             IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                             AT NASHVILLE                   FILED
                          JANUARY 1996 SESSION
                                                               May 19, 1998

                                                            Cecil W. Crowson
STATE OF TENNESSEE,           )                            Appellate Court Clerk
                              )
             Appellee,        )    No. 01C01-9412-CC-00408
                              )
                              )    Montgomery County upon change of venue
                              )    from the Twenty-Fourth Judicial District
v.                            )
                              )    Honorable Julian P. Guinn, Judge
                              )
STACY DEWAYNE RAMSEY,         )    (First Degree Murder)
                              )
             Appellant.       )


For the Appellant:                 For the Appellee:

Matthew M. Maddox                  Charles W. Burson
D. D. Maddox                       Attorney General of Tennessee
105 East Main Street                      and
P.O. Box 430                       William David Bridgers
Huntingdon, TN 38344- 0430         Assistant Attorney General of Tennessee
                                   450 James Robertson Parkway
                                   Nashville, TN 37243-0493

                                   Robert G. Radford
                                   District Attorney General
                                           and
                                   Elenora Cahill
                                   Assistant District Attorney General
                                   111 Church Street
                                   P.O. Box 686
                                   Huntingdon, TN 38344-0686




OPINION FILED:____________________

AFFIRMED

Joseph M. Tipton
Judge
                                               OPINION

                 The defendant, Stacy Dewayne Ramsey, appeals as of right from a jury

conviction in the Circuit Court of Montgomery County1 for first degree murder and

sentence of life imprisonment without the possibility of parole. At the sentencing

hearing, the jury found the existence of two aggravating circumstances: that the murder

was especially heinous, atrocious, or cruel in that it involved torture or serious physical

abuse beyond that necessary to produce death and the murder was committed for the

purpose of avoiding, interfering with, or preventing a lawful arrest or prosecution of the

defendant or another. See T.C.A. § 39-13-204(i)(5) and (6). The defendant contends

that:

                 (1) the trial court lacked jurisdiction to convict the defendant
                 because an order of interchange was never entered;

                 (2) he was convicted based upon the uncorroborated
                 testimony of a codefendant;

                 (3) the trial court erred by overruling his motion to suppress
                 statements he gave to police;

                 (4) the trial court erred by allowing the introduction of evidence
                 during the guilt and sentencing phases concerning the
                 defendant’s mutilation and disposal of the victim’s body;

                 (5) the trial judge erred by refusing to recuse himself from
                 hearing the case;

                 (6) the trial court erred by denying the defendant’s motion
                 challenging the constitutionality of the felony murder statute
                 when it is read in conjunction with the statutes allowing for a
                 conviction based upon criminal responsibility for the conduct of
                 another and for the facilitation of a felony.

                 (7) the trial court erred by excusing an impaneled juror after
                 testimony had begun;

                 (8) the trial court erred by denying the defendant’s special
                 requests for jury instructions on duress and diminished
                 capacity and by instructing the jury regarding diminished
                 capacity in the manner that it did; and




                 1
                    The defendant’s initial motion to change venue was granted, and venue was changed
from Carroll C ounty, the co unty in which the offen se occ urred, to H enry Cou nty. A subs equen t motion to
chang e venue was also granted due to pu blicity surroun ding the trial of Teres a Deion Smith Harris, a
cod efen dan t, and venu e wa s ch ang ed fr om Hen ry Cou nty to M ontg om ery Co unty.

                                                       2
                (9) the evidence is insufficient to support the aggravating
                circumstances.

We affirm the judgment of conviction.



                On July 30, 1993, at approximately 7:00 p.m., police officers discovered a

truck belonging to Dennis Brooks, Jr., on a dirt road in an isolated part of Carroll County

near the residence of the defendant and Teresa Deion Smith Harris 2. The truck was on

fire with the severely charred body of Dennis Brooks, Jr., inside it. The victim had been

shot in his left hip and under his chin. The victim’s body had also been dismembered

and stabbed. The radio, the speakers and other items belonging to the victim had been

taken from the truck.



                Alvin Daniels, an agent with the Tennessee Bureau of Investigation (TBI),

testified that the truck was moved to the jail after the fire went out. He said that the

victim’s body was then removed from the truck. He stated that it was apparent that the

victim’s legs had been cut off, with one being on the passenger side of the truck and the

other being under the victim’s body. Agent Daniels testified that he interviewed the

defendant the next morning. He said that he noticed blood on the shoes that the

defendant was wearing. He stated that when he questioned the defendant about the

blood, the defendant told him that it was deer blood. Agent Daniels testified that he

searched the defendant’s residence with the defendant’s permission. He said that he

found a .20 gauge, single shot shotgun at the defendant’s residence and a shaving kit

containing tools in a barn located on the defendant’s property. He stated that the

shotgun had to be cocked manually each time it was fired. Agent Daniels found several

items belonging to the victim at Harris’ residence, including two Mexican coins, one

Grover Cleveland coin, and the truck radio and speaker. He also found two butcher


                2
                   The defendant, Harris, and Walter Steve Smothers were jointly indicted for the first
degree murder of Dennis Brooks, Jr. Before Harris’ trial, Smothers entered a guilty plea to first degree
murder and was sentenced to life without the possibility of parole. Pursuant to the agreem ent, Smothers
testified against Harris and the defendant. Harris was tried separately and was convicted by a jury of first
degree murd er and s entenc ed to life witho ut the pos sibility of parole.

                                                     3
knives, a shovel, an ax, a five-gallon gasoline tank at her residence and red droplets on

the walkway to the shed behind her house. Agent Daniels testified that he discovered

stains that appeared to be blood on Parrish Road, a narrow gravel road in an isolated

part of the county near the location where the truck was discovered by police.



              May Dill, the manager at a Subway Restaurant, testified that the victim

was an employee at the restaurant and that he was closing the restaurant on the night

that he was killed. She said that she spoke to the victim on the telephone at

approximately 12:25 a.m. on July 30, 1993.



              Officer David Bunn of the Carroll County Sheriff’s Department testified

that he responded to a call from Keith Knowles on July 30 that he had heard voices

coming from the road near his residence followed by a gunshot. He stated that when

he arrived, he discovered red spots on the road and the defendant’s truck parked on

the side of the road. He said that the truck had a flat tire and the hood of the

defendant’s truck was still warm. Officer Bunn testified that a search for the victim was

conducted after the victim’s father reported the victim and his truck missing. He stated

that the victim’s truck was discovered by police, and he described the discovery of the

victim’s body in the burned truck.



              Keith Knowles testified that he was awakened at 12:30 or 1:00 a.m. by

people talking near the road approximately sixty to seventy feet from where he lived.

He said that he saw the taillights of a vehicle stopped in the road. He stated that he

heard someone ask to borrow ten dollars and a male voice responded that he had it

covered. Mr. Knowles testified that he then heard the motor of the vehicle speed up

and a man curse and say that if the person moved the truck, he would blow the

person’s head off. He said that the man asked the person in a loud voice two more

times whether the person heard what he was saying. Mr. Knowles stated that he then



                                             4
heard a gunshot followed by a scream by a woman. He said that the truck then drove

away and he heard the woman yell, “Lay down. Lay down, M.F., lay down.” Mr.

Knowles testified that he saw what appeared to be blood in the road when he walked to

the road. His wife testified similarly.



              Walter Smothers, a codefendant, testified that he had dated Teresa Deion

Smith Harris for approximately one month and had lived with her for approximately one

week before the offense occurred. He said that he, Harris and the defendant spent the

day drinking beer and whiskey and taking Valium at Harris’ house. Smothers stated

that he argued with David Hampton, Harris’ ex-boyfriend, on the telephone. He testified

that Harris asked him and the defendant to find Hampton and to hold him down so that

she could beat him up as Hampton had beaten her on earlier occasions. He stated that

they agreed, and the defendant took a gun that he had brought to Harris’ house with

him in the defendant’s truck. Smothers said that they then dropped Harris’ children at

their grandmother’s house.



              Smothers testified that before they arrived at Hampton’s residence, the

defendant’s truck began overheating, requiring them to stop along the road at

approximately 12:00 or 1:00 a.m. He stated that they discussed a plan to take the next

vehicle that came along. He said that they also discussed the possibility that they

would have to kill the driver. Smothers testified that as the victim’s truck came down

the road, Harris stood in the middle of the road to flag the victim down while Smothers

and the defendant stood on the other side of the road out of sight. He stated that when

the victim stopped the truck, he pointed the gun at the victim and told him to get out of

the truck. He said that the defendant then grabbed the victim and threw him to the

ground, and he stated that Harris slapped the victim, cursed him, and told him to shut

up. Smothers said that the victim became quiet.




