. The t-shirt was soaked in urine and there were streams

of urine on top of the blood on the victim’s body. Beside the victim’s head was a stick with

blood on the end of it. Sergeant Moore did not find any evidence of drug use at the scene

of the murder.



              Later that day, Sergeant Moore was notified that a person would meet him

at a donut shop with information about the person or persons who murdered the victim.

When Sergeant Moore arrived, Roger Brewington told him that he should be looking for

Donald and Tammy Middlebrooks. Based on the information Brewington was giving him

and because Brewington matched descriptions given of a third suspect, Sergeant Moore

determined that Brewington was probably involved in the murder. Brewington showed



                                             3
Sergeant Moore the murder weapon, a lock-blade knife with brass knuckles, which was

hidden in a planter in front of the donut shop.



                Subsequently, Sergeant Moore interviewed Brewington at the police station

and obtained an arrest warrant for Donald and Tammy Middlebrooks.                           Brewington,

although six feet tall and approximately 170-175 pounds, was only sixteen years old, so

he was transported to juvenile court and charged with homicide.1



                A search of a wooded area near Gallatin Road resulted in finding a small

shack where the appellant and Tammy Middlebrooks were living. Officer Allen Herald, with

the canine division, opened the door and saw the two subjects lying on a mat. He ordered

the two out of the shack, and Tammy Middlebrooks jumped up and started coming towards

Officer Herald, whose K-9 partner grabbed her. Sergeant Moore was then able to seize

Tammy Middlebrooks by the arm and pull her out. When the appellant did not respond to

the commands, Officer Herald sent his K-9 partner in to apprehend him. A kitchen knife

and a potato were laying next to the appellant.                   Both the appellant and Tammy

Middlebrooks sustained dog bites and had to be taken to the hospital for treatment. While

at the hospital, after being advised of his rights, the appellant told Sergeant Moore that he

stabbed the victim twice to put an end to the torture.



                At 12:30 p.m. that day, the appellant gave a lengthy video-taped statement

at the police station about his involvement in the victim’s death. The appellant admitted

participating in the beating and mistreatment of the victim but described his role as minor

and depicted Brewington as the primary perpetrator of the offense. According to the

appellant, around dusk, five or six “colored boys” came by their table where they were

selling junk. The boys started breaking a “bunch of stuff,” so the appellant and Brewington

chased them. Brewington caught one of the boys in a head lock. After the victim was



        1
           Brew ington was eventually tried an as adult and convicted of first-degree murder, aggravated
kidnapping, and armed robbery, for which he was sentenced to consecutive sentences of life, 40 years, and
35 years, resp ective ly. See State v. Brewington, No. 89-232-III (Tenn. Crim. App., at Nashville, June 20,
1990), perm. app. denied, (Tenn. Oct. 1, 1990). Tamm y pled guilty to first-degree murder and was sentenced
to life impris onm ent.

                                                    4
caught, the appellant said Brewington suggested they "have some fun," and the three of

them took the victim back into the woods. The victim’s hands were tied, and Brewington

slapped him, beat him with brass knuckles, hit him with a stick, and urinated into his mouth,

making him swallow. Any time the victim would flinch, Brewington would hit him again.

When the victim started crying and begging, saying “all I want to do is go to school and get

my education,” Brewington responded “f_ you nigger” and hit him some more.



              At one point, the appellant and Brewington left Tammy Middlebrooks with the

victim while they went out looking for the other boys. The appellant did not know what

would have happened if they had found the others.



              The appellant admitted striking the victim with his open hand and on the leg

with a switch. Appellant said that Tammy slapped the victim and burned his nose with a

cigarette lighter as Brewington urged her on. Brewington hit the victim’s testicles with a

stick, threatened to cut “it” open, stuck a stick up the victim’s anus, hit him some more with

the brass knuckles, wiped the victim's blood on himself, beat the victim’s mouth and tongue

with a stick, dropped the knife on him, gagged him, and slashed his wrist. While dropping

the knife, Brewington told the victim he was taking him back to the days of “Roots.”



              Finally, when the appellant asked Brewington to stop because the victim's

crying and pleading were getting on his nerves, Brewington gave the victim "the kiss of

death" on the forehead. He also told the victim that he was in the mafia and the “KKK.”

Brewington then covered the victim’s face with his clothes, handed the knife to the

appellant, and told him to stab the victim. According to the defendant’s statement, when

he refused, Brewington stabbed the victim. The appellant then reluctantly stabbed the

victim "to prove to Roger that I guess I was cooler" and to put the victim out of his misery.

The appellant admitted that in his previous statement at the hospital, he told police that he

had stabbed the victim twice. The appellant said he did not stop Brewington from “putting

the boy through hell” sooner because he was afraid of Brewington and because

Brewington had a knife. When asked why he did not stop it when Brewington gave him the



                                              5
knife, the appellant said he was “scared to fight.” The victim's ordeal began around 7:30

p.m. and ended around 11:00 p.m. with the stabbing. The appellant admitted that before

beating and killing the victim, he and Brewington drank alcohol and smoked marijuana.



