         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                                   September 9, 2003 Session

                  STATE OF TENNESSEE v. DETRICK COLE
                  Direct Appeal from the Criminal Court for Shelby County
                          No. 01-01221    Joseph B. Dailey, Judge



                  No. W2002-01254-CCA-R3-DD - Filed November 24, 2003



Capital defendant Detrick Cole appeals as of right his sentence of death resulting from the October
2000 murder of Santeife Thomas. A Shelby County jury found the defendant guilty of premeditated
first degree murder. Following a separate sentencing hearing, the jury unanimously found the
presence of one statutory aggravating circumstance, i.e., the defendant had previously been convicted
of one or more violent felony offenses; determined that this aggravating circumstance outweighed
any mitigating circumstances; and imposed a sentence of death. The defendant now appeals,
presenting for our review the following issues: (1) whether the evidence is sufficient to support
premeditated first degree murder; (2) whether the trial court erred in permitting the state to introduce
a photograph of the victim while he was alive; (3) whether the trial court erred in permitting the
introduction of post-mortem photographs of the victim; (4) whether the fingerprinting of the
defendant in the presence of the jury at the penalty phase was constitutional error; (5) whether the
trial court erroneously prohibited the defendant from introducing hearsay evidence during the
penalty phase; (6) whether the trial court’s instructions to the jury as to the (i)(2) aggravating
circumstance were contrary to the United States Supreme Court’s holdings in Apprendi v. New
Jersey and Ring v. Arizona; (7) whether there is a reasonable probability that the instruction on
victim impact evidence coerced the death sentence from the jury; (8) whether the evidence is
sufficient to establish the defendant had previously been convicted of one or more violent felony
offenses; (9) whether the jury verdict form was clear as to whether the jury found the aggravating
circumstance relied upon by the state; (10) whether the Tennessee death penalty statutory scheme
is constitutional; and (11) whether the sentence of death imposed in this case is disproportionate.
Upon review, we question, but need not determine, whether the trial court in the penalty phase had
the authority under Apprendi and Ring to find the defendant’s prior felony convictions were crimes
of violence and to instruct the jury that these prior convictions were crimes of violence; however,
we conclude that if there were error, any error was harmless beyond a reasonable doubt. Thus, we
discern no error of law requiring reversal. Accordingly, we affirm the defendant’s conviction for
first degree murder and the jury’s imposition of the sentence of death.

     Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed
JOE G. RILEY, J., delivered the opinion of the court, in which GARY R. WADE, P.J., and JERRY L.
SMITH, J., joined.

Robert Wilson Jones, Public Defender; William L. Johnson (at trial), Dianne M. Thackery (at trial),
W. Mark Ward (on appeal), Tony N. Brayton (on appeal), and Garland Erguden (on appeal),
Assistant Public Defenders, for the appellant, Detrick Cole.

Paul G. Summers, Attorney General and Reporter; Angele M. Gregory, Assistant Attorney General;
William L. Gibbons, District Attorney General; and Stephen P. Jones and Jennifer Nichols, Assistant
District Attorneys General, for the appellee, State of Tennessee.

                                            OPINION

                                      Guilt Phase Evidence

        Shortly after midnight on October 17, 2000, the defendant killed the victim by shooting him
twice in the head. The homicide occurred in an overgrown, grassy area near an apartment complex,
and the victim’s body was not discovered until October 21st. Those facts are undisputed. The
testimony at trial was as follows:

       Between 1:00 a.m. and 2:30 a.m., on October 17, 2000, Marcus Puryear, who lived near the
Garden Walk Apartments in Memphis, heard “two loud gunshots” while sitting in his vehicle.
Puryear stated he then observed a speeding car which sounded like it had a “small four-cylinder
engine.” After he returned to his residence, he again heard what sounded like the same vehicle. He
then observed two males exit the vehicle, a late model Mitsubishi Galant. They walked around in the
bushes and weeds where he previously heard the gunshots, returned to their vehicle after three or
four minutes, and left at a high rate of speed.

        Fourteen-year-old Andropolis Wells testified that earlier that evening, he saw the defendant
at the Ridgemont Apartments. Wells stated they stayed at the complex until the victim, twenty-
seven-year-old Santeife Thomas, arrived in his vehicle. Wells said another man, “E,” asked the
victim for a ride to the Raleigh Woods Apartments and he and the defendant accompanied them.
According to Wells, “E” exited the vehicle at Raleigh Woods and the defendant asked the victim
to take him to the Garden Walk Apartments, where the defendant directed the victim to the back of
the apartments near some bushes and high grass. Wells testified the defendant left briefly and, upon
his return, said “Jerry” would bring them some crack cocaine.

        Wells said he then heard the defendant repeatedly tell the victim to open his mouth and saw
the defendant pointing a gun near the victim’s face. Wells testified the victim did not have a weapon
and had made no aggressive moves toward the defendant. Wells recounted that the victim told the
defendant, “[S]top playing, man - stop playing” and backed up. Wells said he then heard two
gunshots. Wells stated the defendant ran from the bushes holding a set of keys, but stated, “No,
these the wrong keys – these the wrong keys.” The defendant then ran back to the victim’s body and
returned with another set of keys. Wells testified the defendant ran toward the victim’s car and


                                                -2-
ordered Wells to enter it. Wells stated the defendant then drove the victim’s car to the Ridgemont
Apartments.

         Wells said that upon arriving at the apartment complex, the defendant removed two shells
from the gun and threw them into a garbage can. Wells testified the defendant then took the gun to
a man in one of the apartments. According to Wells, the defendant instructed him to return with him
to the victim’s car. Wells stated that when they entered the car, the defendant said he had lost his
electronic organizer and announced they must return to the scene and look for it. Wells said they
returned to the Garden Walk Apartments, where they walked to the victim’s body. The defendant
rolled the body over while looking for his organizer. Wells said the defendant expressed concern
that if he did not find the organizer, he would get caught; however, the search for the organizer was
unsuccessful.

         According to Wells, the defendant said he shot the victim because the victim owed him
fifteen dollars. Wells then stated he would have given the defendant fifteen dollars; however, the
defendant responded, “Nig--- gonna start respecting me.”

        Robert Eric Adams testified he saw the defendant on October 18, 2000. Adams stated the
defendant told him the victim was taking him to meet someone regarding a drug transaction when
he asked the victim about the money the victim owed him. Adams said that according to the
defendant, the victim replied he would pay the defendant on Friday, but the defendant felt the victim
was lying. Adams stated the defendant recounted that he asked the victim the same question three
times, and when the victim failed to respond the last time, he shot him in the head. Adams said the
defendant told him that the victim fell, but he shot him again because he did not believe he was dead.

        Adams testified the defendant then requested a ride to the Garden Walk Apartments, and
the defendant showed him the victim’s body. Adams stated the defendant said he lost his electronic
organizer; he began searching for it; and they left after the defendant found it.

        Officer J. Taylor testified that on the morning of October 20th, he observed the defendant
exiting a convenience store. Officer Taylor stated that during a routine check for weapons, he found
the defendant possessed a Mitsubishi ignition key. Officer Taylor then transported the defendant
to the homicide division for questioning. Officer Taylor stated that when he instructed the defendant
to empty all of his belongings onto a table, the Mitsubishi ignition key was missing. Officers later
searched the room and found the key under a chair.

        Sergeant T.J. Helldorfer testified that after the defendant was advised of his rights, he said
he found the key at the Ridgemont Apartment parking lot and, since he collected car keys, he took
it. The defendant said he was aware that the victim had been reported missing but did not admit any
involvement in the victim’s disappearance. Sgt. Helldorfer said the defendant admitted concealing
the car key under the cushion of a chair in the homicide office because “he had second thoughts
about this key” after the officer questioned him. Sgt. Helldorfer stated the defendant was then
released.



                                                 -3-
        Sgt. Helldorfer testified the key unlocked the victim’s Mitsubishi car. He stated the victim’s
car had blood on the door handle, and a piece of paper bearing the defendant’s fingerprint was found
inside the vehicle.

