              IN THE TENNESSEE COURT OF CRIMINAL APPEALS

                                  AT NASHVILLE              FILED
                                MAY 1997 SESSION
                                                              March 18, 1998

                                                           Cecil W. Crowson
                                                          Appellate Court Clerk
STATE OF TENNESSEE,                    )   C.C.A. NO. 01C01-9606-CC-00236
                                       )
      Appellee,                        )   MAURY COUNTY
                                       )   (Transferred from Giles County)
VS.                                    )   Nos. 7040 and 7041 Below
                                       )
                                       )   The Honorable Jim T. Hamilton
PAT BONDURANT,                         )
                                       )   (First-Degree Murder, Arson)
      Appellant.                       )



FOR APPELLANT:                             FOR THE APPELLEE:

(On Appeal and Motion for New Trial)       John Knox Walkup
William P. Redick, Jr.                     Attorney General & Reporter
P.O. Box 187
Whites Creek, TN 37189                     Darian B. Taylor
                                           Assistant Attorney General
Peter D. Heil                              Criminal Justice Division
866 Battery Lane                           450 James Robertson Parkway
Nashville, TN 37220                        Nashville, TN 37243-0485

(At Trial)                                 T. Michael Bottoms
Jerry C. Colley                            District Attorney General
John Colley
Colley & Colley                            James C. Sanders
P.O. Box 1476                              Assistant District Attorney General
Columbia, TN 38402-1476
                                           James G. White, II
                                           Assistant District Attorney General
                                           P.O. Box 1619
                                           Columbia, TN 38402-1619




OPINION FILED:     ___________________


AFFIRMED



CURWOOD WITT
Judge
                                             OPINION



                In this capital case, the defendant, Pat Bondurant, was convicted by a jury

of first-degree premeditated murder and arson. At a separate sentencing hearing, the jury

found the following aggravating factors: (1) the defendant was previously convicted of one

or more felonies involving the use or threat of violence, and (2) the murder was especially

heinous, atrocious, or cruel in that it involved torture or depravity of mind. See Tenn. Code

Ann. § 39-2-203(i)(2) and (5) (1982). The jury found that there were no mitigating

circumstances sufficiently substantial to outweigh the aggravating circumstances and

sentenced the defendant to death by electrocution.1



                After the defendant filed a motion for new trial, counsel was allowed to

withdraw and new counsel was substituted so that the issue of ineffective assistance of

counsel could be raised. After a full hearing, the trial court entered an order denying the

defendant's motion for new trial, and a notice of appeal was filed.



                In this appeal, the defendant raises numerous issues that challenge the

sufficiency of the evidence, the effectiveness of counsel, and that allege errors occurring

during the guilt phase and during the sentencing phase of the trial. Having carefully

considered the defendant’s contentions as to the sufficiency of the evidence and as to

errors occurring during both the guilt and the sentencing phases, and having decided that

none affirmatively appear to have affected the verdict, we affirm the defendant’s

convictions.



                                            BACKGROUND



                At the guilt phase, the state presented the testimony of the defendant’s wife,

Denise Bondurant. Denise married the defendant in 1983, but they separated in August

1986 after a fight, during which the defendant had Denise, who was pregnant, on the floor,

        1
          At a separate hearing, the trial court sentenced the defendant for his arson conviction as a Range
II offender to ten years to run consecutive to his sentence of death.

                                                     2
choking and hitting her, and holding a gun to her head. Denise’s older sister broke up the

fight, and Denise went to live with her in Athens, Alabama, for two months.



              At the time, Denise had one child, Matthew, who was three years old and had

cerebral palsy. In 1986, the defendant received Matthew’s disability check from Social

Security at a farmhouse in Elkton, Tennessee, where he and Denise had previously lived

together. Denise and the defendant maintained some contact after the separation, and the

defendant would give Denise the cash from Matthew’s check each month. Because

Denise did not work, she would call the defendant whenever she needed money.



              In September 1986, Denise asked the defendant for money to help her move

to Pulaski, and he told her that his wallet had been stolen the night before while he and the

victim had been out drinking. The defendant assumed the victim had taken the wallet,

which contained that month’s disability money for Matthew.



              In October 1986, Denise returned to Pulaski after Matthew’s monthly check

arrived, and she rented an apartment. On the day Denise picked up the money from the

defendant, he made further remarks about the wallet being taken. The defendant indicated

how embarrassed he was and how no one steals anything or takes anything from him or

“little Matthew.”



              On Saturday, October 18, 1986, Denise needed more money from the

defendant. She looked for the defendant at the victim’s house, but no one was home. She

then went to the Pulaski Rubber Company, where the defendant worked, because he was

to be there by 11 a.m. to work overtime. After learning the defendant was not coming to

work until 3 p.m., she returned to the Pulaski Rubber Company around 2:30 p.m. and

waited for the defendant to arrive. The defendant arrived around 2:45 p.m., driving his old

white Plymouth or Dodge. The defendant parked his car next to Denise’s car, and she

noticed blood smeared on the rear fender of the passenger’s side. When Denise asked

the defendant about the blood, he instructed her to sit in the car and act like she was sick



                                             3
while he ran into the plant to wet some paper towels. The defendant returned with the

paper towels and handed part of them to Denise. He told her to start wiping her face.

While Denise did this, the defendant wiped the blood off of his car.



              In explaining the discovered blood, the defendant told Denise that the night

before, he and the victim had been playing cards at the victim’s house when the defendant

caught the victim cheating. Both men were drinking quite a bit, and when the defendant

started thinking about his wallet being stolen, about Matthew’s money being taken, and

about the victim cheating, the defendant just “went off” on the victim and started beating

him with a small rocking chair that was in the victim’s house. The defendant told Denise

that he continued beating the victim and telling him no one steals from “little Matthew” thirty

minutes after the victim was dead. He also told Denise that only a small piece of the

rocking chair was left when he stopped. Afterwards, the defendant put the victim’s body

in the bathtub and called Mark Marrow at the Shady Lawn Truck Stop in Elkton and asked

him to go across the street to the farmhouse and get Pete Bondurant, the defendant’s

identical twin brother. Pete came to the victim’s house and assisted the defendant in

cutting up the body in the victim’s bathtub.



              The defendant told Denise that he and Pete cleaned the bathtub and poured

Drano down the drain in case there was any loose hair or blood. Then the defendant and

Pete loaded the body and took it to Westpoint, Tennessee, where the defendant’s parents

had a house. The defendant and Pete burned the body on the property approximately five

feet outside the back door of their parents’ house. Because Denise had pointed out the

blood on the car, the defendant told her she was entitled to one-third of the burial




expenses, meaning any money found on the person at the time of the murder. Denise

noticed that one of the twenty dollar bills the defendant gave her had blood on it.



              Denise saw the defendant later that night when he came to her apartment



                                               4
to take a bath. The defendant left around 12:30 or 1:00 a.m. to go to Westpoint because

he had work to do there. Denise again saw the defendant on the afternoon of Sunday,

October 19, 1986, at the farmhouse in Elkton. The defendant, Pete, and their friend

Rodney Randolph, were at the house when Denise arrived. All three were on the front

porch drinking and using narcotics. When Denise first walked up on the porch, the

defendant pointed to a corner of the yard and said “that’s what’s left of Hippy.” (The

victim’s nickname was “Hippy.”) In the direction where the defendant was pointing, Denise

saw a big round lump smoking in the yard. The victim’s body had been moved from

Westpoint to Elkton because the defendant and Pete became paranoid and wanted to be

close to town where they could hear any news concerning the victim’s disappearance.



                The defendant explained to Denise that to burn the body, they had to get the

temperature very hot and that he had used rubber from work. She testified that it took two

and a half days to burn the body. When questioned about why the body was smoking after

only one and a half days, Denise testified that she had already witnessed one burning

before that took two and a half days, referring to the Dugger murder.2 Denise was allowed

to testify that in the prior case, the body had not been cut up before it was burned.



                That afternoon, Denise stayed at the farmhouse between 30 minutes to an

hour. The four of them then went to the Tennessean Truck Stop. At the defendant’s

request, Denise called the Pulaski Rubber Company and pretended to be Joyce Gaines,

the victim’s wife, and reported the victim off from work until Tuesday. The four then went



to a hospital in Lewisburg, Tennessee, where Randolph used Pete’s Medicaid card to see

a doctor and obtain a prescription. Denise then took the three men back to Elkton. When

asked why she did not leave earlier, Denise testified that she was afraid, just as she had

been when Dugger was killed.




       2
         In May 1991, the defendant and his brother Pete were convicted in Giles County of second-degree
murder for the killing of Gw en Du gger. See State v. Kenneth Patterson (Pat) Bondurant and Hugh Peter
(Pete) Bondurant, No. 01C01-9501-CC-00023 (Tenn . Crim. A pp., Nas hville, May 24 , 1996), perm. app.
denied, con curr ing in r esu lts on ly (Tenn. 1996).

                                                   5
              Christopher Johns, a security guard at the Pulaski Rubber Company,

confirmed that he received a call on Sunday, October 19, 1986, from someone purporting

to be the victim’s wife. Johns took a message and laid it on the foreman’s desk. On

October 20, at approximately 12:50 p.m., Tommy Hodge, the office manager at Pulaski

Rubber Company, received a telephone call from someone purporting to be the victim.

Hodge told the person to hold while he transferred him to the plant manager; however, the

person hung up. In Hodge’s opinion, the person on the phone was not the victim, and a

note was placed in the victim’s file. According to the victim’s time card, the last day he

worked was Friday, October 17, 1986. Although the victim was scheduled to work on

Saturday, October 18, he did not show up. The victim was also absent from work the

entire next week. The victim’s last paycheck, dated October 17, was endorsed on the back

with the signatures of the victim and the defendant. The check was cashed on the same

date. The victim’s final paycheck, dated October 24, was never picked up.



              On Wednesday, October 22, the victim’s house burned. The next day,

Denise went to the Pulaski Rubber Company during the defendant’s dinner break to ask

for more money. The defendant asked if she knew about the victim’s house burning. The

defendant suggested Denise should drive by to see the house, which she did.



              Later that night, around 10:45 p.m., Denise went back to the Pulaski Rubber

Company to pick up the defendant. While she was waiting, Pete showed up. When the

defendant came out, Pete told Denise how he took a candle and set it in the middle of the

bed in the front bedroom of the victim’s house. He put sheets around the lower part of the

candle so that when the candle burned down, the sheets would catch on fire, giving Pete



time to get away before the fire ignited. The three of them drove by the victim’s house, and

the defendant said that the victim got what was coming to him. The defendant, however,

had been at work when the fire started.



              Joyce (Gaines) Spurgeon testified that she was married to the victim at the



                                             6
time of his disappearance. On October 11, 1986, Spurgeon and her daughter Loretta

Teeples left the victim after a fight and went to live with Spurgeon’s other daughter.

Spurgeon went back to the house to get some clothes for her daughter on the morning of

October 20. When Spurgeon opened the door to her daughter’s bedroom at the front of

the house, she noticed the carpet had been cut around the furniture and only the foam

padding was left. Spurgeon also noticed that an electric blanket was spread out at the foot

of the bed. Spurgeon became frightened, so she took some of her daughter’s clothes and

left the house.



              Later that evening, Spurgeon returned to the house with both daughters to

pick up more clothes. Spurgeon and Loretta noticed that the phone in the living room was

missing. Loretta testified that there were “beer cans and stuff everywhere.” They also

noticed that the comforters from the master bedroom and from Loretta’s bedroom were

missing. Loretta testified that the carpet in her room had been cut out around the furniture,

the bed looked slept in, and a blanket was at the foot of the bed. A wooden jewelry box,

her bedspread, and a small black and white television were missing from Loretta’s room.

Neither Spurgeon or Loretta noticed any blood or signs of a fight.



              Although Loretta did not include it in her statement to William E. Coleman,

a special agent with the Tennessee Bureau of Investigation (“T.B.I.”), and did not notice

it on October 22, 1986, she testified that there had been a small rocking chair in her room.

She had not seen the rocking chair since she left home on October 11, 1986.



              Ann McGill, the victim’s sister, testified that she went to the victim’s house the

morning after the fire to see if the victim needed help. McGill went in the front door, but the

victim did not answer when she called. The house was in disarray, the victim’s boots,

which he always wore, were sitting at the end of his bed, and his snuff was sitting on the

table. McGill did not see any blood.



              Following the victim’s disappearance, Spurgeon was granted a divorce on



                                              7
grounds of desertion for a period of one year preceding the filing of the action. Spurgeon

never saw or heard from the victim after she left him on October 11, 1986.



              Frank Collins, the Pulaski Fire Chief, received a call at 11:47 p.m. on October

22, concerning the victim’s house being on fire. Flames were coming out of a bedroom

window located on the left front part of the house. The fire was put out before it spread to

the rest of the house; however, the other rooms were charcoaled from the smoke. Collins

believed the fire started in the bed located in the front bedroom.



              Lane Roberts, detective sergeant for the Pulaski Police Department,

investigated the fire at the victim’s residence and the victim’s disappearance. The victim

was reported missing at 9 p.m. on October 23, after the fire. Roberts became involved in

the case on October 24. From his investigation, Roberts determined that the last person

to see the victim alive was the defendant on October 17. Roberts was unable to

substantiate any alleged sighting of the victim after that date.



              In his initial statement to Roberts, the defendant said he took the victim, who

was drunk, home on October 17, after they got off work at 11 p.m. The defendant said he

then stopped by the Corner Canteen and went home to Elkton. On October 28, the

defendant gave Roberts a similar statement. The defendant added that he, Denise, and

the victim went to the bank together on Thursday, October 16 to cash the victim’s check;

however, the returned check was dated October 17 and had been cashed on the same

day. The defendant also told Roberts that he went looking for the victim at his house on

October 22, the day of the fire, but was unable to find him.



              Jerry Dickey, an arson investigator with the State Fire Marshall’s Office, was

in charge of the Fire Marshall’s investigation of the fire at the victim’s residence. From his

investigation, which began November 3, he ruled out any accidental causes and

determined that the origin of the fire was in or around the bed in the front bedroom. The

fire appeared to have lasted 45 minutes to an hour before being discovered. The call



                                              8
reporting the fire was made at 11:47 p.m., and Dickey estimated that the fire started

between 10:47 and 11:02 p.m.



              As part of their joint investigation, Dickey and Roberts interviewed several

people, including Denise and the defendant. Denise told them that the defendant came

over to her apartment immediately after work on October 17 and did not leave until 2:00

or 3:00 a.m., if at all, on October 18. During their interview with the defendant, he gave the

following statement:



       On 10-17-86 me and Denise went over to use the phone at Ronnie’s house
       to call Columbia, to get a phone put in Denise’s apt C-8 Country Side Village,
       I left my car at Ronnie’s which is a 1964 Ply Fury white Denise took me and
       Ronnie to town First National Bank an then back to Ronnie’s house, Ronnie
       and I left in my car and went to Dixie Food got a plate for supper and brought
       to work with us, we also went to Wall Mart, where I bought some toiletries,


       After ward on 10-17-86 I left, Ronnie left with me we went to Village Market
       I bought a cold drink and Ronnie bought a cross-word puzzle book. I let
       Ronnie out at his house and I went to Western Lounge, it was band night.

       After leaving the Western Lounge I went to West Point in Lawrence Co. I
       stayed with my brother Pete on the 18th of Oct I called in that I would be late.
       Ronnie did not report to work that night.

       On 10-19-86 I was off work. On 10-22-86 I went by Ronnie’s house before
       work I stopped in and Ronnie was not at home or at least he did not answer
       when I called out for him, I did not go past the kitchen.



              The defendant admitted he had not gone home that night to Elkton. Instead,

the defendant said that he met Terri Lynn Clark, his girlfriend, at the Western Lounge on

October 17 and took her to the house in Westpoint where he and his brother Pete had sex

with her. The defendant asked Dickey not to write this in the report because he did not

want his wife to find out. Dickey agreed not to write it down but advised the defendant he

would have to verify the defendant’s story with Clark. Dickey attempted to talk with Clark

on November 17; however, when he found her at the farmhouse in Elkton, she was dead.

He did not testify as to the cause of her death.



              When the victim’s house burned down, the defendant told Carmen W oods,



                                              9
a co-worker, that he thought the victim “had burnt the house himself and run off.” A few

months later, a newspaper was laying on the table in the break room, and the defendant

and Woods started looking at an article concerning the victim’s disappearance. The

defendant stated that anybody who would steal from Matthew would never steal again and

that he would make it where the family could not receive the insurance money if they were

unable to find the body. Then the defendant started to walk off but turned around and said

“yeah, I killed the son of a bitch.” Woods described the defendant as “jittery” when he said

this. The defendant told Robert Kelton, another co-worker, there “wasn’t no S.O.B. going

to steal his crippled son’s welfare check and get by with it.”



              After the defendant’s wallet was stolen, the victim started riding home from

work occasionally with Jeffrey Strickland, a co-worker at the Pulaski Rubber Company.

Shortly before the victim disappeared, the defendant told Strickland that he and Pete were

going to catch him and the victim and pull the victim out of Strickland’s car. After the victim

disappeared, Strickland heard the defendant comment that the victim had joined the

Foreign Legion.



              Approximately a month before the victim disappeared, William W ade Bass

saw the defendant and the victim at the Western Lounge. Bass noticed a wallet on the

floor and picked it up. Outside the bar, Bass realized the wallet belonged to the defendant,

but he took the cash and cashed a check which was already endorsed.



              In the Spring of 1987, Denise and the defendant went to the house in

Westpoint to cut the grass for the defendant’s parents while they were away. While

cleaning up the backyard, the defendant found a four-inch bone at the spot where he had

burned the victim’s body. When they left, the defendant took the bone and threw it out the

window while driving down Westpoint Highway.



              In February 1990, Denise talked to the authorities about the victim’s murder.

During this time, Denise continued to see the defendant, and the defendant stayed with her



                                              10
two nights a week. Denise gave a written statement to T.B.I. Special Agent Coleman on

May 1, 1990. After that, Denise had several meetings with the district attorney’s office and

with police authorities, although some of the meetings concerned other cases.



              Denise admitted that she had lied in her previous statement to Dickey and

Roberts in order to protect the defendant.     Denise indicated that she waited to talk to

authorities because she was afraid of the defendant and Pete after the Dugger murder.

Denise testified that she had been told if she went to any law enforcement officials about

what happened to Dugger, the defendant and Pete would blame the whole thing on her.

The defendant asked Denise if she wanted to have her baby in prison and asked who she

thought the authorities would believe. Denise did not file for divorce from the defendant

until June 1990, after the defendant was arrested. She explained that there was no point

in filing for divorce sooner because the defendant had told her “united we stand and

divided we fall.” On redirect, Denise explained that the defendant’s statement meant that

as long as the three of them stood together, nobody would go to jail; however, if one of

them were to fall, all would go to jail.



              On cross-examination, Denise admitted she had disobeyed a court order

allowing the defendant’s parents visitation of their grandchild and that a contempt petition

had been filed against her. Denise also admitted that she had used drugs, only stopping

while she was pregnant, and then starting up again until the defendant’s arrest.



              After taking Denise’s statements on May 1, 1990, Agent Coleman obtained

a warrant to search the residence in Westpoint for bone fragments or any other human

body parts. On May 8, Agent Coleman went to the residence with a team of forensic

anthropologists and the State Fire Marshall’s Office. After the Fire Marshall’s trained

accelerant detection dog alerted on an area determined to be the spot described by

Denise, the anthropologist began digging. Denise, who arrived later, confirmed that the

anthropologists were digging where the defendant said he burned the body. The presence

of evaporated kerosene was identified in one of the soil samples taken from the location.



                                            11
              Dr. William M. Bass, head of the anthropology department at the University

of Tennessee, was in charge of the excavation at the Bondurant property in Westpoint.

Their excavation revealed burned human cranial fragments mixed with charcoal and

burned soil. Dr. Bass found seven cranial bone fragments that were large enough to make

positive identifications. While the other bone fragments were too small to positively identify

the area of the skull they came from, he was certain that they were human skull fragments.

From studying the larger fragments, Dr. Bass testified that the bones appeared to have

been broken before being burned, and that the irregular broken edges suggested that blunt

trauma had occurred. He was more than 50% certain that some force had been applied

to the skull before it was burned. Moreover, based on the thickness of six larger fragments

that could be measured, Dr. Bass was 75% certain that the bones were from a human

male, and he was 90% certain that the bones had been there one to fifteen years.



              Several witnesses testified on behalf of the defense. Kathrine McCloskie, the

victim’s neighbor, testified that she saw the victim mowing his yard on Monday, October

20, 1986. McCloskie also saw a 200-pound man in an old white car drive up to the victim’s

house around 5 p.m. on the day of the fire. The man went into the house, stayed a few

minutes, and then left. In rebuttal, Detective Roberts testified that after talking with

McCloskie on October 26, 1986, he walked over to the victim’s yard to look at the grass

and decided that it was too high to have been cut on October 20. Charles “Buster”

Stanford visited his grandmother, who lived across the street from the victim’s house, at

least once a day. He testified that he saw the victim standing out on the street with a

brown paper sack around 2:00 or 3:00 p.m. one day during the week of the fire.



              Mark Marrow worked at the Shady Lawn Truck Stop across the street from

where the defendant and Pete lived in Elkton. He did not recall taking any messages to

the defendant or to Pete, and he never gave either of them a ride to Pulaski. However,

during an earlier interview with Agent Coleman in November of 1991, Marrow admitted that

he had received calls from one of the twins asking him to get a message over to the other

at the farmhouse. When talking to Agent Coleman, Marrow remembered delivering such



                                             12
messages on various occasions. He also remembered on at least one occasion giving one

of the twins a ride to Pulaski, although he did not remember doing so on October 17, 1986.



             Rodney Randolph testified that he had no recollection of seeing or having a

conversation concerning a smoking or burning lump in the yard at Elkton. Randolph also

denied having ever been treated at the Lewisburg Community Hospital. On cross-

examination, Randolph testified that in 1986, he lived with the twins at Elkton during the

week, but he stopped staying there after Terri Lynn Clark was found dead in the house.

After the victim disappeared, Randolph heard the defendant jokingly say that the victim had

joined the French Foreign Legion. Randolph told Agent Coleman that Denise had called

someone in sick, but he did not know who or when that was. The defendant told Randolph

if you cut a body up in pieces and scatter it over four or five states, it would be hard to

make a case because there would be no body.



              In the Fall of 1986, Travis Tidwell checked on the elder Bondurants’ house

in Westpoint every week to two weeks while they were out of town. Because he had once

been burglarized when he had owned the house, Tidwell would drive up and circle around

to the back, paying close attention to the back door area. During that time, Tidwell never

saw anything burning or smoking or any sign that something had been burned.



              The defendant, who was 36 years old at the time of the trial, testified on his

own behalf. Since December 3, 1973, he had worked with the victim at the Pulaski Rubber

Company making rubber flooring for school buses. The defendant testified that he and the

victim were good friends. Shortly before the victim disappeared, the defendant even co-

signed a note for the victim so he could buy furniture.



              The last time the defendant saw the victim was on October 17, 1986, when

he took him home after work at 11 p.m. While the defendant did not remember that

particular night, their usual routine was to go to the store after work, and then the

defendant would take the victim home. Afterwards, he would go to the W estern Lounge



                                            13
(called the Corner Canteen for a short period of time) until it closed at midnight. The

defendant thought he went to Westpoint that night. The next day, the defendant was to

be at work at 11 a.m.; however, he overslept and did not call in late until 12:17 p.m., based

on his mother’s phone bill from Westpoint.



              The defendant denied killing the victim, stating that he did not have a reason

to be angry with him at that time. The night he lost his wallet, the defendant went to the

victim’s house to look for it and to confront the victim, but he was satisfied that the victim

did not have it. A week later they were back to riding and drinking together.



              The defendant went by the victim’s house on the afternoon of the fire to make

the victim go to work so he would not be fired. The defendant called out for the victim, but

no one answered. The defendant saw the fire when he left the Western Lounge that night

but did not stop because he had been drinking. For the most part, the defendant could not

remember what he said to investigators and denied making incriminating statements to

Denise or to his co-workers.



              Based on this evidence, the jury found the defendant guilty of first-degree




murder and arson.



              At the sentencing hearing, the state introduced the judgment document as

proof of the defendant’s conviction of second-degree murder for the death of Gwen Dugger

in 1991. As to the heinous, atrocious, and cruel aggravating factor, the state relied on the

proof at the guilt phase.



              The defense presented the testimony of the defendant’s mother. The

defendant’s father was unable to testify because of his health. Mrs. Bondurant worked for



                                             14
the Department of Army for twenty-nine years and six months. Because of the defendant’s

arrest, Mrs. Bondurant had to retire in order to take care of her husband. Her last post was

at Redstone Arsenal in Huntsville, Alabama. From 1984 to 1987, Mrs. Bondurant worked

mostly in Germany. During this time, she would return to the United States once or twice

a year, and her husband would return every three months.



              While the Bondurants were out of town, their son Pete lived at the house, and

the defendant lived there some too. For two of the years they were gone, the Bondurants

rented the house to someone else. When out of the country, the Bondurants talked with

the twins at the house in Westpoint almost every weekend.



              The Bondurants moved back to Westpoint in September 1989.                The

defendant helped them wash windows, unpack boxes, move furniture in the house, and

move furniture to Mrs. Bondurant’s apartment in Huntsville. Mrs. Bondurant testified that

the defendant worked regularly at the Pulaski Rubber Company for 17 years until the time

he was arrested. She testified that the defendant was a good son and stayed with her ill

husband at least three or four days a week, enabling Mrs. Bondurant to work. During the

time Mrs. Bondurant was working in Huntsville, she normally stayed at her apartment

Monday through Thursday and came home on weekends. Occasionally she would come




home during the week.



              From September to November of 1989 and from January to the first of April

1990, the defendant brought his son to see them on weekends and would spend the night.

Mrs. Bondurant testified that they were a close and loving family. Mrs. Bondurant and her

husband of 39 years had two other children, a married son with four children, who was a

social worker in Delaware, and a married daughter in Lawrenceburg, Tennessee.



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



                                            15
of William Ronnie Gaines.



                                           I. JURY SELECTION



                             A. Fair Cross-Section of the Community



                 First, the defendant argues that because of deviations from the mandated

procedures in selecting the original jury venire, and because of the resulting prejudice to

the integrity of the judicial process and the public’s confidence in the administration of

justice, this matter should be remanded for a new trial. In addition, the defendant argues

that counsel was ineffective by failing to raise these objections before trial. We find no

reversible error.



                 At the hearing on the motion for new trial, the defendant presented proof

tending to show that the jury selection procedures employed in Maury County violated

several provisions of Tennessee Code Annotated sections 22-2-101 to                                       -309.3


       3
         The defendant claims that the following practic es em ployed by the trial co urt cle rk su bsta ntially
departed from the m andate d statutory p rocedu res. W e cite to the statu tes in effect at the time the jury venire
was selected.

(1)     The jury com miss ioners, on their own initiative , exclude d from service p eople with
        occupational exemptions. Tenn. Code Ann. §§ 22-1-103 (Supp. 1991) (amended 1993,
        1996)and 22-1-10 6 (1980 ). See Coop er v. State , 847 S.W.2d 521, 523 (Tenn. Crim. App.
        1992).

