         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                                    February 10, 2004 Session

                   STATE OF TENNESSEE v. CHARLES RICE

                   Direct Appeal from the Criminal Court for Shelby County
                            No. 01-00035 Joseph B. Dailey, Judge



                       No. W2002-00471-CCA-R3-DD - Filed July 9, 2004



         The Defendant, Charles Rice, appeals as of right his conviction for the first degree
premeditated murder and first degree felony murder of Emily Branch during the perpetration of a
rape. A Shelby County jury found the Defendant guilty of first degree premeditated murder and of
first degree felony murder. The trial court merged the convictions into one count of first degree
murder. Following a sentencing hearing, the jury found that the proof supported three aggravating
circumstances beyond a reasonable doubt: the Defendant had previously been convicted of a violent
felony offense, see Tennessee Code Annotated section 39-13-204(i)(2); the murder was especially
heinous, atrocious, and cruel, see Tennessee Code Annotated section 39-13-204(i)(5); and the
murder was committed during the perpetration of a rape, see Tennessee Code Annotated section 39-
13-204(i)(7). The jury further determined that these aggravating circumstances outweighed any
mitigating circumstances beyond a reasonable doubt, and sentenced the Defendant to death. The trial
court approved of the sentencing verdict. In this appeal as of right, the Defendant contends that: (1)
the evidence was insufficient to support his convictions; (2) the trial court improperly restricted the
Defendant’s right to cross-examine one of the State’s witnesses; (3) the trial court improperly
excluded evidence tending to prove the guilt of another; (4) the trial court erred in refusing to permit
the Defendant to impeach his own witness; (5) the trial court erred by refusing to permit the
Defendant to sit at the same table as his attorney; (6) the trial court’s failure to instruct on the lesser
offense of facilitation was error; (7) the trial court’s failure to instruct the jury as to the definitions
of knowingly and recklessly as to the offense of felony murder was error; (8) the indictment failed
to set forth a capital offense; (9) Tennessee’s death penalty statutory scheme is unconstitutional; (10)
the evidence is insufficient to establish the statutory aggravating circumstances found by the jury;
(11) the trial court improperly instructed the jury as to the (i)(2) aggravator; and (12) the sentence
of death imposed in this case is disproportionate compared to other capital cases. After reviewing
the record and applicable law, we conclude that there are no errors of law requiring that the
Defendant’s conviction or sentence be reversed. Accordingly, we affirm the jury’s verdict and
imposition of the sentence of death.

     Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court Affirmed
ROBERT W. WEDEMEYER , J., delivered the opinion of the court, in which, JOE G. RILEY and JOHN
EVERETT WILLIAMS, JJ., joined.

Marty B. McAfee and Stephen Leffler, Memphis, Tennessee, for the appellant, Charles Rice.

Paul G. Summers, Attorney General and Reporter; Michael Moore, Solicitor General; Angele M.
Gregory, Assistant Attorney General; William L. Gibbons, District Attorney General, and Amy
Weirich and Gerald Harris, Assistant District Attorneys General, for the appellee, State of Tennessee.

                                               OPINION
                                                I. Facts

       This case involves the murder and rape of thirteen-year-old Emily Branch, which occurred
on or near June 18, 2000, in Memphis. Emily Branch was reported missing on June 18, 2000, and
her body was discovered on June 25, 2000. After a police investigation, the Defendant was
questioned and arrested for her murder. A Shelby County jury found the Defendant guilty of first
degree premeditated murder and of first degree felony murder, and sentenced the Defendant to death.
The Defendant now appeals.

                                           A. Facts at Trial

        Steven Dwayney Branch, the victim’s father, testified that on Sunday, June 18, 2000, which
was Father’s Day, he was living at 1228 Louisville Street, in Memphis, Tennessee, with his girlfriend
and three of her children. Branch testified that, at that time, the victim lived with his sister, Margaret
Branch. He said that, on the night of June 17, 2000, the victim, who was thirteen, spent the night
at his house. On the morning of June 18, 2000, the victim awoke, dressed, and told her father
“Happy Father’s Day,” while Branch cooked breakfast for all the children. Branch testified that the
victim was wearing “a white short-pants overall set with a navy blue shirt, some white socks, her
blue and white tennies, and she had a necklace around her neck.” He said that the victim left the
house that day, and he began to worry when she had not returned by 5:00 p.m. He stated that at 7:00
p.m. he called the police department. Branch testified that the police told him that the victim would
probably be back, and they would report her as a “runaway.”

        Branch testified that his daughter had never runaway before, so that night he began to look
for her around the neighborhood. He said that a few people in the neighborhood searched for the
victim with him. Branch testified that, a few days after his daughter’s disappearance, he spoke with
Tony Evans, whom he had known since they were children, and told Evans that he was looking for
his daughter. He said that, during the afternoon of Sunday, June 25, 2000, one week from the day
that the victim disappeared, Evans came by his home and told him that he had found the victim.
Branch testified that he accompanied Evans and Marquette Houston to the place where Evans said
that he had found the victim. He said that they all drove in his truck to an Amoco station and parked
the truck in the lot of the station. Then, the three men walked on a trail through a wooded area
behind an Amoco station, and, after Branch identified the body as belonging to the victim, he called


                                                   -2-
the police. Branch testified that he could not recognize the victim’s facial features because her body
had decomposed, but he recognized her clothing, necklace, and shoes as the same that she was
wearing on the day that she disappeared. Branch stated that, after he found his daughter’s body, he
did not move anything and immediately called the police. He said that, when the police arrived, he
stayed and talked to them.

        Branch testified that the victim’s mother was Tracie Anderson, who was married to the
Defendant at the time of the victim’s disappearance. Branch stated that he and Anderson were never
married. He said that the victim never lived with Anderson and the Defendant while they were
married. Branch testified that, at the time of his daughter’s disappearance, the Defendant lived two
streets over from him on Firestone Street. Branch testified that he did not see the Defendant while
the victim was missing, and the Defendant never offered to help look for her.

         On cross-examination, Branch testified that the victim left the house with three girls at
around 11:00 a.m. Branch said that, at the time of his daughter’s disappearance, he did not know
where Anderson was living. He testified that, when Evans came to his house, Evans told him that
the victim was in a field behind the Amoco station located on Chelsea Street. Branch testified that
the field behind the Amoco station is a large area that is heavily wooded, and the victim’s body was
located in a ditch. Branch said that there is a path that starts at the back of the Amoco station and
runs along a dry creek bed through the woods. He said that it was just a few minutes walk from the
Amoco station to where he found the victim. Branch also testified that he had known the Defendant
for thirteen to fifteen years. He said that he was told that the Defendant and Anderson used some
kind of “dope,” but he had never seen them with it.

        Marquette Houston, the victim’s friend, testified that he was approximately three years older
than the victim, and he had known the victim for a long time “from the neighborhood.” Houston
said that, during the afternoon of June 18, 2000, he saw the victim on the front porch of her father’s
house listening to music. He recalled that the victim was listening to a Vanilla Ice CD, and he told
her that “nobody . . . listen[s] to Vanilla Ice [any]more.” He looked at the Vanilla Ice CD and
noticed that it had a scratch on it. Houston testified that this was the last time that he saw the victim
alive. He said that, on Sunday, June 25, 2000, he saw Evans come to Branch’s house and heard him
say that he had found the victim’s body behind the Amoco. Houston said that, after he heard this,
he got in the truck with Evans and Branch. He explained that Evans led them on the path behind the
station, and Houston saw a Vanilla Ice CD lying on the ground in the “pathway area.” Houston said
that the CD looked like it had been “cracked or something” and had the same scratch on it that he
had noticed earlier on the victim’s Vanilla Ice CD. Houston recalled that Evans told him not to
touch the CD and then showed them the body that Evans had found. He said that Branch then
identified the body as the victim from her clothing, but the victim could not be identified by her face
because “it was rotten.” Houston said that he then ran out of the woods because he was scared, but
then stayed to tell the police what he had seen.

       On cross-examination, Houston testified that, when Evans drove up on his four-wheeler and
told Branch that he found the victim, he had a machete with him and seemed frightened. Houston


                                                  -3-
testified that Evans led them directly to where the body was hidden in the bushes. He said that, when
they came to where the victim’s body was located, Evans stuck the machete in the ground and said,
“there it is . . . [is] this your daughter?” Houston said that Branch responded, “Yeah, that’s my
daughter. That’s my baby. That’s my baby.”

        Monica Downey testified that, on June 18, 2000, she was living with her mother and her
mother’s boyfriend, Steven Branch. She said that, on June 18, 2000, she, the victim and five other
girls “walked around because that’s our normal routine every day. So we [were] walking around,
and we [were] on the bridge.” Downey testified that, while they were walking on the bridge, the
Defendant came by and talked to the victim, but she could not hear what they talked about. She said
that the Defendant left, and the girls went to the store and then over to the Defendant’s house.
Downey testified that, when they first got to the Defendant’s house, the victim went inside with him,
and she and the other girls waited outside for her to come back. She said that the victim then came
out and told her that they all had to leave, so they left the victim on the Defendant’s porch and went
to the park. Downey said that she left the victim around 4:00 p.m. or 5:00 p.m. On cross-
examination, Downey testified that, when she saw the Defendant on the bridge, he was wearing a
red baseball cap and a suit that matched it. She explained that it was not unusual for the victim to
go to the Defendant’s house when the victim’s mother lived there. Downey stated that, when she
and the other girls left the victim at the Defendant’s house, she was unaware that the victim’s mother
no longer lived there. Downey stated that she never saw the Defendant when they were at the
Defendant’s house.

        Willie Lee Hall, the Defendant’s stepfather, testified that, on June 18, 2000, he was living
in a house located at 1272 Firestone Street. Hall stated that he knew the victim because she came
over to his house “a lot when [the Defendant] and her mother were married.” Hall stated that the
Defendant and the victim’s mother, Tracie Anderson, lived with him for a little over a year after they
got married. He said that, on June 18, 2000, the victim came over while the Defendant was there.
He said that the Defendant had just come in the house and sat down to watch TV when the victim
came inside the front door. Hall said that, when the victim came over, she asked to walk the dog,
and Hall told her no because the dog might get her dirty. He said that, when the victim was at the
house, he was with her the whole time, and she was never out of his sight. When the victim went
back outside, she talked to the girls that she came with and then left with the Defendant, and then
the Defendant and the victim walked down the street together toward Bellevue Street. Hall testified
that the police came to his home to speak with the Defendant about the victim, who was missing at
the time. Hall said that the Defendant told the police where he and the victim parted ways, which
was at the intersection of Bellevue Street and Firestone Street.

         On cross-examination, Hall testified that, when the victim came to his house, she asked if
“daddy” was home because she called the Defendant “daddy.” He said that the victim came by his
home frequently looking for her mother, and, if her mother was not there, she would want to know
where her mother was. Hall said that, when the victim came to the house on June 18, 2000, she was
with a group of girls, but, when she came to the door, the girls kept walking to the park. Hall stated
that it was about 3:40 p.m. when the Defendant and the victim left together. He also said that, later


                                                 -4-
that afternoon, the Defendant came back to the house, and he did not change clothes, rather he just
went inside and watched TV. He explained that, two or three days after the police first came to
Hall’s house to ask about the victim, they came back and asked to search the house. Hall granted
them permission to search the house, and they took a knife laying on the dining room table. Hall said
that the knife had been lying there for the “longest time.”

         Tony Evans, a convicted felon, testified that he knew the victim because he played football
with her father and that he knew Tracie Anderson, the victim’s mother. Evans said that, on June 18,
2000, he lived on Firestone Street and saw the victim and a “lot of little girls” walk to Hall’s house
around 2:00 p.m. or 3:00 p.m. He said that, later that same day, he saw the victim and the Defendant
walking away from Hall’s house heading westbound on Firestone Street. Evans stated that he
thought it surprising that the two were walking together because the victim’s mother had recently
broken up with the Defendant due to his abuse of her. Evans said that, because this was surprising,
he followed the victim and the Defendant. He testified that, after turning off Firestone Street, the
two went up another small street together, then headed back on Empire Street, and then headed south
on Bellevue Street toward the Amoco station. Evans said that he saw them head past the Amoco
station through the pathway on the side of the Amoco station. He testified that, during the entire
time, the two were walking, the victim walked in front of the Defendant, and, every now and then,
he would say something to the victim and she would turn back toward him and respond. Evans said
that, after he saw them walk into the pathway, he returned to his home and finished his yard work.

         Evans testified that, the next day, Anderson called him and asked him if he had seen the
victim, and he told her that he had seen the victim and the Defendant go into the pathway next to the
Amoco station. Evans said that, after speaking with Anderson, he went into the pathway, but he did
not find anything because it was hot and the area to be searched was so large. He said that he wanted
to find the victim because both of the victim’s parents were good friends of his. Evans testified that,
on June 25, 2000, he fixed his four-wheeler and went back to the path to search for the victim. He
said that, when he went into the woods, he smelled an odor like someone had died, so he determined
that the wind was blowing from the northwest and began looking in that direction. Evans explained
that, as he was searching, he had to chop through bushes with a machete that he brought with him,
and he ended up near several cars. Evans said that he looked in the cars to see if there were any flies
coming from any of them, but he did not see any. He explained that he could no longer smell the
odor so he went back to his four-wheeler where the odor was strong. Evans said that he walked a
short distance from the four-wheeler and “stepped up on the tree and looked down, [and] saw her
shoes.” He said that he then ran from the woods to Branch’s house and told them what he had found.
Evans testified that he, Branch, Branch’s girlfriend, and Houston drove down to the Amoco station,
and he showed them the body. Evans said that they then called the police. Evans testified that, when
he saw the victim’s body, he recognized it as the victim because of her hair and clothes. He added
that he noticed that her shorts were pulled around her ankles.

        Evans said that, two days after the victim was missing, he saw Mario Rice, the victim’s
cousin, and the Defendant walk down to the woods together, and he called Anderson to let her know.
Evans testified that the police were called, but they did not get there in time “because it was at


                                                 -5-
night.” Evans said that he then hid underneath a house where Mario Rice and the Defendant were
located to try to hear them discuss where they hid the victim, but all he could hear was a discussion
about killing Anderson. Evans said that he did this two or three nights in a row, lying there until
4:00 a.m. or 5:00 a.m.

        On cross-examination, Evans testified that, while he was suspicious and followed the
Defendant and the victim for a few blocks, he stopped following them when they got to the path by
the Amoco station because that path leads to Brown Street. He explained that the Defendant had
relatives who lived on Brown Street, so he assumed that was where they were headed. Evans said
that he told police that, when he saw the Defendant walking with the victim, the Defendant was
wearing blue jogging pants and a blue or green baseball hat. Evans admitted that, while he knew the
police would be interested in a dead body, he first contacted Branch when he found the body before
he called the police. Evans stated that, during the week the victim was missing, the Defendant and
Mario Rice would sit in the yard of a house on Alaska Street and watch the pathway, making Evans
more suspicious that the victim was back there. Evans denied that he was diagnosed with paranoid
schizophrenia and denied that he took medication for this disorder.

         Tracie Anderson, the victim’s mother, testified that she was married to the Defendant for
approximately one year and four months and that they were together for a total of four years
beginning in 1998. Anderson testified that she lived with the Defendant in the house on Firestone
Street. She stated that she last saw the victim alive on June 4, 2000, at the house where she and the
Defendant resided. Anderson testified that, on June 6, 2000, she and the Defendant had an argument,
and she left the Defendant to move in with her brother. She said that, prior to leaving the Defendant,
the two had discussed her leaving, and the Defendant told her that if she left him, “It will hurt you
more than it hurts me.” Anderson testified that, after she left the Defendant, she told Steven Branch
not to let the victim go to the Defendant’s house anymore. On cross-examination, Anderson testified
that the Defendant used drugs, specifically “crack” cocaine, and was using “crack” cocaine when she
met him. She also said that she had left the Defendant numerous times prior to leaving him on June
6, 2000, but had always returned.

         Robin Hulley, a sergeant with the Memphis Police Department, testified that, on June 25,
2000, he was called to the Amoco station where he was led by uniformed police officers to the scene
where a dead body had been found. Sergeant Hulley testified that, to the side of the Amoco station,
there is a pathway that can be seen from the parking lot, and there is a big grassy field at the end of
the pathway. The sergeant said that the victim’s body was found on the right side of the field. He
stated that the distance from the entrance of the pathway to the victim’s body was approximately half
a city block. He said that, walking on the pathway, he noticed a broken Vanilla Ice CD and thought
it was strange because there was no other debris on the path. The sergeant said that the area where
he observed the body was heavily wooded and appeared to be in a dry creek bed. Sergeant Hulley
stated that, when he saw the body, it was lying face up, and the victim’s short overalls and panties
were pulled completely to the victim’s ankles.