              The appellant said that, the next morning, he covered the victim with a piece

of Styrofoam. Then, he and Tammy met Brewington at the Holy Name Church for

breakfast. Brewington commented on how much fun they had the night before, and he

asked the appellant to help him go after an entire family. Brewington and the appellant

sharpened their knifes on the railroad tracks, and Brewington showed the appellant the

potential victims’ house, but eventually, the appellant said he would not do it.



              During the time the appellant was in custody, Sergeant Moore testified that

he did not observe any signs that the appellant was under the influence of drugs or alcohol.

The appellant’s demeanor never changed, he did not appear delusional, nor did he give

inappropriate responses.



              The autopsy of the victim indicated that the victim was 4 feet, 11 inches tall,

and weighed approximately 112 pounds. There was a large abrasion on the left side of the

forehead, a contusion on the outside corner of the left eye, and a contusion on the left

corner of the mouth. The two stab wounds to the anterior chest occurred within a short

period of time. The murder weapon had been plunged a depth of 3.3 inches. There were

superficial linear incisions on the anterior chest that crisscrossed each other. There was

an incision of the right wrist that was 1.7 inches in length. The cause of death was a stab

wound to the chest, which punctured the left lung and pulmonary artery. The victim died

from blood loss. The superficial linear incisions on the victim’s chest were made before

the stab wounds. The minimum time from infliction of the stab wounds to the time of death

was estimated at between five to six minutes, although the victim could have lived up to

30 minutes. The linear incisions would have been painful wounds; however, it was

impossible to say with medical certainty whether the victim was conscious at the time they

were inflicted.



                                             6
              Both Majors and Vaden described the victim, who was fourteen years old at

the time of the murder, as being a “B” and “C” student who loved school. He was small for

his age and was the smallest in his group of friends. The victim was not violent in nature

and did not carry a weapon.



              Since the murder of her son, Majors’ health has deteriorated. She has been

on medication and will not leave the house except for doctor appointments. She has had

a nervous breakdown, suffers from panic attacks, and has not been able to sleep at night

since the murder. Vaden testified that since the murder he has suffered from mood swings

and blames himself for his brother’s death.



              For the defense, the appellant’s cousins, James and Carol Sue Little, and the

appellant’s half-sister, Sharon Fuchs, testified concerning the appellant’s difficult childhood.

The appellant grew up around several small towns in Texas. His father died of a heart

attack when the appellant was four years old. After that, the appellant’s mother remarried,

and Fuchs was born. Eventually, the appellant’s step-father had a nervous breakdown and

was committed to a mental institution, and the appellant’s mother divorced him. After the

divorce, the appellant’s mother worked and went out regularly in the evenings. During the

evenings, the children would either stay with relatives or go with their mother to bars.

Sometimes their mother would leave the children by themselves at a bar while she left with

a man for a couple of hours. Men often spent the night at the house, and the children

could sometimes hear their mother having sexual relations with them. The mother would

not stop if the children came in the room, and Fuchs was sometimes forced to participate

while her mother watched.



              An uncle, who was a pedophile, sometimes babysat the children. The

appellant’s mother continued to let the uncle babysit even though she knew this. One time,

Fuchs saw the uncle rape the appellant. She went to get her mother, but the incident was

never discussed. The mother would sometimes grab the appellant between his legs and



                                               7
would watch him use the bathroom.



              After being raped by his uncle, the appellant always appeared angry and

would get in trouble. He started running away from home and walking the streets.

Eventually, the appellant was sent to a home for children and was later sent to prison on

two different occasions. After the appellant returned from prison, he was more angry and

strange. He started having seizures about every three days, and he lived in a shack

behind the house. The appellant was sent to a state mental institution after he climbed

a water tower and threatened suicide.



              The appellant met Tammy Middlebrooks when she was seventeen years old.

They dated for two or three months and got married in early 1986. The relationship was

strange, and both seemed to be unstable. For a brief time, the couple lived with Fuchs and

the appellant’s mother. The appellant did not have a job, so he and Tammy would

sometimes spend the day having sex or walking around town. Fuchs identified a document

titled “Debow’s Revenge” as being in the appellant’s handwriting. The document was

found in the appellant’s room, and Fuchs turned it over to the police at their request. This

handwritten document told in detail how “Debow” would seek revenge against certain

people.



              A psychologist, Dr. Jeffrey L. Smalldon, testified that he performed a

psychological and neuropsychological evaluation on the appellant at the request of defense

counsel. From his interviews and testing of the appellant and his review of numerous

records documenting the appellant’s contact with a wide variety of mental health

professionals, the appellant’s educational records, and his records from the Texas

Department of Correction, Dr. Smalldon determined that the appellant had a severe

borderline personality disorder, which is marked by an inconsistency in behavior. Dr.

Smalldon found that the characteristics of borderline personality disorder, including

instability of mood, seeing either the best or the worst in others, marked identity

disturbance, impulsive and reckless behavior, poor control over anger, recurring suicidal



                                             8
or self-destructive gestures, and intense fear of abandonment, were either observed or

documented in the appellant’s historical records.