        According to Sgt. Helldorfer, officers began to search for the defendant again, and when they
located him, he made an obscene gesture and fled. Sgt. Helldorfer said the defendant later contacted
police and stated he was going to turn himself in, but he failed to do so. Sgt. Helldorfer testified that
after the defendant was subsequently arrested and again advised of his rights, he admitted his prior
statement to the police was false. Sgt. Helldorfer stated the defendant admitted killing the victim
and gave the following statement:

        On the night that [the victim] was murdered, it was me, [Wells], and [the victim].
        We left the Ridgemont Terrace Apartments going to the Garden Walk where [the
        victim] told me that he had some money that he owed me and when we got down
        there, he stalled like telling me that he was waiting on the money but he never did
        get it. He told me that he gave me his key to his car as a partial payment [until] he
        could give me the money but when I turned down the key, we got into an argument,
        and he went on about that he wasn’t going to pay me, and I asked him why but he
        never did say. So, he came in my face with threats that he wasn’t going to pay me,
        and I could take it how I wanted to take it and I asked him why he wasn’t going to
        pay me so that’s when he went to [putting] his hands in my face and pushing me and
        then we started into a small argument of words back and forth and that’s when he
        tried to attack me. I went into my pocket and pulled out a .38, and [the victim]
        rushed at me, and I shot him.

        After I shot him, I looked at his body and threw up. I still had his key in my left
        hand and I got in his car, and I left the crime scene with [Wells], and we went and
        parked the car and we got out at the Ridgemont Terrace Apartments.

        I went back to the body because I dropped my organizer, and I went to get it. And
        when I got it, I left and took his car and parked it again on Voltaire Street.

        Sgt. Helldorfer stated the defendant said he committed the murder because the victim tried
to attack him, and he needed the money owed by the victim to support himself and his pregnant
girlfriend. According to Sgt. Helldorfer, the defendant said the victim was coming toward him from
a distance of four to five feet away when he fired the shots. Sgt. Helldorfer testified the defendant
admitted returning to the crime scene twice after the murder.

        Officer Charles Hawk testified that while he was on patrol during the week following the
victim’s disappearance, he noticed the victim’s Mitsubishi Galant parked at a dead-end street for
four or five days. Officer Hawk stated the rear tag of the vehicle had been removed, and the vehicle
identification number on the dash was covered.

        Dr. Craig Mallak, a forensic pathologist who performed the autopsy on the victim, testified
the victim was shot above the left eye and behind the left ear. Dr. Mallak further determined the

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gunshot wound behind the victim’s left ear was inflicted with the gun “less than an inch” from the
victim’s skin, and the wounds sustained by the victim were consistent with being inflicted by a large
caliber bullet. He concluded either of the two gunshots would have been sufficient to cause the
victim’s death and opined the victim would have been immediately incapacitated upon the infliction
of the first gunshot wound. Both Dr. Mallak and forensic anthropologist Dr. Steven Symes, the
latter of whom reconstructed the victim’s skull, concluded the frontal shot was inflicted first.

       The defendant did not testify nor offer any proof during the guilt phase. The jury found the
defendant guilty of premeditated first degree murder.

                                     Penalty Phase Evidence

       During the penalty phase, the state presented proof that the defendant pled guilty in 1997 to
robbery, kidnapping, felony reckless endangerment, and attempt to commit rape. All four
convictions related to an incident which occurred in 1995. Darrell Webster, the victim of those
offenses, testified at the penalty phase that in November 1995, the defendant and another man
approached him as he was leaving an adult bookstore. Webster stated the other man initially pointed
a gun at him but put away the gun and apologized; he then asked Webster for money to buy food.

         Webster stated he bought the men a meal at a restaurant and agreed to give them a ride to
a family member’s house. He said that as he drove, the defendant pulled out a gun and forced
Webster into the passenger seat to allow the other man to drive. Webster testified that when he pled
for his life, the defendant responded, “Do you want to go out like a punk? You’re crying. Go out like
a man.” Webster recalled the defendant spun the barrel of the gun, pointed the gun to Webster’s head,
and pulled the trigger; however, the gun did not fire. Webster testified the defendant later forced
him to perform oral sex. The defendant and the co-perpetrator also informed Webster that they
intended to “bust a cap” in him and dump his body. After this five-hour ordeal, Webster escaped
from the vehicle. The defendant and his co-perpetrator were apprehended.

        Marcie Turcios, the victim’s half-sister, gave victim impact testimony relating to the effect
of the victim’s death upon her and other members of the family.

       The defense presented the testimony of Roy Cole, the defendant’s father. He stated the
defendant, his middle child, lived with him until a few years ago. He averred the defendant regularly
attended church with the family until 1996, when he left home. He stated the defendant left home
because he would not abide by the family’s rules. The defendant’s father testified that the defendant
loved his fourteen-month-old daughter and asked the jury to allow his son to live.

          Cathy Cole, the defendant’s mother, recalled that the defendant was fifteen years old at the
time of the offenses leading to his 1997 felony convictions. She stated her son left home at age
sixteen, and when he would return, she “welcomed him home - seemed like [she would] clean him
up, . . . but [he would] slip through [her] fingers again.” She also asked the jury to spare her son’s
life.



                                                 -5-
        The twenty-two-year-old defendant denied that all of the facts alleged by the prosecution
were true, but admitted he was responsible for the victim’s death. The defendant expressed remorse
and pled with the jury for mercy and the sparing of his life.

      At the close of the proof, the jury was instructed on the following statutory aggravating
circumstance and underlying convictions:

       That the defendant was previously convicted of one or more felonies, other than the
       present charge, the statutory elements of which involved the use of violence to the
       person. The state is relying upon the crimes of Robbery, Kidnapping, Reckless
       Endangerment, and Attempted Rape, which are felonies, the statutory elements of
       which do involve the use of violence to the person.

The jury was also given the following instruction on mitigating circumstances:

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

       1.     Any testimony that he is remorseful for killing [the victim].
       2.     Any testimony that he was twenty years old at the time of the murder.
       3.     Any testimony that he was only fifteen years old when he committed the
              offense that is being used as an aggravating circumstance.
        4.    Any testimony that he has a fourteen-month-old daughter.
        5.    Any testimony that he has a family that loves and supports him.
       [6.]   Any other mitigating factor which is raised by the evidence produced by either the
              prosecution or defense at either the guilt or sentencing hearing; that is, you shall
              consider any aspect of the defendant’s character or record, or any aspect of the
              circumstances of the offense favorable to the defendant which is supported by the
              evidence.

         The jury found the state had proven beyond a reasonable doubt aggravating circumstance
(i)(2), the defendant was previously convicted of one or more violent felonies other than the present
charge. See Tenn. Code Ann. § 39-13-204(i)(2). The jury further found that the aggravating
circumstance outweighed any mitigating circumstances beyond a reasonable doubt. The jury
sentenced the defendant to death.

                            I. SUFFICIENCY OF THE EVIDENCE

       While the defendant concedes that he killed the victim and some circumstantial evidence of
premeditation exists, he argues that the proof is insufficient to justify a finding beyond a reasonable
doubt that the killing was premeditated.

       A jury conviction removes the presumption of innocence with which a defendant is cloaked
and replaces it with one of guilt; thus, a convicted defendant on appeal has the burden of

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demonstrating that the evidence is insufficient. State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982).
In determining the sufficiency of the evidence, this court does not reweigh or reevaluate the
evidence. State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). Likewise, it is not the duty of this
court on appeal to revisit questions of witness credibility, that function being within the province
of the trier of fact. State v. Elkins, 102 S.W.3d 578, 581 (Tenn. 2003). Instead, the defendant must
establish that the evidence presented at trial was so deficient that no reasonable trier of fact could
have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia,
443 U.S. 307, 319, 99 S. Ct. 2781, 61 L. Ed.2d 560 (1979); Tenn. R. App. P. 13(e). Moreover, the
state is entitled to the strongest legitimate view of the evidence and all reasonable inferences which
may be drawn therefrom. State v. Harris, 839 S.W.2d 54, 75 (Tenn. 1992). In State v. Matthews,
805 S.W.2d 776, 779 (Tenn. Crim. App. 1990), this court held these rules are applicable to findings
of guilt predicated upon direct evidence, circumstantial evidence, or a combination of both direct
and circumstantial evidence.

      The defendant was convicted of premeditated first degree murder. First degree murder is the
“premeditated and intentional killing of another.” Tenn. Code Ann. § 39-13-202(a)(1). Tennessee
Code Annotated section 39-13-202(d) defines premeditation as follows:

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

        The element of premeditation is a question of fact to be resolved by the jury and may be
established by proof of the circumstances surrounding the killing. State v. Suttles, 30 S.W.3d 252, 261
(Tenn. 2000). Although there is no strict standard governing what constitutes proof of premeditation,
circumstances from which a jury may infer premeditation include declarations of the intent to kill,
procurement of a weapon, the use of a deadly weapon upon an unarmed victim, the fact that the
killing was particularly cruel, infliction of multiple wounds, the making of preparations before the
killing for the purpose of concealing the crime, destruction or secretion of evidence, and calmness
immediately after the killing. State v. Nichols, 24 S.W.3d 297, 302 (Tenn. 2000).