                                            5
              Smothers testified that he got into the back of the truck with the victim. He

stated that the defendant drove the truck and Harris sat in the passenger seat holding

the gun on the victim through the rear sliding glass window of the truck. Smothers

testified that when the defendant sped up at one point, Smothers grabbed for the gun

and it accidentally discharged, hitting the victim in his left hip. He said that the victim

began screaming but Harris told the victim to shut up. He also said that they told the

victim that they would take him to the hospital. He stated that the victim began

screaming again as they neared security lights or street lights within the city limits.

Smothers claimed that he heard a voice tell him to shoot the victim, although he did not

know whether he was hallucinating or someone in fact said to shoot the victim. He

stated that he then took the gun, pointed it at the victim’s chin, and shot the victim

again. Smothers believed that the second shot killed the victim.



               Smothers testified that as they were driving towards Harris’ residence,

they were pursued by a police car but the defendant was able to evade the officer and

return to Harris’ residence. He said that they then took the radio and some coins from

the victim’s truck. He stated that they decided to bury the victim. Smothers testified

that the defendant initially suggested that they use a backhoe to bury the truck as well

as the victim, but the backhoe had a flat tire. He said that the defendant retrieved an ax

and a shovel from his residence and Harris obtained a butcher knife from her

residence. He stated that they then drove the truck to a secluded area located near a

bridge. Smothers testified that while there, they decided to cut off the victim’s legs to

make it easier to bury him. He said that before cutting off the victim’s legs, the

defendant took the shoes off the victim’s feet. Smothers said that he and the defendant

each cut off a leg with the ax. He claimed that he did not tell the defendant to cut off

the victim’s leg. Smothers said that Harris then stated that she wanted the victim’s

heart, and he removed the victim’s heart for her. He said that Harris then held the

victim’s heart to her mouth. Smothers testified that he and the defendant also held the



                                              6
victim’s heart up to their mouths at the request of Harris. He also said that they each

took turns stabbing the victim with the butcher knife. Smothers stated that the

defendant also took a tool kit from the victim’s truck.



              Smothers testified that they returned to Harris’ residence and retrieved oil

and gasoline to burn the victim’s body and the victim’s truck. He said that at

approximately 2:30 or 3:00 a.m., he drove the victim’s truck approximately one to two

miles away, with the defendant riding with him and Harris following in her own car.

They poured gasoline on the truck, set it on fire, and then went back to Harris’

residence where they showered and Harris washed their clothing.



              Smothers stated that they went to get the defendant’s truck at

approximately noon but the truck had a flat tire and would not crank. They returned

later and towed the truck to the defendant’s residence. Smothers said that the three

concocted a story to tell the police if they were questioned.



              On cross-examination, Smothers testified that Harris was more in

command than anyone else. He stated on redirect examination that Harris did not

order the defendant to grab the victim and throw him to the ground, to drive the victim’s

truck, to chop off the victim’s legs, or to take the victim’s personal belongings. He said

that when Harris stated that they would need a gun if they were going to Hampton’s

residence, the defendant retrieved the shotgun.



              Dr. Obrien Smith, a pathologist, testified that he examined the charred

remains of the victim that were found in the truck and that he identified the victim

through his dental records. His examination revealed that the victim suffered two

shotgun wounds, one to the left hip, causing damage to the intestines and large blood

vessels, and the other under the chin, causing damage to the head and neck. He said



                                             7
that a pellet also penetrated the victim’s lung. Dr. Smith’s examination showed that the

victim also suffered stab wounds to the right side of the abdomen and to the liver. Dr.

Smith testified that the victim’s chest had been opened and the heart removed. He

stated that the victim’s heart was found in the abdominal cavity. Dr. Smith said that

both of the victim’s legs, one of his arms, and his penis had been amputated.



              In Dr. Smith’s opinion, the shotgun wound under the chin could have

caused the victim’s death because of the damage to the spinal cord and the brain. He

believed that the shotgun wound to the victim’s left hip also could have been fatal,

although it was less likely to cause immediate death. Dr. Smith testified that he could

not determine which gunshot wound occurred first. He expressed the opinion that the

stabbing, the dismemberment, and the charring occurred after the victim’s death.



              Officer Thomas Bridges, the chief of police for Hollow Rock, testified that

as he was responding to a call, he saw a speeding truck. He stated that he pursued the

vehicle but eventually lost it.



              David Lee Hampton testified that he called Teresa Deion Smith Harris, his

former girlfriend, the day before the victim was killed. He stated that he spoke to Harris

and Walter Smothers on the telephone. He said that he argued with Smothers, and

Smothers asked him to meet him to fight the following Monday and told him that he was

going to beat him up.



              The defendant testified, and his testimony was similar to that of Smothers,

except he portrayed his role as a much more limited one. The defendant claimed that

he was working on his truck when Harris and Smothers stopped the victim’s truck. He

testified that he did not know of any plan to stop and kill the driver of the vehicle. The

defendant admitted that the shotgun Smothers used to kill the victim was his, but he



                                             8
stated that he did not know that Smothers had taken it from the truck until after the

victim was stopped. He stated that Smothers, who was holding the gun, told him to get

in the truck and drive and then Smothers forced the victim into the back of the truck.

The defendant said that he drove the truck because he was scared of Smothers. He

stated that he did not believe that anyone would be killed. The defendant remembered

hearing two gunshots and the victim pleading for his life, but he did not remember being

pursued by a police car. The defendant denied that he participated in the mutilation of

the victim’s body. The defendant also denied taking anything from the victim. He

denied having a conversation about using his father’s backhoe to bury the victim and

his truck, and he stated that he did not see anyone get an ax or a shovel. The

defendant admitted that he helped place the victim’s body in the seat of the truck before

Smothers poured gasoline on the truck and set it on fire. The defendant testified that

Smothers made up a story for them to tell police if they were questioned. He said that

he initially told the police the concocted story. He also admitted that he was wearing

the victim’s shoes when he was arrested, but he claimed that Smothers took the shoes

off the victim’s feet and gave them to him.



              Dr. Pamela Auble, a clinical psychologist, testified that she conducted an

examination of the defendant. She stated that as part of her examination, she

interviewed the defendant and reviewed the defendant’s school records, his medical

records, his birth records, transcripts of prior testimony in the Harris’ trial, and

transcripts of interviews of family members and co-workers of the defendant conducted

by an investigator. Dr. Auble testified that she determined that the defendant was of

low intelligence, having a full-scale IQ score of eighty-one. She said that testing of the

defendant in 1982 and 1988 revealed full-scale IQ scores of eighty and seventy-two,

respectively. Dr. Auble testified that the defendant’s school records revealed that the

defendant took some special education classes in middle school and high school. She




                                               9
said that the defendant graduated fifty-eight out of a class of one hundred and that he

passed the Tennessee Proficiency Test given in high school.



             Dr. Auble stated that in her opinion, the defendant is not a violent person

but is a very passive person who has problems standing up for himself. Dr. Auble said

that the defendant is also shy, immature, and dependent on others. She described the

defendant as being submissive and a follower. Dr. Auble testified that in her opinion

the defendant was afraid of Smothers and was not capable of standing up to him

because of his submissiveness and low intelligence. She said that the defendant had

some problems remembering the events that occurred on the night of the offense. She

believed the defendant was suffering from severe depression and a lot of anxiety

because he had symptoms of a person who has been through a horrible event.



             In rebuttal, Dr. Bernard Hudson, a psychiatrist, testified that he examined

the defendant pursuant to a court order. In his opinion, the defendant was competent

to stand trial and an insanity defense could not be supported. He stated that the

defendant did not have a mental disease or defect. Dr. Bernard also said that the

defendant denied any kind of psychiatric illness in the past or in the present. He

testified that the defendant knew what was taking place when the offense occurred,

knew that it was wrong, and knew that he had several choices.



             In surrebuttal, Dr. Auble testified that although the defendant does not

meet the standard for being insane, he suffers from a mental disease or defect in that

he meets the criteria for a dependent personality disorder and post-traumatic stress

disorder. On cross-examination, she explained that the defendant suffers from post-

traumatic stress disorder as a result of the events that occurred on the night of the

killing. She conceded that the defendant’s post-traumatic stress has no bearing on the

defendant’s diminished capacity.



                                            10
                                     I. JURISDICTION

              The defendant contends that the trial court was without jurisdiction to try

the case because no order of interchange was entered following the changes of venue.

He asserts that it was necessary that an order of interchange be entered by a judge of

the Circuit Court of Montgomery County. The defendant argues that the references to

“the receiving court” in Rule 21, Tenn. R. Crim. P., implies that the judge for the district

to which venue is changed will be different from the judge that originally had jurisdiction.

The state responds that the trial judge retained jurisdiction because there is no

requirement that an order of interchange be entered.



              The trial judge in this case is a judge for the Twenty-Fourth Judicial

District. Carroll County, the county in which the offense occurred, and Henry County,

the county to which venue was initially changed, are two of the counties that comprise

the Twenty-Fourth Judicial District. Montgomery County is not in the same judicial

district as Carroll County and Henry County. Venue was changed from Carroll County

to Henry County and from Henry County to Montgomery County. The trial judge

presided over the defendant’s case at all times. No order of interchange was entered.