(2)     The jury box was routinely opened by unauthorized personnel. Tenn. Code Ann. §§ 22-2-301
        and -302(c)(1) (Supp. 1991 ).

(3)     The nam es for the mas ter jury list were not selected from each district in proportion to the
        population of such districts. Tenn. Code Ann. § 22 -2-302(a)(1) (Supp. 1991) (amended
        1993).

(4)     The trial court clerk failed to rec ord the m aster jury list in a w ell-bound book a nd failed to
        keep such book under lock and key. Tenn. Code Ann. § 22-2-302(b) and (c)(2) (Supp.
        1991).

(5)     Because there wa s no mas ter jury list, the initials of the jury commissioner proposing each
        name did not app ear. Tenn. Code An n. § 22-2-302(b)(3) (Supp. 1991).

(6)     Names were placed on the master jury list without th e required majority vote of the jury
        comm ission. Tenn. Code Ann. § 22 -2-302(b)(3) (Supp. 1991).

(7)     The jury commissione rs did not certify and preserve the master list. Tenn. Code Ann. § 22-2-
        302(b)(4) (Supp. 1991).

(8)     Because there was no master jury list, the names were not alphabetized and numbered
        according to law, and required information was not recorded by the trial court clerk on the
        uniform tickets placed in the jury box. Tenn. Code Ann. § 22-2-302(c)(1) (Supp. 199 1).



                                                        16
There was proof that jury commissioners for Maury County were notified by the circuit court



(9)    The jury commissioners did not certify that the list of names drawn from the jury box was
       accurate. Tenn. Cod e Ann. § 22-2-304(a)(5)(A) (Sup p. 1991).

(10)   The trial court did no t spread the nam es of those drawn from the jury box upon the court
       minutes, along with the certification by a majority of the jury c ommissioners that the list of
       names was accurate. Ten n. Code Ann. § 22-2-30 4(a)(5)(A) (Supp. 1991).

(11)   The original tickets drawn from the jury box were not placed in a sealed envelope bearing the
       signatures of the jury commissioners over such seal and delive red to the trial court. Tenn.
       Code Ann. § 22-2-3 04(d)(1) and (2) (Supp. 1991).

(12)   The trial court clerk neither pre pared, d elivered to th e court, nor retained a copy of a repo rt,
       signed by the jury commissioners, that listed the numbered and initialed names drawn from
       the jury box. Tenn. Code Ann. § 22 -2-304(d)(1) (Supp. 1991).

(13)   The trial court clerk neither prepared nor delivered a report to the trial court that listed the
       names of persons who were drawn from the box but were known to have died, removed from
       the county, or had become mentally or physically disabled from jury service. Tenn. Code
       Ann. § 22-2-304(d)(1) (Supp . 1991).

(14)   The trial court clerk failed to ca refu lly preserve the original tickets that contained the names
       of the jurors excused by the court and failed, at the next meeting of the jury com miss ion, to
       place these tickets back in the jury box before the next drawing. Tenn. Code Ann. § 22-2-
       304(d)(3) (Supp. 1991).

(15)   The trial court clerk did not note in the jury book, next to the names of those persons known
       to have died or to have become disabled, the re aso ns giv en in th e jury c om mis sion ’s report
       why such jurors were unab le to serve. Tenn. Code Ann. § 22 -2-304(d)(3) (Supp. 1991).

(16)   The trial court clerk failed to safely keep and file the jury commission’s reports to the trial
       court. Tenn. Code An n. § 22-2-304(d)(4) (Supp. 1991).

(17)   The trial court clerk did not swear the sheriff to secrecy regarding the nam es of the jurors to
       be summ oned to appear for jury service. Tenn. Code Ann. § 22-2-305(a) (Supp. 199 1).

(18)   The trial court clerk did not properly issue the state’s writ of venire facias to the sheriff, and
       the sheriff neither properly received nor returned such venire facias. Tenn. Code Ann. § 22-
       2-305(a) (Supp. 1991).

(19)   Persons summoned as jurors were illegally excused from service by m embers of the trial
       court clerk’s office, without the required showing being made to the trial court. Tenn. Code
       Ann. §§ 22-2-307(a) and -308(d) (1980).

(20)   Neither the trial court clerk nor the trial court caused a scire facias to be issued and served
       on persons who were summoned for jury duty but who failed to appear, requiring those
       persons to show cause why they should not be held in contempt and fined for suc h failure
       to appear. Tenn. Code Ann. § 22-2-307(b) (1980).

(21)   Because no writs of scire fa cias we re issue d, the trial cou rt failed to examine those persons
       served with a scire facias as to the sufficiency of their excuse and failed to hold those
       persons with insufficient excuse in contempt of court. Tenn. Code Ann. § 22-2-307(c)(1980).

(22)   The trial co urt fa iled to com pare , in ope n cou rt, the list co ntain ed in the jury co mm issio n’s
       report with th e orig inal tic kets cont ained in the j ury co mm issio n’s sealed envelope a nd to
       spread the result of such comp arisons and the jury com mis sion ’s rep ort on to the reco rd in
       the caption of the minutes. Tenn. C ode Ann. § 22-2-308(a)(1) (198 0).

(23)   The jury commissioners failed to cause names to be drawn from the jury box by a child under
       10 years of age or by a person securely blindfolded. Tenn. Code Ann. § 22-2-304(a)(1)
       (Supp. 1991).

(24)   The jury commissione rs failed to remove the remaining names before replenishing the jury
       box. Tenn. Code Ann. § 22-2-309(a) (1980).

(25)   The trial co urt cle rk im prop erly published a copy of the jury list prior to the actual summoning
       of the prospective jurors. Tenn. Code A nn. § 22-2-306(a) (Supp. 1991 ).

                                                         17
clerk’s office when they needed names for the jury box. Each commissioner picked names

from his or her districts at random from the voter registration books and sometimes from

the telephone directory, trying to find people of each age, gender, and race, and people

with good voting records. One commissioner also looked for persons who did not have

criminal records. Tabs were only kept on the number of names picked from each district.

If one of the commissioners knew that someone was a doctor, a nurse, an attorney, or a

minister, the name would not be listed. The commissioners would write the names,

addresses, and districts on a legal pad and give them to the circuit court clerk’s office so

the names and districts could be typed on slips of paper.



              When names were drawn from the jury box, someone in the clerk’s office

would be blindfolded or would look away while drawing the names. The chairman of the

jury commission then read out the districts, and another commissioner tallied the number

of names from each district.       The names were already in the jury box when the

commissioners arrived for the drawing. If they knew that a person was dead or had moved

away, that person’s juror slip was set aside.           Once the names were drawn, the

commissioners did not make a list of the names, seal the list with the actual slips, or put

them in an envelope to give to the trial court. Instead, the jury commissioners only certified

the number of names drawn.



              One jury commissioner remembered being sworn in when he was initially

appointed; however, another jury commissioner did not remember taking an oath. Joe H.

Scott, the circuit court clerk for Maury County at the time of this trial, testified that he did

not take a separate oath of office as clerk for the jury commission. However, he testified

the commissioners always took an oath upon reappointment. Scott testified there was no

master list of all the names eventually put in the jury box; instead, the clerk’s office had an

attendance book with the names of people who reported for jury duty and were chosen by

the court to serve as jurors. Contrary to the testimony of the commissioners, Scott testified

that the commissioners put the names in the jury box. He confirmed that normally one of

the deputy clerks would be blindfolded or would turn her back while drawing the names.



                                              18
After the names were drawn, they would be divided into districts, and the clerks would type

the summons list. Scott testified that the slips of paper with the names on them were put

in an envelope and kept in the vault until there was no room for them, as were the

summons lists. At the time of the hearing, the oldest jury cards left in the vault were from

1992.



              Scott prepared the report of how many jurors were drawn on a specific day,

and all three commissioners would then sign it. After the summons list was typed, a copy

was placed on the bulletin board in the courthouse for public viewing, and the original was

sent to the sheriff’s office for service. If a summons letter was returned undelivered, the

person’s name was marked off. After two or three years, these letters were thrown away.

When the vault was cleaned out periodically, the original juror tickets were thrown away.

Scott testified that the court was not given a list of the names drawn from the jury box with

the original tickets in a sealed envelope.




              When a group of jurors reported for duty, roll was taken, and the names of

jurors who did not answer were laid aside. The rest of the tabs were placed in a shoe box

and handed to the judge. The bailiff took the jurors’ information cards as they took their

seats in the box. When the box was full, the bailiff returned the cards to Scott, who clipped

and marked them by panel number. Then the cards were sent to the circuit court clerk’s

office so that the master list could be typed. If a juror brought a doctor’s certificate, Scott

removed his or her name from the list. Otherwise, the court decided whether someone

should be excused.



              After the names were drawn, people would call the clerk’s office trying to

avoid jury service. While some of the deputy clerks told them to bring a doctor’s excuse

on the day of service, others personally excused physicians, school teachers, persons over

65, and any professional people without asking for approval from the trial judge.




                                              19
              The sheriff of Maury County, who was never sworn to secrecy or served with

a writ of venire facias, summoned jurors by regular mail based on the list sent from the

clerk’s office. Any notices returned because of insufficient address, wrong address, or

because the juror had moved, were returned to the clerk’s office. These potential jurors

were never resummoned, nor was the sheriff instructed to bring them to court for failing to

appear.



              The defendant claims that the enumerated statutory violations require that

his conviction be reversed without a showing of actual prejudice and the case be remanded

for a new trial under State v. Lynn, 924 S.W.2d 892 (Tenn. 1996). We find that Lynn does

not apply to the facts of this case. In Lynn, our supreme court held that a “flagrant,

unreasonable, and unnecessary” deviation from the statutory special venire selection

procedure, following the trial court’s finding of jury tampering with the original venire,

constituted reversible error even though the defendant was unable to demonstrate actual

prejudice. Id. at 894.



              In denying the defendant’s claim as presented upon the motion for new trial,

the trial court made the following findings:

       The Defendant next claims that his conviction should be set aside because
       Maury County officials departed in certain respects from the statutory
       procedure for selecting the petit jury voire [sic]. At the hearing on this matter,
       the Defendant asserted thirty-one purported statutory violations, all falling
       under Title 22, Chapter 2 of the Tennessee Code governing selection of
       jurors. Defendant is not entitled to relief on this claim despite the departure
       noted above, because Tennessee Code Annotated, see 22-2-213,
       specifically provided that in the absence of fraud, no irregularity with respect
       to any of those provisions shall affect the validity of any verdict rendered by
       a trial jury unless pointed out by the Defendant before the jury is sworn. In
       this case, I find no showing of fraud and this issue was first raised in this
       Motion. This issue is without merit and is overruled.




              As cited by the trial court, Tennessee Code Annotated section 22-2-313

provides:

       In the absence of fraud, no irregularity with respect to the provisions of this
       part or the procedure thereunder shall affect the validity of any selection of
       any grand jury, or the validity of any verdict rendered by the trial jury unless
       such irregularity has been specially pointed out and exceptions taken thereto


                                          20
       before the jury is sworn.

Here, the defendant failed to take issue with the original venire before the jury was sworn.

Accordingly, this issue was waived. Tenn. R. App. P. 36(a). Regardless, application of

Lynn is limited to extraordinary circumstances which do not exist as to the original venire

in the present case. Notably, in Lynn, without notice to either party, the trial court directed

the court clerk to draw new names for a venire after it found evidence the original venire

was tainted by jury tampering. The court clerk opened the jury box in his office, unsealed

it, and drew sufficient names to constitute a special jury panel. Counsel was not supplied

a list of the names until immediately before jury selection. Lynn, 924 S.W.2d at 894.



              The supreme court found that the statutory requirements for selecting a

special venire were totally disregarded after the original venire was tainted by jury

tampering:



       [T]he statutes are explicit. The procedures required are detailed. This
       judicial proceeding had already been discolored by the trial judge’s earlier
       findings of jury tampering. The fundamental principles of impartiality,
       disinterestedness, and fairness are even more essential in a case, such as
       this, in which a previous attempt to circumvent fairness has occurred.

       Often, the public sees in our justice system something substantially different
       from what actually exists. It is the appearance that often undermines or
       resurrects faith in the system. To promote public confidence in the fairness
       of the system and to preserve the system’s integrity in the eyes of the
       litigants and the public, “justice must satisfy the appearance of justice.”
       Offutt v. United States, 348 U.S. 11, 13, 75 S. Ct. 11, 13, 99 L.Ed.11 (1954).


Lynn, 924 S.W. at 898. Accordingly, absent extraordinary circumstances, as set out in

Lynn, the defendant still has the burden of demonstrating prejudice from the failure to

follow the technical procedures of Title 22. See State v. Coleman, 865 S.W.2d 455, 458

(Tenn. 1993). In the present case, the defendant concedes that he is unable to show

prejudice. We fail to find sufficient similarity between Lynn and the case at bar to warrant

the extraordinary remedy afforded the defendant in Lynn.



              Accordingly, the defendant’s claim of ineffective assistance must also fail.

When a defendant seeks relief on the basis of ineffective assistance of counsel, he must



                                              21
first establish that the services rendered or the advice given was below "the range of

competence demanded of attorneys in criminal cases." Baxter v. Rose, 523 S.W.2d 930,

936 (Tenn. 1975). Second, he must show that the deficiencies "actually had an adverse

effect on the defense." Strickland v. W ashington, 466 U.S. 668, 693, 104 S. Ct. 2052,

2067 (1984). There must be a reasonable probability that but for counsel’s error, the result

of the proceeding would have been different. Id., 466 U.S. at 694, 104 S. Ct. at 2068; see

Best v. State, 708 S.W.2d 421, 422 (Tenn. Crim. App. 1985). Should the defendant fail

to establish either factor, he is not entitled to relief. Here, regardless of the technical

violations in calling the original jury venire, the defendant has failed to show prejudice.

Therefore, his claim of ineffective assistance is also without merit.



              The defendant also argues that because of the deviation from the mandated



selection procedure in selecting a special jury venire for this case and because of the

resulting prejudice to the integrity of the judicial process and the public’s confidence in the

administration of justice, this matter should be remanded for a new trial.



              When it became apparent that there would not be enough potential jurors to

complete the panel in this case, the trial judge directed the court clerk to have more jurors

called. The testimony was unclear as to who opened the jury box and drew the names, but

it was evident that the jury commissioners did not, nor did the trial judge in open court. The

deputy clerks then took the names that were drawn and looked up the phone numbers.

If the address on a juror slip did not match the address in the phone book, the slip was set

aside. Moreover, if the deputy clerk knew the person’s work number, she would try to

reach the person there. One deputy clerk testified that people called back in the afternoon

to see if it was a joke because they had never been called to jury duty in this manner

before. No master list was made of the names drawn or summoned, and nothing was

done to those persons who did not respond.



              Trial counsel objected to the special venire right before the jury was sworn.



                                              22
In support of the motion, the defense presented the testimony of the circuit court clerk.

After argument on the motion, the trial judge overruled the motion, stating that “[t]he

defense counsel agreed to this method of selecting the jury. We have a full cross section

of the citizens of this county.”



              While the defendant does not show actual prejudice, he argues that the

integrity of the system was prejudiced as in Lynn, 924 S.W.2d 892.



              Under Tennessee Code Annotated section 22-2-308(a)(2)(1980), the

following procedures were to be followed in the event a special venire became necessary:

       In the event by reason of the disqualification of proposed jurors, or other
       cause, the required number of jurors cannot be obtained from the venire, the
       clerk of the court shall produce in open court the jury box, and the box shall
       be opened by the court and there shall be drawn therefrom, as directed by
       the court, the number of names deemed by the judge sufficient to complete
       the juries. This process shall, if necessary, continue until the grand and petit
       juries are completed; but the judge of the court instead of following the last
       mentioned procedure may, if the judge shall deem proper, furnish a sufficient
       number of names of persons to be summoned to the sheriff, or the judge
       may, if the judge thinks proper, direct the sheriff to summon a sufficient
       number to complete the juries.


              Although the statutory procedures for calling a special venire were not

properly followed in this case, we find that the circumstances do not require reversal as in

Lynn, without a showing of actual prejudice to the defendant, which has not been made.



              Again, in determining that failure to comply with the statutory requirements

was reversible error, the supreme court described the violations found in Lynn:

       The clerk, not the judge, opened the box. The box was opened in the clerk’s
       office, not in open court and not in the presence of the judge. The clerk, not
       the judge, drew the names and resealed the box. Neither party was advised
       that a new panel was being drawn. These circumstances, unlike those
       present in prior cases, are not an insignificant departure from technical
       statutory requirements. Rather, they represent a complete deviation from the
       directives established by our legislature.

Lynn, 924 S.W.2d at 895.



              The court went on to distinguish the facts in Lynn from previous cases where

the deviations from the statutory procedure were relatively minor and were either


                                             23
inadvertent or were necessitated by circumstances beyond the control of the court. The

court distinguished these violations because the “judicial proceeding had already been

discolored by the trial judge’s earlier findings of jury tampering. The fundamental principles

of impartiality, disinterestedness, and fairness are even more essential in a case, such as

this, in which a previous attempt to circumvent fairness has occurred.” Lynn, 924 S.W.2d

at 898. Based on these findings, the supreme court went on to hold:

        Because strict adherence to statutory jury selection procedures is essential
        to the integrity of the judicial process and the instilling of public confidence
        in the administration of justice, we hold that proof of actual prejudice is not
        required in circumstances such as this when the deviation is flagrant,
        unreasonable, and unnecessary.

Id. at 894.



                Unlike the situation in Lynn, in the present case, time was of the essence in

obtaining more jurors. The original venire was exhausted, and more jurors were needed

by the next day. Moreover, while the defendant objected before the jury was sworn, he

contributed to the situation by failing to object when the trial court announced that the clerk

would be calling a special venire. The facts of this case are further distinguished in that

there was no initial taint to the original venire from jury tampering as in Lynn. We read

Lynn, in conjunction with Tennessee Code Annotated section 22-2-313, as applying

narrowly to the facts of that case. Specifically, not only were the procedures for selecting

a special venire violated, counsel was not notified of the calling of a special venire, and

there were claims of jury tampering. Based on these cumulative errors, the supreme court

was compelled to reverse the conviction in Lynn. The circumstances of this case do not

require the same result without a showing of prejudice, which the defendant has failed to

do. This issue has no merit.



       B. Systematic Exclusion of Women From Petit Juries in Maury County4



                The defendant contends that the representation of women, a distinctive group

in the community, on the jury summons lists in Maury County was not fair and reasonable


        4
         Although the indictm ents were returned in Giles County, a motion for change of venue was granted,
and the c ase was trans ferre d to M aury C oun ty.

                                                   24
in relation to the number of women over the age of 18 in the community. The defendant

contends, based on statistical data, there is an absolute disparity of 16%, a comparative

disparity of 30%, and a discrepancy of 19.6 standard deviations. Moreover, the defendant

submits that women have been consistently under represented on every Maury County

summons list issued between February 1989 and the defendant’s trial in December 1991.

To the extent trial counsel failed to bring meritorious errors to the trial court’s attention, the

defendant contends he is entitled to relief based on ineffective assistance of counsel.



               While the state asserts that this issue has been waived, we note that in

Charles Walton Wright v. State, No. 01C01-9105-CR-00149 (Tenn. Crim. App., Nashville,

April 7, 1994), perm. app. denied (Tenn. 1994), cert. denied, 513 U.S. 1163, 115 S. Ct.

1129 (1995), this Court held that the state’s claim of waiver for the first time on appeal

could "defeat substantial justice if there was potential merit ... to a claim of constitutional

wrongdoing and the parties proceeded in the trial court without litigating or intending to

litigate the issue of waiver." Charles Walton Wright, slip op. at 34. However, if the

substantive claim had no merit, a remand is unnecessary. Id. At the hearing on the motion

for new trial, the state did not present proof or argument on this issue. Moreover, although

invited by the trial court to file a written response, the record does not reflect that a

response was filed by the state. As such, the state is in the position of raising waiver for

the first time on appeal. Accordingly, a review of the substantive claim is necessary;

however, we find this issue is without merit.



               In denying relief, the trial court stated:

               [T]he Defendant asserts a violation of his right to an impartial jury
       selected from a fair cross-section of the community due to systematic
       exclusion of women from Maury County Petit juries. While Defendant has
       raised the issue of systematic exclusion in his Motion, his argument goes to
       underrepresentation. (See transcript of Motion for New Trial, pg. 157 et. seq)
       The Court finds that the proof in this case does not support a claim of
       systematic exclusion of women from petit juries of Maury County and that the
       Defendant, a white male lacks standing to assert an equal protection
       violation as to underrepresentation of women on the Maury County Petit
       juries.


               The United States Supreme Court has held that a male has standing to



                                               25
challenge the constitutionality of the exclusion of women from jury service. Taylor v.

Louisiana, 419 U.S. 522, 526, 95 S. Ct. 692, 696 (1975). In Taylor, the court further held

that the systematic exclusion of women is violative of the right to a petit jury selected from

a representative cross-section of the community and guaranteed by the Sixth Amendment

right to a jury trial. Taylor, 419 U.S. at 531, 95 S. Ct. at 698. Petit juries actually chosen,

however, are not required to mirror the community or reflect the various distinctive groups

in the population. Taylor, 419 U.S. at 538, 95 S. Ct. at 702.



              In Duren v. Missouri, 439 U.S. 357, 99 S. Ct. 664 (1979), the Supreme Court

set forth a three-pronged test for determining whether a jury was properly selected from

a fair cross-section of the community:

       (1)    that the group alleged to be excluded is a "distinctive" group in
              the community;

       (2)    that the representation of this group in venires from which
              juries are selected is not fair and reasonable in relation to the
              number of such persons in the community; and

       (3)    that this under representation is due to systematic exclusion of
              the group in the jury-selection process.


Duren, 439 U.S. at 364, 99 S. Ct. at 668. This test was first applied by this court in State

v. Nelson, 603 S.W.2d 158, 161 (Tenn. Crim. App. 1980), and later by our supreme court

in State v. Buck, 670 S.W.2d 600, 610 (Tenn. 1984).



              The defendant has met the first prong of this test, in that women are a

"distinctive" group in the community. State v. Thompson, 768 S.W.2d 239, 246 (Tenn.

1989), cert. denied, 497 U.S. 1031, 110 S. Ct. 3288 (1990). Moreover, if the unchallenged

venire statistics are accurate, the defendant has demonstrated that the representation of

women in the venire from which his jury was selected was neither fair nor reasonable under

Adkins v. State, 911 S.W.2d 334, 353 (Tenn. Crim. App. 1994). According to the statistical

proof presented by the defendant, women made up 53% of Maury County's population in

1990, yet the average percentage of women summoned on the venire lists from February

1989 to December 1991 was only 37%.




                                              26
              Regardless, the defendant has failed to show that this under-representation

was due to systematic exclusion of women in the jury-selection process. In Taylor, the

petitioner was able to point to a particular Louisiana constitutional and statutory

requirement that systematically excluded women from the jury-selection process. Taylor,

419 U.S. at 524, 95 S. Ct. 694-95. The petitioner in Duren was able to demonstrate that

a large discrepancy had occurred in every venire for a period of nearly a year. The facts

supported a determination that under-representation of women was systematic or inherent

in the particular jury-selection process utilized. Duren, 439 U.S. at 365-66, 99 S. Ct. at

669.



              Here, the proof showed that the jury commissioners compiled lists of jurors

from the voter registration books for their districts and from the telephone directory. When

making the initial lists, they would automatically exclude those persons who they knew

would be exempt from service, such as doctors, nurses, attorneys, and ministers.

However, the commissioners testified that they tried to ensure that a fair cross-section of

jurors was selected. The lists were given to the court clerk’s office, and the names were

typed on slips and placed in the jury box. Nothing in the record indicates this method of

selecting jurors involves a systematic exclusion of women from jury venires in Maury

County.



              Moreover, four women sat on the jury that deliberated in this case. While a

fifth woman was originally seated on the jury, she was replaced during trial by a male

alternate juror. Our supreme court has held that the presence of three women on the petit

jury constitutes a “fair representation of women on the jury and that is all that is required

by the Constitution of the United States.” State v. Strouth, 620 S.W.2d 467, 470 (Tenn.

1981). Accordingly, this issue is without merit. Moreover, by failing to show prejudice, the

defendant’s claim that counsel was ineffective for failing to raise this issue before trial is

also without merit. See Strickland, 466 U.S. at 693, 104 S. Ct. at 2067.



  C. Discrimination in the Selection of Grand Jury Forepersons in Giles County



                                             27
              The defendant argues that although African-Americans represent 12% of the

Giles County population over the age of 18, no African-American served in the position of

foreperson of a Giles County grand jury between 1919 and 1990. The defendant contends

that, based on statistical data, there is an absolute disparity of 12%, a comparative

disparity of 100%, and a discrepancy of 2.3 standard deviations. Because selection of the

grand jury foreperson is by judicial appointment, the defendant contends that the

procedure is susceptible to abuse or is not racially neutral. To the extent that trial counsel

failed to bring meritorious errors to the trial court’s attention, the defendant contends that

he is entitled to relief based on ineffective assistance of counsel.



              While on appeal the state contends that this issue has been waived, at the

hearing on the motion for new trial the state did not present proof or argument on this

issue, nor did it accept the trial court’s invitation to file a written response. As such, the

state is in the position of raising waiver for the first time on appeal, and although this issue

was not properly raised before trial, a review of the substantive claim is necessary to

determine whether it has merit. Charles Walton Wright v. State, No. 01C01-9105-CR-

00149, slip op. at 34.



              In State v. Jefferson, 769 S.W.2d 875, 877 (Tenn. Crim. App. 1988), this

court held that the issue of whether African-Americans were systematically excluded in the

selection of the foreperson is subsumed by the issue of the systematic exclusion of

African-Americans in the selection of the grand jury as a whole. In Jefferson, the state

presented unrefuted expert testimony at trial concerning the role of the grand jury

foreperson in Tennessee. Such proof showed that the grand jury foreperson’s role is

substantially ministerial and clerical in nature. Id. This court stated that “[i]n Tennessee,

the foreman is the spokesperson for the grand jury and has the same voting powers as any

other grand jury member. Not only does the foreman not have the power to veto an

indictment, his authority, within this context, is no greater than any other member of the

grand jury venire.” Id. (citations omitted). The court stated that “[w]ith due respect to the

dicta of the United States Supreme Court in Hobby [v. United States, 468 U.S. 339, 104



                                              28
S. Ct. 3093, 82 L.Ed.2d 260 (1984)] suggesting otherwise, the proof adduced at trial

supports the State’s contention.” Jefferson, 769 S.W.2d at 877; cf. Hobby, 468 U.S. 339,

104 S. Ct. 3093 (addressing issue of discrimination in selection of federal grand jury

forepersons).



                We decline to accept the defendant’s argument that the prosecution must

present expert testimony in each individual case to show that the role of grand jury

foreperson is a ministerial position. Instead, we follow the holding in Jefferson. This issue

has no merit. Consequently, by failing to show prejudice, the appellant’s claim that counsel

was ineffective for failing to raise this issue before trial is also without merit. See

Strickland, 466 U.S. at 693, 104 S. Ct. at 2067.