         In the present case, the proof established that the defendant asked the victim to go to a grassy
area behind the apartment complex. Unsatisfied with the victim’s refusal to pay a fifteen-dollar
debt, the defendant pointed a gun at the unarmed victim and repeatedly ordered him to open his
mouth. As the victim told the defendant to “stop playing” and backed away, the defendant shot him
above the left eye and then shot him above the left ear from a distance of less than an inch in order
to ensure he was dead. The proof showed the defendant retrieved the victim’s car keys, left the
victim in the grassy field, used the victim’s car to make his escape, and discarded the weapon. The
defendant returned to the scene twice to search for his electronic pocket organizer. The defendant
later stated he wanted the victim to “start respecting me.”


                                                   -7-
        From this evidence, there are numerous circumstances from which the jury could conclude
that the murder was premeditated. Viewing the evidence and inferences therefrom in a light most
favorable to the state, this court concludes a rational trier of fact could find the defendant intentionally
and premeditatedly killed the victim. This issue is without merit.

                    II. PHOTOGRAPH OF VICTIM DURING LIFETIME

        The defendant contests the admission of a portrait-style photograph of the victim taken
during his lifetime, contending it was irrelevant and its probative value was substantially outweighed
by the danger of unfair prejudice and confusion of issues. While the state concedes that the
photograph may have added “little or nothing” to its case-in-chief, it claims the introduction of the
photograph did not result in any prejudice to the defendant.

        The admission of photographs is generally discretionary with the trial court and, absent an
abuse of that discretion, will not result in the grant of a new trial. See State v. Banks, 564 S.W.2d
947, 949 (Tenn. 1978). A family photograph may be relevant to establish the victim’s identity as
the person killed. See State v. Nesbit, 978 S.W.2d 872 app. at 902 (Tenn. 1998). We conclude the
trial court did not err in admitting the photograph into evidence.

         Regardless, even if the trial court erred, such error was harmless. In State v. Dicks, 615
S.W.2d 126, 128 (Tenn. 1981), the defendant claimed “before and after” photographs of the victim
were without relevance and were prejudicial. The court stated that it found no prejudicial error in
the admission, “though it would have been better had the ‘before’ picture of [the victim] been
excluded since it added little or nothing to the sum total of knowledge of the jury.” Id. Likewise,
in the instant case, although the photograph added little to the other information provided to the jury,
it did not prejudice the defendant. This issue is without merit.

                     III. POST-MORTEM PHOTOGRAPHS OF VICTIM

        During the testimony of forensic pathologist Dr. Mallak, the state introduced two autopsy
photographs depicting close-ups of the victim’s scalp. Specifically, the photographs revealed a gray
ring of soot around one wound indicating it was the result of a gunshot fired at close range. In
response to the defendant’s objection to the photographs, the state asserted they were relevant to
show the distance between the gun and the victim when the gun was fired. The trial court permitted
introduction of the photographs after it determined them to be relevant to the issue of premeditation,
and after it cropped the photographs to show less of the victim’s scalp. In this appeal, the defendant
asserts that the close-up photographs of the victim’s scalp should not have been admitted, as the
photographs were especially gruesome and inflammatory.

        Tennessee courts follow a policy of liberality in the admission of photographs in both civil
and criminal cases. Banks, 564 S.W.2d at 949. Accordingly, “the admissibility of photographs lies
within the discretion of the trial court whose ruling . . . will not be overturned on appeal except upon
a clear showing of an abuse of discretion.” Id.; see State v. Hall, 8 S.W.3d 593, 602 (Tenn. 1999).
However, a photograph must be found relevant to an issue that the jury must decide before it may


                                                    -8-
be admitted into evidence. See State v. Vann, 976 S.W.2d 93, 102 (Tenn. 1998); see also Tenn. R.
Evid. 401.

         Photographs of a corpse are generally admissible in murder prosecutions if they are relevant
to the issues at trial, notwithstanding their gruesome character. State v. Carter, 114 S.W.3d 895, 902
(Tenn. 2003). Conversely, evidence which is not relevant to prove some part of the prosecution’s
case should not be admitted solely to inflame the jury and prejudice the defendant. Id. at 951.
“[P]hotographs of the victim may be admitted as evidence of the brutality of the attack and the extent
of force used against the victim, from which the jury could infer malice.” State v. Goss, 995 S.W.2d
617, 627 (Tenn. Crim. App. 1998); see also State v. Smith, 868 S.W.2d 561, 576 (Tenn. 1993)
(holding photograph was relevant to show “premeditation”). The probative value of the photograph
must outweigh any unfair prejudicial effect that it may have upon the trier of fact. Vann, 976
S.W.2d at 102; see Tenn. R. Evid. 403.

        The trial court ultimately determined that the photographs were relevant and were not
“particularly graphic.” In this case, the state was required to prove that the killing was intentional
and premeditated. See Tenn. Code Ann. § 39-13-202(a)(1). The photographs were relevant to
supplement the testimony of the medical examiner that this wound was inflicted from contact range,
from which a jury could infer premeditation, and not from a few feet away as claimed by the
defendant during his statement to the police. Additionally, the photographs dispel the defendant’s
claim of self-defense. Further, the photographs are not particularly gruesome. We conclude that
the probative value of the photographs is not outweighed by their prejudicial effect, and the trial
court did not abuse its discretion in allowing their admission. Further, it does not affirmatively
appear that the “admission of the photographs has affected the results of the trial.” See Banks, 564
S.W.2d at 953. The defendant is not entitled to relief on this issue.

           IV. FINGERPRINTING OF DEFENDANT IN PRESENCE OF JURY
                          DURING PENALTY PHASE

         The state sought the death penalty on the basis that the defendant was previously convicted
of four felonies whose statutory elements involved the use of violence to the person. See Tenn.
Code Ann. § 39-13-204(i)(2). During the penalty phase, the state’s fingerprint technician took a
thumb print from the defendant in the presence of the jury for the purpose of identifying him as the
same person convicted in 1997 of robbery, kidnapping, felony reckless endangerment, and attempt
to commit rape. When the defendant objected, the state offered to stipulate to the defendant’s
identity as the person named in the 1997 convictions; however, the defense refused to so stipulate.
The trial court overruled the defendant’s objection, noting that, absent a stipulation from the defense,
the state was entitled to prove that the defendant was the person convicted of the prior offenses. On
appeal, the defendant claims that fingerprinting him in the presence of the jury denied him his right
to a fair trial and subjected him to a “humiliating and embarrassing procedure.” We do not agree.

       During the penalty phase of a capital case, the trial court retains its role in controlling the
introduction of evidence. Carter, 114 S.W.3d at 903. While the trial court may use the rules of
evidence to guide its decisions in this regard, those rules are relaxed. See id. Evidence may be


                                                  -9-
presented as to any matter that the court deems relevant to the punishment, including any evidence
tending to establish or rebut any aggravating circumstances. Id.

        The defendant maintains it was not necessary for the jury to observe the technician
fingerprint him because, despite his refusal to stipulate identity, he was not contesting his identity
as the person named in the four 1997 convictions. The state had the burden of proving beyond a
reasonable doubt that the defendant was indeed the same person who was convicted of the prior
offenses. Absent a stipulation, the state was required to present proof sufficient to meet this burden.
We conclude the fingerprint evidence presented by the state, including a demonstration of the
technician taking the defendant’s thumb print, was highly relevant to the question of whether the
defendant was the person convicted of the prior offenses.

       The defendant does not argue the fingerprinting procedure violated his privilege against self-
incrimination. Still, we observe the courts have long held that fingerprinting is non-testimonial
evidence that is not subject to the privilege against self-incrimination. Schmerber v. California, 384
U.S. 757, 764, 86 S. Ct. 1826, 16 L. Ed. 2d 908 (1966); see generally State v. Frasier, 914 S.W.2d
467, 472 (Tenn. 1996). Moreover, a number of federal and state courts have held that a defendant
may be fingerprinted in the presence of the jury. See, e.g., United States v. Peters, 687 F.2d 1295,
1297 (10th Cir. 1982); United States ex rel O’Halloran v. Rundle, 384 F.2d 997 (3rd Cir. 1967), cert.
denied, 393 U.S. 860 (1968); People v. Montoya, 543 P.2d 514, 518 (Colo. 1975); State v. Stuard,
452 P.2d 98, 99 (Ariz. 1969); State v. Anderson, 528 P.2d 1003, 1005 (Wash. Ct. App. 1974).