       On cross-examination, the sergeant testified that he worked with another officer, A.J. Kent,


                                                 -6-
on this crime scene and that the sergeant was responsible for taking the photographs and writing the
report, while Officer Kent was responsible for sketching the crime scene and tagging the physical
evidence. The sergeant testified that the victim’s body was not obvious from the path and could not
be seen from the grassy field. He said that the body was not covered by any brush. The sergeant said
that the only blood at the crime scene was around the victim’s body. He also said that the CD was
not wet or muddy and appeared to be clean.

        Michael Jeffrey Clark, an officer with the Memphis Police Department, testified that, on June
25, 2000, he was assigned to investigate the victim’s murder. He said that he went to the Amoco
station and was briefed by uniformed policemen about finding the victim’s body. The officer said
that he was then led to the scene where the body was found. He testified that the distance from the
entrance of the path at the Amoco station to the body was the same as the “length of a football field.”
Officer Clark said that he had to walk “right up to the edge of the creek bank and look down to be
able to see” where the body was lying. He said that the victim’s body was in a face up position with
the short overalls pulled down to the victim’s ankles, and there was a pair of panties tangled up with
the overalls.

        Officer Clark testified that, during his investigation, he interviewed Tony Evans, whom Clark
then considered a suspect. The officer gathered information from Evans and was able to corroborate
the information. After interviewing Evans, the officer interviewed Marquette Houston verbally and
then took a written statement from him. He said that he also interviewed Tracie Anderson, Steven
Branch, and Mario Rice and then went to the Defendant’s home, where he interviewed Willie Lee
Hall and Delores Hall. The officer testified that he interviewed the Defendant at around 2:00 a.m.
on June 26, 2000, at the police department.

        The officer testified that, after the Defendant signed and dated a Miranda rights form, he told
the Defendant that other witnesses had seen the Defendant entering the woods with the victim near
the Amoco station, where she was found dead. Officer Clark said that the Defendant denied going
into the woods with the victim and denied knowing anything about her disappearance or her murder.
The officer said that he then told the Defendant that it appeared to him that the victim had been
raped, and he asked the Defendant if he would be willing to submit to a DNA1 test so that the police
could compare his DNA with the DNA found in the victim. The officer said that he questioned the
Defendant again about the events of June 18, 2000, and the Defendant told him that he had sex with
the victim inside the kitchen of his parents’ home, and he explained, “I had sex for about a minute
with her.” Officer Clark said that the Defendant said that he had seen the victim and she asked him
for money and to walk his dog, and the Defendant asked her to walk to the store so he could get
some change. Officer Clark stated that the Defendant said that, when he arrived at the store, he told
the victim that he did not have any money, and they parted ways. The officer then said that the
Defendant changed his story and told him that they went to his house after the victim asked him for
money and that led to the sexual act in the kitchen, and then she left his house and he did not see her
again. The officer said that they confronted the Defendant with the Defendant’s stepfather’s story


       1
           Deoxyribonucleic acid.

                                                 -7-
that he saw the Defendant leave the house with the victim, and the Defendant replied that he entered
the woods with the victim, but denied any wrongdoing.

       Officer Clark testified that he and another officer decided to put the Defendant in the Shelby
County jail, and the Defendant asked for protective custody because he said that he had received
some threats from the family members in the neighborhood. The officer said that he responded, “Do
you mean the family members of the girl you killed?” and the Defendant said, “Yes, sir.”

         On cross-examination, the officer testified that the path looked like it had been mowed
recently or like cars had used it to gain access to the back of the woods, and the CD that he found
was lying on top of the grass. Officer Clark said that Evans told police that he suspected the
Defendant, and the Defendant was detained approximately fifteen minutes after the body was found.
He said that, later, when he was back at the police station interviewing the suspects, he had the
Defendant in one interview room, Mario Rice in another, and Evans in a third room. The officer
testified that, during the course of that evening, he interviewed Evans first, then Houston, Anderson,
Steven Branch, and Mario Rice. He then left and interviewed Willie Lee Hall, Delores Hall, and
then returned to the station and began interviewing the Defendant at around 2:00 a.m. The officer
stated that he did not notice any tire marks in the field when he began his investigation.

        James L. Fitzpatrick, a sergeant with the Memphis Police Department, testified that he was
called to assist in the investigation of this case on June 25, 2000. He said that he went to the crime
scene at around 5:00 p.m. and viewed the victim’s body, which was in advanced stages of
decomposition. He explained that the victim’s upper torso had decayed substantially, but the lower
legs and the arms were still intact. He said that the legs had the hue of polished light-colored wood,
while the facial portion appeared to have mummified and had taken on the appearance of dark
leather. He confirmed that the victim’s clothes were around her ankles.

        Sergeant Fitzpatrick testified that, after advising the Defendant of his rights, he took the
Defendant’s statement at around 2:00 p.m. on June 26, 2000, with the assistance of Sergeant
Earnestine Davison. The statement was taken by a transcriptionist in a question and answer format.
The sergeant read the statement to the jury. In that statement, the Defendant said that he knew the
victim because he had married her mother and that the last time he saw the victim was between 4:30
p.m and 5:30 p.m behind the Amoco station. The Defendant said that he and the victim walked
through the path on the way to the field and “that’s when my . . . [Mario Rice] killed [the victim].”
The Defendant explained that he and Mario Rice planned to take the victim to this location so that
Mario Rice could kill her. The Defendant said that Mario Rice was going to kill the victim because
he was “tired of seeing [the Defendant] going through things [he] was going through with [the
victim’s] mother.” The Defendant said that the initial plan was to have Anderson accompany the
Defendant to the field where Mario Rice would kill her, but Anderson was not around. The
Defendant said that he encountered the victim between Bellevue Street and Smith Street with her
friends and told her to meet him later at his stepfather’s house on Firestone Street because she
wanted to walk his dog and she wanted ten dollars. He stated that, while she was at the house, “Me
and her had sex in the kitchen. It lasted about sixty seconds,” and stated that the victim told him that


                                                  -8-
“she [knew] that her stuff was [better] than her mother’s.” He stated that “this was the first time we
had sex,” and he did not reach climax.

       In his statement, the Defendant also said that, after his sexual encounter with the victim, he
and the victim left the house and went to the Amoco station on Chelsea Street under the guise that
the Defendant would “get some change and give her $10.” However, the Defendant said that they
never went to the Amoco station, and the Defendant told the victim that he did not have any money.
The Defendant said that the victim then followed him into the woods and, while in the woods, the
Defendant and the victim were greeted by Mario Rice. The Defendant then said:

       And that’s when we said, “F*** this b****; let’s kill this b****.” I told Emily about
       an apple tree and a fenced-in area, so she went in there, and that’s when my nephew
       started to stab her. He stabbed her in the head first and in the throat numerous times
       and in the chest area numerous times. That’s when I ran, and my nephew, Mario
       Rice, ran behind me. . . . Then I went to another friend’s house on Montgomery.
       Then I went to another friend’s house on Ayers, and that’s where Mario [Rice] and
       I met up again. We started drinking, and we stayed together until about 10:00 p.m.
       And then he went home and I went home.

The Defendant explained that Mario Rice and the victim were cousins, and he provided more details
about the actual murder, saying:

       She was facing him, and he was facing her, and there were a lot of words. He was
       talking to her. I really don’t know exactly what he was saying. Then he pulled the
       knife from out of his left back pocket, and then he stabbed her in the head. She went
       down on one or two knees, and that’s when he stabbed her in the throat a bunch of
       times, and she fell back on her back. She was moving her hands like she was trying
       to tell Mario [Rice] to stop. She pulled – and she had pulled her clothes down before
       the first stabbing, and I guess she thought she was getting ready to be raped by what
       Mario [Rice] was saying because it made me wonder why was she taking her clothes
       down. As I think about it, I think she must of fell back because of the way Mario
       [Rice] was stabbing her in the neck and chest.

The Defendant said that Mario Rice used a “kitchen knife, not a butcher knife” during the murder.
When further questioned as to his and Mario Rice’s plans, the Defendant admitted that the plan was
to lure the victim’s mother to the field and to “take care” of her. He said that he “was going to take
care of the mother, and Mario [Rice] was going to take care of anybody else.” He continued, “I was
probably going to jump on the mother. That probably wasn’t all I would have done to her.”

        The sergeant testified that, on June 27, 2000, he took the Defendant back to the crime scene
to do a “walk through” video of the series of events leading to the victim’s death. The Defendant
told the sergeant that he got the victim to accompany him to the secluded part of the field by telling
her that there was an apple tree back there. The Defendant then led officers directly to the spot


                                                 -9-
where the victim’s body was discovered. On cross-examination, Sergeant Fitzpatrick admitted that,
in every statement given by the Defendant, he denied killing the victim.

        Ernestine Davison, an officer with the Memphis Police Department, testified that she talked
with a few witnesses at the crime scene and then interviewed the Defendant at around 2:00 a.m. on
June 26, 2000. She said that she advised the Defendant of his rights and that he seemed alert and
willing to cooperate. Officer Davison said that she remembered the Defendant telling her three
different stories during the interview period. She also testified that, when asked, “Who is threatening
you, the family of the girl that you killed?” the Defendant responded, “Yes, sir.” On cross
examination, the officer testified that the Defendant consistently maintained that he did not kill the
victim.

        Dr. Cynthia Gardner, a medical examiner with the Shelby County Medical Examiner’s
Office, testified that she examined the victim’s body. Dr. Gardner testified that she visited the crime
scene, where she observed the body in its discovered position. She stated that the victim was “lying
on her back in a field” and noted that the victim’s shorts were pulled down around her ankles. She
explained that the body was in a state of advanced decomposition, “in many areas . . . the soft tissues
were completely gone and only the skeleton remain[ed].”

        Dr. Gardner explained that she later performed an external examination of the victim’s body
with the clothing intact. She noticed that the rate of decomposition was occurring at different rates
in different areas of the body and explained that “differential decomposition is associated with areas
of injuries.” She continued:

       If there’s a breach in the skin surface somewhere or even if there is a large bruise,
       which is just a collection of blood, both of those factors are very attractive to the
       infection bacteria that promote decomposition. So when you see a body where there
       w[ere] areas of decomposition which has occurred at a faster rate, it’s more advanced
       decomposition in a very specific area. That indicates that there was probably injury
       in that area.

Dr. Gardner stated that she observed areas of advanced decomposition “[i]n the head, the neck, the
chest, the upper back, and in the groin area” and, because of the advanced state of decomposition in
the vaginal areas, she opined that there was some sort of trauma or injury to the area prior to death.
Additionally, as part of the external examination, Dr. Gardner noted that the victim had what
appeared to be stab wounds in the right lower quadrant of the torso and on the left wrist and
explained that the wounds to the victim’s wrist were defensive injuries. She further confirmed that
the wounds were consistent with those inflicted by a kitchen knife. The doctor stated that, an
examination of the victim’s clothing revealed tears consistent with those produced by a knife.
Specifically, she said that an examination of the victim’s shirt indicated ten total defects consistent
with those produced by a knife: one in the right lower quadrant; four in the anterior left chest; one
on the right chest; three on the arm; and one on the back. Dr. Gardner also observed injury to the
neck area, indicating that a sharp instrument went all the way through the soft tissues from the skin


                                                 -10-
all the way down to the bone in the back. The doctor explained that the windpipe and esophagus are
located directly in this neck region and would “most definitely have been severed” for that injury to
have been produced. She said that another point of sharp trauma was observed to the back of the
skull where there was a puncture wound; however, this wound did not penetrate through the skull.
From her examination, Dr. Gardner determined that there were ten stab wounds on the shirt, three
to the neck, one to the back of the head, and two to the left wrist, for a total of sixteen stab wounds.
Dr. Gardner concluded that the victim’s death was the result of multiple stab wounds. She added
that, due to the extent of the decomposition, she was unable to obtain any swabs for DNA testing.
She further stated that the victim’s body was identified as that of Emily Branch through her dental
x-rays.

        Dr. Steven Symes, a forensic anthropologist with the medical examiner’s office, assisted Dr.
Gardner in her examination of the victim’s body. Dr. Symes testified that he examined the bones
of the victim’s upper body and found four instances of “sharp trauma to bone,” three of which were
located in the neck and one of which was on the back of the skull. The doctor testified that these
wounds were inflicted from the front of the victim, penetrated through her and impacted her spinal
cord. He said that the knife used had a single-edged blade, the same as some kitchen knives.

        The Defendant called Michael Patton, who testified that, in June of 2000, he stayed at
Delores Rice’s house located at 1039 Alaska Street at least once a week, but usually two or three
times a week. Patton testified about the hole located behind the house that led to the crawl space.
He said that nothing was kept in the crawl space except a ladder, which was kept “right there at the
front entrance so we can reach in and get it.” Patton testified that the crawl space was in the back
of the house under the childrens’ bedrooms. He also said that there were dogs in the neighboring
yards that would bark if someone was in the backyard. He testified that a person inside the house
could hear if someone was hiding in the crawl space.

        Lee Bearden testified that, on June 18, 2000, he was watching football at 1:00 p.m. when
Mario Rice, Donnie Tate, and R.L. Branch came to his house. He said that they played dominoes
together until about 3:00 p.m. On cross-examination, Bearden admitted that he was convicted of
arson in 1997 and of aggravated assault in 1992.

         R.L. Branch testified that he is Mario Rice’s father and that, on June 18, 2000, he picked up
Mario Rice around 1:30 p.m. at Mario Rice’s house on Alaska Street and brought him to Bearden’s
house. He said that, at the time, he was at Bearden’s house with Bearden, Mario Rice, and Donnie
Tate. R.L. Branch testified that the four men drank beer and played dominos until 3:00 p.m., and
then went to Save-A-Lot, where they met Larry Rice and Carolyn Rice at around 4:00 p.m. He said
that, after they left the store, they went to Tate’s house and ate dinner. R.L. Branch stated that, after
dinner, at around 8:00 p.m., he took Mario Rice to meet his girlfriend. On cross-examination, R.L.
Branch testified that Steven Branch is his brother and the victim was his niece. He said that Mario
Rice and the victim were close and played together like cousins. He said that there was no way that
Mario Rice stabbed the victim that day because Mario Rice was with him until 8:00 p.m.



                                                  -11-
         Donald Tate testified that he is Mario Rice’s cousin and confirmed R.L. Branch’s testimony
regarding the events of June 18, 2000. Larry Rice testified and confirmed that he met Mario Rice
at the store around 4:30 p.m. or 5:00 p.m. on June 18, 2000.

        Roy Herron testified that, at 5:00 p.m., the Defendant came to his home where the two men
watched the U.S. Open golf tournament. Herron said that, when the Defendant came over, there was
no blood on his clothes or shoes, and he did not have a weapon on him. He said that the Defendant
stayed until the golf tournament was over, which was about 7:00 p.m. Julie Scobey testified that she
is employed with WMC-TV in Memphis and, on June 18, 2000, the U.S. Open golf tournament was
played on their station between 12:30 p.m. and 6:59 p.m.

       Dr. Joseph Angelillo, a clinical psychologist, completed an evaluation of the Defendant and
determined, as a result of testing, that the Defendant’s full-scale I.Q. is 79.

        Rosyln Johnson testified that she works for Correctional Alternatives Incorporated as a
presentence investigator, and she prepared Tony Evans’ presentence report. She said that, as part
of her presentence investigation, Evans gave her written information that he was diagnosed as having
paranoid schizophrenia. Johnson stated that Evans provided her an appointment sheet stating when
his next appointment was and also provided her with his medicine bottles.

        Stephanie Fitch testified that she gave a statement to police in which she said that she saw
the victim at the store at around 5:00 p.m. with some other girls and that she saw her later walking
on the railroad tracks alone. Fitch testified that this statement was not true.

         Based upon this evidence and the arguments of counsel, the jury found the Defendant guilty
of first degree premeditated murder and first degree felony murder. The trial court merged the two
counts into one judgment for murder in the first degree. See State v. Davidson, 121 S.W.3d 600, 609
n.4 (Tenn. 2003) (emphasizing that if a jury returns a verdict of guilt on more than one theory of first
degree murder, the trial court may merge the convictions and impose a single judgment of
conviction).

                                     B. Facts at Penalty Phase

       The following evidence was presented during the penalty phase of the trial. Bob Fleming,
a criminal court clerk, testified that the Defendant pled guilty to aggravated assault on January 2,
1991.