                                II. PRE-TRIAL PUBLICITY



                Next, the defendant contends that prospective jurors were exposed to

extensive pre-trial publicity concerning this case and the Dugger murder. He argues: (1)

venue was transferred without objection from Giles to Maury County even though Maury

County had been subjected to greater media exposure; (2) the trial court and counsel failed

to adequately question jurors concerning their exposure to pre-trial publicity; and (3) the

jurors were improperly allowed to separate twice daily during the trial. We find these

issues to be meritless.



                In order to show that the media exposure in Maury County concerning this

case and the Dugger case was substantial, the defendant, upon his motion for new trial,

presented the testimony of Dwight Scott, a paralegal and investigator for the Capital Case

Resource Center (CCRC) in Nashville. Scott reviewed newspaper articles, radio reports,

and television reports in Davidson, Giles, Lawrence, and Maury Counties about this case

and the Dugger case. Scott researched the circulation or anticipated audience size in the

various counties. His affidavit and copies of newspaper articles and other printed media

reports were introduced into evidence in support of the motion for new trial.



                                             29
              Trial counsel testified at the hearing on the motion for new trial that he knew

about the publicity he had seen on television and in the local paper, “The Daily Herald,” but

he did not get copies of all the different newspaper articles to present to the trial court. Nor

did trial counsel attempt to conduct a random survey to see if people had heard about the

case or ask the court to distribute a questionnaire to prospective jurors in advance.



              In an effort to show that jurors were infected by pre-trial publicity concerning

the Dugger trial, the defendant presented the affidavits and testimony of three jurors. A

fourth juror was not allowed to testify, but his affidavit is included in the record. The first

juror testified that she heard testimony during this trial that Gwen Dugger was raped and

murdered by the defendant or his brother when she was 13 years old. She also heard

during the trial that Dugger was dead when the defendant had sex with her; however, the

juror did not remember this being discussed during deliberations. In her affidavit, she

stated that “[s]omeone who knew [the victim] brought out about the defendant having sex

with the Dugger girl after death.”



              Another juror testified that although he did not remember making the

statement to a CCRC investigator that he had heard testimony during this trial about the

defendant having sex with Dugger’s dead body and that he had considered it in voting, he

was certain the signed statement was his. A final juror testified that during this trial, she

heard testimony that Dugger was killed and buried in a dumpster or beside a dumpster in

Pulaski. This juror also heard testimony that the defendant had sex with Dugger after she

was dead, but she did not remember the jurors discussing it. She had heard or read about

the Dugger case before trial.



              Pursuant to Tennessee Rule of Criminal Procedure 21(a),

       In all criminal prosecutions the venue may be changed upon motion of the
       defendant, or upon the court's own motion with the consent of the defendant,
       if it appears to the court that, due to undue excitement against the defendant
       in the county where the offense was committed or any other cause, a fair trial
       probably could not be had.

              In this case, trial counsel requested that venue be changed from Giles



                                              30
County. The trial court granted the motion, and moved the case to Maury County without

objection. In addition, the defendant failed to exercise all of his peremptory challenges to

potential jurors, and the failure to challenge for cause or failure to use any available

peremptory challenge to remove objectionable jurors precludes reliance upon allegations

of disqualified jurors on appeal. State v. Irick, 762 S.W.2d 121, 125 (Tenn. 1988), cert.

denied, 489 U.S. 1072, 109 S. Ct. 1357 (1989). Accordingly, this issue was waived. Tenn.

R. App. P. 36(a).



               The defendant contends that trial counsel was ineffective by failing to object

to the change of venue to Maury County. Therefore, we consider the merits of the issue

in order to determine whether the defendant has shown prejudice as required under the

second prong of Strickland. In relation to this issue, the defendant submits that counsel

was ineffective by failing to question potential jurors about their exposure to pre-trial

publicity, despite individual voir dire. As a result of neither the trial court nor counsel asking

the jurors about the details of information they had heard about this case or the Dugger

case, the defendant contends that the jurors who sat on this case had actual knowledge

of “facts” from the Dugger case that were highly inflammatory and prejudicial and were not

admitted into evidence.



               In denying relief, the trial court made the following findings:

               The Defendant next raises the issue of the jury being contaminated
       by exposure to extraneous prejudicial information. Specifically Defendant
       objects that there was not a change of venue from Maury County to another
       County where the cause for a change of venue did not exist. The Court
       recalls that this case was moved from Giles County to Maury County as a
       result of the Court ruling on a Motion for Change of Venue filed by Defendant
       requesting that the case be moved from Giles County and no further Motion
       for Change of Venue or objection to the location of the trial was made.
       Defendant also complains that the jurors were not asked about the nature,
       extent, or content of the extraneous information to which they were exposed
       and that the jurors were briefly separated from each other twice a day. The
       Defendant however, has failed to prove that the jury was contaminated in
       any way by any extraneous information and the record of the trial will reflect
       that counsel examined prospective jurors closely in regard to what they had
       read, seen or heard in regard to this case and all their responses were heard
       by the Court. The Court finds that the proof fails to show any contamination
       of the jury in this case and that this issue is without merit and is overruled.




                                               31
              On appeal, the findings of fact made by the trial court after an evidentiary

hearing are afforded the weight of a jury verdict. This Court will not set aside the judgment

of the trial court unless the evidence in the record preponderates against its findings. State

v. Dick, 872 S.W.2d 938, 943 (Tenn. Crim. App. 1993).



              As noted by the defendant, the test for reversible error is whether the jurors

who actually sat and rendered the verdict were unprejudiced by pre-trial publicity and were

otherwise competent. See State v. Garland, 617 S.W.2d 176, 187 (Tenn. Crim. App.

1981). The defendant must demonstrate that the jurors who heard the case were biased

or prejudiced because of pre-trial publicity. State v. Stapleton, 638 S.W.2d 850, 856

(Tenn. Crim. App. 1982). Prejudice will not be presumed on the mere showing that there

was considerable pre-trial publicity. Dobbert v. Florida, 432 U.S. 282, 303, 97 S. Ct. 2290,

2303 (1977); State v. Kyger, 787 S.W.2d 13, 19 (Tenn. Crim. App. 1989). The fact that

there was extensive knowledge in the community of the crimes and of the defendant is not

sufficient to render the trial constitutionally unfair. Dobbert, 432 U.S. at 303, 97 S. Ct. at

2303.



              Moreover, it is sufficient “if the juror can lay aside his impression or opinion

and render a verdict based on the evidence presented in court.” Irvin v. Dowd, 366 U.S.

717, 723, 81 S. Ct. 1639 (1961). “To hold that the mere existence of any preconceived

notion as to the guilt or innocence of an accused, without more, is sufficient to rebut the

presumption of a prospective juror's impartiality would be to establish an impossible

standard.” Id., 81 S. Ct. at 1642-43; see Adams v. State, 563 S.W.2d 804, 807 (Tenn.

Crim. App. 1978).



              In Irvin v. Dowd, two-thirds of the jurors actually seated had been exposed

to a barrage of pretrial publicity right up until the time of trial, had already formed an

opinion that the defendant was guilty, and acknowledged familiarity with material facts and

circumstances of the case. Irvin, 366 U.S. at 726, 81 S. Ct. at 1645. In addition, even the

headlines of one of the local newspapers reported during jury selection that "impartial



                                             32
jurors are hard to find." Id., 366 U.S. at 727, 81 S. Ct. at 1645.       Although each of the

jurors said that he could be impartial, the United States Supreme Court concluded that

"[w]ith his life at stake, it is not requiring too much that petitioner be tried in an atmosphere

undisturbed by so huge a wave of public passion and by a jury other than one in which

two-thirds of the members admit, before hearing any testimony, to possessing a belief in

his guilt." Id. 366 U.S. at 728, 81 S. Ct. at 1645.



              Unlike the jury in Irvin v. Dowd, the record in this case reflects that the

exposure of the actual jurors to pre-trial publicity ranged from nonexistent to moderate.

One juror stated that she did not remember hearing anything about the case. Another

stated that she had not heard of the case until the morning of jury selection, when she read

in The Tennessean that eleven jurors had been seated in the case. The other ten jurors

all indicated that they had heard or read about the case; however, many of them could not

remember anything about it. All the jurors told the trial judge during voir dire that they had

formed no opinion as to the defendant’s guilt and that they could decide the case on the

proof presented at trial.



              While neither the trial court nor counsel asked jurors detailed questions about

what they had heard or read about these cases, reversible error is not indicated.

“[Q]uestions about the content of the publicity to which jurors have been exposed might be

helpful in assessing whether a juror is impartial.” However, such questions are not

constitutionally compelled, and the trial court's failure to ask these questions is not

reversible error unless it rendered the defendant's trial fundamentally unfair. Mu'Min v.

Virginia, 500 U.S. 415, 425-26, 111 S. Ct. 1899, 1905 (1991); see State v. Howell, 868

S.W.2d 238, 247 (Tenn. 1993).



              As to the testimony and affidavits of jurors at the hearing on the motion for

new trial, Tennessee Rule of Evidence 606(b) prohibits a juror from giving testimony on

any matter or statement occurring during the course of the jury’s deliberations or on the

effect of anything upon a juror’s mind or emotion as influencing his or her vote except that



                                               33
a juror may testify on the question of whether any extraneous prejudicial information was

improperly brought to the jury’s attention, whether any outside influence was improperly

brought to bear upon any juror, or whether the jurors agree in advance to be bound by a

quotient or gambling verdict without further discussion.



              Regardless of whether the jurors’ affidavits and testimony were admissible

under Rule 606(b), the defendant’s claim that the jurors who sat and rendered the verdict

were prejudiced or biased by pre-trial publicity is unsupported. The jurors who testified at

the hearing indicated that they heard from the witness stand certain facts concerning the

Dugger murder which were apparently inaccurate and which were not testified to in this

case. If this information was learned through exposure to pre-trial publicity, each juror

swore to disregard any information they had previously heard outside the courtroom.

Moreover, at the hearing on the motion for new trial, none of the jurors testified concerning

what they had read or heard about this case or the Dugger case before sitting as jurors.

Only one of the jurors who testified indicated in his affidavit that he considered these

alleged facts from the Dugger case in voting to convict the defendant, and he could not

remember signing an affidavit to this effect at the time of the hearing. The other two jurors

did not remember any facts from the Dugger case being discussed during deliberations.



              Like the trial court, we conclude that the defendant has failed to demonstrate

that the jurors who heard the case were biased or prejudiced because of pre-trial publicity,

rendering his trial fundamentally unfair. See State v. Stapleton, 638 S.W.2d 850, 856

(Tenn. Crim. App. 1982). Consequently, we find that the defendant has failed to show how

he was prejudiced by counsel's failure to seek a change of venue or to question potential

jurors more extensively regarding their exposure to pre-trial publicity. See Strickland v.

Washington, 466 U.S. at 694, 104 S. Ct. at 2068.



              Finally, it appears that the jurors separately drove the two and one-half miles

between the court and their motel each day during the proceedings. The defendant did not

present any proof that the jurors disobeyed the trial court’s order concerning exposure to



                                             34
news accounts of the trial or had contact with the general public during these separations.

None of the jurors who testified indicated that the trial court’s order was disregarded during

the proceedings. While the possibility of an improper separation is increased when jurors

are in the absence of a supervising officer, more than a possibility is necessary before the

state is required to show that no prejudice occurred. See State v. McClain, 667 S.W.2d

64, 66 (Tenn. 1984) (jurors occupying separate motel rooms does not constitute an

improper separation). This issue is without merit.



                Accordingly, based on our review of the foregoing issues concerning the jury,

we reject the defendant’s contention that the cumulative effect of errors in selecting the jury

requires the granting of a new trial.



                         III. DEATH QUALIFICATION OF JURORS



                In another issue, the defendant contends that the trial court erred and trial

counsel was ineffective by failing to ensure that potential jurors were adequately

questioned concerning their attitudes about the death penalty. Thus, the defendant

submits that the jurors were unable to carry out their oaths as jurors at the sentencing

stage by considering both punishments and by reserving the choice between life and death

until after hearing and considering mitigation proof. The state does not address this issue

in its brief.



                A review of the voir dire proceedings, specifically of those jurors ultimately

impaneled in this case, reflects that the only question asked of each was whether they

could consider both punishments at the sentencing hearing.              During voir dire, the

prosecutor asked potential jurors a variation of the following question:



        In Tennessee, if the State carries the burden of guilty [sic], beyond a
        reasonable doubt, to where your mind rests easy, and the jury found the
        defendant guilty of first degree murder, there are two punishments. And
        there would be a sentencing hearing. The State would put on aggravating
        circumstances; the defense would put on mitigating circumstances, and then
        the jury would decide between life imprisonment and death by electrocution.

                                              35
       Could you consider both of those punishments?



              Three of the impaneled jurors were asked the question without discussion of

mitigating and aggravating circumstances:



       In Tennessee, there are two punishments for first degree murder. One is life
       imprisonment and the other is death by electrocution. In the event we get to
       that stage of the trial, could you consider both of these punishments?



              Each juror indicated that he or she could consider both punishments.

Moreover, the jurors were duly sworn prior to trial and were properly instructed by the trial

court at the sentencing hearing.



              An accused has the right to a fair trial by an impartial and unbiased jury.

State v. Houston, 593 S.W.2d 267, 272 (Tenn. 1980), overruled on other grounds, State

v. Brown, 836 S.W.2d 530 (Tenn. 1992); see also State v. Melson, 638 S.W.2d 342, 362

(Tenn.1982). As noted in Morgan v. Illinois, 504 U.S. 719, 112 S.Ct. 2222 (1992), “part of

the guarantee of a defendant’s right to an impartial jury is an adequate voir dire to identify

unqualified jurors.” Id. at 729, 112 S. Ct. at 2230 (citing Dennis v. United States, 339 U.S.

162, 171-172, 70 S. Ct. 519, 523-524 (1950), and Morford v. United States, 339 U.S. 258,

259, 70 S. Ct. 586, 587 (1950)). “Without an adequate voir dire the trial judge’s

responsibility to remove prospective jurors who will not be able impartially to follow the

court’s instructions and evaluate the evidence cannot be fulfilled.” Rosales-Lopez v. United

States, 451 U.S. 182, 188, 101 S. Ct. 1629, 1634 (1981) (plurality opinion).



              In Morgan, the Supreme Court reversed the death sentence because voir dire

was so inadequate as to lead the court “to doubt that petitioner was sentenced to death by

a jury empaneled in compliance with the Fourteenth Amendment.” Id. at 739, 112 S. Ct.

at 2235. The court held:

       [T]he belief that death should be imposed ipso facto upon conviction of a
       capital offense reflects directly on that individual’s inability to follow the law.
       Any juror who would impose death regardless of the facts and circumstances
       of conviction cannot follow the dictates of law. It may be that a juror could,


                                               36
       in good conscience, swear to uphold the law and yet be unaware that
       maintaining such dogmatic beliefs about the death penalty would prevent him
       or her from doing so. A defendant on trial for his life must be permitted on
       voir dire to ascertain whether his prospective jurors function under such
       misconception. The risk that such jurors may have been empaneled in this
       case and ‘infected petitioner’s capital sentencing [is] unacceptable in light of
       the ease with which that risk could have been minimized.’


Id. at 735-736, 112 S. Ct. at 2233 (citations omitted). Accordingly, the Supreme Court

determined that the “[p]etitioner was entitled, upon his request, to inquiry discerning those

jurors who, even prior to the State’s case in chief, had predetermined the terminating issue

of his trial, that being whether to impose the death penalty.” Id. at 736, 112 S. Ct. at 2233.



               In McQueen v. Scroggy, 99 F.3d 1302 (6th Cir. 1996), cert. denied, --- U.S.

---, 117 S. Ct. 2422 (1997), the court considered the issue of whether the petitioner was

afforded the opportunity to question jurors adequately on their attitudes toward the death

penalty and on whether they would impose it in every circumstance. As in the present

case, the jurors in McQueen were questioned about whether they could accept and impose

any penalty within the specified range after a determination of guilt had been made. Id. at

1329. In denying relief, the court stated:

       A person who answers that he will consider every possible penalty,
       specifically including life imprisonment...is by virtue of that answering
       disclaiming the intent to impose the death penalty in every case. There are
       no magic words in these circumstances. Here the questions and answers
       disclose that the jurors were ready to consider each of the penalties that
       could be imposed, and that they were not predisposed to give only death or
       to act with leniency. It would be a game of semantics, not law, to conclude
       that the failure to phrase a question in a specific way is fatal where other
       questions are equally illuminating.


Id. at 1330.



               We are persuaded by the reasoning set forth in McQueen. While voir dire

may certainly be used to educate jurors on the sentencing process in a capital trial, the true

purpose is to ensure that a fair and impartial jury is impaneled. As discussed later in this

opinion, the trial court properly instructed the jury on the law at the sentencing hearing, and

the jury is presumed to have followed the instructions of the court. State v. Woods, 806

S.W.2d 205, 211 (Tenn. Crim. App. 1990).



                                              37
                Under Morgan v. Illinois, 504 U.S. at 736, 112 S. Ct. at 2233, a defendant

must be given the opportunity to determine whether a potential juror would automatically

impose a death sentence upon conviction. We do not interpret this holding to mean that

each juror must be asked if he or she would reserve the choice between punishments until

after hearing and considering mitigating proof. The fact that a juror indicates he or she will

consider both punishments disclaims the intent to impose the death penalty in every case

and is sufficient to ensure that a fair and impartial jury has been impaneled.



                By our opinion we do not mean to imply that trial courts, prosecutors, and

defense attorneys should not take the opportunity to explain these concepts and question

potential jurors whether they could reserve judgment until such time as proof of

aggravating and mitigating circumstances has been presented at the sentencing hearing.

Instead, we are merely holding that the question asked of each of the jurors was sufficient

in this case.



                Accordingly, because we find this issue to be without merit, the defendant’s

claim of ineffective assistance must also fail. As noted earlier, when a defendant seeks

relief on the basis of ineffective assistance of counsel, he must first establish that the

services rendered or the advice given was below "the range of competence demanded of

attorneys in criminal cases." Baxter, 523 S.W.2d at 936. Second, he must show that the

deficiencies "actually had an adverse effect on the defense." Strickland, 466 U.S. at 693,

104 S. Ct. at 2067. There must be a reasonable probability that but for counsel’s error, the

result of the proceeding would have been different. Strickland, 466 U.S. at 694, 104 S. Ct.

at 2068; Best, 708 S.W.2d at 422. Should the defendant fail to establish either factor, he

is not entitled to relief.



                We cannot say that counsel’s failure to ask potential jurors questions about

their ability to reserve judgment on punishment until after hearing proof of mitigating

circumstances was error. Defense counsel was not questioned about this matter at the

hearing on the motion for new trial. Nevertheless, given his trial strategy of creating a



                                             38
reasonable doubt at the guilt phase, we believe refraining from asking questions about

sentencing could be employed as sound tactical approach, in that such questions could

have been interpreted as an admission of guilt. Moreover, because we have found that

the questioning of jurors was sufficient to ensure that a fair and impartial jury was

impaneled, the defendant has suffered no prejudice.



              In order to show that the jurors who sat in this case did not reserve judgment

on the question of punishment, the defendant relies on the affidavits of three jurors. He

argues that the trial court should not have impeded the development of the evidence by

refusing to let one of the jurors testify concerning his “death qualification” and by only

allowing the affidavits to be presented as offers of proof.



              At the hearing on the motion for new trial, the defendant attempted to

introduce into evidence the testimony and affidavits of jurors in order to prove that the jury

was not impartial on the issue of punishment. Juror William Ivey’s affidavit indicated that

he believed “if two or more conditions existed, we had to give the death penalty.” He also

indicated in his affidavit that “some crimes should have an automatic death penalty - like

murder, rape, and drug dealers.” Juror Billy Taylor’s affidavit stated “I had made up my

mind when we found him guilty what the sentence should be - death.” Juror Pamela

Williams’ affidavit confirmed that “one man had said he had made up his mind as soon as

he got back to the jury room.”



              The trial court properly refused to consider the testimony or affidavits on the

issue of whether the jurors who sat in this case were “automatic death penalty” jurors. As

stated earlier, Tennessee Rule of Evidence 606(b) prohibits a juror from giving testimony

on any matter or statement occurring during the course of the jury’s deliberations or on the

effect of anything upon a juror’s mind or emotion as influencing his or her vote. The

exceptions are that a juror may testify on the question of whether any extraneous

prejudicial information was improperly brought to the jury’s attention, whether any outside

influence was improperly brought to bear upon any juror, or whether the jurors agree in



                                             39
advance to be bound by a quotient or gambling verdict without further discussion.

Recently, in Henley v. State, --- S.W.2d ---, No. 01S01-9703-CC-00056, (Tenn. Dec. 15,

1997), our supreme court made it clear that Rule 606(b) prohibits consideration of jurors’

testimony or affidavits as evidence of prejudice. --- S.W .2d at ---, slip op. at 18 (citing State

v. Stephenson, 878 S.W.2d 530, 554 (Tenn. 1994)).



               Next, the defendant contends that he was denied an impartial jury because

neither the trial court nor defense counsel attempted to rehabilitate seven jurors who were

excused because they expressed scruples against imposing the death penalty.                     In

response, the state argues that the trial court properly excluded these seven jurors for

cause because each had views toward capital punishment which would prevent or

substantially impair the performance of their duties as jurors.



               In determining when a prospective juror may be excused for cause because

of his or her views on the death penalty, the standard is “whether the juror’s views would

‘prevent or substantially impair the performance of his duties as a juror in accordance with

his instructions and his oath.’” Wainwright v. Witt, 469 U.S. 412, 424, 105 S. Ct. 844, 852

(1985). The Supreme Court further observed that "this standard likewise does not require

that a juror's bias be proved with 'unmistakable clarity.' " Id. Finally, the trial court’s finding

of bias of a juror because of his views concerning the death penalty are accorded a

presumption of correctness, and the appellant must establish by convincing evidence that

the trial court’s determination was erroneous before an appellate court will overturn that

decision. State v. Alley, 776 S.W.2d 506, 518 (Tenn. 1989).



               Of the seven jurors excused for cause because of their views on the death

penalty, three stated that they would not consider the death penalty under any

circumstances. Another juror stated that he was not a proponent of the death penalty and

would only consider voting for the death penalty if there was more than one independent

witness to the murder and if the defendant was apprehended at the scene of the crime.

Another juror stated that he could not impose the death penalty, noting that he thought it



                                                40
was a worse punishment to impose a life sentence. Another juror stated that she would

have a hard time giving regard to the death penalty and that her feelings on the subject

were strong. Finally, the last juror excused for cause because of his views on the death

penalty at first stated that he would give due consideration to both punishments, but then

he indicated that he did not believe he could impose the death penalty. The juror then

indicated that he would have to hear the case before he could determine if there was any

case in which he would consider the death penalty. The juror finally answered that he did

not believe in the death penalty, and he acknowledged that his beliefs would prevent him

from voting for the death penalty. Neither the trial court nor defense counsel asked any

questions concerning these jurors’ abilities to consider the death penalty at the sentencing

phase.



              After reviewing the answers of these excluded jurors, we conclude that their

answers left “no leeway for rehabilitation.” Strouth, 620 S.W.2d at 471; Alley, 776 S.W.2d

at 517-18. These jurors met the standard for dismissal. See State v. Hutchison, 898

S.W.2d 161, 167 (Tenn. 1994). While it would be more prudent for the trial court to adopt

a policy of questioning jurors before excusing them for cause on this basis, the excluded

jurors’ answers to questions by the prosecutor adequately demonstrated that their views

concerning the death penalty "would [have] 'prevent[ed] or substantially impair[ed] the

performance of [their] duties as [jurors] in accordance with [their] instructions and [their]

oath[s].' " Wainwright, 469 U.S. at 424, 105 S. Ct. at 852; see also State v. Smith, 893

S.W.2d 908, 915-16 (Tenn.1994).



              As noted earlier, great deference should be given to the trial judge, who is

"left with the definite impression that a prospective juror would be unable to faithfully and

impartially apply the law." Wainwright, 469 U.S. at 426, 105 S. Ct. at 853. An appellant

has the burden “to establish by convincing evidence that [those findings were] erroneous."

Alley, 776 S.W.2d at 518. The defendant has failed to meet his burden in this case. See

State v. Teel, 793 S.W.2d 236, 246-47 (Tenn. 1990).




                                             41
              Finally, the defendant contends that he was denied an impartial jury because

none of the potential jurors were questioned during voir dire by the trial court or by defense

counsel about their understanding of the following concepts:

       a.     The meaning of terms, particularly the meaning of “mitigating
              circumstances.”

       b.     The burdens of proof of the parties.

       c.     The standards of proof concerning mitigating and aggravating
              circumstances.

       d.     The weighing process of aggravating circumstances versus
              mitigating circumstances, as qualitative, not quantitative.

       e.     Aggravating circumstances as limited by statute, versus
              mitigating circumstances as not limited by statute.

       f.     Statutory mitigating circumstances co-equal with nonstatutory
              mitigating circumstances.

       g.     The different standards concerning the unanimity requirements
              in a determination of aggravating circumstances versus the
              determination of mitigating circumstances.

The defendant contends that the failure of the trial court and defense counsel to test the

jurors’ comprehension of these concepts was compounded by the trial court’s failure to

adequately instruct the jury at the sentencing phase. We disagree.



              Again, the main purpose of voir dire is to ensure that a fair and impartial jury

is impaneled. As discussed later in this opinion, many of the areas which the defendant

claims should have been addressed during voir dire are subjects that our supreme court

has rejected in the context of jury instructions. Furthermore, we have found that the trial

court’s instructions to the jury at the sentencing phase were correct, and it is presumed that

the jury followed those instructions. Woods, 806 S.W.2d at 211. As noted in Gacy v.

Welborn, 994 F.2d 305 (7th Cir. 1993), a defendant’s “safety lies in the size of the jury and

in cautions from the court, not in extra questions posed in advance of trial. A long series

of probing questions can anesthetize or offend the panel rather than enlighten judge and

counsel.” Id. at 315. This issue is without merit.



              Accordingly, based on our review of the foregoing issues concerning the jury,

we reject the defendant’s contention that the cumulative effect of errors in selecting the jury


                                              42
requires the granting of a new trial or sentencing hearing.



                        IV. SUFFICIENCY OF THE EVIDENCE



              The defendant contends that the evidence was insufficient to support a

finding that he killed the victim in a premeditated and deliberate fashion rather than in a

heated rage. We find that the evidence was sufficient to support the jury’s verdict.



              A jury verdict approved by the trial judge accredits the state's witnesses and

resolves all conflicts in favor of the state's theory. State v. Williams, 657 S.W.2d 405

(Tenn. 1983). On appeal, the state is entitled to the strongest legitimate view of the

evidence and to all reasonable inferences which might be drawn therefrom. State v.

Cabbage, 571 S.W.2d 832 (Tenn. 1978).            Moreover, a guilty verdict removes the

presumption of innocence which the appellant enjoyed at trial and raises a presumption

of guilt on appeal. State v. Grace, 493 S.W.2d 474 (Tenn. 1973). The appellant has the

burden of overcoming this presumption of guilt. Id.