              At a bench conference during voir dire, the defendant objected to the trial

court presiding over the defendant’s case because no order of interchange had been

entered by the Tennessee Supreme Court allowing the trial judge to sit by interchange.

The trial judge overruled the defendant’s objection.



              The defendant also raised the issue in his motion in arrest of judgment

filed after the judgment of conviction was entered. See Tenn. R. Crim. P. 34. At the

hearing on the motion, the trial judge explained that once it became apparent that the

case could not be tried in the judicial district in which he presided, he considered other

counties and concluded that Montgomery County would be an appropriate venue to try



                                             11
the defendant. The judge stated that he spoke to every circuit judge in Montgomery

County and each judge agreed that the defendant’s case could be tried in Montgomery

County. The trial judge said that each judge could not preside over the defendant’s trial

due to scheduling conflicts but that the presiding judge of the district informed him that

venue could be changed to Montgomery County as long as the trial judge presided over

the case. He stated that venue was then changed with the understanding that the trial

judge would continue to preside over the case. The trial judge overruled the

defendant’s motion, noting that the defendant had not been prejudiced.



              At the time of the defendant’s trial, T.C.A. § 17-2-201 (1994) (repealed

1997) provided the following:

                     The circuit judges may interchange with each other or
              with judges of special courts for one (1) or more courts, or
              parts of courts, when causes exist making an interchange
              necessary, or for mutual convenience; and, in the absence of
              the judge of any circuit, the circuit judge’s death, or inability to
              hold court, any circuit judge may hold court in such judge’s
              stead.

This statute provides the authority by which the trial judge presided over this case. In

this respect, there is no requirement that the record show that a judge is sitting by

interchange. See State ex rel. Stall v. City of Knoxville, 211 Tenn. 271, 278-79, 364

S.W.2d 898, 902 (1962).



              As for the defendant’s claim that Rule 21, Tenn. R. Crim. P., relating to

change of venue, indicates a trial judge in the receiving district is to try the defendant,

we believe that it is irrelevant to the issue before us. The fact that a trial court in the

receiving county is to hear the case under Rule 21 does not negate the fact that the trial

judge could interchange with the judge of the receiving court pursuant to T.C.A. § 17-2-

201 (1994) (repealed 1997).




                                              12
              In this case, the interchange was proper. The reasons provided by the

trial judge establish that the scheduling conflicts of the other judges rendered it both

necessary and mutually convenient that the trial judge try the defendant’s case. An

order of interchange was not required by law. Moreover, the defendant has failed to

show how he was prejudiced by the failure to receive notice that the trial judge was

sitting by interchange. The trial court had jurisdiction to try the defendant. This issue is

without merit.



                         II. SUFFICIENCY OF THE EVIDENCE

              The defendant challenges the sufficiency of the evidence. He argues that

he was improperly convicted upon the uncorroborated testimony of Smothers. Our

standard of review when the sufficiency of the evidence is questioned on appeal is

"whether, after viewing the evidence in the light most favorable to the prosecution, any

rational trier of fact could have found the essential elements of the crime beyond a

reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789

(1979). This means that we do not reweigh the evidence, but presume that the jury has

resolved all conflicts in the testimony and drawn all reasonable inferences from the

evidence in favor of the state. See State v. Sheffield, 676 S.W.2d 542, 547 (Tenn.

1984); State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978).



              In Tennessee, a conviction may not be based upon the uncorroborated

testimony of an accomplice. State v. Bigbee, 885 S.W.2d 797, 803 (Tenn. 1994). An

accomplice is an individual who knowingly, voluntarily, and with common intent

participates with the principal offender in the commission of an offense. State v.

Lawson, 794 S.W.2d 363, 369 (Tenn. Crim. App. 1990). The testimony of one

accomplice may not be used to corroborate the testimony of another. Bethany v. State,

565 S.W.2d 900, 903 (Tenn. Crim. App. 1978). Whether other evidence sufficiently




                                             13
corroborates the testimony of an accomplice is a question of fact entrusted to the jury.

State v. Bigbee, 885 S.W.2d at 803. The general rule is that:

              there must be some fact testified to, entirely independent of
              the accomplice’s testimony, which, taken by itself, leads to the
              inference, not only that a crime has been committed, but also
              that the defendant is implicated in it; and this independent
              corroborative testimony must also include some fact
              establishing the defendant’s identity. This corroborative
              evidence may be direct or entirely circumstantial, and it need
              not be adequate, in and of itself, to support a conviction; it is
              sufficient to meet the requirements of the rule if it fairly and
              legitimately tends to connect the defendant with the
              commission of the crime charged. It is not necessary that the
              corroboration extend to every part of the accomplice’s
              evidence. The corroboration need not be conclusive, but it is
              sufficient if this evidence, of itself, tends to connect the
              defendant with the commission of the offense, although the
              evidence is slight and entitled, when standing alone, to but little
              consideration.

Hawkins v. State, 4 Tenn. Crim. App. 121, 133-34, 469 S.W .2d 515, 520 (1971).



              We conclude that there is sufficient evidence to corroborate Smothers’

testimony. Initially, the defendant testified in detail about his involvement in the crime.

Also, the defendant was wearing the victim’s shoes when he was arrested. The victim’s

shaving kit containing tools were also found in the barn located on the defendant’s

property two days after the murder occurred. In addition, Officer Bunn discovered the

defendant’s truck near the Knowles’ residence where the shooting occurred and the

truck had a flat tire, as testified to by Smothers. This evidence is sufficient

corroboration.



                          III. SUPPRESSION OF STATEMENT

              The defendant challenges the trial court’s denial of his motion to suppress

the two statements he gave to police. He argues that he did not give the statements

knowingly, voluntarily, and intelligently because of his limited intellect. He also argues

that the statement he gave to Agent Champine was obtained in violation of his Miranda

rights because he invoked his right to counsel.



                                              14
             Before trial, the defendant filed a motion to suppress the statements he

gave to police. At the hearing on the motion to suppress, TBI Agent Alvin Daniels

testified regarding the first statement given by the defendant at approximately 8:00 a.m.

on July 31, 1993. He said that the defendant was not under arrest when he and Agent

Carpenter interviewed the defendant at the jail. He stated that he informed the

defendant of his rights orally and then Agent Carpenter read the defendant his rights

from the waiver of rights form and the defendant signed the form. He testified that the

defendant denied the crime when questioned. He said that the defendant explained

that he and Smothers went to Paris to cash a check on the evening of the offense.

Agent Daniels stated that the defendant told him that they had to get a ride home

because his truck broke down.



             TBI Agent Steven Champine testified that on the afternoon of July 31,

1993, he arrested the defendant after a search was conducted at the defendant’s

house to investigate the defendant’s claim that he had killed a deer. He stated that he

explained to the defendant that he was being charged with murder and then placed the

defendant in the police car. Agent Champine testified that as he and a deputy were

transporting the defendant to the jail, he advised the defendant of his Miranda rights.

He said that the defendant then gave a statement regarding his involvement in the

crime. Agent Champine testified that once they arrived at the police station, he asked

the defendant to put his statement in writing. He explained that he informed the

defendant of his Miranda rights a second time, and the defendant gave a written

statement.



             Dr. Pamela Auble testified regarding the results of her psychological

examination of the defendant. She said that the defendant had a full-scale IQ of 81

and poor reading, vocabulary and arithmetic skills and that his ability to express himself

was within the retarded range. She stated that personality testing of the defendant



                                            15
showed that he was somewhat immature. Dr. Auble testified that the defendant was

not comfortable around people and that he did not relate to people very well. She

described the defendant as being significantly depressed at the time of the interview.

She stated that the defendant is intimidated by people in authority, including police

officers, and that he would try to please them by doing what they wanted, even if it was

to his own detriment.



               Dr. Auble testified that when she questioned the defendant about the

circumstances surrounding his statements, the defendant told her that he had gone to

bed at approximately 11:30 p.m. the night before the interview but was awakened

between 1:00 and 2:00 a.m. She said that the defendant told her that the police kept

him in jail until around 8:00 a.m., when they questioned him for the first time. She

stated that the defendant said that after the interview and after he consented to the

search of his home, he was taken home and a search was conducted. The defendant

was arrested later that day and gave a second statement after being read his Miranda

rights. Dr. Auble testified that she did not believe the defendant fully understood that he

could obtain counsel before giving the statement. She said that the defendant seemed

more concerned about obtaining counsel after he gave the statement. She testified

that she was not sure whether the defendant understood the importance of giving a

statement. Dr. Auble stated that she questioned the defendant’s ability to waive his

rights knowingly and voluntarily given his limited intellectual capacity and his sleep

deprivation.