       The defendant contends that by taking his thumb print, the state engaged in a practice which
“undermine[d] the presumption of innocence.” Yet, at the time the jury saw the technician fingerprint
the defendant, it had already convicted him of first degree murder. He was no longer presumed
innocent.

        A defendant’s right to a fair trial may be infringed if he is forced to perform acts which
would unjustly prejudice him. See United States v. Doremus, 414 F.2d 252, 253-54 (6th Cir. 1969);
State v. Ronald Bradford Waller, No. E1999-02034-CCA-R3-PC, 2000 Tenn. Crim. App. LEXIS
558, at **38-39 (Tenn. Crim. App. July 18, 2000, at Knoxville), perm. to app. denied (Tenn. 2001).
Prejudice may arise in cases where the requested performance or demonstration would unjustly
humiliate or degrade the defendant, or where such performance would be damaging to the defendant’s
image and is irrelevant to an issue at trial. Doremus, 414 F.2d at 254.

        Fingerprinting, unlike being handcuffed or wearing an inmate’s uniform, does not portray
the defendant as a dangerous criminal. As noted by this court over twenty years ago, fingerprinting
is a commonplace practice which “signifies neither criminality nor saintly living.” State v. Tyson,
603 S.W.2d 748, 753-54 (Tenn. Crim. App. 1980). We are not persuaded that fingerprinting of the
defendant in the presence of the jury was so inflammatory or prejudicial as to render the trial
fundamentally unfair. We decline to grant relief on this basis.




                                                 -10-
        V. EXCLUSION OF HEARSAY EVIDENCE DURING PENALTY PHASE

       During the penalty phase, defense counsel asked the defendant’s father whether the defendant
had expressed any remorse about the victim’s death. The trial court sustained the state’s objection
based upon hearsay. On appeal, the defendant argues the trial court erred in excluding the evidence
because hearsay evidence is admissible during the penalty phase of a capital trial and the defendant’s
remorse was a relevant consideration for the jury. He acknowledges he made no offer of proof at
sentencing or at the hearing on the motion for new trial; however, he requests that this court remand
the matter to the trial court to permit an offer of proof on this issue. See State v. Goad, 707 S.W.2d
846, 852-54 (Tenn. 1986).

        The state correctly responds that the defendant has waived this issue by failing to make an
offer of proof and for failing to raise this issue in his motion for new trial. See Tenn. R. App. P.
3(e); State v. Sims, 45 S.W.3d 1, 15 (Tenn. 2001). Moreover, our supreme court in Sims declined
to remand for a further hearing after finding that, unlike the defendant in Goad, defendant Sims did
not attempt to make an offer of proof. 45 S.W.3d at 15. Likewise, in the instant case, the defendant
did not attempt to make an offer of proof. Thus, we could consider the issue waived. However, we
opt to address the issue based upon the record before us.

        The rules of evidence do not limit the admissibility of evidence in a capital sentencing
proceeding. Carter, 114 S.W.3d at 903; State v. Stout, 46 S.W.3d 689, 702 (Tenn. 2001). However,
any error on part of the trial court in excluding the testimony of the defendant’s father was clearly
harmless. The defendant, during his own testimony, expressed remorse for the victim’s death.
Additionally, he made the following statement to the jury:

             Ladies and gentlemen, I know that what I did was wrong, and I know me
        saying that I’m sorry to them and I’m sorry to my family won’t bring [the victim]
        back. He wasn’t a bad person. I was the bad person. But I ask you just please have
        mercy on me. I didn’t mean for that to happen. I wasn’t at home. Me and my
        family, we wasn’t together. I was out in the streets. I didn’t know what to do. I
        didn’t know what was going on in my life. I just needed help from somebody – just
        please, please don’t kill me - please.

         We conclude the potential hearsay testimony about the defendant’s expressions of remorse
to his father would not have affected the jury’s verdict. The defendant is not entitled to relief on this
claim.

                                  VI. APPRENDI/RING ISSUE

        Relying upon the United States Supreme Court’s decisions in Apprendi v. New Jersey, 530
U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000), and Ring v. Arizona, 536 U.S. 584, 122 S. Ct.
2428, 153 L. Ed. 2d 556 (2002), the defendant contends the trial court’s factual finding and
instruction that the statutory elements of his prior convictions involved the use of violence to the
person deprived the jury of the opportunity to decide whether the prior offenses involved violence.
In defense of the trial court, we preface our discussion by noting this trial occurred prior to the Ring

                                                  -11-
decision and by further noting the trial court followed the dictates of our state supreme court’s
decision in Sims, 45 S.W.3d at 11-12, which also was decided prior to Ring.

A. United States Supreme Court Decisions

        In Almendarez-Torres v. United States, 523 U.S. 224, 226-27, 118 S. Ct. 1219, 140 L. Ed.
2d 350 (1998), a federal trial court in a non-capital case increased the petitioner’s maximum
sentence for his conviction for illegally returning to the United States after deportation based upon
the court’s finding that the deportation was subsequent to an aggravated felony conviction. See 8
U.S.C. § 1326(a), (b)(2). The petitioner argued that application of this provision to his conviction
violated the Fifth Amendment because the prior aggravated felony convictions were not listed in his
indictment. Almendarez-Torres, 523 U.S. at 227; see U.S. Const. amend. V. The United States
Supreme Court concluded the provision did not define a separate offense but, rather, was a penalty
provision which authorized the trial court to increase the sentence for a recidivist. Almendarez-
Torres, 523 U.S. at 226. Accordingly, the court held the government was not constitutionally
required to allege the petitioner’s prior convictions in the indictment. Id. at 226-27.

        The court noted the subject matter of the provision related to recidivism and prior
convictions are generally regarded as sentencing factors. Id. at 230. The court further noted our
courts have traditionally relied upon recidivism as a basis for increasing a defendant’s sentence. Id.
at 243. Moreover, recidivism “does not relate to the commission of the offense, but goes to the
punishment only, and therefore . . . may be subsequently decided.” Id. at 243-44 (citing Graham v.
West Virginia, 224 U.S. 616, 624, 32 S. Ct. 583, 56 L. Ed. 917 (1912)) (emphasis in original).

        In Apprendi, the petitioner challenged a state trial court’s application of a hate crime
provision to increase his sentence based upon his Sixth Amendment right to a jury trial and
Fourteenth Amendment right to due process. 530 U.S. at 476-77; see U.S. Const. amend. VI, XIV.
It did not address the Fifth Amendment issue relating to the validity of the indictment, which was
the issue in Almendarez-Torres. Apprendi, 530 U.S. at 477 n.3; see U.S. Const. amend. V. In
invalidating the trial court’s application of the hate crime provision, the court held “[o]ther than the
fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed
statutory maximum must be submitted to a jury, and proven beyond a reasonable doubt.” Apprendi,
530 U.S. at 490 (emphasis added). Furthermore, in addressing the issue presented in Apprendi, the
court declined to address the validity of its decision in Almendarez-Torres. Id. at 489-90.

        In Ring, the court extended its Sixth and Fourteenth Amendments holding in Apprendi to
capital cases. 536 U.S. at 607. The court specifically held that the jury, and not the trial judge, was
required to find the aggravating circumstances necessary to impose the death penalty. Id. at 609.
However, because the aggravating circumstances applied to the petitioner in Ring did not relate to
prior convictions, the court did not address its holding in Almendarez-Torres. Id. at 597 n.4.

B. Tennessee Decisions

       The state maintains the Tennessee Supreme Court’s decision in State v. Dellinger, 79 S.W.3d
458 (Tenn.), cert. denied, 537 U.S. 1090 (2002), controls this issue. In Dellinger, our state supreme

                                                 -12-
court declined to apply Apprendi to Tennessee’s capital sentencing procedures. Id. at 467. First,
the court noted that Apprendi does not apply to enhancement factors based upon prior convictions.
Id. at 466. Second, the court reasoned that while Apprendi only applies to those enhancement
factors which are used to impose a sentence above the statutory maximum, the death penalty in
Tennessee is “within the statutory range of punishment prescribed by the legislature for first degree
murder.” Id.; see Tenn. Code Ann. § 39-13-202(c)(1). Third, the court concluded the due process
and notice requirements are satisfied through Tennessee Rule of Criminal Procedure 12.3(b), which
instructs district attorneys to notify capital defendants at least thirty days prior to trial of their
intention to seek the death penalty and to list the aggravating circumstances upon which the state
intends to rely. Dellinger, 79 S.W.3d at 467. Fourth, the court reasoned that Apprendi only applies
to sentencing procedures which permit judges to sentence capital defendants, whereas a jury in our
state must make the necessary findings regarding the statutory aggravating circumstances. Id.
Finally, the court noted that in Tennessee, the jury is required to find any statutory aggravating
circumstance beyond a reasonable doubt, thus, complying with the “reasonable doubt” standard
articulated in Apprendi. Id.

