                      APPENDIX - Filed September 14, 2010
              (Excerpts from the Decision of the Court of Criminal Appeals)

        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                               September 17, 2008 Session

        STATE OF TENNESSEE v. JOEL RICHARD SCHMEIDERER

               Direct Appeal from the Circuit Court for Maury County
                       No. 14488      Jim T. Hamilton, Judge



                  No. M2007-01922-CCA-R3-DD - Filed April 9, 2009



  Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed

R OBERT W. W EDEMEYER, J., delivered the opinion of the court, in which J AMES
C URWOOD W ITT, J R., and J.C. M CL IN, JJ., joined.

Sharon D. Aizer, Columbia, Tennessee (on appeal); Claudia S. Jack, Shipp Weems, and
Michelle VanDeRee, Columbia, Tennessee (at trial) for the Defendant, Joel Richard
Schmeiderer.

Robert E. Cooper, Jr., Attorney General and Reporter; Michael E. Moore, Solicitor
General; James E. Gaylord, Assistant Attorney General; Mike Bottoms, District Attorney
General; Joel Douglas Dicus and Patrick S. Butler, Assistant District Attorneys General,
for the Appellee, State of Tennessee.

                                         OPINION

                                   [Section II. Analysis]

                                        B. Voir Dire
       The Defendant next argues that the trial court erred during voir dire. Specifically,
the Defendant asserts that the trial court erred because: (1) it allowed the State to shift the
burden to the Defendant to “put on evidence” of mitigation; (2) it limited his questions,
and the phrasing of those questions, of prospective jurors; (3) it struck eleven women
without allowing for rehabilitation of those potential jurors and without making a record;
(4) it improperly denied the Defendant’s request to strike prospective juror Jonathan
White for cause; and (5) it improperly excused prospective juror Manual Oskian for
cause. The State’s response to each of these assertions will be discussed in their
respective sections below.

        Article I, section 9 of the Tennessee Constitution guarantees a criminal defendant
the right to trial “by an impartial jury.” In fact, every accused is guaranteed “a trial by a
jury free of . . . disqualification on account of some bias or partiality toward one side or
the other of the litigation.” State v. Akins, 867 S.W.2d 350, 354 (Tenn. Crim. App. 1995)
(citing Tooms v. State, 197 Tenn. 229, 270 S.W.2d 649, 650 (1954)). Thus, the function
of voir dire is essential. Voir dire permits questioning by the court and counsel in order to
lead respective counsel to the intelligent exercise of challenges. Id. (citations omitted). A
trial court is vested with great discretion in conducting the selection of a fair and impartial
jury. State v. Howell, 868 S.W.2d 238, 247 (Tenn. 1993), cert. denied 510 U.S. 1215
(1994); State v. Harris, 839 S.W.2d 54, 65 (Tenn. 1992), cert. denied, 507 U.S. 954
(1993); see Tenn. R. Crim. P. 24(a). Thus, this Court must uphold the trial court’s ruling
unless the defendant establishes the existence of a clear abuse of discretion. State v.
Raspberry, 875 S.W.2d 678, 681 (Tenn. Crim. App. 1993).

                            1. Shifting of Burden to Defendant
        The Defendant claims that the trial court erred when it permitted the State to
improperly shift the burden to him to present evidence mitigating against the imposition
of the sentence of death by pointing out several times to the jury, and in several ways, that
the defense would be presenting such evidence. The State counters that the Defendant
did not object until the third day of voir dire and, therefore, cannot complain that the jury
impaneled on the first two days was tainted. Further, it asserts that the comments did not
shift the burden but rather alluded to the possibility that the defense would bring up
mitigating circumstances, which is, in fact, an accurate statement in most cases. Finally,
the State contends that the comments are not jury instructions and that the jury was
properly instructed that the Defendant did not have the burden of proving a mitigating
circumstance.