               On cross-examination, Dr. Auble conceded that she did not diagnose the

defendant with a learning disability. She stated that the defendant was not retarded but

he was within the low average intelligence range. She acknowledged that the

defendant initially lied about his conduct but then confessed once he learned about the




                                            16
evidence against him. Dr. Auble testified that she believed that the defendant was also

susceptible to being intimidated by his codefendants.



             The twenty-two-year-old defendant testified regarding the circumstances

surrounding his arrest and the statement that he gave to Agent Champine. He said that

Agent Champine read him his rights and asked him whether he wanted to tell him what

happened. The defendant stated that he understood what was meant by the right to

counsel, and the defendant said that he asked Agent Champine whether he could still

obtain counsel if he told the police what happened. He testified that Agent Champine

told him that counsel would be provided and then began questioning him. The

defendant stated that during the interview, he asked Agent Champine again whether he

would receive legal representation. The defendant claimed that the reason he asked

the questions was that he wanted an attorney. He stated that Agent Champine told him

that he should talk to him because he would not get a chance later.



             On cross-examination, the defendant testified that he earned average

grades during high school and that he graduated from high school. He conceded that

he had earlier signed a waiver of rights form, and he admitted that he understood his

rights at the time he signed the form. He also stated that he understood when he was

told that he was charged with first degree murder and explained his rights before giving

the second statement. The defendant acknowledged that the officers did not keep him

awake before he was interviewed. He said that he freely and voluntarily told Officer

Champine what happened. He stated that he was given an attorney after giving the

statement. On redirect examination, the defendant testified that he did not really

understand what was meant by the right to counsel or the right to remain silent.



             At the conclusion of the hearing, the trial court denied the motion to

suppress the statements. It found that the defendant gave the statements knowingly



                                           17
and voluntarily. On appeal, the trial court’s findings of fact at the conclusion of a

suppression hearing will upheld unless the evidence preponderates otherwise. State v.

Odom, 928 S.W.2d 18, 23 (Tenn. 1996). The defendant bears the burden of

demonstrating that the evidence preponderated against the trial court’s findings. Id.

However, the application of the law to the facts as determined by the trial court is a

question of law which is reviewed de novo on appeal. State v. Yeargan, 958 S.W.2d

626, 629 (Tenn. 1997).



              Initially, we note that the statement given to Agent Champine was never

introduced at trial, either as substantive evidence or for purposes of cross-examining

the defendant. Nor does the defendant explain how he was prejudiced by the trial

court’s denial of the motion to suppress with respect to the statement given to Agent

Champine. Under these circumstances, we would not need to concern ourselves about

the trial court’s rulings with respect to the defendant’s second statement that was given

to Agent Champine.



              However, evidence relating to the first statement that was given to Agent

Daniels was introduced at trial both substantively and for purposes of cross-examining

the defendant. Agent Daniels testified during the state’s case in chief regarding his

questioning of the defendant regarding the blood on his shoes. He stated that the

defendant told him that the blood was deer blood. The defendant was also questioned

on cross-examination regarding the alibi that he and his codefendants concocted.

Therefore, the issue of whether the defendant knowingly, voluntarily and intelligently

waived his rights before giving the first statement must be addressed.



              Initially, we note that the defendant could have been cross-examined

regarding the statement he gave irrespective of whether the statement was admissible.

A statement which is inadmissible against the defendant in the prosecution’s case in



                                             18
chief because of a Miranda violation but which otherwise satisfies legal standards for

trustworthiness may properly be used for impeachment purposes to attack the testifying

defendant’s credibility. Harris v. New York, 401 U.S. 222, 225-26, 91 S. Ct. 643, 645-

46 (1971); State v. Hopper, 695 S.W.2d 530, 538 (Tenn. Crim. App. 1985).



              However, the state cannot introduce an illegally obtained statement during

its case in chief. Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602 (1966). Before a

defendant can knowingly and voluntarily waive his Miranda rights, the defendant must

be “adequately and effectively apprised of his rights.” State v. Middlebrooks, 840

S.W.2d 317, 326 (Tenn. 1992). The defendant may waive his constitutional rights as

long as the waiver is made “knowingly, voluntarily, and intelligently.” Id. The state has

the burden of proving the waiver by a preponderance of the evidence. State v. Bush,

942 S.W.2d 489, 500 (Tenn. 1997). In determining whether a defendant has validly

waived his or her Miranda rights, the court must look to the totality of the circumstances.

Id.; Middlebrooks, 840 S.W.2d at 326. When the voluntariness of a statement given to

police is challenged based on the defendant’s competency to waive the rights provided

by Miranda, the determinative issue is “whether the defendant had the capacity in the

first place to form a will of his own and to reject the will of others.” State v. Benton, 759

S.W.2d 427, 431 (Tenn. Crim. App. 1988).



              The record reflects that Agent Daniels read the defendant his rights and

the defendant signed a waiver of rights form before the defendant gave the statement.

The defendant testified that he understood what was meant by the right to counsel.

Although the defendant is limited intellectually, he does not have a learning disability

and is not retarded. In fact, he earned average grades and graduated from high school.

We hold that the evidence does not preponderate against the trial court’s ruling that the

defendant knowingly and voluntarily waived his constitutional rights. We conclude that

the trial court properly admitted the statement.



                                             19
                    IV. ADMISSION OF POST-DEATH EVIDENCE

              The defendant contends that the trial court erred by admitting post-death

evidence during the guilt and sentencing phases. He argues that evidence of mutilation

of the victim’s body is irrelevant to the determination of whether the defendant

committed first degree murder. He asserts that even if the evidence is relevant, the

evidence should be excluded under Rule 403, Tenn. R. Evid., because the probative

value is substantially outweighed by the danger of unfair prejudice, misleading the jury,

and confusion of the issues. The state responds that the evidence is relevant to the

issue of the defendant’s culpability and whether the defendant acted under duress. It

contends that the probative value of the evidence of mutilation was not substantially

outweighed by the danger of unfair prejudice. It argues that because the evidence was

admissible at the guilt phase of the trial, the defendant’s claim that the evidence was

inadmissible during the sentencing phase cannot form the basis for relief on appeal.

We hold that the trial court did not err by admitting the evidence.



              The admissibility of evidence as more probative than prejudicial is a

matter within the trial court’s discretion and will not be reversed on appeal absent a

showing of an abuse of that discretion. State v. Harris, 839 S.W.2d 54, 66 (Tenn.

1992). Evidence is relevant if it has “any tendency to make the existence of any fact

that is of consequence to the determination of the action more probable or less

probable than it would be without the evidence.” Tenn. R. Evid. 401. If the probative

value of relevant evidence is “substantially outweighed by the danger of unfair

prejudice,” it may be excluded. Tenn. R. Evid. 403.



              We conclude that evidence of mutilation was relevant to the issue of the

defendant’s guilt. Our supreme court stated in State v. West, 844 S.W.2d 144 (Tenn.

1992), that evidence of concealment, though not relevant to establish premeditation or

deliberation, may be relevant to establish the defendant’s guilt by discrediting a claim of



                                            20
self-defense. Id. at 148, 151 (citing Sotka v. State, 503 S.W.2d 212, 220 (Tenn. Crim.

App. 1972)) (“an inference may be drawn from the concealment or destruction of the

corpse of the deceased”). During opening statement, defense counsel informed the

jury that the defendant admitted that he did something wrong but that he should not be

held responsible for the killing of the victim. Defense counsel presented several

theories that would either reduce or excuse the defendant’s commission of the offense,

including the defendant acting under duress and suffering from diminished capacity at

the time of the offense. The defendant’s introduction of evidence of diminished

capacity made evidence of the defendant’s conduct after the killing relevant to prove

that the defendant actively participated in the crime.



              We also conclude that the probative value of the evidence of mutilation

was not substantially outweighed by the danger of unfair prejudice. Though the

evidence of post-death facts was gruesome, it was particularly relevant to show that the

defendant was a willing participant in the murder. Given the fact that the evidence was

relevant and admissible to the issues to be determined, the trial court did not err by

admitting the evidence.



                                      V. RECUSAL

              The defendant asserts that the trial judge erred by refusing to recuse

himself from the case. He argues that a recusal was necessary (1) because of a

statement made by the trial judge during a pretrial hearing on a motion to suppress the

statement of Harris regarding the credibility of TBI Agent Daniels, (2) because the trial

judge presided over Harris’ trial, and (3) because of an ex parte communication

between the trial judge and an assistant district attorney general. He contends that

these instances showed the trial judge’s bias in favor of the prosecution and against the

defendant and caused an appearance of impropriety. Specifically, he argues that an




                                            21
appearance of impropriety with respect to the trial judge acting as thirteenth juror was

created by the trial judge sitting for both the defendant’s and Harris’ trial.



              A trial judge should grant a motion to recuse whenever his or her

impartiality can reasonably be questioned. Alley v. State, 882 S.W.2d 810, 820 (Tenn.