              In reviewing the sufficiency of the evidence, the relevant question for an

appellate court 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, 99 S. Ct. 2781 (1979);

State v. Duncan, 698 S.W.2d 63 (Tenn. 1985).



              A crime may be established by direct evidence, circumstantial evidence, or

a combination of the two. State v. Tharpe, 726 S.W.2d 896, 899-900 (Tenn. 1987). Here,

the evidence was circumstantial. Before an accused may be convicted of a criminal

offense based upon circumstantial evidence, the facts and the circumstances "must be so

strong and cogent as to exclude every other reasonable hypotheses save the guilt of the

defendant, and that beyond a reasonable doubt." Crawford, 225 Tenn. at 482, 470

S.W.2d at 612. "A web of guilt must be woven around the defendant from which he cannot



                                            43
escape and from which facts and circumstances the jury could draw no other reasonable

inference save the guilt of the defendant beyond a reasonable doubt." Id. 225 Tenn. at

484, 470 S.W.2d at 613.



                Former Tennessee Code Annotated section 39-2-202 required that a killing

be intentional, premeditated, and deliberate to constitute first-degree murder. In State v.

Brown, 836 S.W.2d 530 (Tenn. 1992), our supreme court held that the element of

deliberation contemplates a lapse of time between the decision to kill and the actual killing.

The court stated that "the deliberation and premeditation must be akin to the deliberation

and premeditation manifested where the murder is by poison or lying in wait -- the cool

purpose must be formed and the deliberate intention conceived in the mind, in the absence

of passion, to take the life of the person slain." Brown, 836 S.W.2d at 539 (quoting Rader

v. State, 73 Tenn. 610, 619-20 (1880)).



                Thus, in order to convict a defendant for first-degree murder, a jury must find

that the defendant killed with coolness or deliberation and after reflective thought or

premeditation. State v. West, 844 S.W.2d 144, 147 (Tenn. 1992); see also State v.

Brooks, 880 S.W.2d 390, 392-93 (Tenn. Crim. App. 1993). 5



                There is no specific time required to form the requisite deliberation. State v.

Gentry, 881 S.W.2d 1, 3-4 (Tenn. Crim. App. 1993). Deliberation is present when the

circumstances suggest that the defendant contemplated the manner and the

consequences of his act. West, 844 S.W.2d at 147. While deliberation and premeditation

are similar, they are defined as separate and distinct elements of first-degree murder. See

Tenn. Code Ann. § 39-2-201(b)(1982)(deliberate act is "one performed with a cool

purpose" and premeditated act is "one done after the exercise of reflection and

judgment."); see also Brooks, 880 S.W.2d at 392-93.



                Deliberation and premeditation may be inferred from the circumstances


        5
        In all fairness to the trial court, we acknowledge that the decisions in Brown, West , and
Brooks were rendered after the trial in the instant case.

                                                    44
where those circumstances affirmatively establish that the defendant premeditated his

assault and then deliberately performed the act. State v. Richard Nelson, No. 02C01-

9211-CR-00251 (Tenn. Crim. App., Jackson, Oct. 14, 1993). This Court has held that

Brown requires "proof that the offense was committed upon reflection, 'without passion or

provocation,' and otherwise free from the influence of excitement" before a second-degree,

intentional murder can be elevated to murder in the first degree. State v. David L. Hassell,

No. 02C01-9202-CR-00038, slip op. at 3 (Tenn. Crim. App., Jackson, Dec. 30, 1992).



              With regard to premeditation and deliberation, the Court in State v. Brown

recognized the following relevant circumstances: (1) a deadly weapon was used upon an

unarmed victim, (2) a weapon with which to commit the homicide was procured, (3) the

homicidal act was part of a conspiracy to kill persons of a particular class, (4) the killing

was particularly cruel, (5) the defendant made declarations of his intent to kill the victim,

or (6) preparations were made before the homicide for concealment of the crime, as by the

digging of a grave. Brown, 836 S.W.2d at 541-42 (citation omitted). The elements of

deliberation and premeditation are questions for the jury and may be inferred from the

manner and circumstances of the killing. Gentry, 881 S.W.2d at 3.



              The facts of this case, albeit circumstantial, support the jury’s finding of

premeditation and deliberation.      Denise, who the jury could have considered an

accomplice, was the only witness as to the details of the murder. Accordingly, although

not raised as an issue in this appeal, we note that the trial court properly charged the jury

on accomplice testimony because a defendant cannot be convicted on the uncorroborated

testimony of an accomplice. See State v. McKnight, 900 S.W.2d 36, 47 (Tenn. Crim. App.

1994), perm. app. denied (Tenn. 1995); Prince v. State, 529 S.W.2d 729, 732 (Tenn.

Crim. App. 1975). “The corroborative evidence must of its own force, independently of the

accomplice's testimony, tend to connect the defendant with the commission of the crime.”

Sherrill v. State, 204 Tenn. 427, 435, 321 S.W.2d 811, 815 (1959). To be corroborative,

the evidence need not be adequate in and of itself to convict. McKinney v. State, 552

S.W.2d 787, 789 (Tenn. Crim. App. 1977). Only slight circumstances are required to



                                             45
furnish the necessary corroboration. Garton v. State, 206 Tenn. 79, 87, 332 S.W.2d 169,

175 (1960). The sufficiency of the corroboration is a jury determination, and this court may

not substitute its judgment for that of the fact finder. State v. Copeland, 677 S.W.2d 471,

475 (Tenn. Crim. App. 1984). In the present case, we find that Denise’s testimony was

corroborated sufficiently.



              As to premeditation, the proof showed that the defendant’s wallet was stolen

about a month before the victim disappeared. The defendant acknowledged that at the

time, he thought the victim had taken his wallet and confronted him the night it

disappeared. Although the defendant claimed that everything went back to normal after

this confrontation, Strickland, a co-worker, testified that after the wallet incident, he started

giving the victim a ride to work, and the defendant said that he and Pete were going to pull

the victim from Strickland’s car. When the wallet disappeared, the defendant told Denise

that he believed the victim stole it and that no one steals from him or “little Matthew.”



              The day after the murder, the defendant told Denise that he started thinking

about the wallet, Matthew’s disability check, and the victim cheating at cards before he

beat the unarmed victim with a child’s rocking chair until there was nothing left but a small

piece of the chair. The defendant continued beating the victim and telling him no one steals

from “little Matthew” thirty minutes after the victim was dead. After the murder, the

defendant made similar comments to co-workers about how no one would steal from him

or Matthew and get away with it.



              In Brown, 836 S.W.2d at 542, our supreme court held that repeated blows,

by themselves, were insufficient to support a conclusion that a killing was premeditated.

However, other circumstances, such as a declared intent to kill or the use of a deadly

weapon, are relevant to premeditation. Id. at 541; State v. Burlison, 868 S.W.2d 713, 718

(Tenn. Crim. App. 1993). In this case, the defendant’s statements of intent support the

jury’s finding of premeditation.




                                               46
              The defendant’s actions immediately after the killing support the jury’s finding

of deliberation. In State v. West, 844 S.W.2d at 148, the supreme court noted that

“[c]almness immediately after a killing may be evidence of a cool, dispassionate,

premeditated murder” (citations omitted). According to Denise’s testimony, the defendant

put the victim’s body in the bathtub after he finished beating him. Then, the defendant

called his brother to have him come over and help cut up the body so that it could be

hauled to Westpoint, where it was burned. See e.g., State v. Glenn Bernard Mann, No.

02C01-9502-CC-00046, slip op. at 10 (Tenn. Crim. App., Jackson, Aug. 16, 1996); Tenn.

R. Sup. Ct. 12(2) appeal pending (Tenn. 1996); State v. William Singleton, Jr., No. 03C01-

9406-CR-00221, slip op. at 6-8 (Tenn. Crim. App., at Knoxville, March 13, 1995), perm.

app. denied (Tenn. 1995).



              Accordingly, we find that the evidence in the record was sufficient for a

rational juror to conclude that the defendant was guilty of premeditated and deliberate

murder.



              In a related issue, the defendant contends that the jury instructions regarding

the elements of first-degree murder violated the dictates of Brown, and that such error was

not harmless due to the insufficient evidence of premeditation and deliberation. We find

this issue to be of no merit.



              The trial court gave the following jury instruction on premeditation and

deliberation to the jury:

       A premeditated act is one done after the exercise of reflection in judgment.
       Premeditation means that the intent to kill must have been formed prior to
       the act, itself. Such intent or design to kill may be conceived and deliberately
       formed in an innocent [sic]. It is not necessary that the purpose to kill
       preexist in the mind of the accused for any definite period of time. It is
       sufficient that it preceded the act, however short the interval, as long as it
       was the result of reflection and judgment.

               The mental state of the accused, at the time he allegedly decided to
       kill, must be carefully considered in order to determine whether the accused
       was sufficiently free from passion. If the design to kill was formed with
       deliberation and premeditation, it is immaterial that the accused may have
       been in a state of passion or excitement, when the design was carried into
       effect.

             Furthermore, premeditation can be found, if the decision to kill is first
       formed during the heat of passion, but the accused commits the act after the


                                             47
       passion has subsided.

(Emphasis added).



              Initially, and preemptively, we note that, since Brown was decided after the

trial in the present case, it does not apply to the instructions given to the jury. See Lofton

v. State, 898 S.W.2d 246, 249-50 (Tenn. Crim. App. 1994); James Rines v. State, No.

03C01-9606-CC-00210, slip op. at 7 (Tenn. Crim. App., Knoxville, Jan. 28, 1997), perm.

spp. denied (Tenn. 1997). However, we note, parenthetically, that had Brown applied, the

jury instruction in the present case would have been in compliance. In Brooks, 880 S.W.2d

390, this court held that the jury instruction failed to distinguish and separate premeditation

and deliberation as required by Brown. Brooks, 880 S.W.2d at 393. As argued by the

state, although the jury instruction given in this case was similar to the one given in Brown,

the trial court included saving language to ensure that the jury separated the elements of

premeditation and deliberation. Specifically, the trial court instructed the jury that “[i]t is

sufficient that it preceded the act, however short the interval, as long as it was the result

of reflection and judgment.” We find no reversible error in the jury instruction.



              The defendant also argues that the evidence was insufficient to support his

conviction of arson.      He points out that according to Denise’s testimony, Pete

acknowledged he was the one who burned the victim’s house, and the defendant was

working at the time of the fire. Accordingly, the defendant submits that the trial court

should have granted a judgment of acquittal or, alternatively, it should have granted a new

trial because the verdict was contrary to the weight of the evidence. We disagree.



              Tennessee Code Annotated section 39-3-202 (1982) defines arson as:

       Any person who willfully and maliciously sets fire to or burns, causes to be
       burned, or who aids, counsels or procures the burning of any house or
       outhouse, or any building, or any other structure, the property of himself or
       of another, shall be guilty of arson.



              In reviewing the evidence in the light most favorable to the state, we find that

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


                                              48
reasonable doubt. Jackson, 443 U.S. 307, 99 S. Ct. 2781; Duncan, 698 S.W.2d 63; Tenn.

R. App. P. 13(e). Specifically, the circumstantial evidence was sufficient for the jury to find

the defendant caused his brother Pete to set the fire. On the evening after the fire, Denise

went to meet the defendant at the Pulaski Rubber Company. He asked if she knew about

the fire and suggested she drive by the victim’s house. Later that night, Denise returned

to the Pulaski Rubber Company to meet the defendant. Pete was there, and in the

presence of the defendant, he told Denise how the fire was started in the front bedroom

with a candle. When the three of them drove by the house, the defendant stated that the

victim had “gotten what was coming to him for stealing from Matthew.”



              The defendant’s normal shift was from 3 p.m. to 11 p.m., and the fire was

called in at 11:47 p.m. From the defendant’s account, he had already left work by this



time, gone to the Western Lounge, and walked out into the parking lot to drive home when

he saw the flames from the victim’s house. Instead of going to the house, the defendant

went home because he had been drinking beer and did not want to risk being arrested for

drunk driving.



              The verdict is further supported by the defendant’s previous actions in

covering up the murder: cutting up the body, pouring Drano in the bathtub to remove any

hair or blood, cutting out the carpet where the murder occurred, burning the body, and

having Denise call and report the victim off from work. Accordingly, as to the arson

conviction, we find that the evidence supports the jury’s verdict and that the verdict is not

contrary to the weight of the evidence.



              In a related issue, the defendant contends that his arson conviction should

be reversed because the indictment charged more than one offense of arson and the trial

court failed to require the prosecution to elect the particular offense of arson upon which

it would rely for conviction. We find that this issue is without merit.




                                              49
              The indictment in this case closely tracked the language of Tennessee Code

Annotated section 39-3-202(1982):

              That Pat Bondurant on or about the 22nd day of October, 1986, in
       Giles County, Tennessee and before the finding of this indictment, did
       unlawfully, willfully, and feloniously set fire to, or burn, cause to be burned,
       or aided, counseled or procured the burning of a house or outhouse, or any
       building, or any other structure, to-wit: the residence of William Ronnie
       Gaines, the property of Mrs. Raymond Fry.



              Also in accordance with the statute, the trial court instructed the jury that they

could only convict the defendant of arson if they found that he “set fire to, burned, caused

to be burned, or aided, counseled, or procured the burning of the alleged property.”



              The doctrine of election requires the state to elect which set of facts it wishes

to rely upon when it has charged a defendant with one offense but there is evidence of

multiple, similar offenses. State v. John D. Bain, Sr., No. 03C01-9311-CR-00384 (Tenn.

Crim. App., Knoxville, August 21, 1995). This doctrine has been applied to crimes of a

sexual nature where there have been several separate incidents of sexual assault. In

Burlison v. State, 501 S.W.2d 801 (Tenn. 1973), the supreme court held that in such cases

it is the duty of the trial court to require the state to make an election at the close of its

case-in-chief as to the specific offenses it wishes to rely on for conviction. Id. at 804. In

Burlison, the court set forth three fundamental reasons for requiring the state to make an

election:

       First, to enable the defendant to prepare for and make his defense to the
       specific charge; second, to protect him from double jeopardy by
       individualization of the issue, and third, so that the jury’s verdict may not be
       a matter of choice between offenses, some jurors convicting on one offense
       and others, another.


Id. at 803. In State v. Shelton, 851 S.W.2d 134 (Tenn. 1993), the supreme court

emphasized the third reason as the most important, pointing out that a unanimity

instruction, as given in this case, is necessary “to ensure that the jury deliberates over the

particular charged offense, instead of creating a ‘patchwork verdict’ based on different

offenses in evidence.” Id. at 137 (citations omitted).




                                              50
              In our view, the case before us does not warrant application of the rule that

requires the state to “elect the particular offenses for which convictions are sought.”

Shelton, 851 S.W.2d at 137. The case does not fit within the rubric to which the rule of

Burlison-Shelton normally applies. The indictment alleges a single offense, and the proof

reflects only a single act of arson. There was no other “particular offense” alleged or

proved. It is true the arson statute quoted above proscribes conduct through the use of

alternative verbs, or theories of offending, but in Tennessee the need for election is not

implicated by the statutory use of proscriptive terms in the disjunctive. See Tenn. Code

Ann. § 40-18-112 (1990) (Where statute provides “different means” by which an offense

may be committed, the jury may convict even if it is “uncertain . . . by which of the means

charged the offense was committed.”) and Tenn. Code Ann. § 40-13-206 (1997) (“When

the offense may be committed by different forms, by different means or with different

intents, such forms, means or intents may be alleged in the same count in the

alternative.”). See also Schad v. Arizona, 501 U.S. 624, 649, 111 S. Ct. 2491, 2506 (1991)

(“As the plurality observes, it has long been the general rule that when a single crime can

be committed in various ways, jurors need not agree upon the mode of commission.”)

(Scalia, J., concurring). In the case at bar, the proof showed that the offense was

committed, if at all, under only one theory and by only one act, despite the other possible

theories afforded by the statute. All of the proof demonstrates that if the defendant

contravened the statute, he did so through the more vicarious actions of aiding, counseling,

or procuring the arson, rather than through the more direct actions of setting fire, burning,

or causing the house to burn. In this case, election of neither theories nor acts is required.



                                 V. SEARCH WARRANT



              The defendant argues that the trial court erred by finding he lacked standing

to contest the search warrant executed at his parents’ residence in Westpoint. Initially, he

asserts that the prosecution is estopped from arguing that he lacked standing to challenge

the search warrant because the warrant and the attached affidavit included assertions that

the defendant occupied the Westpoint residence. Specifically, the affiant requested a



                                             51
warrant to search “the person and premises of the said Pete and Pat Bondurant above

described,” and the defendant contends that the state is bound by its admission of his

standing to contest the search warrant. In support of this proposition, the defendant cites

Steagald v. United States, 451 U.S. 204, 101 S. Ct. 1642 (1981), State v. Moore, 775

S.W.2d 372 (Tenn. Crim. App. 1989), and State v. White, 635 S.W.2d 396 (Tenn. Crim.

App. 1982).



               Contrary to the defendant’s assertion, these cases stand for the proposition

that if the state fails to raise the issue of standing in the trial court, but instead opposes the

motion to suppress on the merits, the defendant is entitled to infer that the state concedes

his standing and need not present any proof of his expectation of privacy. White, 635

S.W.2d at 399-400; see also Steagald, 451 U.S. at 209, 101 S. Ct. at 1646. Accordingly,

the state would be estopped from raising the issue of standing for the first time on appeal.

Moore, 775 S.W.2d at 374. Here, the issue of standing was raised by the state at the

suppression hearing and fully litigated.



               Next, the defendant asserts that the state should not have been allowed to

present oral testimony contradicting the affidavit on the issue of standing. The defendant

is correct that the state is prohibited from attempting to impeach the veracity of the search

warrant affidavit. See O’Brien v. State, 205 Tenn. 405, 418, 326 S.W.2d 759, 764 (1959);

Harvey v. State, 166 Tenn. 227, 228-29, 60 S.W .2d 420, 420 (1933); Poole v. State, 4

Tenn. Crim. App. 41, 50-51, 467 S.W.2d 826, 830-31 (1971). In the present case,

however, testimony was introduced by the state on the issue of whether the defendant had

a reasonable privacy interest in his parents’ property that is protected by the Fourth

Amendment, rather than to impeach the veracity of the affidavit. As such, the defendant’s

authorities are not controlling of the case at bar.



               Next, the defendant argues that the evidence presented at the suppression

hearing was sufficient to establish that he resided at the Westpoint house regularly, albeit

not continuously, and that this was sufficient to establish standing.



                                               52
              At the initial hearing on the motion to suppress, Agent Coleman testified that

he procured the search warrant on May 7, 1990 to search the Bondurants’ residence in

Westpoint in Lawrence County. Before that time, Coleman had talked to Denise on a daily

basis since February of 1990. During this time, Denise told Coleman information that had

proven to be true. Coleman took Denise’s written statements on May 1, 1990, and based

on this information, he requested a search warrant on May 7.



              At a second hearing on the motion to suppress, the defendant’s mother

testified that from January 1990 until the time he was arrested, the defendant spent at least

three or four nights a week at the house in Westpoint. While the defendant sometimes

stayed at Denise’s apartment or at Pete’s apartment in Pulaski, he did not have a home

anywhere else, nor did he own or rent any other premises. He kept clothes, washed

clothes, and ate his meals at the house in Westpoint. The defendant called the room

upstairs his and kept some of his belongings there. From the time Mrs. Bondurant and her

husband moved back to the United States in 1989, the defendant brought their grandson

to stay with them almost every weekend.



              Mrs. Bondurant and her husband bought the house in 1984. Because her

job required her to travel, the twins stayed home with their father. In July 1985, Mr. and

Mrs. Bondurant went back to Germany and rented the house to Pete until August 1987.

After that, they rented the house to someone else until they returned on September 8,

1989. At that time, Pete and the defendant lived at the house with them.



              After the defendant was arrested, he received his mail at Westpoint, some

of which was forwarded to that address. Mrs. Bondurant testified that a lot of work had

been done to the property, including the building of a driveway near the area where the

skull fragments were found.



              The state presented proof that the defendant’s voter registration on April 4,

1973, listed the defendant as living in Elkton. Although the defendant changed his



                                             53
registration in 1982, 1984, and 1987, he never used the Westpoint address. Moreover,

none of his vehicles had ever been registered at the Westpoint address. Denise testified

that at the time she started cooperating with police, the defendant was living in Pulaski with

his brother Pete and also spent a couple of nights a week at her apartment. She had not

known the defendant to make or claim residence at Westpoint during that time up until he

was arrested in April of 1990. Moreover, according to the defendant’s own testimony at

his bond hearing, the transcript of which was introduced as an exhibit to the suppression

hearing, he had lived in Giles County since 1973, except for several months when he lived

in Lawrenceburg.



              In denying the motion on the basis of standing, the trial court stated:

               The Court is going to overrule the motion for this reason: I think the
       testimony is unclear, at least to the Court, as to where Mr. Bondurant was
       living at that point in time. His mother said he was living with her part of the
       time, and his wife says he was living with her part of the time, and part of the
       time with his brother, Pete, so I don’t know.

       [The court discusses the case of Bumper v. North Carolina, 390 U.S. 1021,
       88 S. Ct. 1407 (1968)]

             But I’m going to find that he has no standing to object to the search,
       which was done to the backyard area of Mr. and Mrs. Bondurant’s farm at
       West Point, where the bone fragments were found.

              And I’m going to further find that the only interest Mr. Bondurant
       possesses in this farm is the hope of an inheritance interest at some time in
       the future.



              On appeal, a trial court's findings of fact on a motion to suppress are

conclusive unless the evidence preponderates against those findings. State v. Woods, 806

S.W.2d 205, 208 (Tenn. Crim. App. 1990); State v. Johnson, 717 S.W.2d 298, 304-05

(Tenn. Crim. App. 1986).



              When challenging the reasonableness of a search or seizure, the defendant

has the burden of first establishing a legitimate expectation of privacy in the place or

property which is searched. Rawlings v. Kentucky, 448 U.S. 98, 104-05, 100 S. Ct. 2556,

2561 (1980); State v. Roberge, 642 S.W.2d 716, 718 (Tenn. 1982). Although relevant to

the standing inquiry, an ownership interest in the property searched is not a prerequisite


                                             54
to establishing a legitimate expectation of privacy. In fact, an individual may possess a

legitimate expectation of privacy in another person's residence. State v. Turnbill, 640

S.W.2d 40, 45 (Tenn. Crim. App. 1982). This Court has held that the following seven

factors are applicable to the standing inquiry:

       (1)    property ownership;

       (2)    whether the defendant has a possessory interest in the thing

              seized;

       (3)    whether the defendant has a possessory interest in the place
              searched;

       (4)    whether he has a right to exclude others from that place;

       (5)    whether he has exhibited a subjective expectation that the
              place would remain free from governmental invasion;

       (6)    whether he took normal precautions to maintain his privacy;

              and

       (7)    whether he was legitimately on the premises.

State v. Oody, 823 S.W.2d 554, 560 (Tenn. Crim. App. 1991) (quoting United States v.

Haydel, 649 F.2d 1152, 1154-55 (5th Cir.1981)); Woods, 806 S.W.2d at 208. In making

this determination, technicalities of property law or the intricacies of the law of inheritance

are not relevant. Instead, the issue is whether the defendant had a reasonable expectation

of privacy in the property searched at the time the search occurred. Rawlings, 448 U.S.

at 104-05, 100 S. Ct. at 2561; see Roberge, 642 S.W.2d at 718.



              In reviewing the applicable factors, we find that the evidence does not

preponderate against the trial court's findings. At the suppression hearing, the defendant

did not claim any possessory interest in the property (skull fragments) seized, and there

was no proof that he had a possessory interest in the place searched or a right to exclude

others from the property. The appellant did not exhibit a subjective expectation that the

place would remain free from governmental invasion. In fact, he indicated to Denise, after

finding a human bone while cleaning up his parents’ yard, that he believed the police had

already searched the property and had failed to notice the bone. Nor did the defendant

take precautions to maintain the privacy of the area where the skull fragments were found.



                                              55
              Accordingly, the defendant has failed to show that he had a legitimate

expectation of privacy in his parents’ property.



              In State v. Roberge, 642 S.W.2d 716, our supreme court held:

       It is fundamental that one challenging the reasonableness of a search or
       seizure has the burden of establishing a legitimate expectation of privacy in
       the place or property which is searched. One does not have automatic
       standing to challenge a search simply because he is convicted of a
       possessory offense. Further, one accused of a criminal offense may testify
       at a suppression hearing without incurring the risk that his testimony will be
       used against him by the prosecution as part of its case in chief. Therefore,
       in our opinion, it was incumbent upon [the defendant] to establish in some
       way that he had some claim to or interest in the [item seized]....

Id. at 718 (citations omitted).



              The proof at the suppression hearing indicated that the defendant was, at

best, an occasional guest at his parents’ house in Westpoint. Neither the defendant’s voter

registration nor his vehicle registrations listed the Westpoint address. Moreover, the

defendant testified at his bond hearing that he had lived in Giles County since 1973, except

for several months when he lived in Lawrenceburg. While the defendant may have stayed

at his parents’ house from time to time, there was no proof at the hearing that he had any

right to exclude others from the property or that he had a key. We hold that the defendant

lacks the capacity to claim Fourth Amendment protection as to the evidence seized.



                                  IV. MARITAL PRIVILEGE



              In another issue, the defendant contends that the marital privilege, as it

existed in common law at the time of trial, should have prevented Denise from testifying

to events related to her by the defendant about the killing and disposal of the victim. The

defendant submits that the case law relied upon by the trial court, Adams v. State, 563

S.W.2d 804 (Tenn. Crim. App. 1978), was an aberrant decision that departed from the

supreme court’s decision in McCormick v. State, 135 Tenn. 218, 186 S.W. 95 (1916). The

defendant acknowledges that our supreme court changed the common law in State v.

Hurley, 876 S.W.2d 57 (Tenn. 1993), cert. denied, 513 U.S. 933, 115 S. Ct. 328 (1994);



                                            56
however, this case law was not in effect at the time of the murder or of the trial.

Subsequently, the legislature codified the law in McCormick, and the defendant further

argues that the new statute should be applied retroactively.



              A hearing was held on the defendant’s motion in limine to exclude Denise’s

testimony at trial. At the hearing, Denise testified that she was married to the defendant

at the time he made inculpatory statements to her. She had been separated from the

defendant since August 1986, after a fight in which the defendant beat Denise, who was

pregnant at the time, and held a gun to her head. Subsequently, she then moved in with

her sister for two months but moved back to Pulaski in October 1986 and rented an

apartment. At that time, Denise was having sexual relations with the defendant; however,

she claimed that she “prostituted” herself to the defendant because she was financially

dependent upon him. Denise did not file for divorce until June 1990, after the defendant

was arrested. She testified that she did not file for divorce sooner because she was afraid

based on earlier statements made by the defendant.



              In order to further explain her relationship with the defendant, Denise related

the facts surrounding the Dugger murder. In May 1986, a party was held at the farmhouse

in Elkton, where Denise and the defendant lived together prior to their separation. Denise

testified how Dugger, who was heavily drugged, fell and hit her head. The defendant,

Pete, and another man all wanted to have sexual relations with Dugger. Dugger was

moved to various rooms, and Denise walked in while the defendant was having sex with

her. Denise hit Dugger and slapped the defendant. The defendant began to tell Denise

that she could have the car and other assets, as though he realized the marriage was over.