               Dr. Smalldon also found significant antisocial and schizotypal traits, a history

of mixed substance and alcohol abuse, an organic personality change, and a seizure

disorder. The appellant also has a mild functional brain impairment, which would cause

the appellant to have a greater degree of impulsivity and an inability to delay some of his

responses. A significant number of mental health professionals who examined the

appellant found signs of malingering. Dr. Smalldon testified that this was not necessarily

inconsistent with having a mental illness, describing the appellant as a chronic liar.



               From his review of the appellant’s social history, Dr. Smalldon noted as

significant the lack of parental supervision while the appellant was growing up and sexual

and physical abuse by his mother and other relatives. Dr. Smalldon observed that the

appellant exhibited many of the characteristics seen in adults who were sexually abused

as children.



               As to the appellant’s account of his involvement in the murder, Dr. Smalldon

testified that the appellant claimed more responsibility in his interview with him than the

appellant did in his video-taped statement to the police. The appellant never expressed

any remorse to Dr. Smalldon.



               In rebuttal, the state presented the testimony of Dr. Michael McElroy, the

Director of Psychological Services for the State of Tennessee at Middle Tennessee Mental

Health Institute (MTMHI). Dr. McElroy testified that based on the results of the Minnesota

Multiphasic Personality Inventory (MMPI) administered on the appellant by Dr. Smalldon,

it was his opinion that the appellant was exaggerating his mental state. While Dr. Smalldon

testified that the appellant may have been overreporting some of his symptoms, he did not

believe that the profile was obviously invalid. Dr. McElroy acknowledged that borderline

personality disorder is a mental illness and that all of the appellant’s records indicate he



                                               9
has some form of personality disorder.



              Dr. Willis Marshall testified that he examined the appellant while he was at

MTMHI in 1987 and determined that the appellant was competent to stand trial, that he did

not have an insanity defense, and that he was not committable. Dr. Marshall further stated

that there was no finding of mental illness and that he generally did not consider

personality disorder as a mental illness. Dr. Marshall found several indications that the

appellant was trying to convince them he had more of a mental problem than he really did.



              On cross-examination, Dr. Marshall admitted that the Diagnostic and

Statistical Manual of Mental Disorders, Fourth Revised Edition, includes borderline

personality disorder as a diagnosable form of mental illness. He also admitted that every

mental health professional who examined the appellant found some form of diagnosable

mental illness.



              Based on this proof, the jury sentenced the appellant to death for the murder

of Kerrick Majors.




        II. CONSTITUTIONALITY OF “HEINOUS, ATROCIOUS, AND CRUEL”
                       AGGRAVATING CIRCUMSTANCE



              The appellant contends that the trial court’s instruction on the heinous,

atrocious, or cruel aggravating circumstance was unconstitutional. Relying primarily on

Houston v. Dutton, 50 F.3d 381 (6th Cir.), cert. denied, --- U.S. ---, 116 S. Ct. 272 (1995),

Rickman v. Dutton, 854 F.Supp. 1305 (M.D. Tenn. 1994), and Maynard v. Cartwright, 486

U.S. 356, 108 S. Ct. 1853 (1988), the appellant argues that the term “heinous” is

unconstitutionally vague on its face, and this vagueness was not cured either through the

use of the qualifier “especially” or by the use of “depravity of mind.”



              At the sentencing hearing, the trial court charged the jury on this aggravating

                                             10
circumstance as it is set forth in Tennessee Code Annotated section 39-2-203(i)(5)(1982),2

which provided that the murder was heinous, atrocious, or cruel in that it involved torture

or depravity of mind. The trial court gave the following jury instruction:



                No death penalty shall be imposed unless you unanimously find that
         the State has proven beyond a reasonable doubt the following specified
         statutory aggravating circumstance:

                The murder was especially heinous, atrocious, or cruel, in that it
         involved torture or depravity of mind.

               In determining whether or not the State has proved the aggravating
         circumstance, you are governed by the following definitions:

                  Heinous means grossly wicked or reprehensible, abominable, odious,
         vile.

               Atrocious means extremely evil or cruel, monstrous, exceptionally
         bad, abominable.

                Cruel means disposed to inflict pain or suffering, causing suffering,
         painful.

                Torture means the infliction of severe physical or mental pain upon the
         victim while he remains alive and conscious.

                  Depravity means moral corruption, wicked or perverse act.



                  Our supreme court has consistently held that the language of Tennessee

Code Annotated section 39-2-203(I)(5)(1982) (repealed 1989) is not unconstitutionally

vague or overbroad. State v. Dicks, 615 S.W.2d 126, 131-32 (Tenn. 1981). See also

State v. Black, 815 S.W.2d 166, 181 (Tenn. 1991); State v. Barber, 753 S.W.2d 659, 670

(Tenn. 1988).