        The victim’s father, Steven Branch, testified that the victim was thirteen years old at the time
of her murder. Steven Branch explained that the victim lived with his sister, but the victim had been
staying at his house over the summer. He stated that the victim wanted to be a model when she grew
up, and he was saving money to send her to modeling school. Steven Branch said that he and the
victim enjoyed spending time together, and, since her death, he has felt “real bad.” He often spends
nights “sit[ting] . . . in my living room, just watch[ing] her picture. . . .”


                                                 -12-
        The defense called Gloria Shettles, a mitigation investigator with Inquisitor, Incorporated.
She testified that she investigated the Defendant’s background and learned that one of the
Defendant’s sisters died on April 17, 1979, from lupus, his father died on July 11, 1985, from cancer,
his brother died on June 25, 1986, as a result of a drowning accident, and another of his sisters died
on January 19, 2001, from colon cancer. The Defendant was twenty years old when his father died.

        Shettles testified that she obtained the Defendant’s school records which indicated that he
went to school in Memphis and that he was held back in the third grade. The records indicated that,
in the fifth grade, the Defendant was only reading at a third-grade level and failed spelling. The
Defendant’s conduct grade in the sixth grade was unsatisfactory and he was reading at a 2.8 level.
Shettles testified that, in the seventh grade, the Defendant earned all F’s with the exception of music,
in which he earned a D. The Defendant did not receive any grades in eighth grade due to
nonattendance, and he dropped out of school after the eighth grade.

         Shettles testified that, while investigating the Defendant’s background, she learned that the
Defendant was a witness to a crime in his neighborhood when he was sixteen years old and testified
for the State at the suspects’ trial. The transcript of the trial showed that the Defendant testified that
he went into a grocery store to purchase cigarettes and beer and, after making his purchase, he left
the store and walked to the corner. He testified that he then heard gunshots coming from the store
and walked back to the store where, looking through the door, he observed a man holding one of the
store clerks by the shirt collar with a pistol “up side his head.” The Defendant said that, when he saw
this, he left, but later identified the perpetrators of that crime in a police line-up. The perpetrators
of this crime were later convicted of first degree murder and sentenced to death. Shettles added that
the Defendant was thirty-five-years old at the time of the victim’s death.

       Joyce Rice, the Defendant’s sister, testified that her brother was the youngest of six children
and only three of those children are still alive. Joyce Rice confirmed that her brother witnessed the
crime about which he testified, and she believed that her brother saw the men being killed. She also
explained that one of their brothers was murdered over gambling by being hit in the back of the head
and thrown into a swimming pool. Joyce Rice testified that she cared about the Defendant, who
worked in construction, but conceded that the Defendant had been using “crack” cocaine for about
two years and, as a result, his life started going downhill.

         Dr. Joseph Angelillo testified again during the penalty phase. He said that he met with the
Defendant several times, during which he conducted various intellectual and personality tests on the
Defendant. In addition to this testing, Dr. Angelillo reviewed the Defendant’s school records and
his social history. The doctor testified that the Defendant had “a significant amount of loss in his
life,” because he lost his sisters, a brother, and father. Additionally, Dr. Angelillo opined that the
fact that the Defendant witnessed the murder at the grocery store when he was sixteen years old was
also a significant event. Other significant factors considered by Dr. Angelillo included the
Defendant’s apparent inability to retain a job for any length of time, the Defendant’s use of “crack”
cocaine, marijuana and alcohol, his experimentation with LSD and his past suicide attempt. The


                                                  -13-
doctor explained that drug usage remains an important factor because of “one’s erratic behavior,
moods, unpredictability, change in personality, change in impulse control, and things like that with
the repeated use of that particular substance.”

         Dr. Angelillo stated that the intellectual tests showed that the Defendant’s intellect “was in
the upper end of what is termed the borderline range. That was the full scale IQ . . . 79.” The doctor
said that the Defendant suffers from a delusional and paranoid disorder, but these disorders are
factored with his history of drug and alcohol abuse. He also stated that the Defendant has a
“dependent personality . . . [a]s well as passive-aggressive . . . personality traits.” The doctor
testified that the fact that the Defendant suffers from a delusional disorder is relevant in that “[i]t
would impair [his] ability to construe, to manage to make sense out of day-to-day situations.” Dr.
Angelillo admitted that, during the testing, he found the Defendant to be “very angry . . . somewhat
sullen, mistrustful, and generally self-indulgent.” Additionally, a computer-generated test indicated
that the Defendant has a disregard for authoritative figures, tends to deny responsibility, and blames
others for his problems.

         Corporal Barbara Williams, an employee with the Shelby County Sheriff’s Department,
testified that there were no incidents of violence reported involving the Defendant since he has been
confined at the Shelby County Jail. She said that the Defendant attempted suicide on July 5, 2000.

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

       The defendant was previously convicted of one or more felonies, other than the
       present charge, the statutory elements of which involve the use of violence to the
       person. The state is relying upon the crime of aggravated assault which is a felony
       involving the use of violence to the person.

       The murder was especially heinous, atrocious, or cruel in that it involved torture or
       serious physical abuse beyond that necessary to produce death; and the defendant
       knowingly committed, solicited, directed, or aided, while the defendant had a
       substantial role in committing or attempting to commit, or was fleeing after having
       a substantial role in committing or attempting to commit rape.
       ....
See generally Tenn. Code Ann. § 39-13-204(i)(2), (i)(5), (i)(7).

The court then instructed the jury that it should consider mitigating circumstances, stating:

           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 the
       defendant was diagnosed as suffering from significant psychological disturbance. (2)
       Any testimony that the capacity of the defendant to appreciate the wrongfulness of


                                                 -14-
       the defendant’s conduct or to conform the defendant’s conduct to the requirement of
       the law may have been substantially impaired as a result of intoxication which was
       insufficient to establish a defense to the crime but which may have substantially
       affected the defendant’s judgment. (3) Any testimony that the capacity of the
       defendant to appreciate the wrongfulness of his act or his conduct or to conform the
       defendant’s conduct to the requirements of the law may have been substantially
       impaired as a result of the defendant’s level of intellectual functioning - i.e. 8th grade
       education/ I.Q. of 79 - which was insufficient to establish a defense to the crime but
       which may have substantially affected the defendant’s judgment. (4) Any testimony
       regarding the defendant’s level of intellectual functioning. (5) Any testimony that the
       defendant suffers from a personality disorder. (6) Any testimony of the defendant’s
       history of emotional trauma. (7) Any testimony of the defendant’s past cooperation
       with authorities. (8) Any testimony of the defendant’s positive record of
       incarceration. (9) Any testimony of the defendant’s potential for rehabilitation while
       incarcerated. (10) Any testimony of the defendant’s potential for non-violent
       behavior while incarcerated. (11) Any testimony of the defendant’s age in relation
       to a sentence of life in prison for life without parole. (12) Any testimony that he was
       a loving child. (13) Any testimony that he had loving relationships with family
       members. (14) Any testimony that he suffered significant loss of loved ones. (15)
       Any testimony showing a broken home at an early age. (16) Any testimony of a
       history of substance abuse. (17) Any testimony showing a lack of formal education.
       (18) Any testimony showing he has family members that will provide him with love
       and support while in prison. (19) Any testimony that the defendant was not the only
       participant in this offense, even though this fact would be insufficient to establish a
       defense to the crime. (20) Any other mitigating factor which is raised by the
       evidence produced by either the prosecution or the 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.

        Based upon the evidence presented at the penalty phase of the trial and the jury instructions,
the jury found that the State proved three aggravating circumstances: (1) that the Defendant was
previously convicted of one or more violent felonies other than the present charge; (2) that the
murder was especially heinous, atrocious, or cruel; and (3) that the murder was committed while the
Defendant had a substantial role in committing or attempting to commit rape. The jury further found
that the aggravating circumstances outweighed any mitigating circumstances beyond a reasonable
doubt. In accordance with their verdicts, the jury sentenced the Defendant to death for the victim’s
murder.

        The Defendant now appeals contending that: (1) the evidence was insufficient to support his
conviction; (2) the trial court improperly restricted the Defendant’s right to cross-examine one of the
State’s witnesses; (3) the trial court improperly excluded evidence tending to prove the guilt of
another; (4) the trial court erred in refusing to permit the Defendant to impeach his own witness; (5)


                                                 -15-
the trial court erred by refusing to permit the Defendant to sit at the same table as his attorney; (6)
the trial court’s failure to instruct on the lesser offense of facilitation was error; (7) the trial court’s
failure to instruct the jury as to the definitions of knowingly and recklessly as to the offense of felony
murder was error; (8) the indictment failed to set forth a capital offense; (9) Tennessee’s death
penalty statutory scheme is unconstitutional; (10) the evidence is insufficient to establish the
statutory aggravating circumstances found by the jury; (11) the trial court improperly instructed the
jury as to the (i)(2) aggravator; and (12) the sentence of death imposed in this case is
disproportionate compared to other capital cases.

                                   II. Sufficiency of the Evidence

         The Defendant contends that the evidence is insufficient to support his conviction because:
(1) there was insufficient evidence of his identity as the perpetrator of the crime for which he was
convicted; and (2) the evidence was insufficient to prove that the victim was raped. When an
accused challenges the sufficiency of the evidence, an appellate court’s standard of review is
whether, after considering 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. Tenn.
R. App. P. 13(e); Jackson v. Virginia, 443 U.S. 307, 324 (1979); State v. Davidson, 121 S.W.3d 600,
614 (Tenn. 2003). This rule applies to findings of guilt based upon direct evidence, circumstantial
evidence, or a combination of both direct and circumstantial evidence. State v. Pendergrass, 13
S.W.3d 389, 392-93 (Tenn. Crim. App. 1999).

         In determining the sufficiency of the evidence, this Court should not re-weigh or re-evaluate
the evidence. State v. Matthews, 805 S.W.2d 776, 779 (Tenn. Crim. App. 1990). Nor may this
Court substitute its inferences for those drawn by the trier of fact from the evidence. State v. Buggs,
995 S.W.2d 102, 105 (Tenn. 1999); Liakas v. State, 286 S.W.2d 856, 859 (Tenn. 1956). Questions
concerning the credibility of the witnesses, the weight and value of the evidence, as well as all
factual issues raised by the evidence are resolved by the trier of fact. Liakas, 286 S.W.2d at 859.
This Court must afford the State of Tennessee the strongest legitimate view of the evidence
contained in the record, as well as all reasonable inferences which may be drawn from the evidence.
Davidson, 121 S.W.3d at 614; State v. Evans, 838 S.W.2d 185, 191 (Tenn. 1992). Because a verdict
of guilt against a defendant removes the presumption of innocence and raises a presumption of guilt,
the convicted criminal defendant bears the burden of showing that the evidence was legally
insufficient to sustain a guilty verdict. Evans, 838 S.W.2d at 191. The standard of appellate review
is the same whether the conviction is based upon direct or circumstantial evidence. State v. Reid,
91 S.W.3d 247, 277 (Tenn. 2002).

                                    A. Identity of the Perpetrator

        The Defendant contends that insufficient evidence exists to prove his identity as the
perpetrator of this crime. First he asserts that he was convicted based primarily upon the testimony
of Tony Evans and upon his own statements to police. The Defendant asserts that Evans is not a
credible witness because he is a convicted felon who was a suspect in this crime and who lied under


                                                   -16-
oath. The Defendant further asserts that he gave a false confession to police evidenced by the fact
that part of the confession, that Mario Rice murdered the victim, was proven not true by multiple
witnesses at trial. The State responds that both the direct and circumstantial proof establish the
Defendant as the offender in this case. Specifically, the State contends that Evans’ credibility is a
matter of discretion for the jury and should not be second-guessed by this Court on appeal.

        The Defendant was convicted of premeditated first degree murder and felony murder.
Premeditated first degree murder is the “premeditated and intentional killing of another.” Tenn.
Code Ann. § 39-13-202(a)(1) (1997 & Supp. 2000). 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.” Tenn. Code Ann. § 39-13-202(d). Felony murder is “a killing of
another committed in the perpetration of or attempt to perpetrate any . . . rape.” Tenn. Code Ann.
§ 39-13-202(a)(2).

        The identity of the perpetrator is an essential element of any crime. See State v. Thompson,
519 S.W.2d 789, 793 (Tenn. 1975). Sufficient proof of the perpetrator’s identity may be proven
through circumstantial evidence alone. See State v. Darnell 905 S.W.2d 953, 961 (Tenn. Crim. App.
1995). A conviction may be based entirely on circumstantial evidence where the facts are “‘so
clearly interwoven and connected that the finger of guilt is pointed unerringly at the Defendant and
the Defendant alone.’” Reid, 91 S.W.3d at 277 (quoting State v. Smith, 868 S.W.2d 561, 569 (Tenn.
1993)). The jury decides the weight to be given to circumstantial evidence and “[t]he inferences to
be drawn from such evidence, and the extent to which the circumstances are consistent with guilt
and inconsistent with innocence, are questions primarily for the jury.” Marable v. State, 203 Tenn.
440, 313 S.W.2d 451, 457 (1958) (citations omitted).

        The Defendant does not appeal whether the proof was sufficient to show that the murder was
premeditated, rather he contends that the evidence was insufficient to prove his identity as the
murderer because Evans was not a credible witness and because the Defendant’s “statements given
to the police after several hours of questioning were not true.” The record in this case reflects that,
on the day of the victim’s disappearance, the victim went to the Defendant’s father’s house with
some of her girlfriends. She told her girlfriends to leave, and she stayed at the house with the
Defendant. The Defendant admitted having sex with the victim in his father’s home. The victim
and the Defendant left the house together and were seen entering the woods next to the Amoco
station. The Defendant admitted “luring” the victim into the woods so that Mario Rice could kill
her. He said that the victim inexplicably pulled down her shorts and panties before Mario Rice
stabbed her multiple times. Several witnesses testified that Mario Rice was with them at the time
of the murder. One witness testified that the Defendant came to his house at 5:00 p.m. on the
evening of the murder. The Defendant took police into the woods and led them to the location where
the victim’s body was found, and he was able to re-enact how the murder took place and able to
describe how the victim was stabbed. Considering the proof in the record in the light most favorable
to the State, we conclude that the proof points the finger of guilt at the Defendant and the Defendant
alone and that a rational jury could have found the essential elements of premeditated first degree


                                                  -17-
murder beyond a reasonable doubt. As stated above, this Court does not resolve questions involving
the credibility of witnesses or the weight and value to be given the evidence. See State v. Nash, 104
S.W.3d 495, 500 (Tenn. 2003). Those are matters entrusted to the trier of fact, not the appellate
courts. Id. Therefore, the Defendant’s challenge to the sufficiency of the evidence is without merit.


         As further support for this holding, we note that, even were the jury to accept the facts as the
Defendant presented them, that he lured the victim into the woods knowing that Mario Rice intended
to kill the victim and then watched as Mario Rice killed the victim, the evidence is still sufficient to
sustain the Defendant’s first degree murder conviction. The Defendant is criminally responsible for
an offense by the conduct of another where: “Acting with intent to promote or assist the commission
of the offense . . . the person solicits, directs, aids or attempts to aid another person to commit the
offense.” Tenn. Code Ann. § 39-11-402(2) (1997). Therefore, because the Defendant aided in the
commission of this crime, he is guilty in the same degree as the principal who committed the crime.
See State v. Lemacks, 996 S.W.2d 166, 170 (Tenn. 1999). Accordingly, the evidence is sufficient
on this additional ground to find the Defendant guilty of premeditated first degree murder and of
felony murder.

                                B. Killing in Commission of Rape

        The Defendant next contends that the evidence presented was insufficient to prove that the
killing was committed during the perpetration of a rape, so as to support his conviction for felony
murder. The Defendant asserts that the State’s proof regarding the rape is based purely on
circumstantial facts, which are insufficient to support a felony murder conviction. As stated above,
a conviction may be based entirely on circumstantial evidence where the facts are “‘so clearly
interwoven and connected that the finger of guilt is pointed unerringly at the Defendant and the
Defendant alone.’” Reid, 91 S.W.3d at 277 (quoting State v. Smith, 868 S.W.2d 561, 569 (Tenn.
1993)). While single facts, considered alone, may count for little weight, when all of the facts and
circumstances are taken together, they can point the finger of guilt at the Defendant beyond a
reasonable doubt. State v. Williams, 657 S.W.2d 405, 410 (Tenn. 1983). Moreover, “[t]he
inferences to be drawn from such evidence, and the extent to which the circumstances are consistent
with guilt and inconsistent with innocence are questions . . . for the jury.” Marable, 203 Tenn. 440,
313 S.W.2d at 457; see State v. Gregory, 862 S.W.2d 574, 577 (Tenn. Crim. App. 1993).