The men then took Dugger outside to the barn but later brought her back into the house.

Denise started slapping Dugger to wake her up. She also accused Dugger of sleeping with

her husband. Dugger got up and started swinging at Denise with her arms. The defendant

came into the room with a big stick and told Denise to use it on Dugger. Denise refused,

realizing that Dugger was still heavily drugged. The defendant said “Well, I’ll do it for you,”

and he started beating Dugger on the head. As Dugger tried to get up, the defendant beat



                                              57
her on the side to knock her down. Once Dugger was unconscious, the defendant

engaged in sexual intercourse with her, until Dugger lost control of all bodily functions.

While the defendant went to clean up, Pete shot Dugger in the head twice. Later, the

defendant and Pete burned Dugger’s body.



              Because the defendant and Pete told Denise that if she ever reported

Dugger’s demise to the police, they would both implicate Denise and cause her child to be

born in prison, she remained silent. She was also silenced by the defendant’s statement

that “united we stand, divided we fall,” which Denise testified meant as long as the three

of them stood together nobody would go to jail, but if one of them was to fall, all of them

would go to jail.



              In overruling the motion to keep Denise’s testimony out, the trial court stated:

              I’m going to overrule the motion. I just don’t think it fits Adams.

              For one reason, I cannot imagine -- first of all, I’m going to make a
       finding that this lady’s silence was a silence because of fear from what she
       had witnessed and what she had been told. And secondly, I’m going to find
       that the relation -- in no way, in my opinion or in the opinion of the
       community, should this relation be one that should be sedulously fostered.

              I mean, the facts we’ve heard, today, they’re uncontroverted. The jury
       may not fine [sic] Mr. Bondurant guilty, but I just cannot believe that the
       marital privilege was created for a situation, such as we have heard in this
       case. For those reasons, I’m going to overrule your motion.



              The applicable rule of marital privilege in this case was announced by our

supreme court in McCormick, 135 Tenn. 218, 186 S.W. 95. As this court has held, the law

regarding marital privilege is procedural rather than substantive in nature for purposes of

ex post facto review. State v. Bragan, 920 S.W.2d 227, 241 (Tenn. Crim. App. 1995). As

such, the marital privilege law at the time of the trial prevails.



              We note that in Hurley, 876 S.W.2d 57, our supreme court modified the

marital privilege in criminal cases so that the testifying spouse alone had the right to invoke

the privilege. Id. at 64. The Hurley modification of the common law rule was then

superseded by statute when the Legislature, in 1995, amended Tennessee Code


                                              58
Annotated section 24-1-201 to provide in part that confidential communications between

married persons are privileged and inadmissible if either spouse objects. Although argued

by the defendant, he is not entitled to retroactive application of the amended statute

because such was a procedural change. Bragan, 920 S.W.2d at 241.



              In McCormick, our supreme court held that "[s]ound public policy requires that

neither the husband nor the wife shall be permitted to testify, in criminal cases, as to any

matter coming to his or her knowledge by reason of the marital relation." 135 Tenn. at 228,

186 S.W. at 97; see also Burton v. State, 501 S.W.2d 814, 817-819 (Tenn. Crim. App.

1973). Under this rule, either the testifying or non-testifying spouse can invoke the

privilege; however, this privilege is not absolute. In Adams, 563 S.W.2d 804, this Court

recognized that the following conditions must all exist before a communication between

spouses is considered privileged:

       (1)    The communications must originate in a confidence that they
              will not be disclosed.

       (2)    This element of confidentiality must be essential to the full and
              satisfactory maintenance of the relation between the parties.


       (3)    The relation must be one which, in the opinion of the
              community, ought to be sedulously fostered.

       (4)    The injury that would inure to the relation by the disclosure of
              the communications must be greater than the benefit thereby
              gained for the correct disposal of litigation.

Id. at 808. Where the marriage between the parties is “extremely tumultuous,” this Court

has observed that application of the marital privilege is inappropriate. State v. Garland,

617 S.W.2d 176, 182-83 (Tenn. Crim. App. 1981); see also State v. Bush, 942 S.W.2d

489, 509-10 (Tenn. 1997) (appendix, Court of Criminal Appeals opinion), petition for cert.

filed (U.S. July 28, 1997).



              In the present case, the proof supports the trial court’s finding that this is not

the type of relationship that the court should sedulously foster. The relationship between

the defendant and Denise was “extremely tumultuous.” Not only was Denise physically

assaulted by the defendant, she witnessed the defendant beat Gwen Dugger over the



                                              59
head with an ax handle and then rape her vaginally and anally while she was unconscious.

Pete then shot Dugger in the head, and the two brothers took the body to a field and

burned it. Denise was kept silent by the defendant’s threats that if she talked to the

authorities, he and Pete would blame the murder on her, and she would have her unborn

child in prison. This is not a relationship that should be sedulously fostered, nor is the

injury to the relationship by the disclosure of these communications greater than the benefit

gained by the correct disposal of the brutal murder in the case now before us. The state’s

interest in the disclosure of the defendant’s statements concerning the victim’s murder far

outweighed any injury to this marital relationship.



               The findings of fact made by the trial court after an evidentiary hearing are

afforded the weight of a jury verdict, and this court will not set aside the judgment of the

trial court unless the evidence in the record preponderates against its findings. Dick, 872

S.W.2d at 943. The proof overwhelmingly supports the trial court’s finding that Denise was

properly allowed to testify at trial.



                                VII. PRIOR CRIMINAL ACTS



               Initially, the defendant contends that the trial court should have declared a

mistrial based on Denise’s testimony concerning the Dugger murder during direct and

cross-examinations. He argues that the introduction of testimony concerning the Dugger

case was unduly prejudicial evidence of propensity, especially in light of the fact that

Dugger’s body was burned in a similar manner as that of the victim in this case. We find

that any error was harmless.



               During direct examination, Denise Bondurant testified that she lied to the

authorities when initially questioned about the victim’s disappearance:

       A.      Whatever I did tell them, I probably lied.

       Q.      And why was that?

       A.      To try to protect my husband.



                                             60
       Q.     And why were you trying to protect your husband, at that time
              Mrs. Bondurant?

       A.     Because I was afraid not to, because of the murder of Gwen
              Dugger.

       Q.     Well, --

       MR. JERRY COLLEY:           Objection, if the
                                   Court please. Now,
                                   that’s wrong, and he
                                   knows it and she
                                   knows it.

       THE COURT:                  Okay. Okay. I’ll sustain that.



              Thereafter, defense counsel cross-examined Denise extensively as to why

she maintained contact with the defendant and why she did not reveal his actions to the

authorities sooner. Counsel questioned Denise as to whether she was actually afraid of

the defendant. As a result, the state requested a jury-out hearing concerning the issue of

whether the defendant had opened the door for Denise to testify that she was afraid of the

defendant because she had been present when Gwen Dugger was murdered. It appears

that at some point before her testimony, the trial court had instructed Denise not to reveal

the details of the Dugger murder during her testimony.



              After considering argument on the matter, the trial court held that by pursuing

a line of cross-examination intended to question whether Denise was actually afraid of the

defendant, defense counsel opened the door to this testimony and the state should be

allowed to question Denise on redirect as to why she was afraid of the defendant.



              As cross-examination continued, defense counsel questioned Denise about

the number of times she talked with authorities. Denise also gave the following answers

that touched on the Dugger murder:

       Q.     Would it make any difference, Mrs. Bondurant, where they [sic]
              body was, if there was news about the disappearance of
              Gaines?

       A.     Well, that would give them a time limit, I guess, you know, on
              the police coming around, because they knew they would be
              back around, just like the case prior to this.



                                            61
****

Q.     Well, why didn’t you leave and say, well, I’ve got to go back
       home, folks. I’m not staying here any longer, with your burned
       body burning out here in the yard?

A.     The same reason I didn’t in the Dugger case.

****

Q.     Would you be surprised to know that in a crematorium, in order
       to burn a body to ashes, that it takes two-and-a-half hours at
       1,800 degrees Fahrenheit temperature to do that, in a confined
       furnace?

A.     I didn’t realize how long it took or what the temperature was.
       But in order for them to burn the body, Pat explained that he
       had to get the temperature really hot. That’s where he used
       the rubber from the plant. He described it at what temperature
       it would burn at. But it couldn’t be done in two-and-a-half
       hours. In two-and-a-half days, yes, he did.

****

Q.     You just now said, I believe, he told you it took two-and-a-half
       days?

A.     It did take two-and-a-half days. I had already witnessed one
       before that took two-and-a-half days.

Q.     Okay. And you said that he told you that this happened on the
       night of the seventeenth, after they got off from work, which
       would be on the morning of the eighteenth. A.M. Right?

A.     Yes, sir.

Q.     And then Sunday afternoon, which would be not even a day-
       and-a-half later, you saw -- you say you saw a lump smoking
       in Elkton.

A.     Yes, sir.

Q.     Which certainly wouldn’t be any two-and-a-half days?

A.     Well, the first one, they didn’t cut her up.

Q.     What’s that?

A.     The first murder.

MR. JERRY COLLEY:            I’m going to object,
                             Judge, and ask for a
                             mistrial, right here.

THE COURT:            I’m going to overrule the motion for
                      a mistrial. Just be responsive.
                      Ask the question, again.




                                      62
             Subsequently, another jury-out hearing was held, and the trial court ruled that

on redirect, Denise could testify that some of her meetings with authorities after the

defendant was arrested concerned other matters not involved in this case and that she

could explain why she was afraid of the defendant. No further references were made

about the Dugger case during cross-examination.



             On redirect, the following disputed testimony was given:

      Q.     Mrs. Bondurant, you have testified that between
             February, 1990, and today, that you have talked to
             Agent Coleman, to representatives of the District
             Attorney’s office, and to other law enforcement people,
             a lot of times.

      A.     Yes.

      Q.     A number of times.

      A.     Yes.

      Q.     That you have talked with us maybe 15, 20 times.
             Maybe 25, I believe, in answer to Mr. Colley’s
             questions. Have all of those conversations been about
             the Ronnie Gaines case?

      A.     No, sir, they have not.

      Q.     What have they been about?

      A.     Well, we have --

      MR. JERRY COLLEY:             Objection.
                                    She said they
                                    weren’t all
                                    about the
                                    R o n n i e
                                    Gaines case.

      THE COURT:           Well, I think you can do that
                           a different way.

      Q.     BY MR. SANDERS: Let me ask you if they have been
             about other cases?

      A.     Yes, sir, they have.

      Q.     Has it been necessary for you to talk with the District
             Attorney’s office, as a matter of fact, about other trials?

      A.     Yes, sir.

      Q.     Now, you were also asked about being afraid of your
             husband, Pat, and his brother, Pete, I believe you said?



                                         63
      A.     Yes.

      Q.     Why, in October 1986, were you afraid of your husband,
             Pat, and his brother, Pete?

      A.     Can I answer about the Dugger case?

      MR. JERRY COLLEY:            Objection, if Your Honor please.

      MR. SANDERS:         No, sir. That’s admissible.

      MR. JERRY COLLEY:            Objection.

      THE COURT:           I think she can answer that in one sentence.

      MR. SANDERS:         Yes, sir.

      Q.     Because of why?

      A.     Because of the murder that had occurred prior to the
             Gaines case.

      Q.     Now, in that particular case, had anything been said to
             you that you considered threatening?

      A.     Yes, sir, it did. It was said to me that --

      MR. JERRY COLLEY:            I’m objecting to that, Judge.

      THE COURT:           No, sir. I’m going to allow that in. Go ahead.

      MR. JERRY COLLEY:            All right.

      A.     That if I were to go to any law enforcement officials
             about what happened with the Dugger case, Mrs.
             Dugger being murdered there at the home, that Pete
             and Pat would blame the whole thing on me. And he
             asked me if I wanted to have the baby in prison, which
             of course, I did not. And he said, who would they
             believe? Would they believe you or the two of us.

      Q.     Now, in answer to one of Mr. Colley’s questions, you
             said that he told you, ‘he’ being your husband, Pat
             Bondurant, united we stand and divided we fall.

      A.     Yes, sir. To him -- well, to me, that meant that as long
             as we three stood together, that nobody would go to jail.
             But if one of them were to fall, we would all go to jail.



             First, the defendant contends that the trial court erred by failing to grant a

mistrial based on Denise’s responses during direct and cross-examination.



             The declaring of a mistrial is a matter "of great delicacy, in which the trial

Court should act with caution, and that such action should be taken only when necessity


                                                64
requires." Bellis v. State, 157 Tenn. 177, 180, 7 S.W .2d 46, 46 (Tenn. 1928). Although

subject to review by appellate courts, the decision of whether to grant a mistrial is within

the discretion of the trial court, and a reviewing court will not disturb that action absent a

finding of abuse of that discretion. State v. Adkins, 786 S.W.2d 642, 644 (Tenn. 1990).



              Although the witness's initial reference to the Dugger case on direct

examination was improper, the trial court sustained the defendant’s objection. Moreover,

Denise’s references to the Dugger case during extensive cross-examination on whether

she was actually afraid of the defendant did not rise to the level of creating a necessity for




a mistrial. As in State v. Harris, 839 S.W.2d 54, 72 (Tenn. 1992) (citing Tenn. R. App. P.

36(b), where the supreme court, in considering the effect of statements concerning prior

criminal activity on the jury’s verdict in a capital case, held that the admission of the

evidence was harmless beyond a reasonable doubt when viewed in context of the entire

record, we find that Denise’s testimony concerning the Dugger trial was harmless error.

See also State v. Baker, 751 S.W.2d 154, 164 (Tenn. Crim. App. 1987); State v. Lawson,

695 S.W.2d 202, 204 (Tenn. Crim. App. 1985).



              The defendant further contends that it was error to allow the state to question

Denise on redirect about why she was afraid of the defendant and why she talked to

authorities on numerous occasions. The admissibility of rebuttal proof lies in the discretion

of the trial court. Hardin v. State, 210 Tenn. 116, 136, 355 S.W.2d 105, 114 (1962). As

stated in State v. Lunati, 665 S.W.2d 739 (Tenn. Crim. App. 1983), “‘[r]ebutting evidence’

is evidence which tends to explain or controvert evidence produced by the adverse party.”

Id. at 747 (citations omitted).



              Generally, evidence of prior criminal conduct is inadmissible, absent certain

well-defined exceptions. See State v. Rounsaville, 701 S.W.2d 817, 820-21 (Tenn.1985);

State v. Morgan, 541 S.W.2d 385 (Tenn.1976). The rule, which is embodied in Tenn. R.



                                             65
Evid. 404(b), is premised upon recognition that such evidence may result in a jury

improperly convicting a defendant for his bad character or apparent propensity or

disposition to commit a crime regardless of the strength of the evidence concerning the

offense on trial. Anderson v. State, 165 Tenn. 569, 56 S.W.2d 731 (1933). This is

particularly true when the prior conduct or acts are similar to the crimes on trial. See Long

v. State, 607 S.W.2d 482, 486 (Tenn. Crim. App. 1980). As our supreme court stated in

State v. Rickman, 876 S.W.2d 824, 828 (Tenn. 1994) (citations omitted):

       The general rule excluding evidence of other crimes is based on the recognition that
       such evidence easily results in a jury improperly convicting a defendant for his or
       her bad character or apparent propensity or disposition to commit a crime
       regardless of the strength of the evidence concerning the offense on trial. Such a
       potential particularity exists when the conduct or acts are similar to the crimes on
       trial.


              The exceptions to this rule of exclusion relate to the probative value of such

evidence on a legitimate issue in the trial being considered of greater worth than the

danger of its prejudicial effect. Accordingly, evidence of prior bad acts may be used for a

purpose other than to show a defendant's propensity to commit the crime for which he is

charged, such as to demonstrate identity, intent, motive or a common scheme or plan,

opportunity, or rebuttal of mistake or accident. State v. Drinkard, 909 S.W.2d 13, 16

(Tenn. Crim. App. 1995); Tenn. R. Evid. 404(b).



              In order to determine the admissibility of such evidence, compliance with the

procedures provided in Rule 404(b) is mandatory. Without the trial court conducting the

required analysis on the record, particularly regarding the existence of a material issue and

the probative value of the evidence outweighing the danger of unfair prejudice, we cannot

properly review its admissibility as an exception to the rule of exclusion. West, 844 S.W.2d

at 150.



              After defense counsel raised the issue during cross-examination, the trial

court properly determined at the jury-out hearings that Denise could explain why she was

afraid of the defendant and why she delayed contacting authorities concerning this murder.

It was also proper for the trial court to determine that Denise could explain why she met



                                             66
with authorities on numerous occasions. She was questioned extensively about these

matters during cross-examination, and the state was entitled to explain.



              Moreover, pursuant to Tennessee Rule of Evidence 103(a), the admission

or exclusion of evidence is not a basis for error unless the ruling affects a substantial right

of the party. We find that even if the trial court did err in allowing this testimony to be

introduced, no substantial right of the appellant was affected thereby. In light of the

convincing evidence of the defendant’s guilt, any error in the admission of this testimony




was harmless. See State v. Shelley, 628 S.W.2d 436, 438 (Tenn. Crim. App. 1981); Tenn.

R. App. P. 36(b). This issue, therefore, lacks merit.



              Next, the defendant contends that it was error to allow Denise and Rodney

Randolph to testify that Terri Lynn Clark, the defendant’s alleged alibi witness, was found

dead at the Elkton farmhouse where he and his brother lived. In addition, he asserts that

it was prosecutorial misconduct for the state to address the location of Clark’s body during

closing argument. Finally, the defendant contends that defense counsel’s failure to object

to this testimony and argument constituted ineffective assistance.



              On direct examination, Jerry Dickey, the arson investigator, testified that

when he took the defendant’s statement, the defendant told him that he had been with

Terri Lynn Clark during the weekend when the victim disappeared. Dickey advised the

defendant that he would have to talk to Clark to verify the defendant’s statement. He then

testified:

       Q.     All right. And where did you wind up going to try to contact
              Terri Lynn Clark, sir?

       A.     To Elkton, Tennessee.

       Q.     And where in Elkton, Tennessee?

       A.     To what was known at the time, I think, as Pete Bondurant’s
              house.



                                              67
      Q.     And did you find Terri Lynn Clark?

      A.     Yes, sir.

      Q.     Did you take a statement from her?

      A.     No, sir.

      Q.     Why not?

      A.     She was dead.



             Subsequently, during the state’s cross-examination of defense witness,

Rodney Randolph, the state asked him why he stopped living with Pete and the defendant

at Elkton. Randolph responded:

      A.     Well, I had some clothes and stuff down there that -- work
             clothes that I stopped and changed clothes and stuff, as I was
             going to Ardmore, as my ride would pick me up to Ardmore.
             And about that time, Terri Lynn was found in the house, so I
             didn’t go back for for(sic) like two or three weeks to get my
             clothes.

      Q.     Now, who is Terri Lynn?

      A.     Terri Lynn Clark.

      Q.     And was (sic) found in the house, how? What do you mean?

      A.     She was found, the way I understand it, she was found in the
             bed, dead.



             During cross-examination of the defendant, the state asked him if his Elkton

residence was the same ”house they found Terri Lynn Clark in on November 17, one

month after Ronnie Gaines’ disappearance; two weeks after you told the officers that she

was your alibi?” The fact of Clark’s body being found at the farmhouse in Elkton was also

raised during the state’s closing argument in which the prosecutor stated that when Dickey

started looking for Clark to verify the defendant’s alibi, he ultimately found her “on

November 17, 1986, at the home of Pat Bondurant’s brother, in the bed, dead.”



             Trial counsel did not object to any of the references to Clark’s body being

found at the Elkton farmhouse. Accordingly, this issue has been waived. Tenn. R. App.

P. 36(a). Regardless, we find that any error was harmless. Clearly, the fact of Clark’s



                                           68
death was relevant to establish that the defendant’s alibi could not be corroborated.



              Regardless, the admission or exclusion of evidence is not a basis for error

unless the ruling affects a substantial right of the party. Here, the testimony did not directly

implicate the defendant in the murder of Clark. In fact, there was no testimony regarding

the circumstances or cause of her death. Moreover, Dickey testified that when he told the

defendant he would have to confirm the defendant’s alibi with Clark, the defendant said

“that’s okay.” And the defendant, during cross-examination, testified that he had no

knowledge concerning Clark’s death. Moreover, as stated earlier, we find that the evidence

of the defendant’s guilt was abundant. Accordingly, any error was harmless in light of the

overwhelming evidence of the defendant’s guilt. See Shelley, 628 S.W.2d at 438.



              As to the state’s reference during closing argument to the location of Clark’s

body, we find this too was harmless error. The standard of review in determining whether

the trial court allowed counsel too much latitude during closing argument is abuse of

discretion. State v. Sutton, 562 S.W.2d 820, 823 (Tenn. 1978). Closing argument must

be temperate, must be predicated on evidence introduced during the trial of a case, and

must be pertinent to the issues being tried. Id. The prosecutor may state an ultimate

conclusion which would necessarily follow if the testimony of the prosecution witnesses

were believed by the jury. Brown, 836 S.W.2d at 552. Although improper and irrelevant,

we do not find that the prosecutor’s single comment during closing argument constituted

reversible error. Furthermore, while counsel should have objected to these references

concerning the location of Clark’s body, we find that the defendant has failed to

demonstrate prejudice. See Strickland, 466 U.S. at 693, 104 S. Ct. at 2067. We find no

reversible error in this issue.



      VIII. ADMISSIBILITY OF DEFENDANT’S PRIOR MURDER CONVICTION



              The defendant argues that it was error to permit the state to cross-examine

him about his second-degree murder conviction without giving written notice of its intent



                                              69
to use the prior conviction for impeachment purposes and without holding a jury-out

hearing on the probative versus the prejudicial value of the conviction. The defendant also

submits that it was error to allow the state to introduce the judgment document into

evidence after the defendant admitted he had previously been convicted of second-degree

murder. Moreover, the defendant contends that the slight value of his prior homicide

conviction on the issue of credibility did not outweigh its unfair prejudicial effect on the

substantive issues. To the extent trial counsel failed to object, the defendant claims it was

ineffective assistance of counsel.



              During cross-examination of the defendant, the state asked whether the

defendant had been convicted of second-degree murder in Giles County, Tennessee. In

response, the defendant admitted the conviction. Then the state asked the defendant to

identify the judgment document. Defense counsel objected, and the trial court sustained

the objection. The state, however, was then allowed to enter the judgment into evidence

without objection. No facts of the crime were included in the judgment document.



              At the hearing on the motion for new trial, trial counsel testified that he did

not ask for a jury-out hearing because he assumed the second-degree murder conviction

was admissible for impeachment purposes. In fact, the potential use of this previous

conviction for impeachment purposes was considered by counsel in determining whether

the defendant should testify on his own behalf.



              Pursuant to Tennessee Rules of Evidence 609, the state may use a prior

conviction to impeach a defendant during cross-examination if the conviction meets the

following criteria: (a) the conviction was for a crime punishable by death or imprisonment

in excess of one year or a misdemeanor conviction involving dishonesty or a false

statement, (b) less than ten years has elapsed between the date the accused was

released from confinement and the commencement of the prosecution, (c) the state must

give reasonable written notice of the particular convictions it intends to use to impeach the

accused prior to trial, and (d) the trial court must find the probative value of each



                                             70
conviction on the issue of credibility outweighs its unfair prejudicial effect on the

substantive issues. State v. Farmer, 841 S.W.2d 837, 839 (Tenn. Crim. App. 1992). A

conviction may only be established by public record if the witness denies having been

convicted. Tenn. R. Evid. 609(a)(1). “The purpose of determining the admissibility of

[evidence of a defendant’s criminal convictions] prior to the accused’s testimony is to allow

a defendant to make an informed judgment as to whether to testify.” State v. Williams, 929

S.W.2d 385, 391 (Tenn. Crim. App. 1996) (quoting State v. Hugh Williams, No. 02C01-

9209-CR-00220, slip op. at 24 (Tenn. Crim. App., Jackson, Oct. 12, 1994)).



              In the present case, the state failed to give the defendant reasonable written

notice of its intent to use the second degree murder conviction for impeachment purposes,

and neither party requested a jury-out hearing on the admissibility of the conviction prior

to the defendant taking the stand. Tenn. R. Evid. 609(a)(3); see Farmer, 841 S.W.2d at

839. However, on the facts of this case, we hold that this error was not fatal.



              Where the state has failed to live up to its procedural duties, but the

defendant is nevertheless on notice before the trial that he may be impeached by his prior

convictions, this court has looked to whether the defendant has suffered prejudice as a

result of the state’s shortcomings. For example, in State v. Barnard, 899 S.W.2d 617

(Tenn. Crim. App. 1994), the state sent a discovery response to defense counsel setting

forth the defendant’s criminal record. The state did not, however, file a written notice of its

intent to use one of the convictions for impeachment. This court held that the defendant

had not been “unduly prejudiced” by the state’s failure to comply with Rule 609(a)(3) and

that the error was harmless. Id. at 622. Similarly, in State v. Burl Lakins, No. 32 (Tenn.

Crim. App., Knoxville, May 24, 1991), the state filed its notice of intent to impeach the

defendant with prior convictions at 4:30 on the afternoon before trial and notified defense

counsel in a telephone call that night. Although defense counsel was aware of his client’s

prior conviction, he assumed the state did not intend to use the prior conviction as

impeachment evidence because it had not so notified him in response to his pre-trial

discovery request. Id., slip op. at 4. The trial court allowed the impeachment, despite the



                                              71
technical shortcoming of the state. When the defendant complained of this action to this

court, we found he waived consideration of the notice issue by failing to raise it in his

motion for new trial and by failing to cite authority to support his argument in his appellate

brief. Id., slip op. at 6. Notwithstanding waiver of the issue, we went on to find the

defendant failed to show he was prejudiced by the late notice, focusing on defense

counsel’s awareness of the prior conviction. Id., slip op. at 7.



               In the case now before us, we fail to find error requiring reversal on this issue

for two reasons. First, defense counsel failed to object to the prosecution’s cross-

examination of the defendant regarding his prior conviction. Under the authorities cited

above, this inaction was a waiver of the issue for purposes of our review. See Tenn. R.

App. P. 36(a). Second, the defendant has suffered no prejudice by the state’s failure to

follow Rule 609(a)(3). The defendant has made no claim that he would not have testified

had he known his testimony was subject to impeachment via the prior murder conviction.

In fact, trial counsel testified he was aware of the defendant’s prior conviction, he thought

it likely the evidence would be admitted for impeachment purposes, and he counseled the

defendant to be prepared to be questioned about the prior conviction if he chose to testify.

Moreover, in overruling the defendant’s motion for new trial, the trial judge stated that he

found no error in the failure to hold a jury-out Rule 609 hearing, noting “the probative value

of this testimony was so high as to be obvious to all parties and that a hearing outside the

presence of the jury would not have resulted in a different opinion.” Thus, the defendant

was not deprived of the opportunity to make an “informed judgment” as to whether to

testify, see Williams, 929 S.W.2d at 391, nor would the admission of the impeaching

conviction have been disallowed had a hearing been held. Although we do not condone

the state’s failure to meet its obligations, especially in a capital case, we fail to see how this

shortcoming prejudiced the defense, given the particular facts of this case.