                  In State v. Williams, 690 S.W.2d 517 (Tenn. 1985), our supreme court

reversed the sentence of death and remanded for a new sentencing hearing after finding

"that the court did not instruct the jury concerning the legal significance of the words

'heinous,' 'atrocious,' 'cruel,' 'torture,' or 'depravity of mind' as those terms are used in the

         2
          Tennessee Code annotated section 39-13-204(I)(5), effective November 1, 1989, states that the
murder was especially heinous, atrocious, or cruel in that it involved torture or serious physical abuse beyond
that necessary to produce death. Although the sentencing hearing was held in 1995, the murder was
committed in 1987. Accordingly, the jury was properly charged as to the “torture or depravity of mind”
standard in existence at the time of the crim e. See State v. Cazes, 875 S.W.2d 253, 267 (Tenn . 1994), cert.
denied, 513 U.S . 1086, 11 5 S. Ct. 74 3 (1995 ); State v. Sm ith, 893 S.W .2d 908, 9 20 (Te nn. 1994 ), cert. denied,
--- U.S.---, 116 S. Ct. 99 (1995).

                                                         11
aggravating circumstance defined in T.C.A. § 39-2-203(i)(5)." Id. at 532. The court found

the statute to be constitutional "so long as the abstract terms employed therein are

construed and interpreted as we have done in this opinion and other opinions of this

Court." Id. at 533. Jury instructions on the definitions are necessary to preclude "a

basically uninstructed jury" that "cannot lawfully impose the death penalty," Id. (citing

Godfrey v. Georgia, 446 U.S. 420, 429, 100 S. Ct. 1759, 1765 (1980)). In the present

case, the trial court clearly instructed the jury in accordance with Williams.



              Furthermore, the appellant’s reliance on federal case law is unfounded. In

Houston v. Dutton, the trial court did not instruct the jury on the definitions of any of the

terms set forth in the heinous, atrocious, or cruel aggravating circumstance. Houston, 50

F.3d at 387. In Rickman v. Dutton, the trial court defined the terms “heinous,” “atrocious,”

and “cruel” for the jury but did not define the terms “torture” or “depravity of mind.”

Rickman, 854 F.Supp. at 1309-10. The district court held that the “especially heinous”

instruction, even as limited by the definition of heinous as “extremely wicked or shockingly

evil,” was unconstitutionally vague. Id. at 1310. The district court also held that the

instruction was vague despite the inclusion of the term “depravity of mind,” which it also

found to be unconstitutionally vague. Id. In contrast to the facts of these cases, the trial

court in the present case instructed the jury on all the definitions required under Williams.



              Regardless, this court is not bound by these federal rulings. Instead, we are

only required to follow the applicable constitutional rulings of the United States Supreme

Court. See State v. Bush, 942 S.W.2d 489, 521 n.11 (Tenn. 1997); State v. McKay, 680

S.W.2d 447, 450 (Tenn. 1984); State v. Bowers, 673 S.W.2d 887, 889 (Tenn. Crim. App.

1984); see also State v. Vickers, 159 Ariz. 532, 768 P.2d 1177, 1188 n.2 (1989) (Arizona

Supreme Court refuses to follow Ninth Circuit's invalidation of Arizona death penalty

statute).



              Finally, although not raised by the appellant, the jury’s application of this

aggravating circumstance is clearly supported by the record. The appellant admitted in his



                                             12
statement to police that the victim was slapped, beaten with brass knuckles, and hit with

a stick in his mouth and on his testicles. A stick was jabbed into the victim’s anus, his nose

was burned with a cigarette lighter, a knife was dropped on his chest, his wrist was

slashed, and he was forced to swallow urine. Superficial linear incisions in the form of an

“X” were slashed across the victim’s chest before the fatal stab wound. According to the

medical examiner, the victim could have lived from 5 to 30 minutes after being stabbed.

From the victim’s capture to the time of the fatal stab wound, approximately four hours

elapsed.



              Based on these facts, the proof of torture is gruesome and overwhelming,

depicting acts that are abhorrent and unspeakably cruel. In essence, the facts of this case

define torture. Cf. State v. Smith, 868 S.W.2d 561, 579-80 (Tenn. 1993) (multiplicity of

wounds, infliction of gratuitous violence on victims, and needless mutilation); State v.

McNish, 727 S.W.2d 490, 494 (Tenn. 1987) (victim beaten several times and remained

alive and at least partially conscious throughout ordeal); State v. Zagorski, 701 S.W.2d

808, 814 (Tenn. 1985) (infliction of gratuitous violence and needless mutilation of victims

who were already helpless from fatal wounds).



               III. INTRODUCTION OF EVIDENCE OF VICTIM’S RACE
               AS A MOTIVE FOR THE COMMISSION OF THE CRIME



              The appellant contends that the state was improperly allowed to introduce

irrelevant and inflammatory evidence tending to exploit its belief that the murder of the

victim was based upon the appellant’s racist beliefs. Specifically, the appellant objects to

the testimony of Shannon Stewart, who testified that he had conversations with the

appellant on the morning of the crime in which the appellant expressed racial animosity.

The appellant contends that the prosecutor’s closing argument also improperly called on

the jury to impose the death penalty because of the appellant’s racist beliefs. We find this

issue to be without merit.