         In order to obtain a conviction for felony murder in this case, the State was required to prove:
(1) a killing of another; (2) committed during the perpetration of a rape. Tenn. Code Ann. § 39-13-
202(2). Rape is:

        [U]nlawful sexual penetration of a victim by the defendant . . . accompanied by any
        of the following circumstances:

        (1) Force or coercion is used to accomplish the act;



                                                  -18-
         (2) The sexual penetration is accomplished without the consent of the victim and the
         defendant knows or has reason to know at the time of the penetration that the victim
         did not consent . . . .

Tenn. Code Ann. § 39-13-503(a) (1997). It is the long-standing tenet of Tennessee law that to
sustain a conviction for felony murder, the killing must have been done in pursuance of the felony
and must not merely be collateral to the unlawful act. State v. Severs, 759 S.W.2d 935, 938 (Tenn.
Crim. App. 1988). In other words, for a murder to be done in “perpetration of” the felony, “the
killing must have had an intimate relation and close connection with the felony . . . and not be
separate, distinct, and independent from it.” Farmer v. State, 201 Tenn. 107, 269 S.W.2d 879, 883
(1956) (citations omitted).

        The Defendant contends that the proof that he allegedly raped the victim is based on
circumstantial facts and, “while indicative of the possibility that the victim was raped, is not
sufficient to justify any rational trier of fact in finding beyond a reasonable doubt that the victim was
raped.” As stated above, our standard of appellate review is the same whether the conviction is
based upon direct or circumstantial evidence. Reid, 91 S.W.3d at 277. Based upon similar facts,
the Tennessee Supreme Court, in State v. Ronnie Dunn, 1993 WL 339919, No. 03S01-9211-CR-
00104, at *3 (Tenn. 1993) (designated not for publication),2 held that there was insufficient evidence
to support a felony murder conviction because the evidence did not prove beyond all reasonable
doubt that the victim was raped.

        In Dunn, the evidence established that the badly decomposed body of a sixteen year-old
female victim was found in a creek bed. The last time the victim had been seen alive was
approximately two months before her body was discovered. Dunn, 1993 WL 339919, at *3. The
day before she became missing, the victim was seen kissing the defendant, and, for the remainder
of that evening and into the next morning she, the defendant, and another friend drove around
drinking beer and ingesting prescription drugs. Id. at *1. The friend was eventually dropped off, and
the victim remained with the defendant. Id. When the victim was found, she was naked below the
waist. Id. at *2. Bruises were found around the neck. Id. There were no signs of trauma to the
genital region of the body nor was it possible to test for the presence of sperm. Id. Based upon that
evidence and other circumstantial evidence, the jury convicted the defendant of felony murder after
concluding that the murder occurred during the commission or attempt to commit a rape. Id. at *3.
The Tennessee Supreme Court concluded that the evidence was insufficient to support the
conclusion beyond a reasonable doubt that the murder occurred during the commission of or in an
attempt to commit a rape. Id. The Court concluded that although there was circumstantial evidence


         2
          The citation of cases designated “Not For Publication” is mandated by Rule 4 of the Tennessee Rules of
Supreme Court. That Rule states that “Unless explicitly designated ‘Not For Publication,’ all opinions of the Tennessee
Supreme Court shall be published in the official reporter. Tenn. R. S. Ct. 4(2). The Rule goes on to state that “Unless
designated ‘Not For Citation,’ ‘DCRO’ or ‘DNP’ pursuant to subsection (F) of this Rule, unpublished opinions for all
other purposes shall be considered persuasive authority.” Tenn. R. S. Ct. 4 (H)(1). Dunn is not designated “Not For
Citation” but is designated “Not For Publication.” As such, we conclude that, according to Rule 4 (H)(1), should be
considered persuasive authority by this Court.

                                                        -19-
of sexual activity, this evidence was not sufficient to establish that the defendant raped or attempted
to rape the victim. Id. In reaching its conclusion, the Court noted that, although the removal of the
victim’s clothing is indicative of sexual activity, “[i]t is just as plausible to conclude that the victim
and the defendant engaged in consensual sexual activity. . . .” Id. at *3.

        In State v. Shepherd, 902 S.W.2d 895, 899 (Tenn. 1995), the Tennessee Supreme Court
distinguished the facts of Shepherd from the facts in Dunn. In Shepherd, the defendant, who was
twenty-five, was riding around with five teenagers, three boys and two girls, one evening. Id. at 898.
The Defendant parked his car on a bridge over the Tellico River, after which one of the boys began
to quarrel with one of the girls, and the two left to walk to a store. Id. The Defendant then drove
himself, the victim, and two other boys to Tellico Beach, but, before reaching the beach, the
defendant turned onto a road and approached the victim about having sex with him. Id. The victim
refused and the defendant wrestled with her until everyone got out of the car. Id. One of the boys
calmed the victim down, and they all got back into the car and drove further to a clearing in the
woods. Id. The defendant stopped the car again and held a gun to the victim’s head and asked her
again to have sex with him, and she refused. Id. The defendant then asked the two boys, who had
to relieve themselves, to go down the road a bit so that he could talk to the victim and calm her
down. Id. The boys heard sounds of a scuffle and the victim say “you son of a bitch.” Id. When
they returned to the car, the defendant said the victim had run off and they began to search for her.
Id.

         The victim was later found in a shallow grave in the defendant’s parents’ backyard. Id. at
899. The victim’s upper torso was clad with a shirt and bra, and a jacket was wrapped around her
head. Id. The victim was nude from the waist down. Id. The defendant gave a statement to police
in which he said that he did not kill the victim, rather she hit her head on a rock. Id. at 900. The
Defendant admitted that he buried the victim at his parents’ house. Id. The defendant said that her
clothes were missing because he decided to burn her clothes, but changed his mind. Id. A doctor
testified that there was no sign of trauma to the body and no foreign object inside it. Id. He also
testified that he found no evidence of sperm but indicated that, over the period of time since death,
any sperm could have degenerated. Id. at 901. The Supreme Court held that this evidence was
sufficient to support the defendant’s conviction of felony murder committed during the perpetration
of or attempted perpetration of a rape. Id. at 902. The Court distinguished its holding in Dunn
stating, “Dunn is distinguishable from this case by the fact that the victim in Dunn had been
engaging in voluntary sexual activities and ingestion of alcohol and drugs with the defendant at the
time of her death,” implying, therefore, that it could not be conclusively ruled out that the victim had
consensual sex with the defendant in Dunn. Id. at 902.

        We hold that the case currently before us is also distinguishable from Dunn in that it is not
“just as plausible to conclude that the victim and the [d]efendant engaged in consensual sexual
activity . . . .” The evidence in the case under submission establishes that, when the victim’s body
was found, her underwear and shorts were down around her ankles, exposing her genital area. The
medical examiner testified that the advanced decomposition of the victim’s vaginal area is likely the
result of bruising or trauma to that region. The Defendant denied having sex with the victim, who
was his step-daughter, until investigators told him that they suspected that she was raped and they

                                                  -20-
might be able to conduct a DNA test and asked him to submit a DNA sample, to which the
Defendant responded that he had consensual sex with the thirteen-year-old victim earlier that day
in his parents’ kitchen. However, the Defendant’s stepfather testified that the Defendant was not
alone with the victim in the kitchen or in the house that day and that he could hear the two in the
house together until they left. After telling police that he lured the victim into the woods for Mario
Rice to kill her, he said that she removed her clothing and must have thought she was going to be
raped, which he found unusual since Mario Rice and the victim were related. The record contains
sufficient proof for a rational trier of fact to conclude, beyond a reasonable doubt, that the victim was
killed during the perpetration or attempt to perpetrate a rape. Accordingly, this claim is without
merit.

                               III. Right to Cross-Examine for Bias

         The Defendant next contends that the trial court improperly prohibited him from adequately
cross-examining Tony Evans. The Defendant asserts that on direct examination the State elicited
the fact that Evans pled guilty to felony possession of cocaine with intent to sell three months before
the Defendant’s trial. The Defendant’s counsel attempted to question Evans on the sentence that he
received for this conviction “because it appeared that Mr. Evans had obtained a great reduction in
his sentence.” The Defendant’s counsel asserted that the sentencing range for Evans’ conviction was
eight to twelve years, and he only received a six-year sentence for his conviction and was released
to serve his sentence on community corrections. The Defendant asserted before the trial court that
Evans received a “sweetheart deal” and that he should therefore be allowed to question Evans about
whether there was a deal because, if there were a deal giving Evans a reduced sentence in exchange
for his testimony, that would show Evans’ bias. The trial court denied defense counsel’s request,
finding:

        [T]here are many, many reasons for cases to be settled in different ways for reasons
        that may have nothing at all to do with this particular case. I don’t know anything at
        all about the facts of that other case, but of course there could have been search and
        seizure problems. This could have been a house occupied by fifteen people and
        associating the drugs and the guns to this individual may have been a problem for the
        state–they may have had a whole host of problems. These witnesses that they had
        may have been suspect–they may have had credibility problems. . . . You ma[d]e the
        statement . . . that he . . . got some sort of sweetheart deal and you intend to go
        forward and present that to the jury . . ., and the fact of the matter is, . . . that unless
        you can tie in . . . the disposition of that case in Division VII with this case, I’m not
        going to let you do that. I’m going to require you to follow the law which is you may
        ask this witness, “Are you the same John Doe that was convicted on such and such
        a date in indictment such-and-such of this offense, and received this sentence.”
        Period, end of discussion. The law does not allow you to look behind that . . . .

        ....

                Now, it’s improper for you to suggest that because he’s on community

                                                   -21-
       corrections he got a sweetheart deal from the state. Maybe you should call Judge
       Bennet to the stand and ask him why he put him on community corrections. You’re
       making some very large l[ea]ps here for which there is not basis.

               Now, you can ask him what the law allows, which is what I just detailed.
       And if you have any specific information that would suggest that that settlement over
       there was a direct result of a deal in exchange for his testimony in here, obviously
       you could ask that too. But without any information to connect the two, you can’t go
       into that. . . .

Defense counsel then requested to make an offer of proof, which the trial court denied, absent proof
of some nexus between the deal and the testimony. The trial court allowed defense counsel to ask
only if Evans pled guilty and what sentence Evans received and prohibited counsel from questioning
Evans with regard to the manner in which his sentence was being served. The Defendant asserts that
this restriction on cross-examination magnified the error in that “[n]ot only was the defense
prohibited from showing that the witness never spent one day in jail; instead, the jury was allowed
to infer that the witness was going to spend six years in jail for his crime.” The Defendant contends
that the trial court’s limitation on his cross-examination of Evans’ bias was reversible error.

         The right to explore or examine witnesses for bias is a fundamental right. State v. Sayles,
49 S.W.3d 275, 279 (Tenn. 2001) (citing Davis v. State, 186 Tenn. 545, 212 S.W.2d 374, 375
(1948)). The exercise of this right is “‘controlled by the trial judge and his discretion will not
ordinarily be disturbed.’” Id. (quoting Davis, 212 S.W.2d at 375). Therefore, absent an abuse of
discretion, we will uphold the trial court’s decision. Id. A defendant has the right to examine
witnesses to impeach their credibility or to establish that the witnesses are biased. Id. This includes
the right to examine a witness regarding any promises of leniency, promises to help the witness, or
any other favorable treatment offered to the witness. Id. (citing State v. Smith, 893 S.W.2d 908, 924
(Tenn. 1994); State v. Spurlock, 874 S.W.2d 602, 617 (Tenn. Crim. App. 1993)). Although the trial
court retains discretion regarding the exercise of the right to examine witnesses for bias, an abuse
of that discretion may violate a defendant’s right to confrontation under the Sixth Amendment of the
United States Constitution and Article I, Section 9, of the Tennessee Constitution. Id. (citing Smith,
893 S.W.2d at 924; State v. Black, 815 S.W.2d 166 ,177 (Tenn. 1991)). To show a violation of the
right, the defendant must show that “‘he was prohibited from engaging in otherwise appropriate
cross-examination designed to show a prototypical form of bias on the part of the witness, thereby
exposing to the jury the facts from which jurors could appropriately draw inferences relating to the
reliability of the witnesses.’” Black, 815 S.W.2d at 177 (quoting Deleware v. Van Arsdall, 475 U.S.
673, 680 (1986)). Revealing the true nature of the witness’s motivation for testifying is a proper and
important function of cross-examination. Van Ardsall, 475 U.S. at 678-79. “It is the essence of a
fair trial that reasonable latitude be given the cross-examiner, even though he is unable to state to
the court what fact a reasonable cross-examination might develop.” Alford v. United States, 282
U.S. 687, 692 (1931).

       The facts of the case currently before us are similar to the facts faced by the court in Sayles.
In Sayles, one of the State’s witnesses refused to testify against the defendant, stating that he had

                                                 -22-
been threatened by the defendant. Sayles, 49 S.W.3d at 277. The trial court allowed the State to
interview the witness, and the witness returned to the courtroom and testified against the defendant.
Id. The State asked the witness if he was promised anything in exchange for his testimony and the
witness said “no.” Id. at 278. Immediately after the witness testified, in a jury-out proceeding, the
State requested that the witness’ bond in another unrelated case be reduced to $1,000 and that the
charge against him be reduced from aggravated robbery to robbery. Id. The trial court granted the
State’s request, and the defendant asked to cross-examine the witness again with regard to bias based
upon this apparent deal between the witness and the State. Id. The trial court denied the defendant’s
request. Id. On appeal, this Court reversed the conviction and remanded the case for a new trial
holding that “the defendant was clearly entitled to explore what, if anything, the prosecuting attorney
told [the witness] prior to his testifying, and whether there had been an agreement between the state
and [the witness].” Id. at 279 (quoting State v. Sayles, W1998-00425-SC-R11-CD, 1999 WL
628854, at *5 (Tenn. Crim. App., at Jackson, Aug. 19, 1999)). The State appealed, and the
Tennessee Supreme Court affirmed this Court, holding that “the trial court’s failure to allow such
an examination was error.” Id. at 280. The Court stated that the defendant’s “right to a fair trial
entitled him to probe witnesses under oath. The trial court, therefore, erred in refusing to allow [the
defendant’s] counsel to delve deeper into the reasons for [the witness’s] turnaround.” Id.

        In the case under submission, like in Sayles, the testimony sought to be adduced pertained
to the bias or prejudice of one of the State’s witnesses, Evans. Accordingly, as the State concedes
on appeal, defense counsel should have been allowed to examine Evans to determine whether there
was a connection between Evans’ allegedly reduced sentence and his testimony because such a
connection could create the inference that Evans was biased or unreliable in the eyes of the jury. The
trial court’s failure to allow such cross-examination was error.

        Having decided that the trial court erred by not allowing defense counsel to cross-examine
Evans about his sentence, we must now decide whether that error was reversible. “Once a
constitutional error has been established, as in this case, the burden is upon the State to prove that
the constitutional right violation is harmless beyond a reasonable doubt.” Momon v. State, 18
S.W.3d 152, 167 (Tenn. 1999) (citations omitted). A violation of the right to confrontation may be
deemed harmless “if the reviewing court may confidently say, on the whole record, that the
constitutional error was harmless beyond a reasonable doubt.” Sayles, 49 S.W.3d at 280 (quoting
Van Arsdall, 475 U.S. at 681) (citing State v. Reid, 882 S.W.2d 423, 429 (Tenn. Crim. App. 1994)).
In determining whether the constitutionally improper denial of a defendant’s opportunity to impeach
a witness is harmless:

       The correct inquiry is whether, assuming that the damaging potential of the cross-
       examination were fully realized, a reviewing court might nonetheless say that the
       error was harmless beyond a reasonable doubt. Whether such an error is harmless
       in a particular case depends upon a host of factors, all readily accessible to reviewing
       courts. These factors include the importance of the witness’ testimony in the
       prosecution’s case, whether the testimony was cumulative, the presence or absence
       of evidence corroborating or contradicting the testimony of the witness on material
       points, the extent of cross-examination otherwise permitted, and, of course, the

                                                 -23-
        overall strength of the prosecution’s case.

Van Arsdall, 475 U.S. at 684; see also State v. Howell, 868 S.W.2d 238, 253 (Tenn. 1993).