       The record reflects that the prosecution repeatedly said during the voir dire of
prospective jurors that the defense would be presenting evidence of mitigating
circumstances. The Defendant did not object until the third day of voir dire, and he
objected to only one statement, which will be discussed below. According to Tennessee
Rule of Appellate Procedure 36(a), relief is not available to a party “who failed to take
whatever action was reasonably available to prevent or nullify the harmful effect of the
error.” Therefore, a defendant must object contemporaneously to statements by the
prosecution that the defendant believes to be legally wrong or misleading. State v. Alder,
71 S.W.3d 299, 302 (Tenn. Crim. App. 2001). The Defendant has, therefore, waived our



                                              -2-
review of the statements occurring before and after his objection, statements to which he
made no contemporaneous objection.

        In the comment made by the prosecutor to which the Defendant did object, the
prosecutor said, “The defense can put on evidence they want to, in this part of the trial.
We call them mitigating circumstances. Anything . . . they want you to consider about
the defendant . . . whatever, that they think you need to consider in making this decision.”
Defense counsel objected, claiming that the prosecutor shifted the burden of presenting
mitigating evidence to the Defendant. The trial court ruled that the State had merely told
the jury that the Defendant presenting mitigating evidence was a possibility, which is a
fact jurors “need to know.”

        We understand the Defendant’s argument to be that the prosecutor, by repeatedly
informing the jury that the Defendant can present mitigating evidence, created the
expectation that if the Defendant did not present such evidence then there is no evidence
mitigating against a sentence of death. In fact, any evidence presented to the jury from
the State or the defense can constitute evidence of a mitigating circumstance. See T.C.A.
§ 39-13-204(j)(9) (2003). Upon our thorough review of the record, we do not agree with
the Defendant’s interpretation of the prosecutor’s comments. The State said, “The
defense can put on evidence . . . .” (emphasis added). This comports more with the
State’s contention that its comments were informing the jury of what may happen during
the trial and did not shift the burden to present mitigating proof to the Defendant. We
conclude that the trial court did not abuse its broad discretion when it allowed the State to
tell the jury that the Defendant can present mitigating evidence.

                            2. Questioning of Prospective Jurors
                                a. Mitigating Circumstances
        The Defendant contends that the trial court erroneously limited the remarks he
made and questions he asked potential jurors during voir dire. First, the Defendant argues
that the trial court erred when it refused to allow the Defendant to ask each potential juror
what he or she considered to be a mitigating circumstance. The State responds that the
trial court, in an effort to limit the defense’s use of open-ended questions, properly
required the defense to use a more narrowly tailored question to elicit the jurors’
propensity for bias.

       A Defendant has a right to “a trial by a jury free of . . . disqualification on account
of some bias or partiality toward one side or the other of the litigation.” Akins, 867
S.W.2d at 354. Therefore, a trial court “shall permit the parties to ask questions for the
purpose of discovering bases for challenge for cause and intelligently exercising
peremptory challenges.” Tenn. R. Crim. P. 24(b)(1). As previously set forth, however,
the scope and extent of voir dire is entrusted to the discretion of the trial court, and the

                                             -3-
trial court’s rulings will not be reversed on appeal absent an abuse of discretion. State v.
Smith, 993 S.W.2d 6, 28 (Tenn. 1999). Merely “[r]equiring defense counsel to ask
clearer, more-pointed and understandable questions is not an abuse of discretion.” State
v. Jerry Lynn Walde, No. 03C01-9603-CC-00109, 1997 WL 789964, at *6 (Tenn. Crim.
App., at Knoxville, Dec. 23, 1997), perm. app. denied (Tenn. Jan. 4, 1999).