Crim. App. 1994). Recusal is “warranted when a person of ordinary prudence in the

judge’s position, knowing all of the facts known to the judge would find a reasonable

basis for questioning the judge’s impartiality.” Id. The standard of review on appeal is

whether the trial court abused its discretion by denying the motion. State v. Cash, 867

S.W.2d 741, 749 (Tenn. Crim. App. 1993).



                     A. Comment regarding credibility of witness

              First, the defendant asserts that the trial judge should have recused

himself because he made statements during a suppression hearing regarding the

credibility of TBI Agent Daniels demonstrating a bias in favor of the state and against

the defendant. The state contends that the comments made by the trial judge did not

warrant a recusal. We agree.



              Before trial, the defendant filed a motion to recuse the trial judge. At the

hearing on the motion, the defendant argued that a recusal was necessary because of

comments made by the trial judge during a suppression hearing regarding the veracity

of a witness, Agent Daniels. Agent Daniels had recently been diagnosed with cancer

and had been undergoing chemotherapy at the time of the hearing. Agent Daniels’

testimony was preserved because of the possibility that Agent Daniels’ illness could

prevent him from later attending trial. The trial judge made the following comments

immediately after ruling on Harris’ motion to suppress her statement:

                     Lastly, and perhaps as an aside this court cannot set
              aside, - perhaps some 30 years of knowledge of having
              Daniels testify, - since he first started as a youngster. He is
              peculiarly talented, and uncommonly straight forward. This


                                              22
              man doesn’t have a dishonest bone in his body. You couldn’t
              beat a lie out of him. I have seen him let cases drop out from
              under him, - before he would even discolor his testimony. I
              think what he testified to, is precisely what happened out there
              that day, - and I think that he established the voluntary giving
              of this statement.

When counsel for Harris asked that the trial judge recuse himself, the trial judge

explained his comments as a means of showing his great respect for Agent Daniels’

talents.



              We agree that the remarks made by the trial judge were not appropriate.

See Alley, 882 S.W.2d at 822 (“Remarks which suggest that the judge has taken a

position favorable or unfavorable to a party . . . indicate bias.”). However, the “issue to

be determined is not the propriety of the judicial conduct of the trial judge, but whether

he committed an error which resulted in an unjust disposition of the case.” State v.

Hurley, 876 S.W.2d 57, 64 (Tenn. 1993).



              In this case, the defendant was not prejudiced by the trial judge’s

comments. The trial judge’s comments were made pretrial and not in front of the jury.

The defendant was tried before an impartial jury who determined the defendant’s guilt

based upon the evidence presented. Also, the comments were intended to show the

trial judge’s respect for the work of Agent Daniels, a man in poor health. Moreover, the

only portion of the defendant’s statements that was introduced substantively was that

the defendant claimed that the blood on his shoes was deer blood. We do not believe

that the error committed by the trial judge resulted in an unjust disposition of the case.

Under these circumstances, we cannot say that the trial judge abused its discretion by

denying the motion to recuse.



                         B. Presiding over codefendant’s trial

              Next, the defendant contends that a recusal was necessary because the

trial court presided over the trials of both Harris and the defendant, resulting in the


                                             23
appearance of impropriety in the exercise of his role as thirteenth juror in the

defendant’s case. The defendant argues that the trial judge could not be fair and

unbiased because the judge had approved the verdict of guilt in the trial of Harris. The

state responds that the mere fact that the trial judge presided at both trials is insufficient

to require a recusal. We agree.



              A trial judge is not disqualified from sitting on a case because he or she

tried and made findings in previous litigation. King v. State, 216 Tenn. 215, 226, 391

S.W.2d 637, 642 (1965). In King, the trial judge had tried the divorce case of the

defendant’s wife and granted a decree of divorce upon matters involved in the criminal

case, assault with the intent to commit first degree murder. The supreme court held

that the trial court properly overruled the defendant’s motion to recuse the trial judge,

stating that nothing in Article 6, Section 11 of the Tennessee Constitution operated to

disqualify the trial judge under the circumstances. Id.



              Similarly, the trial judge in this case is not disqualified from sitting on the

defendant’s case merely because he sat on Harris’ case. Although the trial judge heard

similar testimony during the codefendant’s trial and approved the verdict of guilt against

the codefendant, the record does not reflect that the judge was influenced in his

decision as a thirteenth juror in the defendant’s case by his presiding at the

codefendant’s trial. Moreover, the central issue at the defendant’s trial was whether he

acted under duress or whether he suffered from diminished capacity, an issue not

before the trial court at Harris’ trial. Therefore, we believe that the trial court properly

denied the defendant’s motion to recuse.



                              C. Ex parte communications

              Third, the defendant complains that the trial judge should have recused

himself because of ex parte communications with an assistant district attorney general.



                                              24
The state argues that the trial court did not abuse its discretion by refusing to recuse

himself because the communications were limited to appropriate subjects.



              During pretrial discussions regarding discovery, defense counsel stated

that the trial court should be aware of the reports that had been sent to the District

Attorney General’s office because of his ex parte communications with an assistant

district attorney general. Defense counsel informed the court that the assistant district

attorney general had informed him that the trial judge had telephoned her. At the

motion to recuse hearing, the defendant tried to call the trial judge and the assistant

district attorney general as witnesses, but the trial judge refused to allow the

questioning. However, the trial judge admitted that ex parte communications had taken

place, but he assured the parties that the communications did not relate to

inappropriate subjects. He explained that he often had ex parte communications with

the attorneys in every case, including the defendant’s case, but that the

communications were limited to appropriate subjects, such as the scheduling of

hearings to resolve motions filed by the parties.



              Pursuant to the Code of Judicial Conduct in effect at the time of the

offense:

              A judge should accord to every person who is legally interested
              in a proceeding, or his lawyer, full right to be heard according
              to law, and, except as authorized by law, neither initiate nor
              consider ex parte or other communications concerning a
              pending or impending proceeding. . . .

Tenn. S. Ct. R. 10, Code of Judicial Conduct, Canon 3(A)(4) (1993). In State v. Jones,

735 S.W.2d 803 (Tenn. Crim. App. 1987), this court addressed the appropriateness of

an ex parte communication that occurred after the trial had begun. The trial judge in

Jones had an ex parte communication with the prosecutor in chambers shortly following

voir dire and a heated exchanged concerning a procedural disagreement between

counsel. Id. at 810. The trial judge granted the ex parte conference only after the



                                            25
prosecutor assured the judge that the purpose of the conference was to discuss

matters not pertaining to the case on trial. Id. This court stated that the trial court’s

decision to grant an ex parte communication was lacking in judgment. Id. at 810 n.3.

However, any error was considered harmless given (1) the trial court’s reassurance that

the ex parte conference did not concern matters relating to the case, (2) the lack of a

showing of prejudice, and (3) the matter took place entirely out of the presence of the

jury. Id. at 810.



                Similar to Jones, there has been no showing of prejudice in this case.

The trial judge assured the defendant that he did not speak to the assistant district

attorney general regarding inappropriate matters. The record reflects that the trial

judge’s conversations related to scheduling matters involving motions. 3 Moreover, the

jury was not made aware of the trial judge’s ex parte communications. Under these

circumstances, we are unable to say that the decision to deny the motion to recuse was

an abuse of discretion.



                VI. CONSTITUTIONALITY OF THE FELONY MURDER STATUTE

                The defendant contends that the trial court erred by denying his motion

challenging the constitutionality of the felony murder statute when read in conjunction

with the statutory provisions providing for criminal responsibility for the conduct of

another and for the facilitation of a felony. He also argues that the prosecutor abused

his discretion by seeking the death penalty because the prosecutor could have charged

the defendant instead with facilitation of first degree murder. The defendant

acknowledges that the prosecutor has wide discretion in seeking the death penalty, see

State v. Cazes, 875 S.W.2d 253, 268 (Tenn. 1994). However, he argues that this case


                3
                   We note that the Code of Judicial Conduct presently allows ex parte communications
where the circumstances require it for scheduling, administrative purposes or emergencies that do not
deal with substantive matters or issues on the merits, provided that (1) the judge reasonably believes that
no person will gain a procedural or tactical advantage, and (2) the judge promptly notifies all other parties
regardin g the sub stance of the ex parte co mm unication and allow s an op portunity to res pond. See Tenn.
S. Ct. R. 10, Code of Judicial Conduct, Ca non 3(B)(7)(a)(i) and (ii) (amended 1997).

                                                     26
is distinguishable because, similar to State v. Middlebrooks, 840 S.W.2d 317, 346

(Tenn. 1992), the class of death eligible defendants are not restricted by the prosecutor

seeking the death penalty instead of charging the defendant with facilitation of first

degree murder.



              We first note that the defendant did not receive a death sentence.

Second, we note that the defendant was found beyond a reasonable doubt to be

criminally responsible for the criminal acts charged, not a mere facilitator. Thus, the

arguments he raises in this issue are irrelevant to what actually occurred in this case.