         After reviewing the record in its entirety, we conclude that the trial court’s improper
restriction on the Defendant’s cross-examination of Evans was harmless beyond a reasonable doubt.
 This case is substantially different from Sayles, where the Court found that the error was reversible
error, because Evans was not the only witness testifying to the incriminating facts against the
Defendant and because most of his testimony was corroborated by other witnesses, including the
Defendant himself. Evans testified that he saw the victim and the Defendant leave the Defendant’s
parents’ house on the day that the victim disappeared. He said that he saw them walk toward the
Amoco station and into the woods. He testified that he overheard conversations between the
Defendant and Mario Rice during which the two discussed killing the victim’s mother. Evans also
testified that he found the body in the woods. This testimony was corroborated by the Defendant’s
stepfather, who said that the Defendant and the victim left his house together on the day of the
victim’s disappearance. The Defendant, in his statement to police, said that he left his parents’ house
with the victim and led her to the woods by the Amoco station, where Mario Rice planned to kill the
victim. The Defendant said that, when he came to the woods, Mario Rice stabbed the victim
multiple times, and the Defendant took police to the location where they had found the victim’s
body. The Defendant also admitted having conversations with Mario Rice about killing the
Defendant’s wife. Accordingly, because Evans’ testimony was corroborated by other witnesses and
because of the overall strength of the prosecution’s case, we conclude that the trial court’s error was
harmless beyond a reasonable doubt.

                    IV. Exclusion of Evidence Showing Guilt of Tony Evans

       The Defendant contends that the trial court improperly restricted his cross-examination of
Evans in another respect. He asserts that he requested permission to “put on evidence” that Evans
“had a reputation for violence in the community” and “engaged in sexual relationships with ‘very
young’ women in their teenage years.” The trial court found that the evidence regarding Evans’
alleged violent character and his alleged sexual relationships were irrelevant absent proof to link
Evans with this crime.

         In Tennessee, admissibility of evidence is within the sound discretion of the trial judge. State
v. Saylor, 117 S.W.3d 239, 247 (Tenn. 2003). The determination of whether proffered evidence is
relevant in accordance with Tennessee Rule of Evidence 402 is left to the sound discretion of the
trial judge. State v. Kennedy, 7 S.W.3d 58, 68 (Tenn. Crim. App. 1999) (citing State v. Forbes, 918
S.W.2d 431, 449 (Tenn. Crim. App. 1995)); State v. Burlison, 868 S.W.2d 713, 720-21 (Tenn. Crim.
App. 1993)). In making these decisions, the trial court must consider the questions of fact that the
jury will have to consider in determining the accused’s guilt as well as other evidence that has been
introduced during the course of the trial. State v. Williamson, 919 S.W.2d 69, 78 (Tenn. Crim. App.
1995). We will only disturb an evidentiary ruling on appeal when it appears that the trial judge
arbitrarily exercised his discretion. State v. Baker, 785 S.W.2d 132, 134 (Tenn. Crim. App. 1989).


                                                  -24-
       Initial questions of admissibility of evidence are governed by Tennessee Rules of Evidence
401 and 403. These rules require that the trial court must first determine whether the proffered
evidence is relevant. Pursuant to Rule 401, evidence is deemed relevant if it has “any tendency to
make the existence of any fact that is of consequence to the determination of the action more
probable than it would be without the evidence.” See Forbes, 918 S.W.2d at 449. In other words,
“evidence is relevant if it helps the trier of fact resolve an issue of fact.” Neil P. Cohen, et al.,
Tennessee Law of Evidence § 4.01[4], at 4-8 (4th ed. 2000). Relevant evidence may still be
inadmissible if its admittance is prohibited by one of the other rules of evidence.

         The Defendant contends that the aforementioned testimony is admissible because he is
entitled to present evidence tending to implicate other persons in the crime for which he is charged.
It is true that a defendant is generally entitled to attempt to prove by competent evidence that there
was another individual who had a motive to commit the very same crime for which he is charged.
Powers v. State, 101 S.W.3d 383, 394 (Tenn. 2003) (citing Sawyers v. State, 83 Tenn. (15 Lea) 694,
695 (1885)); State v. Spurlock, 874 S.W.2d 602, 612 (Tenn. Crim. App. 1993). However, the
evidence that a defendant seeks to elicit must be competent and must conform to the rules governing
the admissibility of evidence. State v. McAlister, 751 S.W.2d 436, 439 (Tenn. Crim. App. 1987);
see also Powers, 101 S.W.3d at 395. The defendant is entitled to present evidence implicating
another in the crime if the evidence is relevant and it is not unfairly prejudicial. See Powers, 101
S.W.3d at 395.

        To be relevant under Tennessee Rule of Evidence 401, evidence must tend “to make the
existence of any fact that is of consequence to the determination of the action more probable or less
probable than it would be without the evidence.” In a criminal case, evidence that a third party had
the motive and opportunity to commit the offense certainly would be relevant. Even if the evidence
meets the test of relevance, however, Tennessee Rule of Evidence 403 may still justify exclusion of
such evidence. Under Rule 403, relevant evidence “may be excluded if its probative value is
substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading
the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative
evidence.” As stated above, generally, when we review a claim that calls into question a trial court’s
exclusion of evidence on the grounds of irrelevance, we will not disturb the decision of the trial court
absent an abuse of discretion. See State v. Banks, 564 S.W.2d 947, 949 (Tenn. 1978).

        The Tennessee Supreme Court’s decision in Powers provides guidance to us in deciding the
case under submission. In Powers, the Defendant sought to introduce evidence that other, third
parties had the motive and opportunity to kill the victim. Powers, 101 S.W.3d at 394. The Court
decided that this type of evidence was admissible if allowed pursuant to the Tennessee Rules of
Evidence. Id. at 395. The court then held that the trial court did not abuse its discretion when it
found that the evidence that the defendant in Powers sought to admit was irrelevant pursuant to
Tennessee Rule of Evidence 401, stating, “The evidence produced in Powers’ offer of proof would
not assist in proving that [the third party] had a motive to kill [the victim].” Id.

       The Defendant in the case under submission attempted to introduce evidence that Evans, a
witness, had a reputation for violence and engaged in consensual sexual activities with minor girls.

                                                 -25-
The trial court ruled that this evidence was not relevant. We hold that the trial court did not abuse
its discretion in excluding this evidence. Evans’ alleged propensity for violence is not relevant to
establish any motive or opportunity or means to kill the victim. Similarly, Evans’ alleged sexual
activities is not relevant to show any likelihood that Evans murdered the victim. However, even if
this evidence satisfies the relatively low threshold of Tennessee Rule of Evidence 401, its probative
value would be substantially outweighed by its prejudicial effect and by the risk of confusing and
misleading the jury. Therefore, we conclude that the trial court did not err in refusing to admit this
evidence.

                              V. Impeachment of Defense Witness

         The Defendant contends that the trial court erred when it refused to allow him to introduce
extrinsic evidence to impeach Stephanie Fitch, a witness called by the defense. The Defendant states
he called Fitch, expecting her to establish that she saw the victim around 5:00 p.m. at the New
Chicago Store on the day that the victim disappeared. However, Fitch testified at trial that she last
saw the victim on the morning of her disappearance. The Defendant then asked Fitch about a
statement that she gave to police that she saw the victim at 5:00 p.m., and Fitch denied ever making
that statement to police. The Defendant then asked to call Detective Jacobs to testify about taking
Fitch’s statement and the substance of that statement. The trial court denied the request, and the
Defendant contends that this ruling was in error.

        The admissibility, relevancy, and competency of evidence are matters entrusted to the sound
discretion of the trial court. With that principle in mind, we review the trial court’s evidentiary
rulings for abuse of discretion. See State v. DuBose, 953 S.W.2d 649, 652 (Tenn. 1997); State v.
Gray, 960 S.W.2d 598, 606 (Tenn. Crim. App. 1997).

        The credibility of a witness may be attacked by any party, including the party calling the
witness. Tenn. R. Evid. 607; Cohen, supra § 607[2] at 6-55. Prior inconsistent statements may be
used to impeach the credibility of a witness. Tenn. R. Evid. 613; Cohen, supra, § 613[2][a] at 6-131.
The prior inconsistent statement is “admissible to impeach but is not admissible as substantive
evidence unless some other evidence rule would admit it.” Cohen, supra, § 6.13[2][b] at 6-131.
Tennessee Rule of Evidence 613 permits counsel to introduce extrinsic proof of a prior inconsistent
statement if certain circumstances exist. The proper foundation for admission of extrinsic evidence
of a prior inconsistent statement is to: (1) provide the witness an opportunity to admit, deny, or
explain the prior inconsistent statement; (2) refresh the witness’ memory; and (3) allow the witness
to respond intelligently to the impeachment attempt. See State v. Martin, 964 S.W.2d 564, 567-68
(Tenn. 1998); State v. Gregory Dunnorm, No. E2001-00566-CCA-R3-CD, 2002 WL 1298770, at
* 9 (Tenn. Crim. App., at Knoxville, June 12, 2002), no perm. app. filed; State v. Orlando Crayton,
No. W2000-00213-CCA-R3-CD, 2001 WL 720612, at *5 (Tenn. Crim. App., at Jackson, June 27,
2001), no perm. app. filed. The admissibility of the extrinsic evidence is contingent upon whether
the witness admits or denies having made the prior inconsistent statement, Martin, 964 S.W.2d at
567, and may be used to impeach the credibility of a witness who denies or cannot remember having
made a prior statement. State v. Jones, 15 S.W.3d 880, 891 (Tenn. Crim. App. 1999). The extrinsic
proof may be the written or recorded prior statement itself or the testimony of another witness as to

                                                -26-
the content of the prior oral statement. Cohen, supra, § 613[5][a] at 6-139.

         In the case under submission, the Defendant called Fitch expecting that she would testify that
she saw the victim at 5:00 p.m. on the day that the victim disappeared. When testifying, Fitch stated
that the last time that she saw the victim was the morning of the day that the victim disappeared. The
Defendant asked Fitch about a prior inconsistent statement that she made to Detective Jacobs that
she saw the victim at 5:00 p.m. Fitch denied ever making this statement. The Defendant then sought
to call Detective Jacobs to testify about the prior inconsistent statement, and the trial court denied
this request. The State concedes the error and we agree. Thus, we hold that the trial court abused
its discretion when it denied the admission of Detective Jacobs’ testimony as extrinsic evidence of
Fitch’s prior inconsistent statement. The Defendant laid the proper foundation for the admission of
the extrinsic evidence, and the failure to admit this testimony was in violation of the evidentiary
rules.

         “A violation of an evidentiary rule may not mandate reversal if the error ‘was more probably
than not harmless.’” Martin, 964 S.W.2d at 568 (quoting United States v. Barrett, 703 F.2d 1076,
1081-82 (9th Cir. 1983)). This Court has said that “harmless error analysis applies to virtually all
trial errors except the denial of counsel and the partiality of the adjudicator.” Wilson v. State, 724
S.W.2d 766, 769 (Tenn. Crim. App. 1986). Pursuant to Tennessee Rule of Criminal Procedure
52(a), “[n]o judgment of conviction shall be reversed on appeal except for errors which affirmatively
appear to have affected the result of the trial on its merits.”

        The State contends that this error was harmless. While we have decided that the trial court
abused its discretion, we conclude that this error was more probably than not harmless. First, we
note that the jury would have been instructed that the admission of Fitch’s prior inconsistent
statement could be considered as proof of her lack of credibility, but not as substantive evidence.
Because Fitch was a defense witness, her lack of credibility does not affect the State’s case, but
further damages the Defendant’s defense. Additionally, in light of the Defendant’s statements to
police and the weight of the other evidence presented at trial, we conclude that the trial court’s error
was harmless.

                         VI. Defendant’s Exclusion from Defense Table

        The Defendant contends that the trial court erred when it refused to allow him to sit at the
same table as his trial counsel and required him to sit on a bench located immediately behind his trial
counsel’s table. Before jury selection, the Defendant’s trial counsel requested that the Defendant sit
at the same table with him so the two could “consult with” each other. The trial court denied this
request and stated that counsel was sitting twelve to eighteen inches in front of the Defendant, who
was seated on the first row bench behind counsel’s table, so communication between the two was
not hindered. The trial court informed the Defendant’s trial counsel that he could sit next to the
Defendant on the bench, but that the Defendant could not sit at the table. The Defendant contends
that the trial court’s ruling violates his Due Process rights, does not afford him a fair trial, and
removes the presumption of innocence.


                                                 -27-
         We first note that the trial court’s ruling comported with local rules governing procedure in
the trial court. Rule 8.05 of the Rules of Shelby County Criminal Court provides that “[w]here space
is available and with permission of the Court, the defendant may sit at counsel table with his or her
attorney.” Thus, according to the rules of the court in which the Defendant was tried, the trial court
is not required to allow a defendant to sit at his counsel’s table. Rather, the trial court may, in its
discretion, give a defendant permission to sit at the table. Although we have decided that the trial
court complied with local rules of procedure, we must still decide whether the trial court’s ruling
violated the Defendant’s constitutional rights.

        The Defendant argues that ordering a defendant to sit behind his trial counsel is similar to
forcing a defendant to wear prison garb and shackles in the courtroom in that both erode the
presumption of innocence. The Defendant is correct that we have held that forcing a defendant to
wear prison garb and shackles in the courtroom does, in fact, erode the presumption of innocence,
see State v. Thompson, 832 S.W.2d 577, 580 (Tenn. Crim. App. 1991), but we cannot agree with
his assertion that the seating arrangement at his trial had the same result.

        This issue is one of first impression in this State, and, accordingly, we look to the persuasive
authority of other jurisdictions to reach our conclusion. “In general, the course and conduct of trial
proceedings rests within the sound discretion of the trial court.” State v. King, 40 S.W.3d 442, 449
(Tenn. 2001) (citing State v. Cazes, 875 S.W.2d 253, 260 (Tenn. 1994)). This Court has stated, “The
question of whether a person ‘should be permitted to sit at the state’s counsel table is a matter which
addresses itself to the sound discretion of the trial court.’” State v. James Phillip Hunter, No. 01C01-
9404-CR-00154, 1996 WL 10085, at *11 (Tenn. Crim. App., at Nashville, Jan. 11, 1996), perm. app.
denied (Tenn. 1996) (quoting State v. Henry Eugene Hodges, No. 01C01-9212-CR-00382, 1995 WL
301443, at *20 (Tenn. Crim. App., at Nashville, May 18, 1995), no perm. app. filed). Similarly, we
conclude that whether a defendant should be permitted to sit at the defense counsel table is a matter
which is within the sound discretion of the trial court. See generally Webster v. State, 680 S.W.2d
906, 908 (Ark. 1984); Commonwealth v. Moore, 393 N.E.2d 904, 907 (Mass. 1979); Shaver v. State,
306 S.W.2d 128, 130 (Tex. Crim. App. 1957); State v. Johnson, 462 P.2d 933, 935 (Wash. 1969).
Further, a defendant must suffer some prejudice as a result of being seated behind counsel or he has
no ground for complaint. See Webster, 680 S.W.2d at 908.

         The highest court in Massachusetts has held that the seating of a defendant elsewhere other
than at counsel table does not “dilute the presumption of innocence.” See Commonweath v.
Lockley, 408 N.E.2d 834, 840 (Mass. 1980) (citation omitted). Similarly, the First Circuit, when
addressing the issue, distinguished placing a defendant in the front row of seats from ordering a
defendant to sit in “prisoner’s row,” stating, sitting “in the front row of the spectator’s area of the
courtroom [is] hardly a place calculated to strip an accused of his presumption of innocence in the
eyes of a jury.” United States v. Turkette, 656 F.2d 5, 9-10 (1st Cir. 1981). The same court later
addressed whether seating a defendant in the front row violated a defendant’s Sixth Amendment
right to effective assistance of counsel by hampering his ability to communicate with his attorney.
United States v. Sorrentino, 726 F.2d 876, 887 (1st Cir. 1984). In Sorrentino, the court held that
“absent reasons of security or . . . practicality, a defendant has the right to be seated at the same table
as his attorney, however,” the defendant must show some prejudice, such as evidence that the seating

                                                   -28-
arrangement prevented or unduly hindered communication between him and his counsel, to be
entitled to relief. Id.

        We conclude that the trial court did not abuse its discretion by ordering the Defendant to sit
in the front row behind defense counsel’s table. The trial court’s order, which was in compliance
with local rules of procedure, did not impair the Defendant’s presumption of innocence and did not
impact his communication with his counsel. Further, the Defendant has failed to demonstrate how
he was prejudiced by the seating arrangements, which would be required for him to prevail on this
issue. Accordingly, we conclude that this issue is without merit.