       During voir dire, the Defendant requested permission to ask each juror to explain
what he or she considered to be a mitigating circumstance of homicide. The trial court
said defense counsel must ask a “more-pointed” question, requiring the Defendant to list
several statutory mitigating factors and, following each factor, ask each juror whether he
or she considered the factor “mitigating.” In our view, the trial court’s limitation was
intended to extract a “clearer, more-pointed and understandable” question. See id.
Therefore, the trial court did not abuse its discretion in this matter. Id.

                       b. Phrase “Put a Fellow Citizen to Death”
        The Defendant next contends that the trial court erred when it prohibited him from
saying that the State was seeking to “put a fellow citizen to death” because such a
limitation “tends to minimize the impact of the jury’s role” in violation of Caldwell v.
Mississippi, 472 U.S. 320 (1985). The State disagrees with the Defendant’s interpretation
of Caldwell and says the trial court did not err when it required the Defendant to say that
the State was “seeking the death penalty” instead of that the State was seeking to “put a
fellow citizen to death.”

        In Caldwell, the U.S. Supreme Court held that “it is constitutionally impermissible
to rest a death sentence on a determination made by a sentencer who has been led to
believe that the responsibility for determining the appropriateness of the defendant’s
death rests elsewhere.” 472 U.S. at 328. As a result, Caldwell prohibits remarks that
“suggest to the jury that their decision to impose the death penalty would be temporary,
tentative, or conditional, depending on the review of higher courts.” McCormick v. State,
No. 03C01-9802-CR-00052, 1999 WL 394935, at *20 (Tenn. Crim. App., at Knoxville,
June 17, 1999), no Tenn. R. App. P. 11 application filed. For example, a trial court may
not instruct the jury, as the Caldwell trial court did, that the jury’s imposition of a death
sentence is not binding or valid in any sense because it is subject to appellate review. Id.

       We conclude the trial court did not violate Caldwell when it required the
Defendant to use the phrase “seeking the death penalty” instead of “seeking to put a
fellow citizen to death.” The phrase “seeking the death penalty” did not suggest to the
jury that its decision to impose a death sentence was only “temporary, tentative, or
conditional.” McCormick, 1999 WL 394935, at *20. The limitation did not lessen the
impact upon the jurors of the nature of their responsibility as jurors sitting on a trial where
the death penalty is requested. Id.; see Caldwell, 472 U.S. at 328. The trial court did not

                                              -4-
abuse its broad discretion or violate Caldwell when it limited the Defendant, and the
Defendant is not entitled to relief on this matter. Id.

                             3. Excusing Prospective Jurors
       The Defendant argues that the trial court violated his right to equal protection of
the laws when it excused eleven potential jurors, all of whom were women, without
giving the Defendant a chance to rehabilitate them and without making a record of its
decision. The State responds that the trial court did not violate the Defendant’s
constitutional rights and that the trial court properly excused each of the jurors based
upon each juror’s explanation of how serving as a juror would be a hardship for them.
The State points out that many of the female jurors were excused because they were
solely responsible for the care of their small children, which has been found by other
courts to be a valid reason for being excused, citing Johnson v. United States, 307 F.
Supp. 2d 380, 387 (D. Conn. 2003).

       Pursuant to Tennessee Code Annotated section 22-5-307(a) (2003), a person
summoned for jury service must appear at the specified time and place “unless excused
therefrom or discharged by the judge.” In the case under submission, the prospective
jurors were excused when they appeared in court based on the court’s consideration of the
information provided by the jurors to the trial court’s inquiries. At the time of the
Defendant’s trial, the relevant code section provided that “any person may be excused
from serving as a juror . . . when, for any reason, the person’s own interests, or those of
the public, will, in the opinion of the court, be materially injured by the person’s
attendance.” See T.C.A. § 22-1-104(a) (2003) (repealed 2009). The statute further
provided that “any person, when summoned to jury duty, may be excused upon a showing
that such person’s service will constitute an undue hardship.” T.C.A. § 22-1-104(b)
(repealed 2009). Further, the law in effect at the time of the Defendant’s trial provided
that the “court may discharge from service a grand or petit juror . . . for any other
reasonable or proper cause, to be judged by the court.” T.C.A. § 22-1-105 (Supp. 2008).1