His claimed errors had no bearing on the outcome. This issue is without merit.



                             VII. DISMISSAL OF A JUROR

              The defendant contends that the trial court erred by excusing a sitting

juror from the case after testimony had begun in the trial. After TBI Agent Alvin Floyd

and Subway Manager May Dill testified, the trial court dismissed the juror because she

was unable to make arrangements for the care of her eight-year-old daughter during the

trial in which the jurors were to be sequestered. The defendant argues that it was an

abuse of discretion to dismiss the juror. The state responds that the trial court’s actions

were proper. We agree.



              During voir dire, the trial court asked the potential jurors whether they had

any personal or family problems that would interfere with service on the jury that was to

be sequestered for approximately ten days. In response, the juror stated that she was

a single parent and that as a single parent, she was required to take her daughter to

school and to pick her up from the day care after school. She explained that she did

not have anyone to do these things for her other than her mother. She said that her

mother could not pick her daughter up until after 8:00 p.m. because she was working

that week. When asked by defense counsel whether the problem with child care would



                                            27
be a problem, the juror conceded that she would be worried but stated that she would

be able to give her undivided attention to the case.



              During a bench conference after some peremptory challenges had been

made, the trial court stated that the juror had a legitimate reason for being excused for

cause, but it also recognized that both the prosecution and the defense believed that

she would be a good juror. At that time, defense counsel objected, stating that the

dismissal should have occurred before challenges were made. The prosecutor then

stated that he agreed with the trial court that the juror’s position was an impossible one,

although he liked the juror. Defense counsel asserted that a dismissal was not proper

and that the state should be required to exercise a peremptory challenge. The trial

court then decided not to dismiss the juror. Additional challenges were made, and the

juror was selected to serve on the jury. That afternoon, opening statements were given,

and Agent Daniel and Ms. Dill testified.



              At the beginning of next day, the trial court conducted a bench conference

concerning the juror’s child care problem. The court informed the parties that the juror

had been unable to make arrangements for the care of her daughter. It explained that

the juror’s only relatives that lived locally were her mother and father, but her parents

had contacted the court and stated that they could not care for the juror’s daughter

because they had conflicts with work. Defense counsel objected to the dismissal of the

juror on the grounds that the juror was properly selected and that defense counsel

preferred her over the alternate juror.



              Upon trial court questioning, the juror explained that one of her parents

would have to take off from work in order to care for her daughter. The juror stated that

her mother could keep her daughter no longer than the rest of the week. The trial court

stated that its concern was that the juror would worry about her daughter while serving



                                            28
on the jury. The court dismissed the juror, stating that it was convinced that the juror

had done everything to obtain alternative child care and that requiring the juror to serve

would cause an undue burden on her. The juror was then replaced by an alternate

juror.



               Pursuant to Rule 24(e), the trial court may allow alternate jurors to replace

sitting jurors who “become or are found to be unable or disqualified to perform their

duties.” The decision to seat an alternate juror is within the trial court’s discretion.

State v. Millbrooks, 819 S.W.2d 441, 445 (Tenn. Crim. App. 1991). The defendant has

the burden of showing prejudice by the trial court’s seating of an alternate juror. State

v. Max, 714 S.W.2d 289, 294 (Tenn. Crim. App. 1986). The defendant has a right to a

fair trial at the hands of an impartial jury, but such a right does not include the right to

any particular jurors. See State v. Smith, 857 S.W.2d 1, 20 (Tenn. 1993).



               In this case, the juror could only obtain child care for the rest of the week,

although the trial court estimated that the jurors would be sequestered for

approximately ten days. The trial court concluded that the juror’s inability to obtain child

care rendered the juror unable to fulfill her duties as a juror. Under these

circumstances, we cannot say that the trial court abused its discretion by dismissing the

juror and replacing her with an alternate juror. Moreover, the defendant accepted the

impanelling of the alternate jurors. He makes no claim that the alternate juror who

replaced the juror in question was less than impartial. Therefore, the defendant has

failed to show how he was prejudiced by the use of the alternate juror. We hold that

the trial court did not err.




                 VIII. SPECIAL REQUESTS FOR JURY INSTRUCTIONS




                                              29
              The defendant complains that the trial court improperly denied eleven of

the defendant’s twelve special requests for jury instructions, two of which relate to the

defense of duress and eleven of which relate to diminished capacity. He argues that

the instructions as given by the trial court do not adequately cover the applicable law.

He also contends that the trial court erred in the manner in which it instructed the jury

regarding his special request for a diminished capacity instruction. The state responds

that the trial court properly denied the defendant’s special requests and that the

defendant was not prejudiced by the manner in which the jury was charged regarding

diminished capacity.



              A trial court has a duty to give a complete charge of the law applicable to

the facts of the case. State v. Harris, 839 S.W.2d 54, 73 (Tenn. 1992). Anything short

of a complete charge denies a defendant his constitutional right to trial by a jury. State

v. McAfee, 737 S.W.2d 304, 308 (Tenn. Crim. App. 1987). However, Tennessee law

does not mandate that any particular jury instructions be given so long as the trial court

gives a complete charge on the applicable law. State v. West, 844 S.W.2d 144, 151

(Tenn. 1992).



                                         A. Duress

              The defendant asserts that his special requests for instructions relating to

the defense of duress should have been given. The state responds that the requests

were properly denied as the instructions given adequately covered the law with respect

to the defense of duress. We agree.



              Both of the defendant’s special requests concerned the consideration of

diminished capacity in determining whether the defendant acted under duress. The first

instruction requested by the defendant states:

                       I further charge you that as to the defense of duress, the
                duress must generally be actual and
                existing at the times alleged. However, even if such duress was not actually


                                             30
existing, the defendant has the right to rely upon the defense of duress if such actions by
another are reasonably perceived by the defendant to amount to duress, having in mind
the defendant’s diminished capacity, if any you should find.

The second special request by the defendant is as follows:

                     Because of his diminished capacity, a person may have
              been mistaken based upon his perception of the
              circumstances as to the extent of his actual duress. But if he
              acts under duress from honest, even though mistaken,
              conviction as to the extent of danger to him, he will not be held
              criminally liable for his actions.


              The trial court denied the special requests and instructed the jury

regarding the defense of duress as follows:

                     Also included in the defendant’s plea of not guilty is his
              plea that his acts constituting the offense charged were the
              result of duress.

                      Duress is a defense to prosecution where:
              (1) the defendant is threatened with harm which is present,
              imminent, impending and of such a nature as to induce a well-
              grounded apprehension of death or serious bodily injury if the
              act is not done;
              (2) the threatened harm is continuous throughout the time the
              act is being committed;
              (3) the harm is one from which the defendant cannot withdraw
              in safety; and
              (4) the desirability and urgency of avoiding the harm clearly
              outweigh, according to ordinary standards of reasonableness,
              the harm sought to be prevented by the law proscribing the
              conduct.

See T.P.I.-Crim. 40.03 (4th ed.). The instruction given by the trial court is virtually

identical to the definition of duress provided under T.C.A. § 39-11-504.



              The state argues that the statutory description of the requirement of harm

turns on an objective showing of the existence of harm and not on a showing of a

subjective perception of the existence of harm. It asserts that as a result, the

defendant’s subjective perceptions are irrelevant to the determination of whether the

defendant acted under duress, and therefore, the defendant was not entitled to

instructions that the jury was to consider the defendant’s mental deficiencies in

determining his ability to perceive the nature of the harm.



                                             31
             We agree with the state that the defendant’s state of mind is irrelevant to

the defense of duress. The statute providing for the defense of duress states:

                    Duress is a defense to prosecution where the person or
             a third person is threatened with harm which is present,
             imminent, impending and of such a nature to induce a well-
             grounded apprehension of death or serious bodily injury if the
             act is not done. The threatened harm must be continuous
             throughout the time the act is being committed, and must be
             one from which the person cannot withdraw in safety. Further,
             the desirability and urgency of avoiding the harm must clearly
             outweigh, according to ordinary standards of reasonableness,
             the harm sought to be prevented by the law proscribing the
             conduct.

T.C.A. § 39-11-504(a).



              Notably, the defendant’s mental state is not an element of the defense

under the statute. The defense of duress is not supported by evidence that the

defendant was mistaken as to the circumstances due to his diminished capacity.

Rather, the defense of duress requires a showing that the threatened harm was

“present, imminent, impending and of such a nature to induce a well-grounded

apprehension of death or serious bodily injury if the act is not done.” T.C.A. § 39-11-

504(a). In this vein, we also note that the first duress instruction requested by the

defendant contains an incorrect statement of law in that it states that the defendant may

rely upon the defense of duress even if such duress was not actually existing. Thus,

the trial court properly denied the defendant’s two requests for additional instructions on

duress.



              In conclusion, we hold that the defendant was not entitled to instructions

that the jury was to consider the defendant’s “diminished capacity” in determining

whether the defendant acted under duress. In any event, the instructions given to the

jury on diminished capacity and duress were sufficient to convey the applicable law to

the jury.