                      VII. Instruction on Lesser Included Offense of Facilitation

        The Defendant contends that the trial court erred by not instructing the jury on the lesser
included offense of facilitation. At the close of proof, the Defendant’s trial counsel orally requested
that the trial court instruct the jury on all the lesser included offenses of first degree premeditated
murder and first degree felony murder, including facilitation. The trial court denied the Defendant’s
request finding that there was no factual basis to support a charge of facilitation. The State contends
that the Defendant has waived this issue by failing to comply with Tennessee Code Annotated
section 40-18-110 (1997 & Supp. 2002).3

        The trial in this case began on January 7, 2002. In 2001, the Tennessee Legislature amended
section 40-18-110 to provide that an instruction as to a lesser included offense is waived unless the
defendant requests in writing, prior to the trial court’s charge to the jury, that such an instruction be
provided to the jury. Tenn. Code Ann. § 40-18-110(c). This amendment to Tennessee Code
Annotated section 40-18-110 governs all trials on or after January 1, 2002. 2001 Tenn. Pub. Acts

        3
            Tennessee Code Annotated section 40-18-110(a)-(c) states:

        Charge as to lesser included offenses – W ritten request. (a) W hen requested by a party in writing
        prior to the trial judge’s instructions to the jury in a criminal case, the trial judge shall instruct the jury
        as to the law of each offense specifically identified in the request that is a lesser included offense of
        the offense charged in the indictment or presentment. However, the trial judge shall not instruct the
        jury as to any such offense unless the judge determines that the record contains any evidence which
        reasonable minds could accept as to the lesser included offense. In making this determination, the trial
        judge shall view the evidence liberally in the light most favorable to the existence of the lesser
        included offense without making any judgment on the credibility of such evidence. The trial judge
        shall also determine whether the evidence, viewed in this light, is legally sufficient to support a
        conviction for the lesser included offense.

        (b) In the absence of a written request from a party specifically identifying the particular lesser
        included offense or offenses on which a jury instruction is sought, the trial judge may charge the jury
        on any lesser included offense or offenses, but no party shall be entitled to any such charge.

        (c) Notwithstanding any other provision of law to the contrary, when the defendant fails to request the
        instruction of a lesser included offense as required by this section, such instruction is waived. Absent
        a written request, the failure of a trial judge to instruct the jury on any lesser included offense may not
        be presented as a ground for relief either in a motion for a new trial or on appeal.

                                                            -29-
338, § 2. Because the Defendant did not request an instruction on the lesser included offense of
facilitation in writing prior to the trial court’s charge to the jury, the Defendant has not presented a
ground upon which relief may be granted. Tenn. Code Ann. § 40-18-110(c). See State v. Nesha
Newsome, No. W2002-01306-CCA-R3-CD, 2003 WL 23100597, at *6 (Tenn. Crim. App., at
Jackson, Dec. 30, 2003), perm. app. denied (Tenn. May 24, 2004); State v. Rashe Moore, No.
W2002-01195-CCA-R3-CD, 2003 WL 22888881, at *8 (Tenn. Crim. App., at Jackson, Dec. 3,
2003), perm. app. denied (Tenn. Apr. 5, 2004); State v. Terrance G. Motley, W2002-02079-CCA-
R3-CD, 2003 WL 22718191, at *6 (Tenn. Crim. App., at Jackson, Nov. 14, 2003), perm. app. denied
(Tenn. Mar. 22, 2004); State v. Brian Larice Cureton, No. M2002-00835-CCA-R3-CD, 2003 WL
22303084, at *11 (Tenn. Crim. App., at Nashville, Oct. 8, 2003), perm. app. denied (Tenn. Mar. 22,
2004). Therefore this issue is without merit.

         Even if the legislature had not amended Tennessee Code Annotated section 40-18-110(c),
the trial court’s failure to charge the jury on facilitation would not be reversible error. The question
of whether a given offense should be submitted to the jury as a lesser included offense is a mixed
question of law and fact. State v. Rush, 50 S.W.3d 424, 427 (Tenn. 2001) (citing State v. Smiley,
38 S.W.3d 521 (Tenn. 2001)). The standard of review for mixed questions of law and fact is de
novo with no presumption of correctness. Id.; see State v. Burns, 6 S.W.3d 453, 461 (Tenn. 1999).
The trial court has a duty “to give a complete charge of the law applicable to the facts of a case.”
Harbison, 704 S.W.2d at 319; see Tenn. R. Crim. P. 30.

         “In applying the lesser-included offense doctrine, three questions arise: (1) whether an
offense is a lesser-included offense; (2) whether the evidence supports a lesser-included offense
instruction; and (3) whether an instructional error is harmless.” State v. Allen, 69 S.W.3d 181, 187
(Tenn. 2002). Pursuant to part (c)(1) of the analysis set forth by the Tennessee Supreme Court in
Burns, 6 S.W.3d at 466-67, “An offense is a lesser-included offense if: . . . (c) it consists of: (1)
facilitation of the offense charged or of an offense that otherwise meets the definition of lesser-
included offense in part (a)4 or (b)5 . . . .” In accordance with this analysis, facilitation of
premeditated murder is a lesser included offense of premeditated murder and facilitation of felony
murder is a lesser included offense of felony murder. See State v. Ely, 48 S.W.3d 710, 720 (Tenn.
2001). The Tennessee Supreme Court has acknowledged that facilitation is not an immediately
lesser offense. Rather, it is a separate and distinct theory of liability from that of a principal offender
or someone who is criminally responsible for the conduct of another. See State v. Locke, 90 S.W.3d
663, 672 (Tenn. 2002).

         The Tennessee Supreme Court has adopted a two-step process for determining if the evidence
justifies a jury instruction on a lesser included offense. The trial court must first determine whether


         4
             “all of its statutory elements are included within the statutory elements of the offense charged . . .”
         5
          “it fails to meet the definition in part (a) only in the respect that it contains a statutory element or elements
establishing (1) a different mental state indicating a lesser kind of culpability; and/or (2) a less serious harm or risk of
harm to the same person, property or public interest . . .”



                                                             -30-
there is evidence, viewed liberally in a light most favorable to the existence of the lesser included
offense without judging its credibility, that “reasonable minds” could accept to establish the lesser
included offense. Burns, 6 S.W.3d at 649; Ely, 48 S.W.3d at 722. Next, the court must determine
if the evidence, viewed in this same light, is “legally sufficient” to support a conviction for the lesser
included offense. Burns, 6 S.W.3d at 649. “The guiding principle is that if there is evidence in the
record from which the jury could conclude that a lesser-included offense was committed, there must
be an instruction for the lesser offense.” Motley, 2003 WL 22718191, at *6. The evidence, not the
theories of the parties, determines whether an instruction on a lesser included offense should be
given. Allen, 69 S.W3d at 188.

        Tennessee Code Annotated section 39-11-403(a) defines “facilitation” as follows:

        A person is criminally responsible for the facilitation of a felony if, knowing that
        another intends to commit a specific felony, but without the intent required for
        criminal responsibility under § 39-11-402(2), the person knowingly furnishes
        substantial assistance in the commission of the felony.

A person is criminally responsible for the conduct of another if, “[a]cting with intent to promote or
assist the commission of the offense, or to benefit in the proceeds or results of the offense, the person
solicits, directs, aids, or attempts to aid another person to commit the offense[.]” Tenn. Code Ann.
§ 39-11-402(2).

        An instruction on facilitation addresses the Defendant’s role in the crime as a facilitator and
not as a party to the offense. See Locke, 90 S.W.3d at 672-73. In order for reasonable minds to find
the Defendant guilty of facilitation of first degree premeditated murder, the jury would have to
conclude that the Defendant, although neither acting with the intent to promote premeditated murder
nor benefitting in the results, provided Mario Rice with substantial assistance knowing that Mario
Rice intended to commit premeditated murder. See Tenn. Code Ann. § 39-11-403(a). Similarly, the
jury would have to conclude that the Defendant, although not acting with the intent to promote rape
nor benefit in the results, provided Mario Rice with substantial assistance knowing that Mario Rice
intended to commit rape.

        We conclude that the trial court did not err when it refused to instruct the jury on facilitation
to commit premeditated murder or facilitation to commit felony murder. The State presented
evidence showing that the Defendant left the Defendant’s father’s house with the victim and was
seen walking with the victim toward the path adjacent to the Amoco station. The State also
presented the Defendant’s statements in which he stated: (1) that he and Mario Rice planned to take
the victim to the location where she was later found dead to kill the victim; (2) that he walked into
the woods behind the Amoco station with the victim; (3) that they met Mario Rice in those woods
and Mario Rice and the victim began talking; (4) that the victim inexplicably removed her clothes
when talking to Mario Rice; (5) that Mario Rice stabbed the victim multiple times; and (6) that he
ran when Mario Rice stabbed the victim. The Defendant offered testimony from multiple witnesses
that Mario Rice was with them at the time of the murder, and, therefore, could not have committed
the murder. The Defendant also offered evidence that the Defendant’s IQ was 79 and that Evans was

                                                  -31-
not a credible witness. Further, the Defendant offered an alibi witness, who testified that the
Defendant was with him at the time when the murder occurred watching a golf tournament on TV.

        This evidence is susceptible to the following interpretations: (1) that the Defendant acted
alone, lured the victim to the secluded area, raped her, and then murdered her; (2) that the Defendant
acted alone and murdered the victim, but did not rape her; (3) that the Defendant and his nephew
Mario Rice planned the victim’s murder and that the Defendant directed the victim to the location
where Mario Rice laid in wait and murdered her; (4) that neither the Defendant nor Mario Rice had
any involvement in the victim’s murder. Under none of these interpretations of the evidence do the
Defendant’s actions qualify as those of a facilitator. Therefore, the trial court did not err in refusing
to instruct the jury on facilitation.

       Further, even were we to conclude otherwise, any instructional error by the trial court was
harmless beyond a reasonable doubt.

        When a lesser included offense instruction is improperly omitted, . . . the harmless
        error inquiry is the same as for other constitutional errors: whether it appears beyond
        a reasonable doubt that the error did not affect the outcome of the trial. In making
        this determination, a reviewing court should conduct a through examination of the
        record, including the evidence presented at trial, the defendant’s theory of defense,
        and the verdict returned by the jury.

Allen, 69 S.W.3d at 191 (citations omitted). The Tennessee Supreme Court held that “a failure to
instruct the jury on lesser-included offenses will merit reversal unless the State proves beyond a
reasonable doubt that the outcome of the trial was not affected.” Richmond, 90 S.W.3d at 661. In
deciding whether the failure to instruct the jury is harmless, the reviewing court must determine
whether a reasonable jury would have convicted the defendant of the lesser included offense instead
of the charged offense. Id. at 662. That is, the reviewing court must determine whether it appears
beyond a reasonable doubt that the trial court’s failure to instruct on the lesser included offense did
not affect the outcome of the trial. Allen, 69 S.W.3d at 191. In making this determination, “a
reviewing court should conduct a thorough examination of the record, including the evidence
presented at trial, the defendant's theory of defense, and the verdict returned by the jury.” Id.

        The State’s evidence established that the Defendant and his nephew, Mario Rice, had planned
to murder either the victim or the victim’s mother. The Defendant was observed walking into a
secluded area behind the Amoco station with the victim. The victim’s decomposing corpse was
found seven days later in a ditch behind the gas station. When confronted with the possibility that
the victim was raped and the possibility of DNA testing, the Defendant admitted to having sexual
intercourse with the victim in the Defendant’s stepfather’s home on the day of her disappearance.
The Defendant’s stepfather testified that he was present and could hear the Defendant and the victim
when they were in his home, and the two did not engage in sexual activity. The Defendant initially
denied any involvement or any knowledge of the victim’s murder, but later admitted that he lured
the victim into the woods where Mario Rice was waiting to kill her. The Defendant told police that
Mario Rice stabbed the victim numerous times. The Defendant directed law enforcement officers

                                                  -32-
to the location where the victim’s body was discovered. The Defendant established an alibi for
Mario Rice and for himself at the time that the murder occurred.

        The jury’s verdict reflects that it rejected the Defendant’s alibi presented by the Defendant
and accepted the evidence presented by the State. The jury found the Defendant guilty of first degree
murder rather than second degree murder or any other lesser included offenses. See State v. Rhynuia
Lamont Barnes, No. M2001-00631-CCA-R3-CD, 2002 WL 1358717, *12 (Tenn. Crim. App., at
Nashville, Jun. 24, 2002), perm. app. denied (Tenn. Dec. 2, 2002). Considering the evidence at trial,
the theory of the defense, and the verdict rendered by the jury, we conclude that any failure to
instruct on facilitation to commit first degree premeditated murder and facilitation to commit first
degree felony murder was harmless beyond a reasonable doubt and did not affect the outcome of the
trial.

                    VIII. Failure to Instruct as to Knowingly and Recklessly

         The Defendant contends that the trial court improperly instructed the jury on the essential
elements of murder in the perpetration of a rape. The Defendant asserts that the trial court instructed
the jury that an element of this crime was that the Defendant acted “intentionally, knowingly or
recklessly,” but then only defined “intentionally” and failed to define “knowingly or recklessly.” A
criminal defendant has a constitutional right to a correct and complete charge of the law. State v.
Teel, 793 S.W.2d 236, 249 (Tenn. 1990), superceded by statute as stated in State v. Reid, 91 S.W.3d
247 (Tenn. 2002). When reviewing jury instructions on appeal to determine whether they are
erroneous, this Court should review the charge in its entirety and read it as a whole. State v. Hodges,
944 S.W.2d 346, 352 (Tenn. 1997). A jury instruction is to be considered prejudicially erroneous
only if it fails to fairly submit the legal issues or if it misleads the jury as to the applicable law. Id.

        The State correctly contends that the Defendant waived this issue by failing to object to the
jury instruction at trial and by failing to raise the issue in his motion for new trial. See Tenn. R. App.
P. 3; Tenn. R. Crim. P. 30(a)(b); State v. Cravens, 764 S.W.2d 754, 756 (Tenn. 1989). The trial
court gave the following instruction on felony murder:

        Any person who commits first-degree murder is guilty of a crime. For you to find the
        defendant guilty of this offense, the state must have proven beyond a reasonable
        doubt the existence of the following essential elements: that the defendant
        unlawfully killed the alleged victim; and that the killing was committed in the
        perpetration of or the attempt to perpetrate the alleged Rape; that is, that the killing
        was closely connected to the alleged Rape and was not a separate, distinct and
        independent event; and that the defendant intended to commit the alleged Rape. The
        definition of Rape shall be defined to you later in this charge. “Intentionally” means
        that the person acts intentionally with respect to the nature of the conduct or to a
        result of the conduct when it is the person’s conscious objective or desire to engage
        in the conduct or cause the result.

        ....

                                                   -33-
        Any person who commits the offense of rape is guilty of a crime. For you to find the
        defendant guilty of this offense, the state must have proven beyond a reasonable
        doubt the existence of the following essential elements: that the defendant had
        unlawful sexual penetration of the alleged victim or the alleged victim had unlawful
        sexual penetration of the defendant; and that force or coercion was used to
        accomplish the act; or that the sexual penetration was accomplished without the
        consent of the alleged victim and the defendant knew, or had reason to know, at the
        time of the penetration that the alleged victim did not consent; or that the defendant
        accomplished sexual penetration by fraud; and that the defendant acted either
        intentionally, knowingly or recklessly.

The trial court correctly instructed the jury that in order to be convicted of felony murder, the
Defendant must have “intended to commit the alleged rape.” The trial court then defined
“intentionally” before setting forth the elements of rape. There is no culpable mental state required
for felony murder, other than the intent to commit the underlying felony. See Tenn. Code Ann. §
39-13-202(b). “Intentional” is the highest, most demanding mental state and encompasses both
“knowing” and “reckless.” See Tenn. Code Ann. § 39-11-301(a)(2). Thus, the jury was, in essence,
instructed that it must be the Defendant’s “conscious objective or desire” to commit the rape in order
to be convicted of felony murder. The trial court did not err in failing to define “knowingly” and
recklessly” as a part of the mens rea of the underlying felony of rape.

                   IX. Constitutionality of Tennessee Death Penalty Scheme

       The Defendant raises several challenges to the constitutionality of Tennessee’s death penalty
provisions, though he “acknowledges that the majority of the issues raised herein have been
adversely decided by the Tennessee Supreme Court.” The Defendant contends that the Tennessee
death penalty statutes and the imposition of the statutes violate the Fifth, Sixth, Eighth, and
Fourteenth Amendments of the United States Constitution, and Article XI, Section 8, of the
Tennessee Constitution. Specifically, the Defendant contends the following:

A. Tennessee’s death penalty statutes fail to meaningfully narrow the class of death eligible
defendants. Specifically, the statutory aggravating circumstance set forth in Tennessee Code
Annotated sections 39-2-203(i)(2), (i)(5), (i)(6), and (i)(7) have been so broadly interpreted whether
viewed singly or collectively, 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. We
note that factor (i)(6) does not pertain to this case as it was neither relied upon by the State nor found
by the jury. Thus, any individual claim with respect to this factor is without merit. See, e.g., Hall,
958 S.W.2d at 715; State v. Brimmer, 876 S.W.2d 75, 87 (Tenn.), cert. denied, 513 U.S. 1020
(1994). Moreover, the Defendant’s argument has been rejected by the Tennessee Supreme Court.
See Vann, 976 S.W.2d at 117-118 (Appendix); State v. Keen, 926 S.W.2d 727, 742 (Tenn. 1994).