        The Defendant in this case contends that the trial court systematically excluded
women from the jury venire. Further, the Defendant states that, had this exclusion been
the result of the State’s use of peremptory strikes, he could have sought some recourse,
but, because it was perpetuated by the trial court, he had no such recourse. The United
States Supreme Court has addressed whether peremptory challenges on the basis of
gender violate the Equal Protection Clause holding, “Intentional discrimination on the
basis of gender by a state actor violates the Equal Protection Clause, particularly where
. . . the discrimination serves to ratify and perpetuate invidious, archaic, and overbroad


       1
       At the time of the Defendant’s trial, this statute was codified at Tennessee Code
Annotated section 22-1-106.

                                               -5-
stereotypes about the relative abilities of men and women.” J.E.B. v. Alabama ex rel.
T.B., 511 U.S. 127, 130-31 (1984). The Court clarified that intention to exclude based on
gender is a requirement for there to be an Equal Protection violation. Even exclusions
“based on characteristics that are disproportionately associated with one gender could be
appropriate, absent a showing of pretext.” Id. at 143. The Court then gives the example
that “challenging all persons who have had military experience would disproportionately
affect men at this time, while challenging all persons employed as nurses would
disproportionately affect women. Without a showing of pretext, however, these
challenges may well not be unconstitutional, since they are not gender or race based.” Id.
(citing Hernandez v. New York, 500 U.S. 352 (1991)).

       According to our review of the record, during voir dire the Defendant objected
stating:

              Your Honor, we had 30 jurors come today. Out of those 30 jurors
       for cause, there w[ere] 12 people that approached Your Honor, asking for a
       for-cause-excuse; Your Honor granted all of them with the exception of
       one, Ms. Hanes. Actually, there w[ere] 13 including Ms. Hanes. Out of the
       12 of the 30, 11 were females. And, of course, females have certain
       problems, and the Court addressed it: Children, et cetera.

               I would like to take exception to the Court’s ruling excluding these
       11 people. Females are a recognizable class that the courts have held there
       should be adequate provocation before they’re excused. I don’t know how
       many remaining jurors in that 30, were females. But I do know that 11
       approached Your Honor. And I know we have lost the opportunity to have
       at least 11 females on the jury.

In total, the trial court excused thirteen prospective jurors based upon an undue hardship
before the Defendant’s objection, and eleven of those thirteen jurors were female.2 The
trial court asked that the potential jurors who felt incapable of serving due to the
necessary five-night sequestration to identify themselves. The trial court then called each
potential juror up to the bench and had a private conversation about the person’s reasons
for not being able to serve by staying in a hotel for five nights. After each conversation,
the trial court announced why it was dismissing that potential juror. The following
occurred during the questioning of each juror:


       2
        In the trial court’s order on the Defendant’s motion for new trial, it also addresses why
female jurors Linda Knox, Jane Karp, Kay Pitts, Shannon Cyphers, and Joe Etta Braswell were
excused. These jurors were excused after the Defendant’s objection and do not seem to be the
subject of this appeal. We will, therefore, not address the trial court’s excusing these jurors.

                                                -6-
                          a. Alberta Hooks

The Court: So, Ms. Hooks, we’ll just start with you. You want to come
             up here?
     (Ms. Hooks complied.)
The Court: Yes, ma’am.
(Whereupon, a discussion took place between Ms. Hooks and the Court. And
     then, the following proceedings were had.)
The Court: She has children problems. A single parent. And thank you. Good
             luck to you.
Ms. Hooks: Thank you.
     (Ms. Hooks was excused).

                          b. Jennifer Miller

The Court: All right. We’ll just start here on the front row. And your
            name is?
Ms. Miller: Miller.
The Court: Jennifer Miller, should be number 22
     (Whereupon, a discussion took place between Ms. Miller and the
     Court. And then, the following proceedings were had.)
The Court: She has two children. No one will be able to pick them up.
            Okay.
     (Ms. Miller was excused.)