               With respect to the prosecution’s introduction into evidence of the judgment

document from the prior proceeding, we find the defendant waived any complaint to its

admission by his failure to lodge a contemporaneous objection. See State v. Harrington,



                                               72
627 S.W.2d 345, 348 (Tenn. 1981). Also, the judgment document did not convey specific

facts about the prior case, and any error that may have been committed when the

document was introduced was undoubtedly harmless. Tenn. R. App. P. 36(b).



              Next, the defendant alleges with respect to the Rule 609 issue that his trial

counsel rendered ineffective assistance through taking no action to block the impeachment

use of the prior murder conviction. Assuming, arguendo, that trial counsel’s failure to

request a Rule 609(a)(3) hearing or otherwise to object to the attack on the defendant’s

credibility through the use of the previous murder conviction constitutes ineffective

assistance of counsel, we nevertheless hold that the defendant has failed on appeal to

show that such ineffectiveness prejudiced him under the second prong of the Strickland

test. We find that this conclusion is supported by either of two bases. Essentially, there

is no Strickland prejudice because (1) had counsel obtained a pre-impeachment,

balancing-test review, the result on the use of the conviction would have been the same,

and (2) the defendant has failed to show that, even without the impeachment via the prior

conviction, the verdict would have been different.



              As to the first basis, we noted above that the trial judge indicated he would

have allowed the use of the prior conviction for impeachment purposes. Had the trial court

so ruled, the defendant on appeal would have been met by the well-established rule that

issues concerning the admissibility of evidence rest within the sound discretion of the trial

court and an appellate court will not interfere with the exercise of this discretion absent a

clear abuse appearing on the face of the record. State v. Van Tran, 864 S.W.2d 465, 477

(Tenn. 1993); State v. Harris, 839 S.W .2d 54, 73 (Tenn. 1992). These rules have been

applied to trial court determinations under Rule 609. State v. Sheffield, 676 S.W.2d 542,

549 (Tenn. 1984) (applying Fed. R. Evid. 609, under State v. Morgan, 541 S.W.2d 385

(Tenn. 1976)); State v. Blanton, 926 S.W.2d 953, 960 (Tenn. Crim. App. 1996); State v.

Tune, 872 S.W.2d 922, 927 (Tenn. Crim. App. 1993); State v. Robert Harrison Blevins, No.

03C01-9606-CC-00242 (Tenn. Crim. App., Knoxville, May 23, 1997); State v. Jerry Lee

Finch, No. 02C01-9309-CC-00224 (Tenn. Crim. App., Jackson, June 7, 1995), perm. app.



                                             73
denied (Tenn. 1995). Thus, in order to show that he was prejudiced by ineffective

assistance of counsel on this issue, the defendant would be required to show that the trial

court, in allowing the impeachment evidence, would have committed a clear abuse of

discretion. Although the trial judge provided no insight into his theoretical ruling, we note

that caselaw exists to support a decision to admit the evidence. See State v. Sheffield,

676 S.W.2d 542 (Tenn. 1984); State v. Blanton, 926 S.W.2d 953 (Tenn. Crim. App. 1996);

State v. Stafford, 670 S.W.2d 243 (Tenn. Crim. App. 1984) (prior to adoption of Tennessee

Rules of Evidence); State v. Roman Earl Warner, No. 02C01-9204-CC-00078 (Tenn. Crim.

App., Jackson, July 21, 1993); State v. Burl Lakins, No. 32 (Tenn. Crim. App., Knoxville,

May 24, 1991); State v. Milburn Greene, No. 317 (Tenn. Crim. App., Knoxville, Nov. 7,

1990). The impeaching conviction need not intrinsically suggest “dishonesty or false

statement,” Blanton, 926 S.W.2d at 960 (Tenn. Crim. App. 1996); Tune, 872 S.W.2d at

927 (Tenn. Crim. App. 1993), such that, in balancing the probative value as to credibility

against the unfair prejudicial effect as to the substantive issues, the trial court may consider

whether the prior conviction involves “disregard of legal and moral rules of civilized society

. . . serious enough to be punishable by imprisonment in excess of one year.” State v.

Sheffield, 676 S.W.2d at 549. See also Blanton, 926 S.W.2d at 960. In light of such

considerations, the defendant has not shown that the trial court would have clearly abused

its discretion had it ruled to allow the impeachment evidence.6


         6
          W e realize that She ffield and other cases cited herein that were tried before January 1, 1990,
the effective date of the Tennessee Rules of Evidence, were adjudicated without reference to the
Rules, being governed instead by our supreme court’s ruling in State v. Morgan, 541 S.W.2d 385
(Tenn. 1976). In Morgan, the court adopted the provisions of Federal Rules of Evidence 608(b) and
609(a) and (b). W ith respect to prior convictions used to impeach a witness, the provision adopted
allowed the use of the prior c onvic tion if th e “cr ime (1) w as pu nish able by dea th or im priso nm ent in
excess of one year . . . and the court determines that the probative value of admitting this evidence
outweighs its prejudicial effect to the defendant, or (2) involved dishonesty or false sta teme nt,
regardless of the punishment.” Morgan, 541 S.W.2d at 388-89. Under Tennessee Rule of Evidence
609(a)(3), when the assailed witness is the accused in a criminal ca se, a ny conviction offered to
impeach the defendant-witness is subject to the trial court dete rm ining if the conviction’s “probative
value on cred ibility outweighs its unfa ir prejudicia l effect on the substantive issues.” Tenn. R. Evid.
609(a)(3) (emp hasis ad ded). As noted by the defend ant in his brief, the Advisory Commission
Com men ts to this rule sa y, “To the e xtent that State v. Sh effield , 676 S.W .2d 542 (T enn . 198 4), is
inconsis tent, the proposal would ch ange the result.” Te nn. R. Ev id. 609, Ad visory Com m’n C omm ent.

          Furthermore, we are aware of Rule 609-based case law that supports the defen dan t’s
argument that th e im pea chm ent s hou ld have been disallowed. In State v. Farmer, 841 S.W.2d 837
(Tenn. Crim. App. 1992), a murder prosecution, this court reviewed the impeachment of the
defendant-witness through the use of a prior conviction for assault with intent to comm it voluntary
manslaugh ter. The co urt stated th at the trial court, in such a situation, should (a) “assess the
similarity betw een the c rim e on t rial and the crime underlying the impeaching conviction” and (b)
“analyze the relevance the impeaching conviction has to the issue of credibility.” Farmer, 841 S.W.2d
at 839 (citing N . Cohen , D. Paine and S. S heppe ard, Tennessee Law of Evidence, § 609.9 at p. 288
(2d ed. 1990)). In Farmer, the court found it “obvious” that the use of the prior conviction was error,
although the c ourt d id determine the error to be harmless “given the facts and circumstances of this

                                                          74
case.” Id. at 840. See also State v. Sum me rall, 926 S.W .2d 272 ( Tenn . Crim. A pp. 1995 ); State v.
Steve Johnson, No. 02C01-950 4-CC-00097 , slip op. at 7 (Tenn. Crim. App., Jackson, Fe bruary 27,
1997); State v. Jerry Lee Finch, No. 02C 01-930 9-CC -00224 (Tenn . Crim. A pp., Jackson, June 7,
1995), perm. app. denied (Tenn .).
          Fina lly, we recognize the additional language engrafted into the Morgan balancing test by the
Tennessee Rules of Evidence causes more focus upon a tension between the issue of credibility on
the one hand and prejudice to the substantive issues on the other hand. However, the very purpose
of the Morgan-federal rule was witness impeachm ent--”’attacking the credibility of a witness.”’
Morgan, 541 S.W.2d at 388 (quoting Fed. R. Evid. 609(a)). Thus, the augmentation of Tennessee
Rule 609(a)(3) by addin g “on cred ibility” is n ot in its elf significant. The Tennessee Rule requirement
that the court assess the “unfair prejudicial effect on the substantive issues” is more instructive, but
argu ably what is given through the use of the pre positiona l phra se “o n the subs tantiv e issu es” is
somewhat taken away by m odifyin g the phra se “p rejud icial ef fect” by the adje ctive “ unfa ir,” for in
proclaiming that it is the effect on the substantive issu es th at m ust b e ana lyzed, th e Ru le
acknowledges that som e pre judic e is fa ir and , hen ce, a cce ptab le. Th e long and s hort o f it is tha t if
Tennessee Rule 609(a)(3) purports to change the result in She ffield , as the Advisory Commission
Com men ts sugg ests , the R ule its elf fa ils to do so exp licitly. But see N. Cohen, D. Paine, and S.
Sheppeard, Tennessee Law of Evidence, § 609 .9 at 3 76 (3 ed. 1 995 ). Ce rtainly, t he ru le does not
limit the use of impeaching felonies to cases involving “dishonesty or false statement,” as is the case
with imp eaching misde mea nors. See Tenn. R. Evid. 609(a)(2).

          As a result, a much-maligned She ffield may yet re tain som e viability on this issu e. W e
emphasize that in She ffield our supreme court did apply the Morgan balancing test that was drawn
from Federal Rule of Evidence 609. Although the Tennessee rule adopted in 1990 featured the
above-described (and other) changes, the Sheffield court applied the same type of an alysis
contemplated by Tennessee Rule of Evidence 609. In fact, the supreme court in She ffield applied
the first prong of the test that was later promulgated in Farmer, acknowledging that “the predominant
consideration in weighing the admissibility of the manslaughter conviction was the similarity between
that prior c onvic tion a nd th e crim e for which defendant was on trial.” 676 S.W.2d at 549. Also the
court dealt with the relevancy of the impeaching conviction on the issue of cred ibility; ho weve r, it is
from this point tha t She ffield and Farmer take divergent paths. In She ffield the court said, “We had
no intention [in Morgan] of limiting the use of prior co nvictions to those c rimes involving dish onesty
or false statement and imposing such limitations on the determination of the probative value versus
the prejudicial effect . . . so that only crimes that involve a very close relationship to dishonesty or
false statement would be em braced therein.” She ffield , 676 S.W .2d at 549. The court approved the
use of a prior manslaughter conviction to impeach the defe nda nt-wit ness on trial for murder, and
while the court acknowledged that the issue presented “a very close result,” it found it was “una ble
to say that the trial judge abused his discretion in allowing the State to use the voluntary manslaughter
conviction for impeachm ent purposes.” Id. On the other hand, the Farmer approach degrades the
impeachment quality of the prior conviction if the conviction does not intrinsically sugg est disho nesty
or false statem ent. For c omp arison, see, e.g., Steve Johnson, slip op. at 7; State v. Harry Garvin, Jr.,
No. 02C01-930 8-CC-00193 , slip op. at 1 (Tenn. Crim. App., Jackson, O ctober 12, 1994).

          Under She ffield , the extra- dishone sty evidenc e that m ay justify impeachment is a prior
conviction that shows “disregard of legal and moral rules of civilized society and serious enoug h to
be punishable by imprisonm ent in excess of o ne year.” She ffield , 676 S.W .2d a t 549 . W hile th is
rubr ic sounds like a thres hold for inje cting prop ensity evidence, we believe the court in She ffield was
ruminating about impeaching credibility as an end result, although mounting a credibility attack
through disparaging one’s moral fitness (a return to moral turpitude?) concededly calls for a narrow
and fine distinction from propensity evidence. Still, as noted above, Tennessee Rule 609(a) does not
limit the impeachment use of fe lonies to tho se con victions tha t involve dish onesty or fa lse statem ent.

          S om e clues exist to suggest the survival of She ffield . First, it is a decision of the highest
court of our sta te that per se has not been overruled. Second, while the legal conclusion reached
may be at variance with the conclusion in Farmer, She ffield in a se nse is not inim ical to the tw o-
pronged test adopted in Farmer, although, under Farmer’s second prong, the relevance test for the
impeaching conviction on the issue of credibility is more liberal under She ffield . Thir d, po st-R ule
cas elaw --in fact, cas elaw that is subsequent to Farmer--indulges the trial court’s discretion in allowing
the prior e viden ce, e ven th oug h the prior c onvic tion o ffen se did not inv olve d isho nes ty per se and the
impeaching offense was similar to the offense on trial. In Blanton, 926 S.W.2d 953, a prosecution
for aggravated rape , this court approved the trial court’s admission of the potential defendant-witness’
prior murder conviction. We held that there was sufficient dissimilarity to preclude unfair prejudice,
but we further commented that “this court has held that ‘felonies of a violent nature reflect on the
mo ral ch arac ter of a witn ess ’; and, there fore , ‘this evide nce is not usua lly witho ut pro bative value .’”
Blanton, 926 S.W.2d at 960 (quoting State v. Wiggins, 729 S.W.2d 291, 294 (Tenn. Crim . App. 1984),
a pre-rule case). “Accordingly,” we said in Blanton, “we c onc lude t hat th e trial c ourt d id not err in
finding the appellant’s conviction for second degree murder more probative as to credibility than
prejudicial as to a su bstantive issue.” Blanton, 926 S.W .2d at 960 (empha sis added). See State v.
Collier V. Ha rris, No. 02C01-9612-CR-00447, slip op. at 3-9 (Tenn. Crim. App., Jan. 15, 1998)
(affirming trial court’s Rule 609 decision, in a rape case, to allow impeachment of the defendant
witness via a prior murder conviction, commenting that “[t]he mere fact a prior conviction of the

                                                            75
                  Second, Strickland prejudice is not present because there was no showing

that, had the prior conviction not been used, the verdict on guilt would have been different.

The evidence against the defendant was prodigious. According to the state’s evidence,

the defendant expressed his animosity for the victim to his wife and later admitted having

killed the victim to his wife and a co-worker. Bone fragments were found in an area where

the defendant told his wife he had burned the victim’s body. The murder weapon the

defendant told his wife he used, a small rocking chair, was missing from the victim’s home

after the victim’s disappearance. The defendant admitted being with the victim on the

evening the state theorized the victim was murdered, and the defendant endorsed the

victim’s paycheck on the same date. The defendant’s alibi for the time of the murder could

not be corroborated. Moreover, the defendant’s prior conviction was not the cornerstone

of the state’s impeachment of him. To be sure, the defendant gave conflicting extra-judicial

statements, and his trial testimony further conflicted with his pre-trial statements. Through

his own inconsistency, he demonstrated his lack of credibility. Furthermore, the record

reflects that several of the jurors who were accepted by the defense and who ultimately sat

on the jury panel were aware of the defendant’s prior second-degree murder conviction or

the facts which gave rise to it. Given the state’s mountain of evidence against the

defendant, the defendant’s comparatively implausible testimony (particularly in light of his

contradictory pre-trial statements), and the jury’s independent awareness of the



accused is identical or similar to the offense for whic h the acc use d is being tried does not, as a matter
of law, bar the use of th e convic tion to impeach the accused as a witness,” and finding no abuse of
discretion). In Tune, 872 S.W.2d 922, this court obse rved that u nde r Rule 609( a)(3 ) a crim e
pun isha ble by death or imprisonment in excess of one year may be admissible “regardless of whether
the crime involved dis hones ty or false sta teme nts,” so long as the ba lancing tes t is met. Tune, 872
S.W.2d at 927. Moreover, we relied upon She ffield in Tune for the proposition that there are no
“spe cific guidelines to be used by trial judges in weighing the probative value of convictions against
their prejudicial effect,” such that the issue is pro perly entrusted to “the discretion of the trial judge
who is in the best position to make such an eva luation.” Tune, 872 S.W.2d at 927 (citing State v.
She ffield , 676 S.W.2d at 548-9). (In Tune, we fo und the d eterm inatio n to b e with in the trial co urt’s
discretion and left undisturbed that court’s ruling that prior drug convictions were admissible for
impeaching the defen dant-witness in a prosecution for mu rder.)

          There is consensus in the cases, at least, for the rule that the decis ion w heth er to a dm it
evidence under Rule 609(a)(3) is entrusted to the discretion of the trial court. She ffield , 676 S.W.2d
at 549; Blanton, 926 S.W .2d at 960 ; Robert Harrison Blevins, slip op. at 9; Jerry Lee Finch, slip op.
at 7. In this footnote we have reviewed the currenc y of som e case law which suppo rts the theoretical
Rule 609 decision of the court below that the defendant’s prior conviction would be admissible. The
existence of such caselaw tends to anchor the lowe r cou rt’s de cisio n with in the ra nge of its a llowa ble
discretion. This is true despite commentary to Rule 609 that disparages the She ffield approa ch to
impeaching the defendant-witness through a prior conviction for an offense similar to the crime on
trial, when the prior offense is not intrinsically suggestive of dishonesty, and despite the emergence
of caselaw that reaches a conclusion seemingly at odds with She ffield .

                                                         76
defendant’s criminal past, we are convinced it is not probable the outcome of the trial

would have been different if this line of impeachment had not been pursued.

See Strickland, 466 U.S. at 693, 104 S.Ct. at 2065. As such, defendant’s claim of

ineffective assistance in this regard must fail.



                     IX. JURY INSTRUCTIONS AT SENTENCING PHASE



                 The defendant raises several challenges to the trial court’s instructions to the

jury during the sentencing phase. First, he contends that the trial court erred by instructing

the jury on the heinous, atrocious, or cruel aggravating factor. Specifically, the defendant

argues that the evidence was insufficient to support a finding of either torture or depravity

of mind and that the definitions given in the jury charge were unconstitutionally vague and

overbroad and did not provide the jury with adequate guidance in applying this aggravating

factor.



                 The jury was instructed on the heinous, atrocious, or cruel aggravating

circumstance as set forth in Tennessee Code Annotated section 39-2-203(i)(5)(1982),7

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

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

          You are hereby instructed that the word, heinous, means grossly wicked or
          reprehensible, abominable, odious, vile. Atrocious means extremely evil or
          cruel, monstrous, exceptionally bad, abominable. Cruel means disposed to
          inflict pain or suffering; causing suffering, or painful. Torture means the
          infliction of severe physical or mental pain upon the victim, while he or she
          remains alive and conscious. And depravity means moral corruption, wicked,
          or perverse acts.



                 Our supreme court has consistently held that the language of Tennessee

Code Annotated section 39-2-203(I)(5)(1982) is not unconstitutionally vague or overbroad.

State v. Dicks, 615 S.W.2d 126, 131-32 (Tenn.); See also State v. Black, 815 S.W.2d 166,

          7
          Tennessee Code Annotated section 39-13-204(I)(5), effective November 1, 1989, states that the
murder was especially heinous, atrocious, or cruel in that it involved torture or serious physical abuse beyond
that necessary to produce dea th. Although the trial was held in 1991, the murder was committed in 1986.
Acc ordin gly, the ju ry was prop erly charged as to the “torture or depravity of mind” standard in existence at the
time of the crim e. See State v. Cazes, 875 S.W .2d 253, 2 67 (Te nn. 1994 ), cert. denied, 513 U.S. 1086, 115
S. Ct. 743, 1 30 L.Ed .2d 644 ( 1995); State v. Sm ith, 893 S.W.2d 908, 920 (T enn. 199 4), cert. denied, ---- U.S.
----, 116 S. Ct. 99, 133 L.Ed.2d 53 (1995).

                                                        77
181 (Tenn. 1991); State v. Barber, 753 S.W.2d 659, 670 (Tenn.). Specifically, in State v.

Williams, 690 S.W.2d 517 (Tenn. 1985), our supreme court found the statute to be

constitutional "so long as the abstract terms employed therein are construed and

interpreted” as set forth in its opinion. Id. at 533. The trial court in Williams failed to

“instruct the jury concerning the legal significance of the words 'heinous,' 'atrocious,' 'cruel,'

'torture,' or 'depravity of mind' as those terms are used in the aggravating circumstance

defined in Tennessee Code Annotated section 39-2-203(i)(5)." Id. at 532. The Court

determined that jury instructions on the definitions are necessary to preclude "a basically

uninstructed jury" that "cannot lawfully impose the death penalty." Id. (citing Godfrey v.

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

court clearly instructed the jury in accordance with the dictates of Williams.



               The defendant’s reliance on Houston v. Dutton, 50 F.3d 381, 387 (6th Cir.),

cert. denied, --- U.S. ---, 116 S. Ct. 272, 133 L.Ed.2d 193 (1995), and Rickman v. Dutton,

854 F. Supp. 1305, 1309-10 (M.D. Tenn. 1994), is also without merit. These cases are

distinguished in that the definitions of “torture” and “depravity” were not supplied to the jury

in those cases. Regardless, this court is not bound by the circuit and district courts’ rulings.

This Court is only required to follow the applicable constitutional rulings of the United

States Supreme Court. See State v. McKay, 680 S.W.2d 447, 450 (Tenn. 1984); State v.

Bowers, 673 S.W.2d 887, 889 (Tenn. Crim. App. 1984). See also, State v. Vickers, 159

Ariz. 532, 768 P.2d 1177, 1188 n.2 (1989) (Arizona Supreme Court refuses to follow Ninth

Circuit's invalidation of Arizona death penalty statute).



               In addition, the defendant’s other constitutional challenges to the jury

instructions at the sentencing hearing have all been rejected by our supreme court and are

without merit. See, e.g., State v. Brimmer, 876 S.W.2d 75, 81-83, 87 (Tenn. 1994); Cazes,

875 S.W.2d at 268-69; Howell, 868 S.W.2d at 257-58; Smith, 857 S.W.2d at 22-23; Harris,

839 S.W.2d at 75; State v. Boyd, 797 S.W.2d 589, 598 (Tenn. 1990); Thompson, 768

S.W.2d at 250-52; State v. Barber, 753 S.W.2d 659, 670-71 (Tenn. 1988).




                                               78
                      X. INEFFECTIVE ASSISTANCE OF COUNSEL



               In another issue, the defendant raises several claims of ineffective assistance

of counsel.     Some of these have already been addressed in conjunction with the

substantive issues. We find the defendant’s claims demonstrate no basis for reversible

error.



               As we explained above, when a defendant seeks relief on the basis of

ineffective assistance of counsel, he must first establish that the services rendered or the

advice given was below "the range of competence demanded of attorneys in criminal

cases." Baxter, 523 S.W.2d at 936. Second, he must show that the deficiencies "actually

had an adverse effect on the defense." Strickland, 466 U.S. at 693, 104 S. Ct. at 2067.

There must be a reasonable probability that but for counsel’s error, the result of the

proceeding would have been different. Strickland, 466 U.S. at 694, 104 S. Ct. at 2068;

Best, 708 S.W.2d at 422. Should the defendant fail to establish either factor, he is not

entitled to relief.



               Moreover, on appeal, the findings of fact made by the trial court are

conclusive and will not be disturbed unless the evidence contained in the record

preponderates against them. Rhoden v. State, 816 S.W.2d 56, 60 (Tenn. Crim. App.

1991); Brooks v. State, 756 S.W.2d 288, 289 (Tenn. Crim. App. 1988). The burden is on

the defendant to show that the evidence preponderates against those findings. Clenny v.

State, 576 S.W.2d 12, 14 (Tenn. Crim. App. 1978).



               After the initial motion for new trial was filed in this case, counsel was

substituted, and new counsel raised and presented proof on the issue of ineffective

assistance of trial counsel at the hearing on the motion for new trial.



               Jerry Colley, lead trial counsel, testified that he had practiced law for 43

years. He was appointed to represent the defendant in May 1991. On October 1, 1991,



                                              79
he filed an ex parte motion requesting funds for associate counsel and for an investigator.

After the motion was granted, Dan White was hired as an investigator. Lawrence Nickell

was originally appointed as co-counsel; however, he became ill after November 13, 1991,

and Jerry Colley’s son, John Colley, was appointed. As co-counsel, Nickell researched the

law, filed motions, and sometimes appeared with Jerry Colley in court. John Colley did

most of the research after he was appointed.



              Shortly after Jerry Colley was appointed as counsel, he received a letter from

Robert D. Massey, who served as Public Defender for the Twenty-Second Judicial District

from September 1987 to August 1992 and who represented Pete Bondurant in the Dugger

trial. In his letter, Massey indicated that he and Bobby Sands, who represented the

defendant in the Dugger trial, had relevant information for this trial, offered his assistance,

and suggested that counsel contact CCRC. Colley talked to Sands and to Massey about

the Dugger case. He later received another letter from Massey along with a group of the

defendant’s medical reports from the Tennessee Department of Correction (TDOC). While

Colley looked at these records and considered whether they would be helpful at the guilt

phase, he did not introduce them at trial, nor did he investigate them further. A TDOC

diagnostic report was included in the evidence at the hearing on the motion for new trial.



              The rate of attorney compensation was $30 for in-court hours and $20 for

out-of-court hours. Colley testified that the low compensation did not affect his ability to

provide adequate representation of the defendant and that he spent a substantial amount

of time on the case. He believed he did virtually everything he should have done.



              As part of his investigation, White talked to potential witnesses and reported

to Colley. If they decided to use a witness, Colley would call the person. Colley’s defense

theory was that the defendant was innocent. From his investigation, Colley did not believe

the defendant had a motive to kill the victim and thought there was a reasonable doubt

concerning whether the defendant committed the murder. Colley thought they had a good

chance of getting a not guilty verdict or a hung jury because the state would have a



                                              80
problem proving the defendant’s guilt beyond reasonable doubt. Even after reviewing the

discovery, Colley believed their best strategy was reasonable doubt. He testified, “I

thought we had a good chance of at least a hung jury or a not guilty verdict, and I was

going for broke on that.”



              When Colley met with the defendant at TDOC, Colley was operating on a

theory of reasonable doubt acquittal and communicated this theory to the defendant.

During their conversations, Colley questioned the defendant and thought that, if there had

been a contrary factual version of the alleged crime, the defendant would have told him.

Colley never directly asked the defendant if he killed the victim, nor did he encourage the

defendant to say that he was involved. In fact, Colley testified that his optimism and

enthusiasm about their chances could have discouraged the defendant from saying he was

involved in the murder.



              Colley recognized that Denise’s testimony was important to the state’s case

because she was the only one that testified about the details of the murder. He also knew

Denise had been a key witness in the Dugger trial, however, he did not obtain a copy of

her testimony. Nor did he know about or obtain a copy of a videotape of the Dugger trial.

Although the other attorneys may have told him about what they used to impeach Denise

in the Dugger trial, Colley did not know about such documents or information and did not

think he used any of it. Colley testified that he did not look at a list of money paid to

Denise, her immunity agreement, her certified convictions in Tennessee and Alabama, or

her juvenile record. He was aware of the worthless checks used for impeachment of

Denise Bondurant in the Dugger case; however, he was not interested in those because

he did not want to question her regarding her testimony in the Dugger case, even though

he acknowledged that the door would not have been opened to the facts of the Dugger

case if he had impeached Denise with these materials.



              White was not instructed to investigate in preparation for the sentencing

hearing. Colley talked to the defendant and his parents before and during the trial about



                                            81
the defendant’s life, his drinking habits, his work ethic, and his family life, but it was not for

the purpose of having them testify, and he admitted that these conversations were not with

the idea that he was going to use the information at sentencing.