              Prior to the sentencing hearing, the appellant filed a motion in limine seeking

                                             13
exclusion of this evidence of racial belief. At the hearing on the motion, the appellant

argued that while this testimony was relevant at the first trial to show premeditation, the

state was not required to prove the elements of first-degree murder at the resentencing

hearing, and the prejudicial impact of this testimony would be extreme. The trial court took

the matter under advisement until Stewart was called as a witness, at which time it made

the following ruling:

       What I needed to do and did do is read the transcript so I could understand
       exactly what the questions and answers were, and it appears to me that it is
       relevant, and I have conducted the requisite balancing test and find it to be
       admissible, if the State chooses to introduce it.

       In response to your argument that the stated basis of admissibility previously
       was to prove premeditation. You have to put that in the context. That was
       in a case where both phases were being tried, and the proof was being
       introduced in the guilt or innocence phase, so the State would not have been
       addressing that at sentencing. For purposes of this hearing, where this jury
       is just hearing all this for the first time, the evaluation has to be made
       independent of that totally, which, you know, for the reason I just stated, did
       not address before, but it is relevant and admissible for sentencing. That is
       the evaluation I have conducted, not based on what was done the last time,
       because it is apples and oranges.



              Stewart then testified before the jury about his conversations with the

appellant prior to the night of the murder:

       [The appellant] was telling me stuff, you know, that I really didn’t, you know,
       care to listen to at that age, you know, telling me like he was KKK and he
       said a nigger walked up to him and said, Hi, and he hit him in his mouth and
       he had a little ring on, a tiger head, and he showed me some blood in the
       creases of his ring, and stuff.



              Based on this proof, the state made the following argument during the final

closing argument:

       The testimony in this case tells you more about Donald Middlebrooks from
       the days it happened, from Shannon Stewart, than all the psychologists that
       you can bring in this courtroom, from 1989 to the present. Shannon Stewart
       told you more about this man than any Ph[.]D. could ever do.

       ****
       And when we found out from his psychologist that the psychologist had
       conveniently neglected to dictate on the transcription words such as we [sic]
       used racial epithets. The complexity of this murder dealt with race.

       ****
       You decide this case on evidence. W e’ve said that, and there are some
       pretty ugly things in this case that are embarrassing and frightening to many
       of you on the jury. What happened in this case is every mother’s worst


                                              14
       nightmare, but even so, in this case, because, no doubt, Kerrick Majors had
       been told that there were a small group of people in this world who will never
       like you, no matter what you do, what you become, or how you treat them.
       They will only see your skin.



              We note that on direct appeal, the supreme court held that Stewart’s

testimony was admissible:

       The testimony is clearly relevant to show premeditation and a motive for the
       victim’s brutal slaying. The testimony is also relevant to contradict the
       defendant’s statement that Roger Brewington was the leader in the
       commission of the offense. In addition, given the relevancy of the
       statements, we find that the prejudicial effect did not substantially outweigh
       their probative value. State v. Banks, 564 S.W.2d 947, 951 (Tenn. 1978).
       Accordingly, we hold that the trial court correctly admitted Shannon Stewart’s
       testimony about these statements.

Middlebrooks, 840 S.W.2d at 330.



              Tennessee Code Annotated section 39-2-203 has been interpreted as only

permitting introduction of evidence relevant to punishment at the sentencing phase.

Evidence is relevant to punishment only if it is relevant to a statutory aggravating

circumstance or to a mitigating circumstance raised by the defendant. Cozzolino v. State,

584 S.W.2d 765, 767-68 (Tenn. 1979); see also State v. Adkins, 653 S.W.2d 708, 715-16

(Tenn. 1983).



              Regardless, at a resentencing hearing, both the state and the defendant “are

entitled to offer evidence relating to the circumstances of the crime so that the sentencing

jury will have essential background information ‘to ensure that the jury acts from a base of

knowledge in sentencing the defendant.’” State v. Adkins, 725 S.W.2d 660, 663 (Tenn.

1987) (quoting State v. Teague, 680 S.W.2d 785, 788 (Tenn. 1984)); see also State v.

Bigbee, 885 S.W.2d 797, 813 (Tenn. 1994); State v. Nichols, 877 S.W.2d 722, 731 (Tenn.

1994), cert. denied, 513 U.S. 1114, 115 S. Ct. 909 (1995).



              In State v. Teague, 897 S.W.2d 248 (Tenn. 1995), the supreme court held

that “[e]vidence that is admissible as being relevant to the issue of guilt or innocence may

also be admissible at a resentencing hearing in support of a mitigating circumstance.” Id.



                                            15
at 253. The issue raised on appeal in Teague was whether the defendant should be

allowed to present proof of innocence at a resentencing hearing. The supreme court noted

that the “test for admissibility is not whether the evidence tends to prove the defendant did

not commit the crime, but, whether it relates to the circumstances of the crime or the

aggravating or mitigating circumstances.” Id. at 252.