                            c. Tina Foster

The Court: All right. Yes, ma’am.
Ms. Foster:Tina Foster.
The Court: Yes, ma’am.
Ms. Foster: I’ve got children. My husband works all day. I just don’t
           think the youngest one would do well, for five days, without
           her mamma.
The Court: Okay. All right. We’ll excuse you then. Ms. Tina Foster.
           Thank you, ma’am.
     (Ms. Foster was excused.)

                          d. Frances Smith

      (Whereupon, a discussion took place between Ms. Smith and the
      Court. And then, the following proceedings were had.)

                                  -7-
The Court: What’s your name?
Ms. Smith: Frances Smith.
The Court: This is Frances Smith. And she has two children. And no one
            can help but her. Right?
Ms. Smith: Right.
The Court: Okay. Ms. Smith, we’ll excuse you. Thank you.
     (Ms. Smith was excused.)

                            e. Sandy Small

The Court: All right. Yes, ma’am.
     (Whereupon, a discussion took place between Ms. Small and the
     Court. And then, the following proceedings were had.)
The Court: What is your name, Ms?
Ms. Small: Sandy Small.
The Court: Sandy Small. She has two children. Her husband works out
            of town. So we’ll excuse you.
     ....
     (Whereupon Ms. Small was excused.)

                          f. Dena McClellan

The Court: All right. Yes, ma’am.
     (Whereupon, a discussion took place between Ms. McClellan and the
     Court. And then, the following proceedings were had.)
The Court: Her daughter graduates from high school. All right. We’ll
            excuse you. Thank you.
     (Mc. McClellan was excused.)

                          g. Lou Ann Gibbs

The Court: Yes, ma’am. What’s your name?
Ms. Gibbs: Lou Ann Gibbs.
      ....
       (Whereupon, a discussion took place between Ms. Gibbs and the
      Court. And then, the following proceedings were had.)
The Court: Her job is going to take her out of town until next week. So,
             thank you, ma’am.
      (Ms. Gibbs was excused.)
Ms. Jack: Is that Ms. Gibbs?
The Court: Ms. Gibbs.

                                  -8-
                              h. Elizabeth Daniels

      The Court: This is Elizabeth Daniels.
            ....
            (Whereupon, a discussion took place between Ms. Daniels and the
            Court. And then, the following proceedings were had.)
      The Court: All right. Two children, 6 and 10. No one’s there when they
                   get home from school. Thank you.
      (Ms. Daniels was excused.)

                               i. Theresa Blocker

     The Court: All right. Yes, ma’am.
           (Whereupon, a discussion took place between Ms. Blocker and the
           Court. And then, the following proceedings were had.)
The Court: All right. A 7-year-old at home and her husband works nights.
     Thank you, ma’am.
           (Ms. Blocker was excused.)
     General Dicus: What was her name, Judge?
     The Court: Theresa Blocker.


                                  j. Nelda Bone

      The Court: All right. Yes, ma’am.
      Ms. Bone: Nelda Bone.
      The Court: All right. Ms. Bone is number 8.
            (Whereupon, a discussion took place between Ms. Bone and the
            Court. And then, the following proceedings were had.)
      The Court: She’s across from her mother-in-law who’s ill. Thank you,
      ma’am.
            (Ms. Bone was excused.)

                                k. Kimberly Sisk

      The Court: Kimberly Sisk. All right. She has her grandfather. Thank
           you, ma’am.
           (Ms. Sisk was excused.)




                                       -9-
       Upon our detailed examination of the record, the trial court excused each one of
these female jurors for reasons other than gender. Each of these jurors requested to be
excused and provided the trial court with reasons why serving as a juror would be an
undue hardship. It is clear that the trial court acted within its discretion when it excused
these jurors based upon their showing that service as jurors would constitute undue
hardship. See T.C.A. § 22-1-104(b) (repealed 2009).