                                            32
                                B. Diminished capacity

              The defendant contends that the trial court improperly denied his special

requests for instructions relating to diminished capacity. He argues that the diminished

capacity instruction as given by the trial court does not accurately reflect the law as set

forth in State v. Phipps, 883 S.W.2d 138 (Tenn. Crim. App. 1994). He also argues that

the trial court erred in the manner in which it instructed the jury regarding diminished

capacity because the identification of the instruction as that of the defendant’s allowed

the jury to view the instruction as being less important or to disregard the instruction

altogether.



              Before trial, the defendant requested ten jury instructions relating to

diminished capacity to supplement the diminished capacity jury instruction to be given

by the trial court. The requested jury instructions are summarized as follows:

              (3) “Diminished capacity means a disturbance of mental or
              physical capacity which would lessen the ability of the
              defendant to form the intent or to knowingly or recklessly
              commit the act. Diminished capacity is that state of mind of
              the defendant preventing him from possessing the required
              culpable mental state necessary to make out the offense
              charged and/or any of the lesser included offenses.” The jury
              must acquit the defendant if they find that the defendant
              suffered from diminished capacity to the extent that he could
              not have possessed the requisite culpable mental state.

              (4) The jury may consider the opinion of expert or lay
              testimony in determining whether the defendant suffered from
              diminished capacity.

              (5) The state is required to prove beyond a reasonable doubt
              that the defendant was not suffering from diminished capacity
              once defendant presents proof of diminished capacity.

              (6) The jury may convict the defendant of a lesser crime if they
              find that he suffered from diminished capacity.

              (7) The jury must acquit the defendant of felony murder if they
              find that he suffered from diminished capacity.

              (8) The jury must find the defendant not guilty of the offense
              charged if they are unable to find beyond a reasonable doubt
              that the defendant possessed the culpable mental state.




                                            33
              (9) The jury may consider the defendant’s diminished capacity
              in determining whether the defendant had the requisite
              culpable mental state required for the underlying felonies for
              the charge of felony murder.

              (10) The jury must acquit the defendant if it is not shown that
              the defendant acted intentionally or knowingly with respect to
              the underlying felonies.

              (11) The jury must acquit the defendant of felony murder if
              they find that because of his diminished capacity, he did not
              intentionally or knowingly commit the underlying felonies. The
              jury may consider the defendant’s diminished capacity in
              determining whether the defendant knowingly or intentionally
              committed the underlying felonies.

              (12) The jury must find that the killing was knowingly or
              recklessly committed, and the jury may consider the
              defendant’s diminished capacity in determining whether the
              defendant acted knowingly or recklessly.

The trial court denied all but requested instruction number nine.



              In its initial jury charge during the guilt phase of the trial, the trial court

instructed the jury regarding diminished capacity as follows:

              Testimony as to a defendant’s mental capacity may be
              considered by you to show that he was incapable of forming
              the specific culpable mental state required for any particular
              offense.

At the close of the initial charge, the trial court asked the parties whether there was

anything further. At that time, the following colloquy took place in the presence of the

jury:

              [DEFENSE COUNSEL]:            Yes, Your Honor, our special
              requests for instruction.

              THE COURT:             Ladies and gentleman, at the request of
              the Defendant, I further charge you that with respect to the
              crime of the killing in the perpetration of kidnapping, robbery,
              or theft, the actions of the defendant must have been knowing
              and with intent insofar as the commission of the underlying
              felony is concerned. If you find that because of diminished
              capacity or for any other reason the defendant did not
              knowingly or with intent, commit the kidnapping, robbery or
              theft, then such underlying felony cannot be the basis for the
              conviction of first-degree murder and you must acquit the
              defendant of that charge.




                                               34
                     In this respect, you may consider the diminished
              capacity of the defendant in determining whether he knowingly
              or intentionally committed the kidnapping, robbery or theft. If
              you find the defendant had diminished mental capacity at the
              time of this offense, you may consider this in deliberating
              whether he had the required culpable mental state.

After the jury began its deliberations, the defendant objected to the manner in which the

court instructed the jury regarding diminished capacity.



              Tennessee law permits the introduction of evidence regarding the

defendant’s mental condition for the purposes of negating the requisite mental state for

the offense charged. Phipps, 883 S.W.2d at 149. Diminished capacity is not a defense

to a crime; rather, it is a rule of evidence allowing the introduction of evidence of the

defendant’s mental condition to negate the requisite culpable mental state. State v.

Hall, 958 S.W.2d 679, 688-89 (Tenn. 1997); Phipps, 883 S.W.2d at 143. Recently, our

supreme court cautioned against the introduction of evidence that the defendant

suffered from a mental disease or defect as proof of “diminished capacity.” Hall, 958

S.W.2d at 690. Instead of proffering the evidence as proof of “diminished capacity,” the

evidence should be presented as being relevant to negate the existence of the culpable

mental state required to establish the criminal offense charged. Id. However, with

respect to the obligation to give a jury instruction, “Tennessee law does not require the

trial judge to instruct the jury that expert testimony may be considered in determining

whether the requisite mental state existed.” Phipps, 883 S.W.2d at 151.



              We conclude that the trial court was not obligated to give any additional

instructions relating to the jury’s consideration of evidence of the defendant’s mental

condition as it related to his ability to form the requisite mens rea. The instructions

requested by the defendant were either incorrect statements of the law or they were

fully and fairly covered by the instructions given by the trial court. We believe that the

instructions given by the trial court relative to diminished capacity adequately conveyed

to the jury that it may consider evidence of the defendant’s diminished capacity in


                                             35
determining whether the defendant had the requisite culpable mental state for felony

murder.



              For his claim that the trial court erred by telling the jury that the diminished

capacity instruction given by the court was the one requested by the defendant, the

defendant relies upon State v. Edward T. McConnell, No. 163, Washington County

(Tenn. Crim. App. Jan. 3, 1983), app. denied (Tenn. Mar. 14, 1983). In McConnell, this

court recognized that “the better practice is to incorporate specially requested jury

instructions into the general charge of the court . . ., else there is danger they may be

considered by the jury as merely the contentions of one of the parties.” Id. at 11. The

court held that for there to be a reversal, however, it must be shown that the failure to

incorporate the requested instruction into the charge affected the outcome of the trial.

Id. at 12.



              Though we agree that the trial court should have incorporated the special

request into the general charge, we believe that the defendant has failed to show that

the verdict was affected by the manner in which the trial court gave the instruction. See

T.R.A.P. 36(b); Tenn. R. Crim. P. 52(b). Irrespective of the trial court’s characterization

of the instruction as one requested by the defendant, it was given as a mandate by the

trial court as a relevant proposition of law for the jury’s consideration. Moreover, the

jury was aware that the diminished capacity instruction was being given at the request

of the defendant because defense counsel informed the trial court in the presence of

the jury that it had forgotten to give the defendant’s special request for instruction. We

conclude that no prejudice arose from the trial court’s error relating to the manner it

instructed the jury regarding diminished capacity.



                        IX. AGGRAVATING CIRCUMSTANCES




                                             36
              The defendant challenges the jury’s application of the aggravating

circumstances. He argues that the evidence is insufficient to support their application.

Also, with respect to the avoiding arrest or prosecution aggravating circumstance under

T.C.A. § 39-13-204(i)(6), the defendant argues (1) that the jury applied the aggravating

circumstance based upon the uncorroborated testimony of Smothers, (2) that the

aggravating circumstance cannot be applied constitutionally because the defendant

was not the one who shot the victim, (3) that it requires a showing of intent, motive or

premeditation to kill the victim to avoid capture, arrest or conviction, and (4) that it fails

to narrow the class of death-eligible defendants under Middlebrooks. The state

responds that the evidence is sufficient to support the jury’s application of the

aggravating circumstances and its imposition of a sentence of life without the possibility

of parole. It also argues that the avoiding arrest or prosecution aggravating

circumstance was constitutionally applied.



              A. Heinous, atrocious or cruel aggravating circumstance

              The defendant contends that there is no evidence to show that the murder

was heinous, atrocious or cruel in that it involved torture or serious physical abuse

beyond that necessary to produce death. See T.C.A. § 39-13-204(i)(5). He argues that

absent any evidence of post-death facts, the two shotgun wounds were insufficient to

support the application of the aggravating circumstance beyond a reasonable doubt.

The defendant also argues that there is insufficient evidence to corroborate Smothers’

testimony. We disagree.



              Pursuant to T.C.A. § 39-13-204(i)(5), the jury may find as an aggravating

circumstance that the “murder was especially heinous, atrocious, or cruel in that it

involved torture or serious physical abuse beyond that necessary to produce death.”