B. The death sentence is imposed capriciously and arbitrarily in that

        (1) Unlimited discretion is vested in the prosecutor as to whether or not to seek the

                                                  -34-
       death penalty. This argument has been rejected. See State v. Hines, 919 S.W.2d 573,
       582 (Tenn. 1995), cert. denied 519 U.S. 847 (1996).

       (2) The death penalty is imposed in a discriminatory manner based upon race,
       geography, and gender. This argument has been rejected. See Hines, 919 S.W.2d at
       582; Brimmer, 876 S.W.2d at 87; State v. Cazes, 875 S.W.2d 253, 268 (Tenn. 1994),
       cert. denied 513 U.S. 1086 (1995).

       (3) Requiring the jury to agree unanimously to a life verdict violates Mills v.
       Maryland and McKoy v. North Carolina. This argument has been rejected. See
       Brimmer, 876 S.W.2d at 87; State v. Thompson, 768 S.W.2d 239, 250 (Tenn. 1989);
       State v. King, 718 S.W.2d 241, 249 (Tenn. 1986), superseded by statute as
       recognized by State v. Hutchinson, 898 S.W.2d 161 (Tenn. 1994).

       (4) There is a reasonable likelihood that jurors believe they must unanimously agree
       as to the existence of mitigating circumstances because of the failure to instruct the
       jury on the meaning and function of mitigating circumstances. This argument has
       been rejected. See Thompson, 768 S.W.2d at 251-52.

C. The appellate review process in death penalty cases, including comparative proportionality
review, is constitutionally inadequate because the appellate court cannot reweigh proof due to the
absence of written findings concerning mitigating circumstances, the information relied upon by the
appellate court for comparative review is inadequate and incomplete, and the appellate court’s
methodology is flawed. This argument has been rejected. See Cazes, 875 S.W.2d at 270-71; Harris,
839 S.W.2d at 77. Moreover, the Tennessee Supreme Court has held that, “while important as an
additional safeguard against arbitrary or capricious sentencing, comparative proportionality review
is not constitutionally required.” State v. Bland, 958 S.W.2d 651, 663 (Tenn. 1997), cert. denied 523
U.S. 1083 (1998); see Pulley v. Harris, 465 U.S. 36, 50-51 (1984) (“There is . . . no basis in our cases
for holding that comparative proportionality review by an appellate court is required in every case
in which the death penalty is imposed and the defendant requests it.”)

                        X. Indictment Failed to Charge Capital Offense

        The Defendant contends that the imposition of the death penalty in this case violated due
process of law because the indictment failed to set forth the aggravating circumstances. Relying
upon the United States Supreme Court’s decisions in Jones v. United States, 526 U.S. 227 (1999),
Apprendi v. New Jersey, 530 U.S. 466 (2000), and Ring v. Arizona, 536 U.S. 584 (2002), the
Defendant states that “[a]ny fact that increases the maximum penalty for a crime must be charged
in an indictment, submitted to a jury, and proven beyond a reasonable doubt in order to satisfy the
Fifth Amendment’s Due Process Clause and the Sixth Amendment’s notice and jury trial
guarantees.” The Tennessee Supreme Court recently rejected this argument, stating, “[n]either the
United States Constitution nor the Tennessee Constitution requires that the State charge in the
indictment the aggravating factors to be relied upon by the State during sentencing in a first-degree
murder prosecution.” State v. Dellinger, 79 S.W.3d 458, 467 (Tenn. 2002); see State v. Holton, 126

                                                 -35-
S.W.3d 845, 862-63 (Tenn. 2004).

         In Dellinger, the Court explained that the capital sentencing scheme in Tennessee is
consistent with Apprendi because: (1) the holding in Apprendi applies only to enhancement factors
used to impose a sentence above the statutory maximum; (2) the death penalty is within the statutory
range of punishment prescribed for first-degree murder by the Tennessee General Assembly; and (3)
Tennessee’s capital sentencing procedure requires both that a jury find statutory aggravating
circumstances based upon proof beyond a reasonable doubt and that the aggravating circumstances
outweigh mitigating circumstances beyond a reasonable doubt. Dellinger, 79 S.W.3d at 466-67. In
Holton, the Court addressed whether the holding in Dellinger was correct in light of the United
States Supreme Court’s decision in Ring. The Tennessee Supreme Court held that “Ring does not
stand for the broad proposition that aggravating circumstances must be charged in the indictment to
satisfy constitutional standards. . . . Therefore, Ring provides no relief to the defendant and does not
invalidate this Court’s holding in Dellinger.” Holton, 126 S.W.3d at 863 (citing United States v.
Bernard, 299 F.3d 467, 488 (5th Cir. 2002); Porter v. Crosby, 840 So. 2d 981, 986 (Fla. 2003);
Terrell v. State, 572 S.E.2d 595, 602 (Ga. 2002)); see State v. Carter, 114 S.W.3d 895, 910 n.4
(Tenn. 2003) (applying Dellinger to reject a claim that Ring requires aggravating circumstances be
included in the indictment). Accordingly, the Defendant is not entitled to relief on this issue.

                               XI. Aggravating Circumstance (i)(5)

       The jury found that aggravating circumstance (i)(5) applied when it imposed the sentence of
death upon the Defendant. Tennessee Code Annotated section 39-13-204(i)(5) states that:

       No death penalty or sentence of imprisonment for life without possibility of parole
       shall be imposed but upon a unanimous finding that the state has proven beyond a
       reasonable doubt the existence of one (1) or more of the statutory aggravating
       circumstances, which are limited to the following: . . . (5) The murder was especially
       heinous, atrocious, or cruel in that it involved torture or serious physical abuse
       beyond that necessary to produce death.

The Defendant contends that the evidence presented at trial is insufficient to justify a rational trier
of fact in finding that this circumstance beyond a reasonable doubt. See Tenn. R. App. P. 13(e);
Jackson v. Virginia, 443 U.S. 307, 324 (1979); State v. Davidson, 121 S.W.3d 600, 614 (Tenn.
2003). First, the Defendant states that the evidence failed to establish that the murder involved
“serious physical abuse beyond that necessary to produce death” because, while the medical
examiner determined that three of the stab wounds were fatal, he was unable to determine the order;
thus, the State failed to establish that the thirteen non-fatal wounds were “beyond that necessary to
produce death.” Next, the Defendant contends that the State failed to rely upon “torture” at trial to
prove this aggravating circumstance and it, therefore, cannot do so on appeal.

       The State has the burden of proving beyond a reasonable doubt that a statutory aggravating
circumstance exists. Tenn. Code Ann. § 39-13-204(i). In determining whether the evidence
supporting the existence of an aggravating circumstance is sufficient, “the proper inquiry for the

                                                 -36-
appellate court is whether, after reviewing the evidence in the light most favorable to the State, a
rational trier of fact could have found the existence of the aggravating circumstance beyond a
reasonable doubt.” State v. Carpenter, 69 S.W.3d 568, 574 (Tenn. Crim. App. 2001) (citing State
v. Suttles, 30 S.W.3d 252, 262 (Tenn. 2000)).

        Our Supreme Court discussed the (i)(5) aggravating circumstance and determined that
“torture” had been defined as “the infliction of severe physical or mental pain upon the victim while
he or she remains alive and conscious.” State v. Odom, 928 S.W.2d 18, 26 (Tenn. 1996). The court
also held that when the legislature added the words “or serious physical abuse,” to the language, it
intended “serious physical abuse” to be distinct from “torture.” See id.; State v. Keen, 31 S.W.3d
196, 206 (Tenn. 2000). In examining the “serious physical abuse” element, the court determined that
the word “serious” referred to the degree of abuse; that the abuse must be physical, as opposed to
mental; and that “abuse” is properly defined as an “excessive” act, or one which makes “improper
use of a thing,” or which uses a thing “in a manner contrary to the natural or legal rules for its use.”
Id. (citing Black’s Law Dictionary 11 (6th ed. 1990)).

        Applying this definition to the facts in this case, we conclude that a rational trier of fact could
have found the existence “serious physical abuse” beyond a reasonable doubt. The victim was
stabbed a total of sixteen times. There were defensive type wounds on the victim’s wrists. Three
wounds to the neck area were “very serious,” severing the exterior jugular vein, trachea, and
esophagus. These wounds would have been fatal absent prompt medical attention. There were
indications of ten stab wounds to the victim’s torso. The Defendant’s argument that the medical
examiner’s inability to determine the order in which the wounds were inflicted precludes a finding
of “serious physical abuse” fails. Three wounds, each standing alone, were sufficient to result in
death. Thus, the additional stabbings alone establish “serious physical abuse” as contemplated by
the Legislature. Further, the multiple stabbings of the victim support the jury’s finding of the (i)(5)
aggravating circumstance. This claim is without merit.

                               XII. Aggravating Circumstance (i)(7)

      The jury also found that aggravating circumstance (i)(7) applied when it sentenced the
Defendant to death. This Code section states that:

        No death penalty or sentence of imprisonment for life without possibility of parole
        shall be imposed but upon a unanimous finding that the state has proven beyond a
        reasonable doubt the existence of one (1) or more of the statutory aggravating
        circumstances, which are limited to the following: . . . (7) The murder was knowingly
        committed, solicited, directed, or aided by the defendant, while the defendant had a
        substantial role in committing or attempting to commit, or was fleeing after having
        a substantial role in committing or attempting to commit, any first-degree murder,
        arson, rape . . . .

Tenn. Code Ann. § 39-13-204(i)(7). The Defendant contends that the evidence is insufficient to
support the finding of this aggravating circumstance. The Defendant asserts the same argument and

                                                   -37-
grounds to contend that the evidence is insufficient to support the jury’s finding regarding the
existence of this aggravating circumstance as he asserted to contest the sufficiency of the evidence
to support his felony murder conviction based upon rape. In essence, he again contends that the
evidence is insufficient to prove that he raped the victim. Having previously held that the evidence
was sufficient to support the jury’s finding that the Defendant raped the victim, and having throughly
discussed that holding in section II of this opinion, we conclude that, in accordance with our
previously-articulated reasoning, the evidence is sufficient for a rational trier of fact to find that this
aggravating circumstance existed beyond a reasonable doubt. This issue is without merit.

                              XIII. Aggravating Circumstance (i)(2)

       The jury found that aggravating circumstance (i)(2) applied when it imposed the sentence of
death upon the Defendant. Tennessee Code Annotated section 39-13-204(i)(2) states that:

        No death penalty or sentence of imprisonment for life without possibility of parole
        shall be imposed but upon a unanimous finding that the state has proven beyond a
        reasonable doubt the existence of one (1) or more of the statutory aggravating
        circumstances, which are limited to the following: . . . (2) 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.

Proof was presented that the Defendant had previously been convicted of aggravated assault on
January 2, 1991, and the trial court instructed the jury that aggravated assault “is a felony involving
the use of violence to the person” for purposes of aggravating circumstance (i)(2). The Defendant
contends that: (1) the evidence in insufficient to support the jury’s finding that this aggravating
circumstance was applicable; and (2) that it is unconstitutional for the trial court to determine
whether the underlying felony, aggravated assault, was a felony involving the use of violence to the
person.

              A. Sufficiency of the Evidence of Aggravating Circumstance (i)(2)

        The Defendant contends, and the State concedes, that there is insufficient evidence in the
record to show that the trial court properly determined that the Defendant’s previous felony
conviction for aggravated assault was one that involved the use of violence to the person. We agree.
Our supreme court has recognized that some felony offenses, specifically aggravated assault, do not
necessarily involve the use of violence. State v. Powers, 101 S.W.3d 383,400 (Tenn. 2003); State
v. Sims, 45 S.W.2d 1, 11-12 (Tenn. 2001). Therefore, in Sims, the Court approved a procedure in
which the trial judge, outside the presence of the jury, considers the underlying facts of the prior
assault to determine whether the elements of those offenses involved the use of violence to the
person. Powers, 101 S.W.3d at 400; Sims, 45 S.W.3d at 11-12. If the trial court determines that the
statutory elements of the prior offense involved the use of violence the State may introduce evidence
that the defendant had previously been convicted of the prior offenses. Powers, 101 S.W.3d at 400-
401. The trial court then would instruct the jury that those convictions involved the use of violence
to the person. Id. The trial court in this case did not follow this procedure. No determination was

                                                   -38-
made as to whether the elements of the offense involved the use of violence to the person nor was
any evidence presented to the court or the jury regarding the underlying facts of this offense.
Accordingly, there is no proof in the record before us to support a finding that the Defendant’s prior
conviction for aggravated assault involved the use of violence to the person.

            B. Trial Court’s Instruction Regarding Aggravated Circumstance (i)(2)

         The Defendant contends that the trial court’s instruction to the jury that his previous felony,
aggravated assault, was one that involved the use of violence to the person is constitutionally
impermissible. The crux of the Defendant’s argument is this: The United States Supreme Court has
held that the determination of whether a defendant has a prior conviction may be determined by a
trial judge, see Apprendi v. New Jersey, 530 U.S. 466, 490 (2000), but all aggravating circumstances
used that must be proved beyond a reasonable doubt must be determined by a jury, see Ring v.
Arizona, 536 U.S. 584 (2002). The Tennessee Supreme Court has held that for purposes of
determining whether a defendant has a conviction for a prior violent felony involving the use of
violence against a person, for purposes of aggravating circumstance (i)(2), the trial judge must
“necessarily examine the facts underlying the prior felony” to determine whether it involved violence
against a person if that prior violent felony conviction may be committed with or without proof of
violence. See State v. McKinney, 74 S.W.3d 291, 306 (Tenn. 2002); Sims, 45 S.W.2d at 11-12 .
Accordingly, the Defendant contends, the trial judge makes the determination, beyond a reasonable
doubt, about this aggravating circumstance, not the jury, and this determination by the trial judge
violates the precedence set forth in Ring. Prior to conducting our analysis on this issue, we note that
the trial in the case under submission occurred six months before the Ring decision.

        A panel of this Court recently addressed this identical issue in State v. Detrick Cole, No.
W2002-01254-CCA-R3-DD, 2003 WL 22848969, at *14-16 (Tenn. Crim. App., at Jackson, Nov.
24, 2003). In Cole, this Court acknowledged both the dictates of our supreme court established in
Sims and the implications of the United States Supreme Court’s decision in Ring. After a thorough
dissertation of the applicable law, this Court noted in Cole several areas left undecided by the United
States Supreme Court. Additionally, this Court, in light of the Ring decision, questioned our
supreme court’s decision as to 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.6 State v. Detrick Cole, 2003 WL 22848969, at *14-16.

       This Court evaluated the implications of Ring and Apprendi as applied to the (i)(2)
aggravating circumstance, stating:

        Apprendi requires that any “fact” which increased 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).

        6
         Our supreme court affirmed its decision in Dellinger on January 5, 2004. See State v. Holton, 126 S.W .3d
 845, (Tenn. 2004). However, the Supreme Court was not presented with the issue regarding the apparent conflict
between the Sims decision and Ring and, thus, is not dispositive of the issue before this Court

                                                      -39-
       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 violent 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.

State v. Detrick Cole, 2003 WL 22848969, at *15. Acknowledging that the automatic review of
capital cases by the Tennessee Supreme Court, Tenn. Code Ann. § 39-13-206(a)(1), pretermitted the
necessity of determining whether the procedure set forth in Sims violates the holding of Ring, this
Court proceeded to hold that the error incurred as a result of following the Sims procedure, if error
at all, was harmless in light of the fact that the jury was presented with evidence underlying the
defendant’s prior convictions. Id.

        In the case presently before us, the trial court determined that the Defendant’s previous felony
was one involving the use of violence against the person. There is no evidence in the record
regarding the circumstances of the Defendant’s previous felony conviction. Accordingly, under
either Sims or Ring, the application of the (i)(2) aggravating circumstance in this case is error.