       Further, we find no merit in the Defendant’s contention that the trial court’s
excusing these women amounted to a systematic excusing of women from the jury venire.
As previously stated, the trial court correctly applied the hardship provision of Tennessee
Code Annotated section 22-1-104(b). The fact that such application allows the trial court
to excuse mothers who have no alternative methods of childcare is, as other courts have
found, perhaps an inevitable result of a hardship exemption.               See Bratcher v.
Commonwealth, 151 S.W.3d 322, 345-46 (Ky. 2004) (holding that a trial court’s
application of the hardship provision of the Kentucky statute to excuse mothers with no
alternative methods of childcare was perhaps an inevitable result of a hardship
exemption); People v. Olson, 377 N.E.2d 371, 376 (Ill. App. 1978) (holding trial court’s
excusal of women who were unable to make arrangements for the care of their children
was not unreasonable); State v. Taylor, 771 S.W.2d 387, 400 (Tenn. 1989) (holding that
proof did not show a systematic exclusion of women in the grand jury selection process
where the trial court stated that there were no automatic exemptions granted women but
that women would frequently offer compelling reasons for excusal, namely the care of
young children); see also Johnson, 307 F. Supp. 2d at 387 (holding, “Trial courts have
long recognized that jurors with young children should be excused for cause when they
are unable to obtain child-care for their children”); McArthur v. State, 351 So.2d 972, 975
(Fla. 1977) (upholding the constitutionality of a Florida statute excusing from jury service
pregnant women and women with small children); State v. George, 476 S.W.2d 903, 906-
07 (S.C. 1996) (holding that statutory excusals of three women with young children from
jury service pursuant to “child care” exemption did not violate defendant’s right to a
venire pool reflecting fair cross-section of a community). We conclude that the trial
court’s actions in the case presently before us do not constitute the sort of “[i]ntentional
discrimination on the basis of gender by a state actor” that violates the constitution. See
J.E.B. v. Alabama ex rel. T.B., 511 U.S. at 130-31.

                                 4. Juror Jonathan White
        The Defendant argues that the trial court erred because it did not grant his motion
to strike potential juror Jonathan White for cause based on Juror White’s belief that life
without parole was not a sufficient punishment for first degree murder. The Defendant
avers that he was forced to use a peremptory strike to dismiss Juror White, which left
Juror Boatwright on the panel. Juror Boatwright, the Defendant says, was incompetent to
serve because, “of all the prospective jurors, she was the one whose individual voir dire

                                            -10-
was the most restricted by the court,” meaning the Defendant “knew very little about
her.” The State counters that Juror White said he would weigh the mitigating
circumstances and assign the death penalty only when the mitigation was not sufficient.
Further, it asserts there is no evidence to support the Defendant’s contention that Juror
Boatwright was incompetent.

        The Defendant points us to the following exchange between defense counsel and
Juror White, which occurred after defense counsel gave Juror White a hypothetical
situation where a defendant, with an abusive childhood as well as an ongoing psychiatric
disorder, is charged with murdering another person:

      Q:     Would you be able to balance [the facts] out, or would that mean
             anything to you?
      A:     I could balance that out.
             ....
      Q:     [I]n those facts, you hear things that tend to mitigate, or tend to
             soften, or tend to give a reason for the behavior or conduct of the
             person who’s on trial.
      A:     Uh-huh (affirmative). Yes.
      Q:     Okay. And could you carry those mitigating factors with you into
             the jury[]room?
      A:     Yes, ma’am.
             ....
      Q:     Now, [the State] touched on some other penalties which is life. And
             life, in Tennessee is 51 years before you could come before a board
             and be eligible for parole. The other, is life without the possibility of
             parole, which means, when they take you to the penitentiary; that’s
             going to be the home for the rest of your life. And we’ve talked
             about the death penalty. Do you see life, 51 years in prison as a
             harsh punishment?
      A:     No.
      Q:     You don’t think that’s a harsh punishment?
      A:     No.
      Q:     What about life without the possibility of parole? Where you spend
             the rest of your life in a cage.
      A:     No.
      Q:     You don’t think that’s an adequate punishment?
      A:     No.
      Q:     So, given any of the specific set of circumstances, your inclination
             would be, if certain factors are met and you don’t feel the mitigation
             is sufficient, that the only option for the punishment would be death?