               Colley testified he was not planning on going to the sentencing stage

because he was confident enough about the trial. Other than talking to the defendant’s

mother while the jury was deliberating in the guilt phase, Colley testified that he did not do

anything to prepare for the sentencing hearing.



               John Colley was admitted to the bar in October 1986 and practiced law with

his father. Prior to Nickell becoming unavailable, John Colley assisted his father on this

case, including research on a motion to dismiss based on a speedy trial issue. John Colley

filed the memorandum in support of a marital privilege motion and the motion to suppress.

The weekend before trial, John Colley started working on his cross-examination of the

state’s expert witness, Dr. Bass, and he worked on the motion to suppress, which was

argued that Monday morning.



               During November and December of 1991, John Colley’s calendar was filled

with court appearances, appointments, and depositions, and he only joined Jerry Colley

in this trial when he was not scheduled to be somewhere else. He admitted that he could

not afford to neglect the firm’s other business by working too much on this case. John

Colley was not aware of and did not participate in any preparation for the sentencing

hearing. He remembered having at least one conversation with Massey, who said he had

a lengthy list of mitigating factors that would apply to the defendant; however, this

information was never pursued.



               Massey talked on the phone with Jerry Colley about this case and offered

information that could be used in mitigation. However, Colley said he did not feel like he

was going to get to sentencing, that he was going for an acquittal. The public defender’s

office did fax some information about sentencing to the Colleys’ office while the jury was



                                               82
out in the guilt phase. However, Colley never asked prior to trial for information regarding

mitigating proof or regarding what needed to be done at the sentencing hearing.



                 In denying the motion for new trial, the trial court made the following findings

on this issue:

       The Court has examined each and every instance cited by Defendant and
       disagrees with Defendant that he received ineffective assistance in any
       manner. Defendant was represented by one of the most experienced and
       talented defense attorneys in this State. It was his theory of the case, joined
       in by the Defendant that their best defense lay in casting reasonable doubt
       on the State[’]s case. They worked at that theory throughout the trial and
       most of the incidents now raised as constituting ineffective assistance of
       counsel result from that trial strategy. The Court finds this issue to be
       without merit and it is overruled.



                           A. Commencement of Representation.

                 First, the defendant argues that he was unrepresented by counsel for one

year from being indicted. The defendant points out that he was indicted on May 19, 1990,

and arraigned on June 22, 1990. At the arraignment, his attorney in the Dugger case,

Bobby Sands, stood with him but did not enter an appearance. Jerry Colley, lead trial

counsel in this case, testified that his first activity in the case was in May of 1991,

approximately six months before the trial.



                 The defendant does not allege that he requested an attorney during the time

he was unrepresented. Moreover, he does not show how he was prejudiced by this gap

in representation, nor does he cite authority on the point.



                 It may well be doubted that a criminal defendant is instantly entitled to

counsel upon entering the courtroom for the court to ascertain his identity and his indigency

status in order that counsel may be appointed for him. See State v. Miller, 668 S.W.2d

281, 286 (Tenn. 1984). Regardless, even assuming the defendant was entitled to counsel

once he had been indicted, see State v. Mitchell, 593 S.W.2d 280, 286 (Tenn.1980), the

absence of counsel here does not necessarily require that the conviction be set aside.

See State v. Sutton, 761 S.W.2d 763, 769 (Tenn. 1988). A reversal is only dictated when



                                                83
counsel is denied at some stage in the proceedings “in which opportunities are lost,

substantive or procedural rights are waived, or some action is not taken and the

consequences cannot be discerned from the record.” Id. at 769.



             In Brady v. State, 584 S.W.2d 245, 250 (Tenn. Crim. App. 1979), this court

held that adequate preparation time depends on each individual case. We find that

counsel had adequate time to prepare for trial. Moreover, we find that no rights were lost

between the time of the defendant’s arraignment and the appointment of counsel.



                        B. Absence of Effective Co-Counsel.

             Next, the defendant submits that lead counsel was essentially without co-

counsel, making him ineffective. Original co-counsel researched issues and made some

pre-trial appearances; however, he became ill and was relieved as counsel on the Friday

before trial. Trial counsel’s son, John Colley, was then appointed as co-counsel. Although

he already had a full schedule and only came to the trial when his schedule permitted, he

worked on several of the important motions, and he cross-examined the state’s expert

witness. We find that the defendant has failed to show deficient performance or prejudice.



             Lead counsel was supported at various times both prior to and during trial by

John Colley, Dan White, Bob Massey, and Larry Nickell. He also had contact with Skip

Gant at CCRC. The fact that lead counsel, who had 43 years of experience, did not share

the burden of representing the defendant equally with another in no way presents a case

for deficient performance. Moreover, the trial court observed that lead counsel was "one

of the most experienced and talented defense attorneys in this State.” The evidence does

not preponderate against the trial court’s finding. See Clenny, 576 S.W.2d at 14.



                       C. Guilt Phase Strategy, Investigation.

             The defendant argues next that trial counsel’s defense theory of reasonable

doubt was based on counsel’s failure to fully investigate his client and the case.

Specifically, the defendant contends that adequate investigation would have revealed that



                                           84
at the time of the murder, the defendant was living under stressful circumstances, he

suffered from extreme alcohol and drug dependency, he suffered debilitating physical

ailments, and he was intoxicated at the time of the offense, limiting his judgment and

rendering him incapable of premeditated and deliberate murder. Thus, the defendant

argues that the decision not to pursue a mental capacity defense at the guilt stage was not

an informed decision due to trial counsel’s failure to investigate his client’s mental state.

The defendant goes on to argue that trial counsel’s failure to investigate was exacerbated

by the fact that the evidence of the defendant’s involvement in the murder was strong.



              Trial counsel’s decision to pursue a reasonable doubt defense was clearly

a strategic choice. Moreover, we find that trial counsel’s decision to pursue this defense,

after reviewing the defendant’s TDOC medical records and determining that additional

investigation was unnecessary, was a reasonable decision as to the guilt phase. Trial

counsel investigated all potential witnesses, discussed the case with the defendant, and

talked with attorneys Massey and Sands. The defendant never indicated to trial counsel

that he committed the murder, and counsel was under no obligation to press his client to

confess. During his interviews with the defendant, trial counsel never saw the defendant

behave in a way that indicated to counsel he should pursue a mental capacity defense.



              Standing alone, the fact that a particular strategy or tactic failed or hindered

the defense does not establish unreasonable representation. Goad v. State, 938 S.W.2d

363, 369 (Tenn. 1996). Courts must give deference to strategic and tactical choices if they

are informed ones based on adequate preparation. Hellard v. State, 629 S.W.2d 4, 9

(Tenn. 1982). In the present case, the proof was all circumstantial, and it was not

unreasonable for counsel to pursue a strategy of poking holes in the state’s case. We find

that counsel’s strategic decision to follow a reasonable doubt defense and not to pursue

a mental incapacity defense was reasonable.



              As a related issue, the defendant contends that trial counsel was ineffective

by failing to accept available assistance. The defendant points to counsel’s failure to take



                                             85
advantage of assistance offered to him by District Public Defender Robert Massey and by

Capital Case Resource Center (CCRC). The defendant has neither shown that counsel’s

failure to fully utilize these resources was deficient nor that the claimed deficiency was

prejudicial.



                          D. Failure to Impeach Key Witness.

               Next, the defendant argues that trial counsel failed to investigate or take

advantage of available documents and information that could have been used to impeach

the testimony of Denise, the only witness who testified as to the details of the murder.

Specifically, the defendant points to several materials that were used in the Dugger trial to

impeach Denise’s credibility, including a fabricated application for an apartment lease filled

out by Denise, an immunity agreement given to Denise in return for her cooperation, a list

of money paid to or on behalf of Denise during the investigation, certified convictions from

Alabama and Tennessee, her juvenile record, information about forged and worthless

checks, and information that Denise had used aliases to obtain prescription drugs.



               Massey offered to provide the same documentation and information to Colley,

who did not pursue it for use in this case. Clearly, failing to explore the use of these

documents and information in order to impeach Denise, the state’s only witness concerning

the facts and circumstances of the murder, fell below "the range of competence demanded

of attorneys in criminal cases." Baxter v. Rose, 523 S.W.2d 930, 936.



               We find, however, that the defendant has failed to show prejudice and is

entitled no relief. See Strickland, 466 U.S. at 693, 104 S. Ct. at 2067. At trial, Denise

admitted on the stand that she had lied to law enforcement officers when they initially

questioned her about the victim’s disappearance, that she had used drugs, and that she

had been involved in the cover-up of this murder, albeit due to her fear of the defendant.

It is clear from our review of the record that Denise’s character did not remain untarnished.

While trial counsel should have investigated further all possible impeachment information,

especially since it had already been collected for use at the Dugger trial, we do not find that



                                              86
the defendant was prejudiced by this failure.



    E. Failure to Prepare for and Present Evidence at the Sentencing Hearing.

              Next, the defendant argues that trial counsel was ineffective by failing to

expect, anticipate, or prepare for the sentencing hearing.



              In death penalty cases, the sentencer may not be precluded from considering

any aspect of a defendant’s character or record as a basis for a sentence less than death.

Lockett v. Ohio, 438 U.S. 586, 604-05, 98 S. Ct. 2954, 2964-65 (1978) (plurality opinion);

see also Johnson v. Texas, 509 U.S. 350, 361, 113 S. Ct. 2658, 2666 (1993). The United

States Supreme Court has held that mitigating evidence is relevant to sentencing hearings

and should be heard. See California v. Brown, 479 U.S. 538, 541, 107 S. Ct. 837, 839

(1987); Eddings v. Oklahoma, 455 U.S. 104, 113-15, 102 S. Ct. 869, 876-77 (1982).



              There is no legal requirement and no established practice that the accused

must offer evidence at the penalty phase of a capital trial. State v. Melson, 772 S.W.2d

417, 421 (Tenn. 1989). In fact, in many death penalty cases, counsel has properly seen

fit not to offer any evidence at the penalty phase. Melson, 772 S.W.2d at 421 (citations

omitted); see also State v. Zagorski, 701 S.W.2d 808 (Tenn. 1985).



              However, “[a] strategy of silence may be adopted only after a reasonable

investigation for mitigating evidence or a reasonable decision that an investigation would

be fruitless." Tafero v. Wainwright, 796 F.2d 1314, 1320 (11th Cir.1986). Courts have

held counsel's representation beneath professionally competent standards when

sentencing counsel did not conduct enough investigation to formulate an "accurate life

profile" of a defendant. Jackson v. Herring, 42 F.3d 1350, 1367 (11th Cir.), cert. dismissed

sub nom. Jackson v. Jones, --- U.S. ---, 116 S. Ct. 38 (1995).



              To prove that counsel was ineffective by failing to present mitigating proof,

the defendant presented the testimony of several witnesses who he maintains should have



                                            87
been called to testify at the sentencing hearing.8 All of these witnesses testified at the

hearing on the new trial motion that they had been available and would have been willing

to testify at the defendant’s trial. In addition, the defendant introduced into evidence

several affidavits from family members, friends, teachers, prison guards, and professionals

who had observed, treated or evaluated the defendant.



               The defendant’s uncle and first cousin by marriage testified to various

aspects of the defendant’s childhood and adolescence, including his parents’ tendency to

reject criticism of the twins and to accept the twins’ version of disputed events, resulting

in the twins’ belief that they could get away with anything. The defendant’s father drank

heavily at times and had “temper fits” with the twins when they were children. Generally,

however, the parents did not physically abuse the twins, although the parenting style

included yelling, cursing and ridiculing the children. Being overweight, the twins struggled

to establish wholesome peer relationships and sometimes associated with the wrong crowd

in order to gain acceptance.



               Co-workers of the defendant characterized him as being generous, helpful,

polite, trustworthy, and committed to his son.             However, they also testified to the

defendant’s prodigious consumption of alcohol, marijuana, and other narcotics, as well as

his fondness for standing over the paint tank at work, huffing the fumes to get a “buzz.”



               Dr. Murray Smith, an expert in addiction medicine, testified that, based upon



       8
         We discern from the record a non-contentious approach by the state in allowing the
defense to demonstrate its possible proof on the issue of ineffective assistance of counsel.
While we think it improper for us to comment specifically, we observe that, during the
presentation of the defendant’s proof at the hearing on the motion for new trial, the state
chose not to challenge evidence even when a good faith challenge was presentable. We
recognize that, because the effectiveness of counsel was raised in the motion for new trial,
the hearing on the motion for new trial was a forum for the defendant to present putative or
possible evidence and that, were a new trial and/or sentencing hearing to be ordered, the state
would be free to challenge the admissibility of proof according to the applicable rules of
evidence. However, appellate review is not fostered where the prosecutor fails to maintain
trial-level adversarial intensity during the defendant’s presentation of evidence on the issue
of ineffective counsel. We believe the interests of justice are better served where the
prosecutor actively seeks to limit the defendant’s proof to those matters admissible under the
Rules of Evidence.

                                                 88
his review of the defendant’s medical records, affidavits of witnesses, lab tests results, and

an interview with the defendant, the defendant was toxically poisoned from the tremendous

use of multiple drugs. He found that the defendant suffered from morbid obesity since

childhood, had developed hepatitis between 1985 and 1987 from intravenous drug use,

and that this disease led to cirrhosis. In 1991 the defendant was diagnosed as diabetic.

The defendant was dependent upon alcohol, benzodiazepines, speed, amphetamines, and

marijuana, but that he also used LSD and took narcotics intravenously. Dr. Smith opined

that the various addictions and related problems affected the defendant’s mental and

emotional functioning, resulting in emotional instability, episodes of anxiety and depression,

outbursts of anger, and instances of amnesia. Dr. Smith testified the effect of stimulants

taken by the defendant would be to make him hyper, irritable, aggressive, paranoid, and

suspicious. The defendant took six to eight times the prescribed dosages of some legend

drugs and took ten times more drugs that the average person. In addition to the alcohol

and illicit drugs, the defendant abused Halcion, Didrex, Preludin, Fastin, Lonamin, Valium,

Phenobarbital, Seconal, Demeral, and Mepergan. Dr. Smith testified that the defendant

suffered from synergism, meaning that the combination of drugs he was taking multiplied

the effect of each drug. Dr. Smith stated that Denise Bondurant’s description of the murder

portrayed trance-like behavior characteristic of certain drug abuse. He opined that the

defendant would have been unable to inhibit feelings of rage.



              Dr. Gillian Blair, a psychologist, testified she conducted a psychological

assessment of the defendant. She opined that, at the time of the murder, the defendant

was severely disturbed and lacked the capacity to conform his behavior as a function of

substance dependency and intoxication.            She testified that detrimental parenting

techniques and the defendant’s obesity and psoriasis resulted in dependency on drugs and

alcohol by the age of twelve.       These factors arrested the defendant’s personality

development, explaining why the defendant is impulsive, has difficulty in delaying

gratification, and has bad coping mechanisms. Dr. Blair testified the defendant was further

destabilized emotionally by the stress of his marriage to Denise and the difficulties of

coping with the disabilities of their son. She opined that this stress would fuel the



                                             89
defendant’s drug and alcohol dependency.



              In denying the motion for new trial, the trial court disagreed with the claim that

the defendant received ineffective assistance of counsel during the sentencing phase.

Characterizing Jerry Colley as “one of the most experienced and talented defense

attorneys in this State,” the trial court yielded to Mr. Colley’s strategy to cast “reasonable

doubt on the State[’]s case,” noting that the defense “worked at that theory throughout the

trial.”



              We begin our inquiry by revisiting some of the constitutional dynamics

established by the United States Supreme Court. In Strickland v. Washington, 466 U.S.

668, 104 S. Ct. 2052 (1984), the court, in reversing the 11th Circuit’s approval of a habeas

corpus claim, denied Strickland’s claim that, in a capital sentencing proceeding, he had



received prejudicial ineffective assistance of counsel. The court noted that, after a guilty

plea and in preparation for sentencing, defense counsel spoke with the petitioner’s wife

and mother but “did not otherwise seek out character witnesses,” nor “request a psychiatric

examination,” nor “present and hence look further for evidence concerning respondent’s

character and emotional state.” Strickland, 466 U.S. at 673, 104 S. Ct. at 2057. The court

promulgated its well-known, two-pronged test for assessing claims of ineffective assistance

of counsel, applicable in a capital sentencing proceeding as much as at trial, whereby the

defendant must show (1) that counsel failed to perform reasonably under the

circumstances, Strickland, 466 U.S. at 687-688, 104 S. Ct. at 2064-2065, and (2) that the

deficient performance prejudiced the defendant. Strickland, 466 U.S. at 687, 104 S. Ct.

at 2064.



              The scrutiny of counsel’s performance must be “highly deferential,” and the

reviewing court must refrain from concluding “that a particular act or omission of counsel

was unreasonable” merely because the strategy employed was unsuccessful. Strickland,

466 U.S. at 689, 104 S. Ct. at 2065. “A fair assessment,” the court said, entails making



                                              90
every effort to “eliminate the distorting effects of hindsight” and evaluating the “conduct

from counsel’s perspective at the time.” Id. The court promulgated a “strong presumption

that counsel’s conduct falls within the wide range of reasonable professional assistance....”

Id. The court added:

              [S]trategic choices made after thorough investigation of law and
              facts relevant to plausible options are virtually unchallengeable;
              and strategic choices made after less than complete investigation
              are reasonable precisely to the extent that reasonable professional
              judgments support the limitations on investigation. In other words,
              counsel has a duty to make reasonable investigations or to make
              a reasonable decision that makes particular investigation unnecessary.

              In any ineffectiveness case, a particular decision not to investigate
              must be directly assessed for reasonableness in all the circumstances,
              applying a heavy measure of deference to counsel’s judgments.


Strickland, 466 U.S. at 690-991, 104 S. Ct. at 2066. The court acknowledged that “inquiry

into counsel’s conversations with the defendant may be critical to a proper assessment of

counsel’s investigation decisions ....” Strickland, 466 U.S. at 691, 104 S. Ct. at 2066.



              With respect to the prejudice prong of ineffective assistance of counsel, the

court said showing that “errors had some conceivable effect on the outcome of the

proceeding” is insufficient. Strickland, 466 U.S. at 693, 104 S. Ct. at 2067. Rather, the

defendant must show there is a “reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceeding would have been different.             A

reasonable probability is a probability sufficient to undermine confidence in the outcome.”

Strickland, 466 U.S. at 694, 104 S. Ct. at 2068. In assessing the claim of prejudice, the

“court should presume, absent challenge to the judgment on grounds of evidentiary

insufficiency, that the judge or jury acted according to law.” Id. The reviewing court must

consider the ”totality of the evidence before the judge or jury” and should take into account

the relative strength or weakness of the evidence supporting the verdict or conclusion.

Strickland, 466 U.S. at 695, 104 S. Ct. at 2069.



              In Strickland, the court held both that Strickland’s counsel’s performance

“cannot be found to be unreasonable” and, even if not reasonable, that Strickland “suffered

insufficient prejudice to warrant setting aside his death sentence.” Strickland, 466 U.S. at


                                             91
698-99, 104 S. Ct. at 2070. As to performance, the decision to disdain “more character or

psychological evidence” was reasonable.         As to prejudice, the court noted that the

possibility of psychiatric testimony that the defendant was under “considerable emotional

stress that did not give rise to the level of extreme disturbance” created no reasonable

probability of a different outcome, especially in light of the “overwhelming aggravating

factors” present in that case. Strickland, 466 U.S. at 700, 104 S. Ct. at 2071.



              Against the backdrop of Strickland, the Tennessee Supreme Court has

recently decided two post-conviction death-penalty cases in which different results were

reached, Goad v. State, 938 S.W.2d 363 (Tenn. 1996), reversing the imposition of the

death penalty, and Henley v. State, --- S.W.2d ---, No. 01S01-9703-CC-00056 (Tenn. Dec.

15, 1997), affirming the imposition of the death penalty. Both of these post-conviction

cases involved allegations of ineffective assistance of counsel preparatory to and during

the sentencing phase of a capital case in which the death penalty was imposed.



              In Goad, defense counsel wished to offer mitigating proof at the sentencing

hearing that the defendant was affected by post-traumatic stress syndrome which resulted

from his tour of military duty in Vietnam. The defense attempted to offer the testimony of

an expert witness, but the trial court disallowed the evidence. On direct appeal, the

Tennessee Supreme Court remanded the matter to allow the defendant to develop a

sufficiently detailed offer of proof of the expert’s proposed testimony. At the remand

hearing, counsel offered neither the testimony of the expert nor the testimony or report of

a second doctor who performed a psychological evaluation of the defendant. See State

v. Goad, 707 S.W.2d 846, 854 (Tenn. 1986). The trial court found on remand that counsel

had not “‘actually prepared to offer the testimony of [the expert they attempted to rely upon]

and that [this expert] was not prepared to testify that the defendant suffered from post-

traumatic stress syndrome.’” Goad, 938 SW.2d at 366. The report of the second doctor

was not entered into evidence on remand, even though it reflected that the defendant had

a well-documented history of several traumatic, combat-related episodes, sufficient, it

seems, to have supported the approval of a service-related disability through the Veterans



                                             92
Administration.9 Goad, 938 S.W.2d at 366-67. All of this came to light at the post-

conviction hearing where, in addition, the diagnosis of post-traumatic stress disorder was

affirmed by a third expert who characterized the traumatic events suffered by Goad in

Vietnam as “catastrophic.” Id. at 368.



              After reviewing the applicable standards for counsel’s performance in the

context of a capital sentencing proceeding, including the rule that there is no requirement

that counsel present mitigating evidence in a capital sentencing proceeding, id. at 369-70,

the court reflected upon a teaching of California v. Brown, 479 U.S. 538, 544, 107 S. Ct.

837, 841 (1987), that “‘evidence about the defendant’s background and character is

relevant because of the belief . . . that defendants who commit criminal acts that are

attributable to a disadvantaged background, or to emotional and mental problems may be

less culpable than defendants who have no such excuse.’” Goad, 938 S.W.2d at 369.



              In Goad, our supreme court ruled that counsel’s performance was deficient

in that counsel “failed to adequately investigate and explore mitigating evidence” relative

to the expert’s report on the defendant’s mental disorder and that, “[m]oreover, counsel’s

failure to adequately investigate and prepare’‘ for the use of an expert witness and/or the

report resulted in counsel’s failure to discern the availability of a second expert who, in

fact, was better qualified than the one counsel ineffectually planned to use. Id. at 370.

The court noted that these errors were compounded by counsel’s failure to present the two

possible experts as witnesses at the remand hearing. Such deficient performance was

then determined to be prejudicial under Strickland after assessing the following factors: (1)

the nature and extent of available mitigating proof; (2) whether substantially similar proof

was otherwise presented to the trier of fact; and (3) whether there was strong evidence of

aggravating factors so that “the mitigating evidence would not have affected the jury’s

determination.” Id. at 371.




       9
         There was conflicting evidence on the issue of whether counsel had this report at
trial. See Goad, 938 S.W.2d at 367.

                                               93
              Applying these factors, the court found that the nature and extent of the

proposed mitigating evidence was significant, establishing “a psychological cause and

effect between Vietnam and Goad’s later behavior.” Id. Next, the court found that there

was no other evidence before the jury equivalent to the evidence of the psychological

disorder which the expert witness(es) could have established. Id. at 373. Finally, the court

found that the proposed mitigating proof would have had an impact upon the single

aggravating factor found by the jury, that the defendant was “‘previously convicted of one

or more felonies, other than the present charge, which involved the use or threat of

violence to the person.’” Id. at 372; see Tenn. Code Ann. § 39-2-203(I)(2) (1982) (repealed

1989). The court reached this conclusion after observing that the onset of the post-

traumatic stress disorder was prior to the commission of the violent felonies and could have

mollified the effect of those felony offenses as aggravators. Id. at 372-73. Furthermore,

the court noted that, even without the mitigating proof, “the jury reported to the trial court

they were deadlocked on the question of punishment four hours after retiring to deliberate.”

Id. at 372-73. Once again, the court referred to the likelihood that Goad would have

received a new sentencing hearing after the remand hearing but not for the continued

deficient performance of counsel in failing to prepare a proffer of expert evidence for the

remand hearing. For these reasons, a new sentencing hearing was ordered.



              In Henley, the defendant was convicted of aggravated arson and two counts

of premeditated murder. “At trial Henley maintained his innocence and attempted to

discredit the prosecution’s evidence ....” Henley, --- S.W.2d at ---, slip op. at 4. The

defendant testified and denied involvement in the crimes. At the capital sentencing

hearing, the defense called the defendant’s mother to the stand. In the presence of the

jury, she disrupted her own testimony by announcing that she wanted “to talk to” defense

counsel. A recess was had, following by the defense resuming its proof by calling the

defendant’s grandmother, without explaining the failure of the defendant’s mother to return

to the stand. The grandmother testified to various attributes of the defendant, and the

defendant himself testified about a financial reversal that caused him to lose his

grandfather’s farm. Id., slip op. at 5. The jury sentenced the defendant to death, based



                                             94
upon finding one aggravating factor in each homicide, that each murder was “‘especially

heinous, atrocious, or cruel in that it involved torture or depravity of mind.’” Id., slip op. at

7; see Tenn. Code Ann. § 39-2-203(I)(5) (1982) (repealed 1989). In his post-conviction

proceeding, Henley alleged his counsel failed to investigate and prepare for the sentencing

hearing, including the claims that counsel failed to investigate his mental condition and

request an appropriate evaluation.



              At the post-conviction hearing, Henley presented two expert witnesses: (1)

an attorney, who testified that trial counsel should have used a psychologist to assist in

determining if mitigating proof might be feasible for the penalty phase; and (2) a

psychiatrist, who interviewed Henley and testified that, at the time of the offenses, he

suffered from depression and may have been “‘self-medicating’ by using alcohol and

drugs.” Id., slip op. at 11. This latter witness also found that Henley may have been

learning disabled and that such a learning disability may have been responsible for

Henley’s farming failure which, in turn, caused his depression. The trial court dismissed

the post-conviction petition. This court found prejudicial ineffective assistance of counsel

at the sentencing stage and remanded the case for a new sentencing hearing. The

supreme court, however, reversed this court and affirmed the trial court’s dismissal of the

post-conviction petition.



              In addressing the prejudice issue first, see Strickland, 466 U.S. at 697, 104

S.Ct. at 2069, the Henley court first found that any failure of counsel to call as witnesses

family members, some of whom testified at the post-conviction hearing about the positive

attributes of the defendant, was not prejudicial. Utilizing the first and second prongs of the

three-prong test provided in Goad, the court noted that the proposed evidence not only

duplicated but perhaps, due to its nature, would have attenuated the poignant testimony

of Henley’s grandmother. Further, regarding the nature of the proposed testimony, the

court acknowledged the principle of California v. Brown that a disadvantaged background

is often a proper source of mitigating evidence but expressed concern about the putative

witnesses having personal knowledge about Henley’s drug use at the time of the crimes.



                                               95
At this juncture the court declared that “[a]ppellate courts must consider the quality of the

proposed testimony rather than the quantity of witnesses when determining whether

prejudice has been established.” Henley, --- S.W.2d at ---, slip op. at 22.