        Errors affecting the jury’s consideration of an invalid aggravating circumstance in a capital
sentencing proceeding must result in reversal unless the reviewing court concludes that the error was
harmless beyond a reasonable doubt. See, e.g., State v. Howell, 868 S.W.2d 238, 259 (Tenn. 1993).
The error is harmless only where the reviewing court concludes beyond a reasonable doubt that the
sentence would have been the same had the jury not considered the improper evidence in
aggravation. See id. at 262. This holding was premised upon decisions of the United States
Supreme Court which had directed that if a jury considers an invalid or improper aggravating
circumstance, either “constitutional harmless error analysis or reweighing at the trial or appellate
level suffices to guarantee that the defendant received an individualized sentence.” Stringer v. Black,
503 U.S. 222, 232 (1992); Richmond v. Lewis, 506 U.S. 40 (1992); Clemons v. Mississippi, 494
U.S. 738 (1990). The Supreme Court set forth factors to consider in determining whether application
of an inappropriate aggravating circumstance was harmless error: “(1) the number and strength of
remaining valid aggravating circumstances; (2) the prosecutor’s argument at sentencing; (3) the
evidence admitted to establish the invalid aggravator; and (4) the nature, quality, and strength of the
mitigating evidence.” Id. at 261. In applying these factors, the Court recognized that “more crucial
than the sum of the remaining aggravating circumstances is the qualitative nature of each
circumstance, its substance and persuasiveness, as well as the quantum of proof supporting it.” Id.

        In the case under submission, the other valid aggravating factors were that the murder was
committed while the defendant had a substantial role in committing or attempting to commit a rape,
(i)(7), and that the murder was especially heinous, atrocious, or cruel, (i)(5). The evidence

                                                 -40-
supporting the (i)(5) aggravator was uncontroverted. The thirteen-year-old victim was viciously
stabbed a total of sixteen times. She was stabbed in the neck, head, chest, and she suffered defensive
type wounds. Three of the sixteen wounds were deemed fatal absent immediate medical attention.
The thirteen-year-old victim was then left in the wooded area to die. The evidence further
established that the victim’s shorts and underwear were around her ankles. The medical examiner
testified that the advanced decomposition to the vaginal area was indicative of trauma to that area.
Furthermore, the Defendant acknowledged that he had “consensual” intercourse with the victim
earlier that day at his stepfather’s house. The Defendant’s stepfather rebutted the claim that the
Defendant and the victim had any type of sexual encounter at the stepfather’s house.

         The only evidence introduced to establish the aggravating circumstance (i)(2), which we have
found was improperly applied, was the judgment form of the Defendant’s previous aggravated
assault conviction and the waiver of trial form. In mitigation, the Defendant presented testimony that
he had a low I.Q., used drugs, and, at age sixteen, witnessed an armed robbery during which
someone was killed. During closing argument, the prosecution focused on the heinous, atrocious,
cruel factor, the number of wounds inflicted upon the victim, and the circumstances surrounding the
murder. The prosecutor made only brief references to the (i)(2) aggravator saying: (1) “there is
proof, as you heard from the clerks, of a . . . felony conviction - involving violence to the person. .
.;” (2) “ [w]e are talking about a person who, in 1991, was convicted of a crime of violence;” (3)
“[w]hat did [the Defendant] learn after he was convicted of aggravated assault, which is a crime
involving violence;” and (4) “[l]et’s talk first about the conviction in 1991. Taken by itself, the fact
that he was convicted of a crime in 1991, it means nothing. But when you add the fact that it was
a crime of violence, of aggravated assault, on another person; and you see in 1991 he was convicted
of it; in the year 2000, he’s not only older, he’s doing worse.” Finally, we note that no materially
inaccurate or inadmissible evidence was admitted to establish the invalid aggravating circumstance.

        The evidence of the mitigating factors was clearly outweighed by the strength of the
remaining two aggravating circumstances. In sum, we conclude that the Defendant’s sentence would
have been the same had the jury given no weight to the prior violent felony aggravating
circumstance. Thus, the jury’s consideration of the invalid aggravator was harmless error. The
remaining aggravating circumstances were supported by more than sufficient proof, the invalid
aggravating circumstance was not emphasized by the prosecution during closing argument, and the
mitigation proof offered was weak in comparison to the strength of the aggravating proof. Therefore,
this issue is without merit.

          XIV. Review Pursuant to Tennessee Code Annotated section 39-13-206(c)

      For a reviewing court to affirm the imposition of a death sentence, Tennessee Code
Annotated section 39-13-206(c)(1) requires a determination that:

       (1) the sentence was not imposed in an arbitrary fashion;
       (2) the evidence supports the jury’s finding of statutory aggravating circumstance(s);
       (3) the evidence supports the jury’s finding that the aggravating circumstances
       outweigh any mitigating circumstances; and

                                                 -41-
       (4) the sentence is not excessive or disproportionate to the penalty imposed in similar
       cases.

The sentencing phase in the present case was conducted pursuant to the procedure established in the
applicable statutory provisions and rules of criminal procedure. We conclude that the sentence of
death, therefore, was not imposed in an arbitrary fashion. Moreover, the evidence indisputably
supports aggravating circumstances (i)(5), that the murder was especially heinous, atrocious, or cruel,
and (i)(7), that the murder was knowingly committed during a felony.

        Additionally, this Court is required by Tennessee Code Annotated section
39-13-206(c)(1)(D), and under the mandates of Bland, 958 S.W.2d at 661-74, to consider whether
the Defendant’s sentence of death is disproportionate to the penalty imposed in similar cases. See
State v. Godsey, 60 S.W.3d 759, 781-82 (Tenn. 2001). The comparative proportionality review is
designed to identify aberrant, arbitrary, or capricious sentencing by determining whether the death
penalty in a given case is “disproportionate to the punishment imposed on others convicted of the
same crime.” Stout, 46 S.W.3d at 706 (citing Bland, 958 S.W.2d at 662 (quoting Pulley, 465 U.S.
at 42-43). “If a case is ‘plainly lacking in circumstances consistent with those in cases where the
death penalty has been imposed,’ then the sentence is disproportionate.” Stout, 46 S.W.3d at 706
(quoting Bland, 958 S.W.2d at 662).

        In conducting our proportionality review, this Court must compare the present case with
cases involving similar defendants and similar crimes. See Stout, 46 S.W.3d at 706 (citing Bland,
958 S.W.2d at 667); see also Terry v. State, 46 S.W.3d 147, 163 (Tenn. 2001). We select only from
those cases in which a capital sentencing hearing was actually conducted to determine whether the
sentence should be life imprisonment, life imprisonment without the possibility of parole, or death.
See State v. Carruthers, 35 S.W.3d 516, 570 (Tenn. 2000), cert. denied, 533 U.S. 953 (2001)
(citations omitted); see also Godsey, 60 S.W.3d at 783. We begin with the presumption that the
sentence of death is proportionate with the crime of first-degree murder. See Terry, 46 S.W.3d at
163 (citing State v. Hall, 958 S.W.2d 679, 799 (Tenn.), cert. denied, 524 U.S. 941 (1998)). This
presumption applies only if the sentencing procedures focus discretion on the “‘particularized nature
of the crime and the particularized characteristics of the individual defendant.’” Terry, 46 S.W.3d
at 163 (quoting McCleskey v. Kemp, 481 U.S. 279, 308 (1987)).

         Applying this approach, the Court, in comparing this case to other cases in which the
defendants were convicted of the same or similar crimes, looks at the facts and circumstances of the
crime, the characteristics of the defendant, and the aggravating and mitigating factors involved. See
Terry, 46 S.W.3d at 164. 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 (citing Bland, 958 S.W.2d at 667); see also Terry, 46 S.W.3d at 164.
Contemplated within the review are numerous factors regarding the defendant, including: (1) prior
criminal record; (2) age, race, and gender; (3) mental, emotional, and physical condition; (4) role in

                                                 -42-
the murder; (5) cooperation with authorities; (6) level of remorse; (7) knowledge of the victim’s
helplessness; and (8) potential for rehabilitation. Stout, 46 S.W.3d at 706; Terry, 46 S.W.3d at 164.

        In completing our review, we remain cognizant of the fact that “no two cases involve
identical circumstances.” Terry, 46 S.W.3d at 164. Accordingly, there is no mathematical or
scientific formula to be employed. Thus, 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.” Terry, 46 S.W.3d at 164 (citing Bland, 958 S.W.2d at
665).

        The circumstances surrounding the murder in light of the relevant and comparative factors
reveal that the Defendant directed the victim, his stepdaughter, to a secluded wooded area behind
the Amoco station on Chelsea Street. In the woods, the victim was brutally stabbed sixteen times,
by either the Defendant or by his nephew, Mario Rice. Evidence existed revealing that the victim
had been raped at some point. Defendant Rice also admitted that the victim’s murder was planned
in an effort to hurt his estranged wife, the victim’s mother.

        The evidence showed that the Defendant had an I.Q. of 79 and was generally a poor student.
The Defendant has an eighth grade education at best. At age sixteen, the Defendant witnessed an
aggravated robbery, during which a person was killed. Of the Defendant’s five siblings, only two
are alive. Testimony also established that the Defendant used crack cocaine and other drugs.

        The death penalty has been upheld where the victim was a young child: In State v. Keen, 31
S.W.3d 196 (Tenn. 2000), the defendant was convicted of first degree murder during the perpetration
of a rape of his girlfriend’s eight-year-old daughter. The jury applied two aggravating circumstances,
including the young age of the victim and the fact that the murder was especially heinous, atrocious,
or cruel. Id. at 205. The evidence established that the defendant raped the child while choking her,
possibly with a shoelace. Id. at 203-04. The defendant demonstrated remorse after the offense and
had no prior criminal record. Id. at 205.

        In State v. Vann, 976 S.W.2d 93 (Tenn. 1998), the defendant was convicted of felony murder
during the perpetration of a rape of his eight-year-old daughter. The proof indicated that the victim’s
death was the result of ligature strangulation. Id. at 97. The jury applied three aggravating
circumstances in sentencing the defendant to death: (1) the young age of the victim; (2) the
defendant’s prior convictions for aggravated rape; and (3) the fact that the murder was especially
heinous, atrocious or cruel in that it involved torture or serious physical abuse beyond that necessary
to produce death. Id. at 100; see Tenn. Code Ann. § 39-13-204(i)(1), (2), (5) (1997). Medical
testimony indicated that the condition of the victim’s anus was consistent with ongoing, repeated
anal penetration. Vann, 976 S.W.2d at 97. Witnesses testified that the defendant showed no remorse
at the hospital about his daughter’s death, and nothing in the record indicated a capacity for
rehabilitation. Id.

       In State v. Irick, 762 S.W.2d 121 (Tenn. 1988), the twenty-six-year-old defendant was
convicted of first degree felony murder and two counts of aggravated rape. In Irick, the defendant

                                                 -43-
was babysitting a friend’s children, including the victim. Id. at 133. The defendant raped the seven-
year-old victim vaginally and anally. Id. at 134. The victim suffocated as the defendant held his
hand over her mouth to keep her from screaming as he raped her. Id. Following a sentencing
hearing, the jury found four aggravating circumstances: (1) the victim was less than twelve years of
age; (2) the murder was especially heinous, atrocious or cruel in that it involved torture or depravity
of mind; (3) the murder was committed for the purpose of avoiding, interfering with, or preventing
a lawful arrest or prosecution of the defendant or another; and (4) the murder was committed during
the perpetration of a felony. Id. at 124; see Tenn. Code Ann. § 39-2-203(I)(1), (5), (6), (7). The
defendant had offered mitigating evidence that he had been under the influence of marijuana or
alcohol at the time he committed the offense and that he had a past mental impairment. Irick, 762
S.W.2d at 134.

         In State v. Coe, 655 S.W.2d 903 (Tenn. 1983), the defendant was a stranger to the eight-year-
old victim. He lured her into his car, drove to an isolated spot, and raped her. Id. at 905-06. When
Coe completed the rape, the victim told him that Jesus loved him. Id. at 906. At that point, the
defendant strangled the victim until she turned blue. Id. When the victim did not immediately die
from the strangulation, he stabbed her in the neck with a pocket knife and watched as she suffered
agonizing death throes. Id. Eventually, he left her to die in the wooded area. Id. Coe was convicted
of first-degree murder, kidnapping, and aggravated rape. Id. at 905. Following the sentencing
hearing, the jury sentenced the defendant to death upon finding four aggravating circumstances: (1)
the victim was not twelve years of age; (2) the murder was especially heinous, atrocious or cruel in
that it involved torture or depravity of mind; (3) the murder was committed for the purpose of
avoiding, interfering with, or preventing a lawful arrest or prosecution of the defendant or another;
and (4) the murder was committed while the defendant was engaged in committing or attempting to
commit rape. Id.; see Tenn. Code Ann. § 39- 2-203(i)(1), (5),(6), (7). As mitigating evidence, the
defendant claimed that he had been under the influence of extreme mental or emotional disturbance
at the time he committed the offense. Coe, 655 S.W.2d at 908.

        In State v. Payne, 791 S.W.2d 10 (Tenn. 1990), the twenty-year-old defendant was convicted
of two counts of first degree murder. The defendant stabbed to death his girlfriend’s twenty-eight-
year-old neighbor and the neighbor’s two-year-old daughter. Id. at 12. The jury imposed the death
penalty for each conviction upon finding four aggravating circumstances: (1) one of the victims was
less than twelve years old; (2) the defendant knowingly created a great risk of death to two or more
persons other than the victim; and (3) the murder was especially heinous, atrocious, or cruel in that
it involved torture or depravity of mind. Id. at 19-20; see Tenn. Code Ann. § 39-2-203(i)(1), (3), (5).

        The death penalty has been imposed upon finding of the (i)(5) and/or the (i)(7) aggravating
factors and where the victim or victims had been stabbed. See e.g., State v. West, 767 S.W.2d 387
(Tenn. 1998) (imposing the death penalty where defendant separated mother and daughter, restrained
the victims, and stabbed one victim seventeen times and the other victim numerous times, upon
finding of aggravating circumstances (i)(5) and (i)(7)); State v. Bush, 942 S.W2d 489 (Tenn. 1997)
(imposing the death penalty where the defendant murdered a 79 year- old widow upon finding
aggravating circumstance (i)(5), despite substantial mitigation proof); State v. Harris, 839 S.W.2d
54 (Tenn. 1992) (imposing death penalty for murders of two victims, where victims had been both

                                                 -44-
shot and stabbed, but fatal wound as to one victim was a deep cut to the throat that cut the trachea
and major blood vessels and chipped the spinal column); State v. Payne, 791 S.W.2d 10 (Tenn.
1990) (imposing death penalty for stabbing two victims, where one victim was stabbed forty-one
times and the second was stabbed nine times upon finding aggravating circumstances (i)(3) and
(i)(5)); State v. Jones, 789 S.W.2d 545 (Tenn. 1990) (imposing death penalty where a thirty-eight-
year-old murdered the victim who was stabbed six times after being bound, gagged and blindfolded,
upon finding of (i)(2), (i)(5), and (i)(6) aggravating circumstances); State v. Thompson, 768 S.W.2d
239 (Tenn. 1989) (imposing death penalty where female victim was taken to a remote location and
stabbed repeatedly, upon finding aggravating circumstances (i)(5), (i)(6), and (i)(7)); and the
companion cases of State v. Dicks, 615 S.W.2d 126 (Tenn. 1981) and State v. Strouth, 620 S.W.2d
467 (Tenn. 1981) (imposing death penalty where co-defendants robbed a store and slit the throat of
elderly man who bled to death, upon finding aggravating circumstances (i)(5) and (i)(7)).

         While no two capital cases are identical, we have compared the circumstances of the present
case with the circumstances of the cases set out above and others not herein detailed, and we
conclude that this case, taken as a whole, is not plainly lacking in circumstances consistent with other
similar cases in which the death penalty has been imposed. Thus, the Defendant’s sentence of death
is not disproportionate considering the circumstances of the crime and the defendant. In so
concluding, we have considered the entire record and reach the decision that the sentence of death
was not imposed arbitrarily, that the evidence supports the finding of the (i)(5) and (i)(7) aggravators,
that the evidence supports the jury’s finding that the aggravating circumstances outweigh mitigating
circumstances beyond a reasonable doubt, and that the sentence is not excessive or disproportionate.

                                           XV. Conclusion

        Having fully reviewed the record, the briefs, and the applicable authority, we AFFIRM the
Defendant’s conviction for first degree murder. Additionally, in accordance with the mandate of
Tennessee Code Annotated section 39-13-206(c)(1), and the principles adopted in prior decisions
of the Tennessee Supreme Court, we have considered the entire record in this cause and conclude
the sentence of death was not imposed in any arbitrary fashion, that the evidence supports, as
previously discussed, the jury’s finding of the statutory aggravating circumstances, and that the jury’s
finding that the aggravating circumstances outweighed mitigating circumstances beyond a reasonable
doubt. Tenn. Code Ann. § 39-13-206(c)(1)(A)(C). A comparative proportionality review,
considering both “the nature of the crime and the defendant,” convinces us that the sentence of death
is neither excessive nor disproportionate to the penalty imposed in similar cases. Accordingly, we
AFFIRM the sentence of death imposed by the trial court.



                                                         ____________________________________
                                                              JUDGE ROBERT W. WEDEMEYER




                                                  -45-