        However, we note that: (1) Dellinger was decided prior to Ring; and (2) the issue in
Dellinger concerned the failure to charge the applicable aggravating circumstances in the indictment.
See id. at 466. In Carter, 114 S.W.3d at 910 n.4, our state supreme court, citing Dellinger, declined
to find error based upon Apprendi and Ring. However, like Dellinger, the issue in Carter involved
the sufficiency of the indictment. See id. Moreover, other panels of this court have concluded that
Ring did not affect our supreme court’s holding in Dellinger. See State v. Robert Faulkner, No.
W2001-02614-CCA-R3-DD, 2003 Tenn. Crim. App. LEXIS 836, at **87-88 (Tenn. Crim. App.
Sept. 26, 2003, at Jackson); State v. Gdongalay P. Berry, No. M2001-02023-CCA-R3-DD, 2003
Tenn. Crim. App. LEXIS 316, at **16-17 (Tenn. Crim. App. Apr. 10, 2003, at Nashville), appeal
docketed, No. M2001-02023-SC-DDT-DD (Tenn. 2003); State v. Richard Odom, No. W2000-
02301-CCA-R3-DD, 2002 Tenn. Crim. App. LEXIS 871, at *38 n.1 (Tenn. Crim. App. Oct. 15,
2002, at Jackson), appeal docketed, No. W2000-02301-SC-DDT-DD (Tenn. 2002). However, like
Dellinger and Preston Carter, the issue in these cases involved the sufficiency of the indictment. See
Robert Faulkner, 2003 Tenn. Crim. App. LEXIS 836, at *82; Gdongalay P. Berry, 2003 Tenn. Crim
App. LEXIS 316, at *13; Richard Odom, 2002 Tenn. Crim. App. LEXIS 871, at *32.

        The defendant in the case at bar does not challenge the failure to allege the aggravating
circumstance in the indictment. Rather, the defendant raises an issue involving the Sixth
Amendment right to trial by jury and the Fourteenth Amendment right to due process of law, which
were the same rights at issue in Apprendi and Ring. See Apprendi, 530 U.S. at 477 n.3; Ring, 536
U.S. at 595. Both Apprendi and Ring involved state prosecutions, and the appellants did not assert
a constitutional claim based upon the omission of the sentencing enhancements or aggravating
circumstances in the indictment. Apprendi, 530 U.S. at 477 n.3; Ring, 536 U.S. at 597 n.4. In
Apprendi, the United States Supreme Court noted that the due process clause of the Fourteenth
Amendment had not yet been construed to apply the Fifth Amendment right to indictment by a grand
jury to the states. Apprendi, 530 U.S. at 477 n.3 (citations omitted).




                                                -13-
C. Trial Court’s Instruction

       During the penalty phase, the trial court, after hearing the same testimony the jury heard
concerning the underlying facts of the four prior felonies, instructed the jury as follows:

            Statutory Aggravating Circumstances: Tennessee law provides that no sentence
       of death or sentence of imprisonment for life without possibility of parole shall be
       imposed by a jury, but upon a unanimous finding that the state has proven, beyond
       a reasonable doubt, the existence of one or more of the statutory aggravating
       circumstances which shall be limited in this case to the following:

             That the defendant was previously convicted of one or more felonies other than the
       present charge, the statutory elements of which involved the use of violence to the person.
       The state is relying upon the crimes of Robbery, Kidnapping, Reckless Endangerment, and
       Attempted Rape, which are felonies, the statutory elements of which do involve use of
       violence to the person.

(Emphasis added). Thus, the trial court concluded the underlying facts of the prior convictions
involved “violence to the person” and instructed the jury, as a matter of law, that the statutory
elements of these four offenses involved “violence to the person.”

D. Analysis

        Our state supreme court held in Sims that in determining whether the statutory elements of
a prior felony conviction involved the use of violence against another for purposes of the (i)(2)
aggravator, “the trial judge must necessarily examine the facts underlying the prior felony if the
statutory elements of that felony may be satisfied either with or without proof of violence.” 45
S.W.3d at 11-12. Sims found no error in the trial judge’s determination that the two prior felony
convictions were violent and in so instructing the jury. Id. Therefore, the trial court in the case at
bar made the determinations required by Sims. However, although Sims was filed after Apprendi,
no Apprendi issue was raised by the defendant in Sims, nor was Apprendi discussed by our supreme
court. Further, Sims was decided prior to Ring.

        In State v. Powers, 101 S.W.3d 383, 400-01 (Tenn.), cert. denied, __ U.S. __ (2003), the
Tennessee Supreme Court reaffirmed the procedure provided in Sims. In Powers, our state supreme
court held that the 1998 amendment to Tennessee Code Annotated section 39-13-204(c), which
expressly permits either party to introduce evidence regarding the facts and circumstances of a
defendant’s prior conviction which the jury may then consider in weighing the (i)(2) aggravating
factor, was inapplicable to the case because the capital offense was committed prior to the effective
date of the amendment. Id. at 400. However, we note that although Powers was filed after both
Apprendi and Ring, no issue regarding Apprendi and Ring was raised by the defendant in Powers,
nor was Apprendi or Ring discussed by our supreme court.

        The question before this court is whether the Sixth and Fourteenth Amendments require the
jury, not the trial judge, to make findings that must go beyond the mere fact that a prior conviction

                                                -14-
exists in order to apply the (i)(2) aggravating circumstance. As applicable to the case at bar, it was
necessary to determine not only that the prior convictions existed, but also that they involved
violence. Otherwise, the aggravator could not be applied and the defendant would be ineligible for
the death penalty.

          Initially, we reject the state’s contention that Apprendi and Ring are not applicable to the
present case because imposition of the death penalty does not enhance the defendant’s sentence for
his first degree murder conviction beyond its statutory maximum. The United States Supreme Court
expressly rejected this argument in Ring, concluding that the required finding of an aggravating
circumstance exposed the defendant to a greater punishment than that authorized by the jury’s
verdict of conviction. Ring, 536 U.S. at 603-04. Thus, our state supreme court’s reliance upon this
factor in Dellinger, which was decided prior to Ring, appears to have been effectively overruled by
Ring. See id.; Dellinger, 79 S.W.3d at 466.

        Furthermore, the holding in Dellinger that the due process and notice requirements were
satisfied through the provisions in Tennessee Rule of Criminal Procedure 12.3(b) relates to the
sufficiency of the indictment, which is not at issue in this case. See Dellinger, 79 S.W.3d at 467.
The court in Dellinger further held that Apprendi only applied to sentencing procedures which
permit judges to sentence capital defendants, thus, exempting Tennessee from the requirements of
Apprendi. Id. However, as previously noted, Dellinger was decided prior to Ring. In light of Ring,
we question whether Tennessee has a blanket exemption from the right to trial by jury requirements
of Apprendi and Ring based solely on the fact that we have jury sentencing in capital cases.

         A disparity of views exists as to whether the trial judge can decide issues which involve an
examination of the underlying facts of a prior conviction. On remand from the United States
Supreme Court, the Arizona Supreme Court held that any additional factual findings necessary for
application of the prior violent felony aggravator, “beyond the bare fact that a prior conviction
exists,” must be made by a jury. Arizona v. Ring, 65 P.3d 915, 939 (Ariz. 2003). However, some
states have interpreted the United States Supreme Court’s holding in Ring to allow a trial judge to
determine factual issues relating to aggravating circumstances which involve prior convictions. See
Belcher v. State, 851 So. 2d 678, 685 (Fla. 2003) (concluding Ring did not disturb the holding in
Apprendi, which exempted prior convictions from facts required to be submitted to a jury), cert.
docketed, No. 03-6522 (U.S. Sept. 24, 2003); Blackwelder v. State, 851 So. 2d 650, 654 (Fla. 2003)
(noting the Florida Supreme Court had previously rejected claims under Apprendi and Ring
concerning the prior felony conviction aggravator); State v. Williams, 97 S.W.3d 462, 474 (Mo.)
(holding that a trial judge may determine as a matter of law whether a defendant’s prior conviction
involved “serious assaultive behavior” as an element of an aggravating circumstance), cert. denied,
__ U.S. __ (2003); Walter Leroy Moody, Jr. v. State, No. CR-96-0994, 2003 Ala. Crim. App. LEXIS
90, at **182-83 (Ala. Crim. App. Apr. 18, 2003) (holding Apprendi and Ring did not prohibit a trial
judge from finding that a defendant had a prior capital conviction or prior violent felony conviction
as an aggravating circumstance), cert. filed (Ala. Apr. 30, 2003); Calvin L. Stallworth v. State, No.
CR-98-0366, 2003 Ala. Crim. App. LEXIS 21, at *21 (Ala. Crim. App. Jan. 31, 2003) (concluding
a trial judge may determine whether a defendant was under a sentence of imprisonment when he
committed the capital offense), cert. denied (Ala. 2003).