              In the present case, Stewart’s testimony at the resentencing hearing was

relevant to the nature and circumstances of the murder, especially to show the appellant’s

motive and intent. From the record, it is clear that race was an integral dynamic of the

circumstances surrounding this murder, and the jury was entitled to have this base of

knowledge in sentencing the appellant.



              Moreover, Stewart’s testimony was relevant to rebut the statutory mitigating

circumstances raised by the appellant. Among others, the appellant raised these statutory

mitigating circumstances: (1) the appellant acted under extreme duress or under the

substantial domination of another person, and (2) the capacity of the appellant 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. Tenn. Code Ann. § 39-2-203(j)(6), (8)(1982) (repealed). These mitigating

circumstances were raised to offer an explanation for the appellant’s participation in the

murder. Therefore, although Stewart’s testimony was presented during the state’s case-in-

chief rather than in rebuttal, it was still relevant to rebut the mitigating circumstances.

Stewart testified after the jury was shown the appellant’s video-taped statement to the

police. In this statement, the appellant depicted Brewington as the primary perpetrator of

the offense and attributed the racist remarks to Brewington. Clearly, Stewart’s testimony

was offered to rebut these claims by the appellant in his statement to the police.



              The state was also properly allowed to address this proof during closing

arguments. It is well established that closing argument must be temperate, must be



                                             16
predicated on evidence introduced during the trial of a case, and must be pertinent to the

issues being tried. State v. Sutton, 562 S.W.2d 820, 823 (Tenn. 1978). The prosecutor

may state an ultimate conclusion which would necessarily follow if the testimony of the

prosecution witnesses were believed by the jury. State v. Brown, 836 S.W.2d 530, 552

(Tenn. 1992). Moreover, both parties must be given the opportunity to argue not only the

facts in the record but any reasonable inferences therefrom. See Russell v. State, 532

S.W.2d 268, 271 (Tenn. 1976).



                 Based in great measure upon the role of the prosecutor in the criminal justice

system, more restrictions are placed on the state than the defendant. Coker v. State, 911

S.W.2d 357, 368 (Tenn. Crim. App. 1995). Accordingly, “the state must refrain from

argument designed to inflame the jury and should restrict its commentary to matters in

evidence or issues at trial.” Id. Here, the prosecutor’s argument was based on proof of the

appellant’s racial animosity and the reasonable inference that it played a significant role

in the appellant’s participation in this murder.



                 Finally, even if it was error to admit Stewart’s testimony and to allow the state

to address this proof during closing argument, such error was harmless in that the proof

was cumulative of other admissible evidence. See Hartman v. State, 896 S.W.2d 94, 100-

101 (Tenn. 1995). The appellant made several racial comments during his videotaped

statement to the police, which was viewed by the jury. Furthermore, Dr. Smalldon, the

defense’s expert witness, admitted that the appellant used several racial epithets while

being interviewed by him. Dr. Smalldon also testified that the appellant told him all three,

“[the appellant] and Roger and Tammy, made racial taunting remarks at the victim.”



                               IV. PROSECUTORIAL MISCONDUCT3




        3
            Although not affecting the sentence in this case, based on our review of the record, we encourage
prosecutors to refrain fro m us ing antiqua ted and in approp riate terms when referring to those who are m enta lly
ill or challen ged. W e offer this suggestion in light of our supreme court’s appointment of the Commission on
Racial and E thnic Fairness in 1995. Terms s uch as “ crazy” and “retarded,” especially when used by officers
of the court in a derisive context, reflect poorly on the entire judicial system.

                                                        17
              The appellant contends that his right to due process as guaranteed by both

the Tennessee and United States Constitutions was violated because the prosecutor

argued that the victim’s family and the district attorney’s office wanted a death sentence

imposed and because the prosecutor argued that the Bible supported imposition of the

death penalty. We find that any improper closing argument was harmless error.



                The standard of review in determining whether counsel was allowed too much

latitude during closing argument is abuse of discretion. Sutton, 562 S.W.2d at 823. As

previously stated, closing argument must be temperate, must be predicated on evidence

introduced during the trial of a case, and must be pertinent to the issues being tried. Id.

Based in great measure upon the role of the prosecutor in the criminal justice system, the

most restrictions are placed on the state. Coker, 911 S.W.2d at 368. Accordingly, “the

state must refrain from argument designed to inflame the jury and should restrict its

commentary to matters in evidence or issues at trial.” Id.



              In reviewing the propriety of argument in a capital sentencing proceeding, the

reviewing court must determine 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

v. Mississippi, 472 U.S. 320, 341, 105 S. Ct. 2633, 2646 (1985)). This court has set forth

five factors to consider in determining whether any improper conduct was prejudicial:

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

Judge v. State, 539 S.W.2d 340, 344 (Tenn. Crim. App. 1976). The adoption of these

considerations was approved by our supreme court in State v. Buck, 670 S.W.2d 600, 609

(Tenn. 1984).



              While the prosecutor’s comments during closing argument were improper,


                                            18
we find that such error did not affect the jury’s decision.