               As to the third prong established in Goad, the Henley court observed that the

proof of the aggravating circumstance was strong. Id.             The defendant killed an elderly

couple. He shot them several times and then burned them by setting fire to their house.

The court found ample support for the single aggravator that the crime was especially

heinous, atrocious, or cruel, involving torture or depravity of mind. Id., slip op. at 22.10



               Despite the attainment of disparate results in Goad and Henley, the supreme

court did not indicate that it departed from the analysis utilized in Goad. Indeed, Henley

is replete with citations to Goad, and it applies the Goad three-prong analysis for

determining prejudice under the second Strickland prong. Clearly, the court’s view of the

facts in Henley warranted a different interpretation and different result than the facts in

Goad. With the guidance of these cases, we must determine the effect of the facts in the

present case.



               We undertake our task in the present case by determining initially whether

any deficient performance by trial counsel in failing to prepare and present evidence at the

sentencing hearing prejudiced the defendant. See Strickland, 466 U.S. at 697, 104 S. Ct.

2069. For the reasons given below, we conclude that no prejudice was shown and that,

accordingly, we need not evaluate counsel’s performance under Strickland’s first prong.


       10
           As to counsel’s failure to investigate Henley’s mental condition, including the
failure to seek an evaluation, the court acknowledged the Goad principle that the attorney has
a “duty of inquiry into a client’s mental health” when preparing for the penalty phase of a
capital trial, but the court amplified some of the teaching of Strickland that “‘when a
defendant has given counsel reason to believe that pursuing certain investigations would be
fruitless or even harmful, counsel’s failure to pursue those investigations may not later be
challenged as unreasonable.’” Id., slip op. at 24 (quoting Strickland, 466 U.S. at 691, 104 S.
Ct. at 2066). Henley denied involvement in the crimes and denied using drugs. The court
observed, “[T]he evidence for which trial counsel is now faulted for not discovering and
introducing would have been inconsistent with the defendant’s own testimony and harmful
to the defense theory throughout the trial.” Henley, --- S.W.2d at ---, slip op. at 24. Thus,
the court found that, with respect to the allegations of failing to investigate Henley’s mental
condition, there was no deficient performance under the first prong of Strickland.

                                                 96
See Strickland, 466 U.S. at 697, 104 S. Ct. at 2069.



              Analyzing the three Goad factors for determining prejudice, we look first at

the “nature and extent of the mitigating evidence that was available but not presented.”

Goad, 938 S.W.2d at 371. As noted above, the asserted mitigating factor in Goad was a

recognized mental illness, see American Psychiatric Ass’n, Diagnostic and Statistical

Manual of Mental Disorders § 309.81 (4th ed. 1994), whereas in the present case, an

addiction specialist testified only generally that, in combination with the defendant’s

physiological problems, the use of stimulants would have made the defendant paranoid

and suspicious. See State v. Alvin Robinson,Jr., No. 02C01-9608-CR-00280, slip op. at

9 (Tenn. Crim. App., Jackson, Dec. 3, 1997) (For purposes of defeating premeditation and

reducing first-degree murder to a lesser grade, “[t]estimony that a defendant suffers from

a personality disorder, rather than a mental disease or defect, fails to establish diminished

capacity.”); see also Strickland, 466 U.S. at 700, 104 S.Ct. at 2071 (“considerable

emotional stress that did not rise to the level of extreme disturbance” not sufficient in the

face of strong aggravating factors to demonstrate a probability that the use of the evidence

would have changed the outcome). Presented in this light, the witness merely described

symptoms of the chemical abuse practiced by this particular individual.



               Furthermore, our review of the “quality of the proposed testimony,” see

Henley, --- S.W.2d at ---, slip op. at 22, reveals significant differences in the evidence

proposed in Goad and in the present case. While serving in the military in Vietnam, Goad

endured several fire fights and, more particularly, experienced the death of three persons

close to him. While climbing an electric pole in Goad’s stead, one friend was shot, causing

him to grab a high voltage wire which propelled him from the pole with his fingers left

burned to the wire. In a second incident, Goad and a friend were pinned down by enemy

fire. Goad was splattered with what he thought was mud during the fire fight, but he later

discovered the substance to be his friend’s brains after the friend had been shot through

the head. In a third incident, Goad hid in a cellar of his Vietnamese girlfriend’s house while

the Viet Cong killed her by eviscerating her on the kitchen table above his hiding place.



                                             97
These were the events, coupled with Goad’s change in personality and behavior after

returning from southeast Asia, that formed the basis for the post-traumatic stress

diagnosis. Clearly, this factual background is palpably worthier of mitigation than are the

claims of the defendant in the present case that he is disadvantaged by his own self-

indulgent lifestyle.



              Indeed, upon review of the quality of the proposed evidence in the present

case, see Henley, --- S.W.2d ---, slip op. at 22, we cannot escape the conclusion that such

evidence does not reveal a “disadvantaged background,” nor does it suggest “emotional

and mental problems [that make the defendant] less culpable than defendants who have

no such excuse.” See Brown, 479 U.S. at 544, 107 S. Ct. at 841. There was no showing

that positive or redeeming evidence was available, other than the evidence presented

through the testimony of the defendant’s mother. Cf. Groseclose v. Bell, 130 F.3d 1161,

1170-71 (6th Cir. 1997) (At capital sentencing hearing, counsel failed to use proof that

Groseclose had no criminal record, was active in church, and had a positive record of

military service.). The proposed evidence, in addition to effectively belying the defendant’s

claim of innocence, amplifies the defendant’s repugnant personal habits. This court has

previously recognized that such proof has doubtful effect in “lessening [a defendant’s]

culpability in the eyes of the jury.” Ronald Richard Harries v. State, No. 03C01-9607-CR-

00276, slip op. at 16 (Tenn. Crim. App., Knoxville, July 30, 1997), perm. app. denied

(Tenn. 1997); see also Rickman v. Bell, 131 F.3d 1150, 1157 (6th Cir. 1997) (finding

deficient counsel’s performance where he “succeeded in creating a loathsome image for

Rickman -- one that would make a juror feel compelled to rid the world of him”).

Furthermore, had counsel investigated and discovered a witness such as Dr. Smith or Dr.

Blair, counsel would have necessarily considered the daunting prospect that such

proposed evidence would have invited cross-examination or rebuttal to show, as the

TDOC report suggests, that the defendant’s claims of reduced culpability were themselves

manifestations of his propensity to see himself as the victim and to make excuses.



              As to the second factor offered in Goad, whether evidence similar to the



                                             98
proposed evidence had already been heard by the jury, we observe that the jury had heard

during the guilt phase about the defendant’s prodigious appetite for alcohol and controlled

substances. They had not been told about the full panoply of the defendant’s diseases or

illnesses, or about the combination of effects from the illnesses, their treatments, and illicit

chemical use. However, Dr. Smith’s testimony about the effects of the defendant’s many

health problems is only articulated through a lengthy litany of the defendant’s staggering

indulgences in alcohol, controlled substances and legend drugs. This proof would have

starkly counter-vailed against Mr. Colley’s chosen portrayal of the defendant as a benign

citizen who had for many years held down a steady job, a portrayal that continued into the

sentencing phase through the use of the defendant’s mother as a witness. While the

absence in the case of proof of the type offered by Dr. Smith and to a lesser extent by Dr.

Blair counts in favor of prejudice, its viability is diminished by its conflict with the chosen

strategy of the defense.



              Regardless of the effect of the second Goad factor, the third factor, the

competing strength of the aggravating factors, more cogently illustrates that any deficient

performance was not prejudicial. See Henley, --- S.W.2d ---, slip op. at 22. Initially we

note that, unlike the one aggravating factor found by the Goad jury, the jury in the present

case found two. One of these factors was the defendant’s previous history of committing

a violent offense, in particular, a previous murder. Whereas this statutory factor was the

single aggravator in Goad, none of Goad’s prior violent offenses was a homicide. The jury

in the present case is likely to have accorded great weight to the fact that the defendant

was convicted of a prior murder. In State v. Howell, 868 S.W.2d 238 (Tenn. 1993), our

supreme court commented that evidence of a previous conviction of a felony involving

violence to the person under Code section 39-2-203(I)(2) (1982) (repealed 1989) is an

aggravating circumstance that is “more qualitatively persuasive and objectively reliable than

others.” Howell, 868 S.W.2d at 261. More recently, our supreme court has said,

       [A] defendant’s prior conviction for second-degree murder is a
       significant element to be considered in our analysis [of a death
       penalty sentence]; in fact, we have affirmed the death sentence in all
       but one previous case in which a prior violent felony conviction
       supported the aggravating factor in Tenn. Code Ann. § 39-2-203(I)(2).



                                          99
State v. Boyd, --- S.W.2d ---, No. 02S01-9611-CR-00102, slip op. at 8 (Tenn. Jan.

5, 1998) (commenting that the “remaining case” involved a prior offense of voluntary

manslaughter, “a lesser grade of offense than second-degree murder”) (citations to

cases omitted).11 In fact, the defendant in the present case, in a portion of his brief

dealing with another issue, tells us that according to probability studies a jury is

520% more likely to impose a death penalty sentence for each of the defendant's

prior murder convictions of which the jury is aware.



               For the reasons explained above, we hold that the defendant has

demonstrated no prejudicial ineffectiveness of counsel in preparing for and

conducting the sentencing hearing.



                                 F. Jencks Violation.

               Next, the defendant contends that counsel failed to obtain Jencks

material before trial. This claim is without merit. Under Tennessee Rules of

Evidence 26.2(a), opposing counsel is entitled to move the trial court for the

production of Jencks materials only after a witness other than the defendant has

testified on direct examination.       The state is under no obligation to provide

witnesses’ statements prior to trial, even in capital cases. State v. Taylor, 771

S.W.2d 387, 394 (Tenn. 1989). Accordingly, trial counsel was not ineffective by

failing to request such statements before trial.



                    G. Compensation of Appointed Counsel.

               Finally, the appellant submits that trial counsel’s representation was

affected by the low compensation rate of court-appointed counsel. This claim is

also without merit. Appointed counsel had a professional responsibility and ethical

obligation regardless of the amount of his compensation. State v. Hoosier, 631



       11
         In Boyd our supreme court was evaluating the “remaining aggravating factor” prong
of its Howell analysis of Boyd’s Middlebrooks claim. For our purposes in the present case,
this evaluation of a prior violent felony conviction is sufficiently similar to our present
concern with the third Goad factor for determining Strickland prejudice.

                                           100
S.W.2d 474, 477 (Tenn. Crim. App. 1982); see Tenn. Sup. Ct. R. 8, EC 8-3. We

do not find that trial counsel was deterred from carrying out his professional and

ethical obligation due to inadequate compensation.



       X. CONSTITUTIONALITY OF THE DEATH PENALTY STATUTES



               The defendant raises several challenges to the constitutionality of

Tennessee Code Annotated sections 39-2-204 and -206 (1982) (repealed 1989);

however, these arguments have been rejected repeatedly by our supreme court.

See, e.g., State v. Nichols, 877 S.W.2d 722, 737 (Tenn. 1994); Brimmer, 876

S.W.2d at 86-88; Cazes, 875 S.W.2d at 268-71; Howell, 868 S.W.2d at 258-59;

Smith, 857 S.W.2d at 22-24; State v. Caughron, 855 S.W.2d 526, 542 (Tenn.

1993); State v. Bane, 853 S.W.2d 483, 489 (Tenn. 1993); State v. Evans, 838

S.W.2d 185, 196 (Tenn. 1992); Black, 815 S.W.2d at 179; Barber, 753 S.W.2d at

664, 670-71.



                     XI. SECTION 39-13-206(c)(1) REVIEW.



               We now attend to this court’s duties imposed by Tennessee Code

Annotated section 39-13-206(c)(1). Upon our review of the entire record, we

conclude that the sentence of death was not imposed in any arbitrary fashion, that

the record supports the jury’s finding of both statutory aggravating circumstances

and the prevalence of aggravating circumstances over any mitigating

circumstances, and that the sentence is not excessive nor disproportionate to the

penalty imposed in similar cases. Tenn. Code Ann. § 39-13-206(c)(1) (1997).



               The evidence supports the jury’s reliance upon the defendant’s

previous conviction of a felony involving the use of violence to the person, Tenn.

Code Ann. § 39-2-203(I)(2) (1982) (repealed 1989), and the victim’s murder being

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



                                       101
mind.” Tenn. Code Ann. § 39-2-203(I) (5) (1982) (repealed 1989). As to factor (2),

the proof clearly established the defendant’s prior conviction of second-degree

murder. As to factor (5), the proof consisting of the defendant’s extrajudicial

statements shows that the defendant attacked the victim with a child’s rocking chair,

beating the victim relentlessly for several minutes with sufficient force to reduce the

chair to pieces. This proof shows that the murder “involved torture or depravity of

mind.”    Id; see State v. Teal, 793 S.W.2d 236, 251 (Tenn. 1990); State v.

Thompson, 768 S.W.2d 239, 252 (Tenn. 1989); State v. Porterfield, 746 S.W.2d

441, 451 (Tenn. 1988); see also State v. Hodges, 944 S.W.2d 346, 357 (Tenn.

1997), cert. denied, --- U.S. ---, 118 S. Ct. 567 (1997); see State v. Bland, ---

S.W.2d ---, No. 02S01-9603-CR-00032, slip op. at 13-14 (Tenn. Dec. 1, 1997)

(applying factor (5) under section 39-13-204(I)(5)(1997)). Clubbing a victim to death

is an especially violent form of homicide, and it involved torture at least to the point

the victim became unconscious. Moreover, the desecration of the victim’s body in

an attempt to conceal the crime was reprehensible. See State v. Morris, 641

S.W.2d 883, 890 (1982). Furthermore, the evidence supports the jury’s finding that

the aggravating circumstances outweigh any mitigating circumstances. “The weight

given aggravating and mitigating circumstances is entirely with the province of the

jury.    The jury determines whether or not mitigation exists and whether the

aggravating circumstances outweigh mitigation beyond a reasonable doubt.” Bland,

--- S.W.2d at ---, slip op. at 15. In the present case, the presence of aggravating

circumstance (2) alone supports the jury’s finding that the aggravating

circumstances prevail. See Boyd, --- S.W.2d at ---, slip op. at 8; Howell, 868 S.W.

2d at 261.



               We are guided in our proportionality review under section 39-13-

206(c) (1)(D) by our supreme court’s opinion in Bland. Our proportionality review

“‘presumes that the death penalty is not disproportionate to the crime in the

traditional [Eighth Amendment] sense. It purports to inquire instead whether the

penalty is nonetheless unacceptable in a particular case because disproportionate



                                         102
to the punishment imposed on others convicted of the same crime.’” Bland, ---

S.W.2d at ---, slip op. at 16 (quoting Pulley v. Harris, 465 U.S. 37, 42-43, 104 S. Ct.

871, 875 (1984)).       Through utilizing a “precedent-seeking approach [which]

compares the case before [the court] to other cases in which the defendant[ ] [was]

convicted of the same or similar crimes by examining the facts of the crimes, the

characteristics of the defendants and the aggravating and mitigating factors

involved,” Bland, --- S.W.2d at ---, slip op. at 21, our aim is to “eliminate the

possibility that a person will be sentenced to death by the action of an aberrant jury

and to guard against the capricious or random imposition of the death penalty.” Id.,

slip op. at 22. The pool of cases to be considered consists of first-degree murder

cases in which the jury considered the death penalty. 12 Id., slip op. at 24-25. In

conducting the review, the court should consider, in addition to aggravating and

mitigating circumstances used in other cases, relevant factors which include:

       (1) the means of death; (2) the manner of death (e.g., violent,
       torturous, etc.); (3) the motivation of the killing; (4) the place of death;
       (5) the similarity of the victims’ circumstances including age, physical
       and mental conditions, and the victims’ treatment during the killing; (6)
       the absence or presence of premeditation; (7) the absence or
       presence of provocation; (8) the absence or presence of justification;
       and (9) the injury to and effects on nondecedent victims.



       Also evident from our reading of our prior cases are several criteria
       relevant to a comparison of the characteristics of defendants which
       include: (1) the defendant’s prior criminal record or prior criminal
       activity; (2) the defendant’s age, race, and gender; (3) the defendant’s
       mental, emotional or physical condition; (4) the defendant’s
       involvement or role in the murder; (5) the defendant’s cooperation
       with authorities; (6) the defendant’s remorse; (7) the defendant’s
       knowledge of helplessness of victim(s); (8) the defendant’s capacity
       for rehabilitation.

Id., slip op. at 26-27 (citations omitted). However, we are reminded by our supreme

court that proportionality review is not a “rigid, objective test” that utilizes


       12
         With information currently available to this court, our ability to discern cases in
which the jury considered and rejected the death penalty is limited. We find that appellate
opinions in life-sentence murder cases often do not reflect whether the jury was asked to
impose the death penalty. Moreover, Tennessee Supreme Court Rule 12, in promulgating
a form for the trial judge to use in submitting factual information about murder cases in
which death penalties or life sentences were imposed, does not elicit, with one exception,
whether the jury considered and rejected the death penalty. The exception is a question
which, when answered in the affirmative, discloses if a life sentence was the result of a hung
jury.

                                            103
“mathematical or scientific techniques.” Id., slip op. at 28. A reviewing court relies

upon the “experienced judgment and intuition of its own members.” Id. Finally, a

sentence is not disproportionate unless “the case taken as a whole is plainly lacking

in circumstances consistent with those in cases where the death penalty has been

imposed.” Id.



              Of the enumerated factors pertaining to the crime in the present case,

the means and manner of the clubbing death are important factors.                The

defendant’s apparent motive was grounded in nothing more redeeming than

misguided anger over his perception that the victim stole his wallet, exacerbated by

the perception that the victim cheated while the two were playing cards. The victim

was not a member of any ethnic or minority group and was neither of an immature

age nor infirm because of advancing years. At the time of the killing, both men had

consumed alcohol. Although the issue of premeditation was contested, the jury

found the murder was premeditated. Any claims to provocation the defendant might

have made should have been barred solely on anger, but any such claims would

have been belied by his prior threats to harm the victim. There were no victims of

the defendant's criminal acts other than the decedent-victim.



              Of the factors pertaining to the defendant, the defendant’s prior

criminal record, significantly, included a previous conviction of second-degree

murder. The victim and the defendant were of the same race, gender, and general

age grouping. The defendant suffered from various emotional and physical health

problems, many of which emanated from the presence of many forms of chemicals

he had injected into his body. The defendant was the sole perpetrator of a crime

for which he provided no assistance to the police and showed absolutely no

remorse. His knowledge of the helplessness of the victim and his capacity for

rehabilitation are, as far as this court is concerned, unknown.



              With these dynamics in mind, we have examined the pertinent cases



                                        104
that have progressed through the Tennessee appellate courts since 1979. We find

the cases summarized below to be instructive. In each case where the death

penalty was imposed, it was not found to be disproportionate.13



               In Morris, the victim’s skull was crushed, and then his body was

submerged in water then dragged through underbrush to be concealed in a remote

location. The defendant was 26, the victim was 27. The defendant was previously

convicted of manslaughter. The jury found the presence of aggravating factors (2)

and (7). Morris, 641 S.W.2d at 883. In affirming the conviction and sentence, the

supreme court observed that Morris robbed the victim and then “the perpetrator of

the brutal murder in this case attempted to conceal the body and the evidence of

the crime.” Id. at 890.



               In State v. Caldwell, 671 S.W.2d 459 (Tenn. 1984), Caldwell and the

victim were engaged in a drinking bout that erupted into violence when the victim

threw whiskey into Caldwell’s face. Caldwell then fired a shotgun twice into the

victim’s head and then proceeded to conceal the body. The defendant was 34, the

victim 31. Both men were white. The jury found the presence of aggravating factor

(2), based upon the defendant having been convicted previously of first-degree

murder. This factor outweighed two mitigating factors.



               In State v. Martin, 702 S.W.2d 560 (Tenn. 1985), overruled on other

grounds, State v. Brown, 836 S.W.2d 530 (Tenn. 1992),our supreme court reversed

the conviction due to Sandstrom error, but it overruled all other assignments of error

presented by Martin. Martin, 671 S.W.2d at 565. The proof showed that Martin



       13
          Statutory aggravating and mitigating circumstances, currently set forth in Tennessee
Code Annotated section 39-13-204(I) and (j) were formerly contained in now repealed Code
sections, such that the aggravating and mitigating factors used in the cases summarized in
the succeeding paragraphs of this opinion, although identified generally by the same number,
relate in each case to the statute that governed the crime in that case. Tennessee Code
Annotated section 39-2407 (Supp. 1979) was repealed in 1982, whereupon the succeeding
provision became section 39-2-203 (1982). This section governed the homicide in the
present case. It was repealed and succeeded in 1989 by section 39-13-204.

                                            105
struck the victim with a pistol and then fired a shot into the victim’s left ear. The

supreme court acknowledged that on the proof presented the sufficiency of the

evidence as to premeditation and malice was a close question. The defendant was

33, the victim 45. Both men were black. The only aggravating factor found was

factor (2), based upon the defendant having been convicted previously of second-

degree murder. Id. at 565.



              In State v. Johnson, 698 S.W.2d 631 (Tenn. 1985), the defendant was

convicted of murdering the victim by clubbing him with a heavy candleholder. The

defendant was 27, the victim 84.        Both men were white.        “The jury found

aggravating circumstances” (2) and (7). Whereas factor (7) was found because the

killing was perpetrated during an alleged robbery, factor (2) was based upon a 1975

second-degree murder conviction. Id. at 632.



              In State v. Sparks, 727 S.W.2d 480 (Tenn. 1987), the defendant killed

the victim, a deliveryman, by shooting him three times. The defendant was 30, the

victim 56. Both men were black. The jury found the presence of aggravating

factors (2) and (7). The use of factor (2) was based upon previous convictions of

“three other felonies which involved the use of threat of violence to the person.” Id.

at 480.



              In State v. Poe, 755 S.W.2d 41 (Tenn. 1988), the defendant

participated in the robbery and murder of the victim. The crimes were committed

after the defendant and the victim had engaged in a drinking bout. The victim was

beaten to death. Both men were 18, white, and enlisted in the Armed Services.

Aggravating factors (2), (5), and (7) were found. The mitigating factors listed by the

trial court were (1), (7), and (8). Aggravating factor (2) was based upon a prior

conviction of assault with a knife.



              In State v. Sutton, 761 S.W.2d 763 (Tenn. 1988), the defendant and

victim were correctional facility inmates. The victim died after being stabbed 38



                                        106
times. The defendant was 23, but the age of the victim was not provided. Both

men were white. The jury found the presences of aggravating factors (2), (5), and

(8). The use of factor (2) was based upon the defendant’s prior conviction of first-

degree murder.



              In State v. Nichols, 877 S.W.2d 722 (Tenn. 1994), the defendant beat

his rape victim with a piece of 2"x4" lumber. She died from the wounds. The

defendant was male, 24, the victim 22, a female. Both were white. In the face of

several listed mitigating factors, both statutory and non-statutory, the jury found the

presence of aggravating factors (2) and (7) outweighed the mitigating factors. The

supreme court found that factor (7) was misapplied based upon the holding in State

v. Middlebrooks, 840 S.W.2d 317 (Tenn. 1992); however, in Nichols the court found

the error harmless beyond a reasonable doubt, concluding that “the sentence would

have been the same had the jury given no weight to the invalid felony-murder

aggravating circumstances.” Nichols, 877 S.W.2d at 737-39. The use of factor (2)

was predicated upon “five prior convictions for aggravated rape.” Id. at 737.



              In State v. Brimmer, 876 S.W.2d 75 (Tenn. 1994), the defendant tied

the victim to a tree and choked him to death with a wire. The defendant then stole

the victim’s truck. The defendant was 28, the victim 37. Both men were white. The

first-degree murder conviction was based upon premeditation, not felony-murder,

and the sole aggravating factor found by the jury was (7), the felony-murder factor.



              In State v. Hodges, 944 S.W.2d 346 (Tenn. 1997), cert. denied, ---

U.S. ---, 118 S. Ct. 567 (1997), the defendant, a homosexual prostitute,

accompanied the victim, who sought the defendant’s services, to the victim’s home.

There, the defendant bound the victim’s hands and feet and, with the help of a

female accomplice, removed property from the victim’s home. Afterward, despite

the victim’s pleas for his life, the defendant strangled him with a rope. The

defendant was 24, the victim 37. Both men were white. Several non-statutory



                                         107
mitigating circumstances were listed by the trial court, and the jury found the

presence of aggravating factors (2) and (5). The supreme court found that factor

(5) was supported by the proof, as was factor (2) which was based upon prior

convictions for armed robbery, attempted kidnapping, robbery, and murder.



              State v. James Lloyd Julian II, No. 03C01-9511-CV-00371 (Tenn.

Crim. App., Knoxville, July 24, 1997), pet. perm. app. filed (Tenn. Oct. 30, 1997),

is a case where the jury, after convicting Julian of first-degree murder, declined to

impose the death penalty and imposed instead a life sentence without parole. The

victim was a female child, age three. Julian killed the victim by strangulation during

the perpetration of rape. Id., slip op. at 5. The defendant offered expert testimony

both at the trial and the sentencing hearing to show that the defendant, a

“polysubstance abuse[r]” and himself a victim of sexual abuse as a child, was

afflicted with a depressive disorder, a mixed personality disorder, and chronic

alcoholism. Id., slip. op. at 8, 37-38. The jury found as aggravating circumstances

that the “victim was under twelve (12) years old and that the murder was especially

heinous, atrocious, or cruel,” Tenn. Code Ann. § 39-13-204(I)(1), (5) (1990);

however, the jury found the aggravating circumstances did not outweigh the

mitigating circumstances. Id., slip op. at 9.



              In totality these cases illustrate that the death sentence imposed in the

present case is neither arbitrary nor disproportionate. As pointed out above, the

means and manner of the murder are cognizable under factor (5). Hodges, 944

S.W.2d at 357. Moreover, the penalty has been imposed on several occasions

when a male defendant murdered a male victim of the same race and same general

age grouping, especially when aggravating factor (2) was present. As mentioned

above, our supreme court in Boyd assigned particular significance to a prior violent

felony conviction. In conducting a Howell analysis, see State v. Howell, 868 S.W.2d

238 (1993), of a Middlebrooks claim, the court compared the impact of factor (7)

with that of factor (2) and concluded that Boyd’s prior conviction for second-degree



                                         108
murder weighed heavily in the balance in rendering harmless any Middlebrooks

error. It said, “Although the statute assigns no relative importance or weight to the

aggravating circumstances, we observed that a prior felony conviction ‘may be more

qualitatively persuasive and objectively reliable’ than other factors.” Boyd, --- Tenn.

---, slip op. at 8 (quoting Howell, 868 S.W.2d at 261).



                                XII. CONCLUSION



              We have carefully considered the appellant’s contentions as to alleged

errors occurring during the guilt phase and the sentencing phase of the trial. We

fail to find reversible error and affirm the appellant’s convictions and sentences.



                                                      ________________________
                                                      CURWOOD WITT, JUDGE




CONCUR:



______________________________
PAUL G. SUMMERS, JUDGE



______________________________
DAVID G. HAYES, JUDGE




                                         109