                                                -15-
         To the extent that any of these holdings of our sister states might indicate that a trial judge
in a capital case may make all findings regarding the underlying facts of prior convictions upon
which the application of an aggravating circumstance depends, we note that issue has not been
definitively decided by the United States Supreme Court. However, Apprendi requires that any
“fact” which increases the penalty beyond the prescribed statutory maximum, “other than the fact
of a prior conviction,” must be submitted to a jury and found beyond a reasonable doubt. 530 U.S.
at 490 (emphasis added). Further, Ring dictates that the death penalty is a penalty beyond the
prescribed statutory maximum. 536 U.S. at 603-04. In regard to Tennessee’s prior violent felony
aggravating circumstance, Sims authorizes the examination of the underlying facts in order to
determine whether the prior felonies were or were not, in fact, violent. 45 S.W.3d at 11-12. When
a trial judge examines the underlying facts, factually determines that a prior offense involved
violence, and then, based upon its finding of fact, instructs the jury as a matter of law that the prior
felony involved violence, it is arguable that this usurps the role of the jury as trier of fact. Therefore,
it is arguable the procedure outlined in Sims may well be in violation of Ring.

        However, we need not rest our ultimate disposition in this case upon such a holding. We
further realize this case will be automatically reviewed by our state supreme court. See Tenn. Code
Ann. § 39-13-206(a)(1). Thus, we proceed to determine whether the trial court’s action was harmless
in the event it was error.

E. Harmless Error

         In Ring, the court noted, but did not reach, the issue of harmless error; rather, it remanded
to the state court to make that determination. Ring, 536 U.S. at 609 n.7. In Neder v. United States,
the Supreme Court held that constitutional errors can be harmless except in a very limited class of
cases. 527 U.S. 1, 8, 119 S. Ct. 1827, 144 L. Ed. 2d 35 (1999). The court then set forth the following
examples of the limited cases in which harmless error could not be found: Sullivan v. Louisiana, 508
U.S. 275, 113 S. Ct. 2078, 124 L. Ed. 2d 182 (1993) (defective reasonable doubt instruction);
Vasquez v. Hillery, 474 U.S. 254, 106 S. Ct. 617, 88 L. Ed. 2d 598 (1986) (racial discrimination in
selection of grand jury); Waller v. Georgia, 467 U.S. 39, 104 S. Ct. 2210, 81 L. Ed. 2d 31 (1984)
(denial of public trial); McKaskle v. Wiggins, 465 U.S. 168, 104 S. Ct. 944, 79 L. Ed. 2d 122 (1984)
(denial of self-representation at trial); Gideon v. Wainwright, 372 U.S. 335, 83 S. Ct. 792, 9 L. Ed.
2d 799 (1963) (complete denial of counsel); Turney v. Ohio, 273 U.S. 510, 47 S. Ct. 437, 71 L. Ed.
749 (1927) (biased trial judge). Neder, 527 U.S. at 8. We conclude the issue in the case at bar is
subject to harmless error analysis as implied in Ring. In order to find harmless constitutional error,
harmlessness must be shown “beyond a reasonable doubt.” Chapman v. California, 386 U.S. 18,
24, 87 S. Ct. 824, 17 L. Ed. 2d 705 (1967).

         During the penalty phase, the jury heard the detailed and horrid testimony of the victim of
the four prior offenses. Each of the offenses involved the defendant’s use of a deadly weapon, to
wit: a firearm, which was pointed at the victim. The defendant in his testimony at the penalty phase
conceded that the underlying facts of these offenses were correct. Unquestionably, all four offenses
involved the use of violence to the person. The jury expressly wrote each of the prior four felonies
on its verdict form and found that this aggravating circumstance outweighed any mitigating
circumstances beyond a reasonable doubt. We conclude, beyond a reasonable doubt, that any

                                                   -16-
rational juror would have found that the prior felonies involved violence to the person. Accordingly,
if there were error in not allowing the jury to make the determination that these were violent
felonies, it was harmless beyond a reasonable doubt.

                  VII. INSTRUCTION ON VICTIM IMPACT EVIDENCE

        At the conclusion of the penalty phase, the trial court provided an instruction to the jury
relative to its consideration of victim impact evidence, which included the following:

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

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

       The defendant complains this instruction amounts to an undue intrusion into the exclusive
province of the jury. He argues there is a reasonable probability that it coerced a death sentence
because the instruction informed the jury not to consider victim impact evidence unless it had
already found that death was the appropriate punishment.

        This exact instruction was recommended by our supreme court in Nesbit, 978 S.W.2d at 892,
and discussed by the high court in State v. Reid, 91 S.W.3d 247, 283 (Tenn. 2002). The high court
specifically noted in Reid that any contradiction arising between the instruction and the statute
inured to the benefit of the defendant. 91 S.W.3d at 283. This issue lacks merit.

        VIII. SUFFICIENCY OF THE (i)(2) AGGRAVATING CIRCUMSTANCE

       In seeking the death penalty, the state asserted only one aggravating circumstance, that the
defendant “was previously convicted of one (1) or more felonies, other than the present charge,
whose statutory elements involve the use of violence to the person.” See Tenn. Code Ann. § 39-13-
204(i)(2). The proof at the penalty phase established the defendant had prior convictions for
robbery, kidnapping, felony reckless endangerment, and attempted rape, all arising from one
incident with a single victim. The jury found beyond a reasonable doubt that the (i)(2) aggravating

                                                -17-
circumstance existed and that it outweighed any mitigating circumstances. On appeal, the defendant
contends his prior offenses are not crimes whose statutory elements necessarily involve the use of
violence to the person, and the court may not look at the underlying facts of the prior convictions
to determine whether the felonies involved the use of violence to the person. He further contends
that even if the aggravating circumstance was established, it did not outweigh the mitigating
circumstances beyond a reasonable doubt.

A. Sims Holding and Tennessee Code Annotated Section 39-13-204(c)

       In State v. Sims, our supreme court held that when the statutory elements of a prior felony
conviction may be satisfied either with or without proof of violence, then an examination of the
underlying facts is necessary to determine whether the (i)(2) aggravating circumstance exists. 45
S.W.3d at 11-12. We also note that Tennessee Code Annotated section 39-13-204(c) was amended
in 1998, is applicable to this case, and provides in pertinent part as follows:

       In all cases where the state relies upon the aggravating factor that the defendant was
       previously convicted of one (1) or more felonies, other than the present charge,
       whose statutory elements involve the use of violence to the person, either party shall
       be permitted to introduce evidence concerning the facts and circumstances of the
       prior conviction. Such evidence shall not be construed to pose a danger of creating
       unfair prejudice, confusing the issues, or misleading the jury and shall not be subject
       to exclusion on the ground that the probative value of such evidence is outweighed
       by prejudice to either party. Such evidence shall be used by the jury in determining
       the weight to be accorded the aggravating factor.

See 1998 Tenn. Pub. Acts, ch. 915, § 1. Therefore, the defendant’s argument that the actual facts
of the prior felonies may not be considered is without merit.

        With regard to these prior felonies, the indictments charged aggravated robbery, especially
aggravated kidnapping, felony reckless endangerment, and aggravated rape. The indictments alleged
that each of these offenses was accomplished by the use of a “deadly weapon, to wit: a firearm.” The
defendant pled guilty to simple robbery, simple kidnapping, felony reckless endangerment, and
attempted rape.

B. Statutory Elements of the Prior Offenses

        We now proceed to determine whether the four prior offenses qualify as crimes of violence.
Our state supreme court has defined “violence” as “physical force unlawfully exercised so as to
injure, damage, or abuse.” State v. Fitz, 19 S.W.3d 213, 217 (Tenn. 2000).