              The prosecutor made the following comment, without objection, during his

final closing argument concerning the desire of the victim’s family and the district attorney

general’s office for the jury to impose the death penalty:

       His family asks you to impose the death penalty. The State asks you to
       impose the death penalty. The facts support it. He deserves it. Justice
       demands it on the facts and the law.


              Overruling the decisions in Booth v. Maryland, 482 U.S. 496, 107 S. Ct. 2529,

and South Carolina v. Gathers, 490 U.S. 805, 109 S. Ct. 2207 (1989), the Supreme Court

held in Payne v. Tennessee, 501 U.S. 808, 111 S. Ct. 2597 (1991), that if a state “chooses

to permit the admission of victim impact evidence and prosecutorial argument on that

subject, the Eight Amendment erects no per se bar. A State may legitimately conclude that

evidence about the victim and about the impact of the murder on the victim’s family is

relevant to the jury’s decision as to whether or not the death penalty should be imposed.”

Payne, 501 U.S. at 827, 111 S. Ct. at 2609. The holding in Payne was adopted by our

supreme court in State v. Brimmer, 876 S.W.2d 75, 86 (Tenn.1994).



              The Supreme Court in Payne stated in a footnote:

               Our holding today is limited to the holdings of Booth v. Maryland, 482
       U.S. 496, 107 S.Ct. 2529, 96 L.Ed.2d 440 (1987), and South Carolina v.
       Gathers, 490 U.S. 805, 109 S.Ct. 2207, 104 L.Ed.2d 876 (1989), that
       evidence and argument relating to the victim and the impact of the victim's
       death on the victim's family are inadmissible at a capital sentencing hearing.
       Booth also held that the admission of a victim's family members'
       characterizations and opinions about the crime, the defendant, and the
       appropriate sentence violates the Eighth Amendment. No evidence of the
       latter sort was presented at the trial in this case.

Payne, 501 U.S. at 830, n.2, 111 S. Ct. at 2611, n.2.

              Here, the prosecutor improperly argued that the victim’s family members were

asking the jury to impose the death penalty. No objection was made, and therefore, no

curative measures were taken. Accordingly, the appellant has waived this issue. See

Tenn. R. App. P. 36(a). In any event, under Judge, there was no prejudice to the

appellant. There was no testimony presented during the resentencing hearing concerning

the opinion of the victim’s family as to the appropriate sentence. Moreover, this was the


                                             19
only such comment made by the state. Accordingly, in light of the overwhelming strength

of the state’s case, the prosecutor’s statement, albeit improper, was not prejudicial. See

also State v. Ricky Thompson, No. 03C01-9406-CR-00198 (Tenn. Crim. App. Jan. 24,

1996), perm. app. denied concurring in results only (Tenn. July 1, 1996).



               As to the prosecutor’s argument that his office was asking the jury to impose

a death sentence, this type of argument has also been held improper. See Brooks v.

Kemp, 762 F.2d 1383, 1410 (11th Cir. 1985). In Brooks, the prosecutor argued that it was

the practice of the district attorney general’s office to seek the death penalty in only a few

cases. Here, the prosecutor merely stated that his office was asking for a death sentence.

As pointed out by the state, the jury already knew that the district attorney general’s office

was seeking the death penalty.        Because the prosecutor did not further qualify his

argument by indicating that his office only sought the death penalty in a limited number of

cases, as in Brooks, this argument was not error. Applying the criteria set forth in Judge,

this single statement did not affect the jury’s decision.



               Finally, the appellant complains about the prosecutor’s references to the

Bible:

         Mr. Barrett has asked you to consider something else. He has asked you to
         consider the book where the words of our Lord are written, vengeance is
         mine.

                This lady has come to this courtroom, not for vengeance, but to turn
         this over to you, the law. If she was after vengeance, this case would have
         never made it here.

               The same book that says vengeance is mine says whoever sheddeth
         man’s blood, whoever sheddeth man’s blood, then by man shall his blood be
         shed. The Lord meant for the system of laws and justice to govern societies
         wherever they are, and you are that tool of the Lord, that part of justice--


               At this point, defense counsel objected. The trial judge did not agree with

defense counsel that the state had gone beyond the scope of rebuttal; however, she stated

“I do believe that I’ll ask the General to move on to something else.”



               Previously, during defense counsel’s closing argument, he had argued:



                                             20
       We do not apologize for asking for mercy, asking for leniency or sympathy
       for Donald Middlebrooks. Our life is given by our creator, and it is not to be
       taken lightly by man or our government using the guise of due process and
       the judicial system as a thinly veiled guise for vengeance; vengeance, which
       I think our creator says is his and not ours.

       ****

       What is the reason you are here? It is to decide, very simply, whether this
       man is going to live or die, and I submit to you, ladies and gentlemen of the
       jury, that when Donald Middlebrooks arrives at his inevitable rendezvous with
       death, even in a prison cell, it should be at the time and discretion of his
       maker, in whose image we are all made, and not at the artificial time selected
       by the State of Tennessee, when a lever is pulled and the sanctity of human
       life, in this day and time, is even further diminished by an action of the State
       of Tennessee, and I submit to you, based upon all the evidence and facts in
       this case, the only verdict that can be returned consistent with the law and
       consistent with what the views of our society should be is that this young
       man should meet his maker in a cell by the Cumberland River, Riverbend
       Prison, and not at the artificial time when the State of Tennessee chooses
       to usurp the prerogative of our Lord.