Torture is defined as the infliction of severe physical or mental pain upon the victim




                                              37
while he or she remains alive and conscious. State v. Odom, 928 S.W.2d 18, 26

(Tenn. 1996). In Odom, our supreme court stated that:

              it must be assumed that the legislature intended the words
              ‘serious physical abuse’ to mean something distinct from
              ‘torture.’ 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.’

Id.



              Viewed in the light most favorable to the state, Cabbage, 571 S.W.2d at

835, a rational juror could find beyond a reasonable doubt the existence of this

aggravating circumstance. The evidence showed that after the defendant and his

codefendants stopped the victim, the defendant grabbed the victim and threw him to the

ground. Harris then slapped and cursed the victim and told him to shut up. The victim

was forced into the back of the truck and the defendant drove the truck away.

Smothers then shot the victim in his left hip with a shotgun, injuring the victim’s

intestines and large blood vessels. When the victim screamed and begged for his life,

he was told to shut up. Medical care was not obtained for the victim, though the victim

was told that he would be taken to a hospital. Instead, the defendant continued to drive

and as they approached street lights, the victim began to scream for help. Smothers

then took the shotgun, loaded it, stuck it under the victim’s chin, and shot the victim,

killing him. We believe that these facts are sufficient to establish torture and to support

the jury’s finding that the murder was especially heinous, atrocious, or cruel in that it

involved torture or serious physical abuse beyond that necessary to produce death.

See State v. Bland, 958 S.W.2d 651, 660-61 (Tenn. 1997) (victim shot once in leg and

remained alive, conscious, in pain, and pleading for help for approximately ten to fifteen

minutes after he was shot several more times in the leg). Also, as earlier noted, there is

sufficient evidence to corroborate Smother’s testimony.




                                             38
           B. Avoiding arrest or prosecution aggravating circumstance

              The defendant also alleges that the evidence is insufficient to support the

application of the avoiding arrest or prosecution aggravating circumstance. Pursuant to

T.C.A. § 39-13-204(i)(6), the jury is permitted to consider that the “murder was

committed for the purpose of avoiding, interfering with, or preventing a lawful arrest or

prosecution of the defendant or another.” The prevention of arrest or prosecution need

not be the dominant motive for the murder. State v. Smith, 868 S.W.2d 561, 581

(Tenn. 1993). Rather, it is sufficient that at least one of the motives for the murder was

to avoid, interfere with, or prevent the lawful arrest or prosecution of the defendant or

another. Id. at 580-81.



              We conclude that a rational trier of fact could have found the existence of

this aggravating circumstance beyond a reasonable doubt. In the light most favorable

to the state, the proof showed that after the defendant’s truck overheated, the

defendant and his codefendants devised a plan to take the next vehicle that came

along. They also discussed the possibility that the vehicle’s occupants would have to

be killed. According to their plan, Harris stood in the middle of the road and flagged

down the victim. Once the victim stopped the truck, Smothers got the shotgun the

defendant had earlier obtained at Harris’ request and had placed in the defendant’s

truck. Smothers pointed the gun at the victim and told him to get out of the truck.

Then, the defendant grabbed the victim and threw him to the ground while Harris

cursed and slapped the victim and told him to shut up. The victim was then placed in

the back of the truck with Smothers while the defendant drove the victim’s truck and

Harris held the gun on the victim through the rear sliding glass window of the truck.



              When Smothers grabbed for the gun as the defendant increased his

speed, the gun discharged, hitting the victim in his left hip. The victim began screaming

but was ordered to be quiet. As street lights became visible, the victim began



                                            39
screaming again. Then, Smothers heard a voice telling him to shoot the victim, and

Smothers complied. We believe that it was reasonable for the jury to infer that one of

the reasons that Smothers shot the victim was to prevent someone from hearing the

victim’s screams for help in order to avoid detection. As we noted earlier, there is

sufficient evidence to corroborate Smother’s testimony. The evidence supports the

application of this aggravating circumstance beyond a reasonable doubt.



              Next, the defendant argues that the avoiding arrest or prosecution

aggravating circumstance may not be applied because he did not shoot the victim.

Under the facts of this case, we disagree. This court has previously addressed a

similar issue. In William E. Groseclose v. State, No. 02C01-9407-CR-00145, Shelby

County (Tenn. Crim. App. Aug. 23, 1995), app. denied (Tenn. Feb. 5, 1996), a post-

conviction case, the petitioner had been convicted as an aider and abettor of first

degree premeditated murder for hiring two men to kill his wife. The jury sentenced him

to death, finding that the aggravating circumstance that the killing was heinous,

atrocious, or cruel applied, although the petitioner was not the person who actually

killed the victim. The petitioner challenged the vicarious application of the aggravating

circumstance, asserting that it could not be considered because the petitioner did not

commit the actual killings.



              On appeal from the denial of post-conviction relief, the petitioner relied

upon Omelus v. State, 584 So.2d 563 (Fla. 1991), a murder for hire case that holds that

the heinous, atrocious or cruel aggravating circumstance cannot be applied vicariously

when there is no evidence to show either that the defendant directed the codefendant

to kill the victim in the manner in which the murder was accomplished or that he had

any knowledge of how the murder would be accomplished. However, this court

distinguished Omelus because of the petitioner’s participation in the planning and

preparatory steps to the murder itself. Groseclose, slip op. at 6-7.



                                            40
              Similar distinguishing features exist in the present case. A review of the

state’s evidence reflects that the defendant actively participated in the planning and in

the nature of the killing. The defendant obtained the shotgun for the trip. When their

initial plans to find David Hampton were hampered by the overheating of his truck, the

defendant and his codefendants devised a plan to take the victim’s truck and also

discussed the possibility that the victim would have to be killed. Smothers then used

the defendant’s shotgun to force the victim in the back of his truck, and the defendant

drove the victim’s truck away. The victim was then shot in the hip by Smothers.

Although the defendant was driving the truck, he did not take the victim to receive

medical attention. Later, when the victim began screaming for help as they approached

street lights, Smothers shot the victim in the head, killing him, after hearing a voice tell

him to shoot the victim. Based upon the defendant’s active participation in the crime, it

was proper for the jury to rely upon the aggravating circumstance to enhance the

defendant’s sentence to life imprisonment without the possibility of parole.



              The defendant also argues that the state failed to show that Smothers had

the intent, motive or premeditation to kill the victim in order to avoid capture, arrest or

conviction of the defendant or another. As previously noted, though, the facts of this

case demonstrate the existence of such a motive in killing the victim. From the

participants discussing the possibility of killing their robbery victim to Smothers shooting

the victim when he screamed for help, it was reasonable for the jurors to conclude

beyond a reasonable doubt that Smothers shot the victim to avoid being caught.



              With respect to the defendant’s claim that the avoiding arrest or

prosecution aggravating circumstance fails to narrow the class of death eligible

defendants similar to Middlebrooks, we first note that the defendant was not sentenced

to death. This court has held that a felony murder sentence may be enhanced to life

imprisonment without the possibility of parole by using the commission of a felony



                                             41
aggravating circumstance, because Middlebrooks is only concerned with the

constitutional narrowing needed for the death penalty. State v. Frederick D. Butler, et

al., No. 02C01-9604-CR-00128, Shelby County (Tenn. Crim. App. Mar. 19, 1997), app.

granted (Tenn. Nov. 3, 1997); see also State v. Danny Ray Lacy, No. 02C01-9701-CC-

00013, Madison County, slip op. at 21-22 (Tenn. Crim. App. Nov. 24, 1997), app. filed

(Tenn. Jan. 20, 1998) (First degree murder by aggravated child abuse enhanced to life

imprisonment without parole because of reckless killing of a child under sixteen years

old. T.C.A. § 39-13-202(a)(4)); but see State v. James Lloyd Julian, II, No. 01C01-

9511-CV-00371, Loudon County, slip op. at 16-17 (Tenn. Crim. App. July 24, 1997),

app. filed (Tenn. Oct. 30, 1997) (“We do not believe the legislature intended to except

those receiving life without parole from the protections against double enhancement

afforded those receiving death and those receiving lesser sentences.”). W e note that in

Lacy, Judge Wade wrote separately to explain that he agreed with Julian, not Butler.

However, a majority of our panel agrees that the Middlebrooks holding is not implicated

when a sentence of life imprisonment is imposed, as in this case.



               In any event, we believe that avoiding arrest or prosecution is not an

element of felony murder and is not necessarily implied in every felony murder. Also,

as previously indicated, when the killing of the victim is for the purpose of avoiding

arrest or prosecution, such a purpose reflects an intent to kill. Such an intent narrows

the class of felony murderers subject to life imprisonment without the possibility of

parole. We conclude that the jury was justified in sentencing the defendant to life

imprisonment without the possibility of parole under the circumstances of this case.



               In consideration of the foregoing and the record as a whole, the judgment

of the trial court is affirmed.




                                          Joseph M. Tipton, Judge


                                            42
CONCUR:




Gary R. Wade, Presiding Judge




Paul G. Summers, Judge




                                43