       “Robbery is the intentional or knowing theft of property from the person of another by
violence or placing the person in fear.” Tenn. Code Ann. § 39-13-401(a). Kidnapping is false
imprisonment of the victim under circumstances which expose the victim to substantial risk of
bodily injury. Id. § 39-13-303(a)(1). Felony reckless endangerment is committed when one
recklessly places another person in imminent danger of death or serious bodily injury through the

                                                -18-
use of a deadly weapon. Id. § 39-13-103. Attempted rape is the attempted unlawful sexual
penetration of a victim accompanied by force or coercion. Id. §§ 39-12-101(a)(3), -13-503(a)(1).
“Force” involves “compulsion by the use of physical power or violence.” Id. § 39-11-106(a)(12).
We conclude that the statutory elements of each of the offenses to which the defendant pled guilty
may or may not involve the use of violence, depending upon the underlying circumstances.

C. Underlying Facts

        Darrell Webster, the victim of the prior offenses, testified that all of the offenses were
accomplished through the defendant’s use of a gun. According to Webster, the defendant pointed
a gun at him when he forced him to surrender control of the car and move from the driver’s seat to
the passenger’s seat. The defendant spun the barrel of the gun, pointed it at the victim’s head, and
pulled the trigger in “Russian Roulette” fashion. At some point during the five-hour encounter, the
gun-wielding defendant forced Webster to perform oral sex upon him. Additionally, the defendant
and his accomplice engaged in conversation indicating that they were going to kill Webster and
discussed where they could dump his body. Pointing a gun at a victim is a violent act. See State v.
Allen, 69 S.W.3d 181, 186 (Tenn. 2002). In determining whether an aggravating circumstance was
established beyond a reasonable doubt, we review the evidence in a light most favorable to the state.
Suttles, 30 S.W.3d at 262. Without question, Webster’s testimony was sufficient to establish that
the defendant engaged in physical force so as to abuse the victim with regard to each of these
offenses. See id. Thus, the state’s evidence was sufficient to establish the (i)(2) aggravating
circumstance. See Tenn. Code Ann. § 39-13-204(i)(2).

D. Weighing of Aggravating and Mitigating Circumstances

       We further reject the defendant’s contention that the aggravating circumstance did not
outweigh the mitigating circumstances beyond a reasonable doubt. This was a question for the jury,
and we conclude the evidence was sufficient to support the jury’s determination.

            IX. VERDICT FORM AS TO AGGRAVATING CIRCUMSTANCE

       The jury was instructed on the statutory aggravating circumstance as follows:

       That the defendant was previously convicted of one or more felonies, other than the
       present charge, the statutory elements of which involved the use of violence to the
       person. The state is relying upon the crimes of Robbery, Kidnapping, Reckless
       Endangerment, and Attempted Rape, which are felonies, the statutory elements of
       which involve the use of violence to the person.

See Tenn. Code Ann. § 39-13-204(i)(2). The verdict form returned by the jury during the penalty
phase of the defendant’s trial reads as follows:




                                                -19-
                                    PUNISHMENT OF DEATH

            (1) We, the jury, unanimously find the following listed statutory aggravating
       circumstance or circumstances:

             (Here list the statutory aggravating circumstance or circumstances so found,
       which must be limited to those enumerated for your consideration by the court in
       these instructions.)

                     Robbery
                     Kidnapping
                     Reckless endangerment
                     Attempted rape

       ...

        The defendant contends that this constitutes an incomplete and erroneous verdict because
(1) none of these four crimes are listed as an aggravating circumstance, and (2) the jury did not find
that the crimes were those whose statutory elements involve the use of violence to the person. The
defendant has waived his right to challenge this issue on appeal as he failed to object to the jury’s
verdict and failed to raise the issue in his motion for new trial. State v. McKinney, 74 S.W.3d 291,
303 n.5 (Tenn. 2002). Regardless, we elect to address the merits of this issue based upon the record
before us.

        The jury’s verdict need not be a verbatim statement of the aggravating circumstance relied
upon by the state. State v. Jerry Ray Davidson, ___ S.W.3d ___, ___, 2003 Tenn. LEXIS 1007, at
**43-44 (Tenn. Oct. 20, 2003). A verdict is valid if it clearly indicates that the jury found the
elements of the aggravating circumstance or circumstances relied upon by the prosecution; the
aggravating circumstances found are those clearly authorized by statute; and the verdict is sufficient
to permit effective appellate review of the sentence. McKinney, 74 S.W.3d at 303.

        The jury’s verdict in the case under review is similar to the verdict form returned by the jury
in McKinney, where the state also relied solely upon the (i)(2) aggravating circumstance. See id.
In McKinney, the verdict form read, in part, “We, the jury, unanimously find the following listed
statutory aggravating circumstance or circumstances: aggravated robbery.” Id. Our supreme court
held the verdict was sufficient. Id. In the instant case, like McKinney, only the (i)(2) aggravating
circumstance was charged to the jury; the trial court’s instruction tracked the statutory language; and
the verdict specifically cited the prior offenses relied upon by the state and instructed by the court.
Moreover, in the case sub judice, the trial court questioned the jury to clarify its intent, stating:

        . . .[Y]ou have written in there:

             “Robbery, Kidnapping, Reckless Endangerment, and Attempted Rape,”
             which, for the record, are the four offenses listed on the charge as the
             aggravating circumstance, although you have not written the entire

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              language as reflected on the charge, an aggravating circumstance. I assume
              that in writing these four offenses on here you have determined that the
              aggravating circumstance, as written on the charge, has been proven
              beyond a reasonable doubt. Is that correct?

The jury foreman responded in the affirmative. We conclude that the jury form in this case was
clear and unequivocal. The defendant is not entitled to relief on this claim.

    X. CONSTITUTIONALITY OF THE TENNESSEE DEATH PENALTY SCHEME

        The defendant argues Tennessee’s death penalty statutes are unconstitutional and the death
penalty is imposed capriciously and arbitrarily. The Tennessee courts have repeatedly upheld the
constitutionality of our state’s death penalty statutes. See, e.g., Reid, 91 S.W.3d at 312-14; State v.
Hines, 919 S.W.2d 573, 582 (Tenn. 1995), cert. denied, 519 U.S. 847 (1996). Further, the courts
of our state have rejected the defendant’s arguments that Tennessee’s procedures for implementing
the death penalty allow it to be imposed capriciously and arbitrarily. See, e.g., Hines, 919 S.W.2d
at 582; State v. Brimmer, 876 S.W.2d 75, 87 (Tenn.), cert. denied, 513 U.S. 1020 (1994); State v.
Cazes, 875 S.W.2d 253, 268, 270-71 (Tenn. 1994), cert. denied, 513 U.S. 1086 (1995); State v.
Harris, 839 S.W.2d 54, 77 (Tenn. 1992), cert. denied, 507 U.S. 954 (1993); State v. Thompson, 768
S.W.2d 239, 250-52 (Tenn. 1989), cert. denied, 497 U.S. 1031 (1990).

        The defendant contends the statutory aggravating circumstances set forth in Tennessee Code
Annotated section 39-2-203(i)(2), (5), (6), and (7) have been so broadly interpreted that they fail to
provide a “meaningful basis” for narrowing the population of those convicted of first degree murder
to those eligible for the sentence of death. However, factors (i)(5), (6) and (7) do not pertain to this
case. Further, our courts have previously concluded that the (i)(2) aggravating circumstance
provides a meaningful basis for narrowing the class of death eligible defendants. See, e.g., State v.
Austin, 87 S.W.3d 447 app. at 487 (Tenn. 2002), cert. denied, ___ U.S. ___ (2003); Vann, 976
S.W.2d at 117; State v. Keen, 926 S.W.2d 727, 742 (Tenn. 1994). This issue is without merit.

                   XI. COMPARATIVE PROPORTIONALITY REVIEW

         The defendant contends his death sentence is disproportionate to the penalty imposed in
similar cases. It is this court’s statutory responsibility to make this proportionality determination,
considering “both the nature of the crime and the defendant.” Tenn. Code Ann. § 39-13-206(c)(1)(D);
State v. Godsey, 60 S.W.3d 759, 781 (Tenn. 2001). The comparative proportionality review is
designed to identify aberrant, arbitrary, or capricious sentencing by determining whether the death
penalty in a given case is disproportionate to the punishment imposed on others convicted of similar
crimes. State v. Bland, 958 S.W.2d 651, 665 (Tenn. 1997). A sentence is disproportionate only if
it is “plainly lacking in circumstances consistent with those in cases where the death penalty has
been imposed.” Id. at 668.