              It is well established that it is inappropriate to make references to Biblical

passages or religious law during a criminal trial. See State v. Stephenson, 878 S.W.2d

530, 541 (Tenn.1994) (judge's references to Biblical passage); State v. Harrington, 627

S.W.2d 345, 350 (Tenn. 1981) (foreman read biblical passages to other jury members);

Kirkendoll v. State, 198 Tenn. 497, 521-22, 281 S.W.2d 243, 254 (1955) (prosecutor's

reference to Mosaic law). Such references, however, do not constitute reversible error

unless the appellant can clearly establish that they had some effect on the verdict.

Stephenson, 878 S.W.2d at 541; Kirkendoll, 198 Tenn. at 522, 281 S.W.2d at 254.



              In Kirkendoll, the prosecutor referred to the Mosaic Law during the voir dire

examination. The supreme court commented that unless such a remark clearly would have

had some effect on the verdict it did not constitute reversible error, particularly where the

trial judge remonstrated with the district attorney general and told him not to use a

reference of that kind again. Kirkendoll, 198 Tenn. at 522, 281 S.W. 2d at 254; see also,

State v. Keen, 926 S.W.2d 727, 736 (Tenn. 1994) (prosecutor’s quote from Bible and

interjection of religious law was trivial, at most, in relationship to remainder of argument

and did not effect verdict).



              Upon examining the above-quoted remarks in light of the entire closing


                                             21
argument, defense counsel’s religious references, the facts and circumstances surrounding

the case, and the overall strength of the state's case, this court finds that the improper

comments made during the state's argument did not affect the verdict to the prejudice of

the appellant.



              V. CONSTITUTIONALITY OF THE DEATH PENALTY STATUTES



                  The appellant raises several challenges to the constitutionality of Tennessee

Code Annotated section 39-2-203 and -205 (1982) (repealed 1989). As acknowledged by

the appellant, our Supreme Court has repeatedly rejected these arguments. See, e.g.,

Bigbee, 885 S.W.2d at 813-14; Brimmer, 876 S.W.2d at 87-88; Cazes, 875 S.W.2d at

268-69; State v. Hutchison, 898 S.W.2d 161, 173-74 (Tenn. 1994), cert. denied, ___ U.S.

___, 116 S. Ct. 137, 133 L.Ed.2d 84 (1995); State v. Bane, 853 S.W.2d 483, 488-89

(Tenn. 1993); State v. Smith, 857 S.W.2d 1, 21-24 (Tenn. 1993); Black, 815 S.W.2d 166,

181, 185; State v. Melson, 638 S.W.2d 342, 366-68, (Tenn. 1982).



                  As an intermediate appellate court, it is beyond our statutory function to

overrule the holdings of our supreme court. See Reimann v. Huddleston, 883 S.W.2d 135,

137 (Tenn. App. 1993), perm. app. denied (Tenn. 1994). Thus, we decline the invitation

to revisit these issues which have previously been decided.



                                    VI. PROPORTIONALITY REVIEW4



                  Although not raised by the parties, this court is required to review death

sentences in the manner mandated by Tennessee Code Annotated section 39-13-

206(c)(1). Here, the sentence was not imposed in an arbitrary manner. Additionally, the

evidence presented in support of the valid aggravating circumstance outweighed the



         4
          While the trial court filed a report with the supreme court clerk in Nashville as required by Rule 12,
Tennessee Sup rem e Co urt R ules , after the a ppe llant’s first tria l, it failed to file a new report with the Clerk or
include one in the technical record after the appellant was resentenced. H owever, our suprem e court has h eld
that the absence of this report does not necessarily preclude adequate appe llate and comparative
proportio nality review. Sm ith, 893 S.W.2d at 927.

                                                           22
evidence introduced to establish any mitigating circumstances beyond a reasonable doubt.



             "No two cases are alike, and no two defendants are alike." Barber, 753

S.W.2d at 665. However, a comparative proportionality review, which considers both the

nature of the crimes and of the defendant, reveals that the death sentence in this case was

neither excessive nor disproportionate. Irick, 762 S.W.2d 121; State v. O’Guinn, 709

S.W.2d 561 (Tenn. 1986); State v. Coe, 655 S.W.2d 903 (Tenn. 1983).



                                   VII. CONCLUSION



              We have carefully considered the issues raised by the appellant as to the

resentencing hearing and have determined that none has merit. Accordingly, we affirm the

appellant’s sentence of death. The sentence of death will be carried out as provided by

law on the 27th day of April, 1998, unless otherwise ordered by our supreme court.



                                             _________________________________
                                             CURWOOD WITT, JUDGE


CONCUR:



_________________________________
JOE G. RILEY, JUDGE


_________________________________
JOE H. WALKER, III, SPECIAL JUDGE




                                            23