        In conducting our proportionality review, we compare the present case with cases involving
similar defendants and similar crimes. Terry v. State, 46 S.W.3d 147, 163-64 (Tenn. 2001). We
select only from those cases in which a capital sentencing hearing was actually conducted. See State

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v. Carruthers, 35 S.W.3d 516, 570 (Tenn. 2000). We begin with the presumption that the sentence
of death is proportionate with the crime of first degree murder. See State v. Powers, 101 S.W.3d
383, 403 (Tenn. 2003) (citing State v. Hall, 976 S.W.2d 121, 135 (Tenn. 1998)).

         Regarding the circumstances of the crime itself, numerous factors are considered, including:
(1) the means of death; (2) the manner of death; (3) the motivation for the killing; (4) the place of
death; (5) the victim’s age, physical condition, and psychological condition; (6) the absence or
presence of provocation; (7) the absence or presence of premeditation; (8) the absence or presence
of justification; and (9) the injury to and effect on non-decedent victims. Stout, 46 S.W.3d at 706.
We also consider numerous factors regarding the defendant, including: (1) prior criminal record; (2)
age, race, and gender; (3) mental, emotional, and physical condition; (4) role in the murder; (5)
cooperation with authorities; (6) remorse; (7) knowledge of the victim’s helplessness; and (8)
potential for rehabilitation. See Bland, 958 S.W.2d at 667.

        In completing our review, we remain cognizant of the fact that “no two cases involve
identical circumstances.” Terry, 46 S.W.3d at 164. Likewise, a death sentence is not disproportionate
merely because the circumstances of the offense were similar to those of a crime for which another
defendant received a life sentence. Hall, 976 S.W.2d at 135. Our function is not to limit our
comparison to those cases where a death sentence “is perfectly symmetrical,” but rather, our
objective is only “to identify and to invalidate the aberrant death sentence.” Bland, 958 S.W.2d at
665.

        The circumstances surrounding the case under review, in light of the relevant comparative
factors, are that the twenty-year-old defendant directed the twenty-seven-year-old victim to a
secluded, grassy area behind an apartment complex. The defendant, upset because the victim had
not repaid a small debt, held a gun to the victim’s head and told the victim to open his mouth. As
the victim began to back away, the defendant, without provocation or justification, premeditatedly
shot the unarmed, helpless, retreating victim in the head. In order to ensure the victim was dead,
the defendant then placed the gun within an inch of the victim’s head and shot him again. He then
retrieved the victim’s car keys from the victim’s body and escaped in the victim’s car. After the
murder, the defendant said the victim owed him fifteen dollars and needed to “start respecting” him.
Subsequently, the defendant fled from officers and misrepresented that he would turn himself in.
He was later arrested.

        In 1997, the defendant pled guilty to robbery, kidnapping, felony reckless endangerment, and
attempted rape for crimes he committed in 1995 when he was fifteen years old. All offenses
involved the use of a firearm and arose from a single incident during which the defendant and an
accomplice kidnapped the victim. During the episode, the defendant held a gun to the victim’s head,
spinning the chamber and pulling the trigger in Russian Roulette fashion. The defendant discussed
plans to “put a cap” in the victim and discussed where the body should be discarded. The defendant,
while holding the gun, ordered the victim to perform oral sex upon him. The ordeal, which lasted
approximately five hours, culminated with the victim’s fortuitous escape.

       Evidence presented at the sentencing phase established the defendant’s parents were loving
and supportive. Despite his apparently secure home life, the defendant was unable to obey family

                                                -22-
rules and moved out of his parents’ home. The defendant has a small daughter who currently resides
with his parents. At sentencing, the defendant expressed remorse for the murder.

       Our supreme court has upheld the death penalty in numerous cases where a defendant shot
an unarmed victim from close range without provocation. See, e.g., McKinney, 74 S.W.3d at 299
(defendant shot unarmed victim in back of neck); Stout, 46 S.W.3d at 707 (defendant shot victim
in head); Sims, 45 S.W.3d at 6 (defendant shot unarmed victim in back of head); State v. Henderson,
24 S.W.3d 307, 310 (Tenn. 2000) (defendant shot deputy sheriff in back of head at “point-blank
range”); Bland, 958 S.W.2d at 670 (defendant shot unarmed, “unresisting, retreating victim”).

        Our review of similar cases further reveals our state courts have often upheld death sentences
based solely on the aggravating circumstance of a prior violent felony conviction pursuant to
Tennessee Code Annotated section 39-13-204(i)(2). See, e.g., McKinney, 74 S.W.3d at 301 (one
prior violent felony conviction for aggravated robbery); State v. Chalmers, 28 S.W.3d 913, 916
(Tenn. 2000) (prior violent felony convictions for attempted especially aggravated robbery and
attempted first degree murder); State v. Keough, 18 S.W.3d 175, 180 (Tenn. 2000) (prior violent
felony convictions for assault to commit voluntary manslaughter and manslaughter); State v. Smith,
993 S.W.2d 6, 10 (Tenn. 1999) (prior violent felony convictions for robbery and first degree
murder). Moreover, the prior violent felony aggravator is “more qualitatively persuasive and
objectively reliable” than other aggravating circumstances. McKinney, 74 S.W.3d at 313 (quoting
State v. Howell, 868 S.W.2d 238, 261 (Tenn. 1993)).

        The defendant’s primary contention is that his death sentence is disproportionate because
he was a fifteen-year-old juvenile at the time of his prior offenses, and, therefore, the prior violent
felony aggravator cannot outweigh the mitigating circumstances. In State v. Christopher A. Davis,
No. M2001-01866-CCA-R3-DD, 2003 Tenn. Crim. App. LEXIS 250, at *57 (Tenn. Crim. App.
Mar. 25, 2003, at Nashville), appeal docketed, No. M2001-01866-SC-DDT-DD (Tenn. 2003), the
defendant sought to prevent the state from relying upon a murder he committed at the age of
seventeen in order to establish the prior violent felony aggravating circumstance. Davis argued that
just as a juvenile transferred to criminal court is ineligible for the death penalty, an offense
committed by a juvenile could not support an aggravating circumstance in a subsequent capital case.
Id. This court recognized that while Tennessee Code Annotated section 37-1-134(a) renders a
juvenile transferred to criminal court and tried as an adult ineligible for the sentence of death, it does
not preclude a transferred juvenile’s conviction in criminal or circuit court from forming the basis
for an aggravating circumstance. Id. at *58. Additionally, the court noted that the (i)(2) aggravator
does not limit prior violent felonies to convictions for crimes committed by adults. Id. Accordingly,
the fact that the defendant was a juvenile at the time the prior felonies were committed is
insufficient, standing alone, to render his sentence of death disproportionate.

        Further, in addition to Christopher A. Davis, our state courts have upheld other death
sentences based on the prior violent felony aggravating circumstance supported by at least one
felony committed when the defendant was a juvenile. See Richard Odom, 2002 Tenn. Crim. App.
LEXIS 871, at *127 (murder committed when defendant was seventeen); State v. Coleman, 619
S.W.2d 112, 115 (Tenn. 1981) (per information on Rule 12 Database, defendant was sixteen when
he committed assault with intent to commit robbery with a deadly weapon). The defendant in the

                                                  -23-
instant case attempts to distinguish his circumstances on the basis that he was only fifteen years old
and, therefore, less culpable than an older juvenile, when he committed the prior violent felonies.
The jury was instructed that the defendant’s age at the time of the commission of the prior offenses
could be considered a mitigating circumstance. Nevertheless, the jury concluded the aggravating
circumstance outweighed the mitigating circumstances beyond a reasonable doubt. In conducting
our review, we conclude the defendant’s age at the time of the prior offenses does not diminish his
culpability to a degree that his death sentence is disproportionate.

        Our review of similar cases and defendants reveals that the sentence of death imposed upon
the defendant is proportionate to the penalty imposed in those cases. We have considered the entire
record and conclude the sentence of death was not imposed arbitrarily; the evidence supports the
finding of the (i)(2) aggravating circumstance; the evidence supports the jury’s finding that the
aggravating circumstance outweighs the mitigating circumstances beyond a reasonable doubt; and
the sentence is not excessive or disproportionate.


                                          CONCLUSION

       After a careful review of the record, we affirm the premeditated first degree murder
conviction and the sentence of death.




                                                       JOE G. RILEY, JUDGE




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