                                           -11-
       A:     Yes.

In response to the State’s voir dire, the following exchange took place between the
prosecuting attorney and Juror White:

       Q [the State]: Now, if we get to . . . the punishment stage of the trial, if
             you found him guilty of first degree murder, the judge will tell you
             [there are] three possible punishments that you can consider.
             There’s life in prison[], which in Tennessee, is 51 years before
             you’re eligible for parole. Life without parole, which is just what it
             says, you can never be paroled. Or the death penalty. Do you think
             you would be able to fairly, and impartially, consider all three
             punishments?
       A [Juror White]: Yes, sir.

        As previously stated, both the United States and Tennessee Constitutions
guarantee a criminal defendant to the right to a trial by an impartial jury. See U.S. Const.
amend. VI; Tenn. Const. art. I, § 9. To that end, parties in civil and criminal cases are
granted “an absolute right to examine prospective jurors” in an effort to determine that
they are competent. See T.C.A. § 22-3-101 (2003). The “proper standard for
determining when a prospective juror may be excluded for cause because of his or her
views on capital punishment . . . is whether the juror’s views would ‘prevent or
substantially impair the performance of his duties as a juror in accordance with his
instructions and his oath.”’ Wainwright v. Witt, 469 U.S. 412, 424 (1985) (quoting
Adams v. Texas, 448 U.S. 38, 45 (1980)); State v. Reid, 213 S.W.3d 792, 835-36 (Tenn.
2006). “[T]his standard . . . does not require that a juror’s biases be proved with
‘unmistakable clarity.’” Id. Instead, the trial court must have the “definite impression”
that the prospective juror cannot follow the law. State v. Hutchinson, 898 S.W.2d 161,
167 (Tenn. 1994) (citing Wainwright, 469 U.S. at 425-26). Irrespective of whether the
trial judge should have excluded the challenged jurors for cause, any possible error is
harmless unless the jury who actually heard the case was not fair and impartial. State v.
Howell, 868 S.W.2d 238, 248 (Tenn. 1993); State v. Thompson, 768 S.W.2d 239, 246
(Tenn. 1989). The failure to correctly excuse a juror for cause is grounds for reversal
only if the defendant exhausts all of his peremptory challenges and an incompetent juror
is forced upon him. Ross v. Oklahoma, 487 U.S. 81, 89 (1988); State v. Jones, 789
S.W.2d 545, 549 (Tenn. 1990). Finally, the trial court’s finding of bias of a juror because
of his or her views concerning the death penalty are accorded a presumption of
correctness, and the defendant must establish by convincing evidence that the trial court’s
determination was erroneous before an appellate court will overturn that decision. Reid,
231 S.W.3d at 836



                                            -12-
       Initially, we note that we do not agree with the Defendant’s characterization of
Juror Boatwright as incompetent. The fact that defense counsel knew little about her is
insufficient to establish her incompetence, in part because defense counsel had time to
conduct a complete voir dire of Juror Boatwright. There is simply no evidence in the
record to find that Juror Boatwright was in any way incompetent. Accordingly, the
Defendant has not proven that his jury was not fair and impartial and any error in the trial
court’s failure to excuse Juror White would, therefore, be considered harmless.
Nevertheless, we turn to consider whether the trial court should have excused Juror White
for cause.

        After reviewing the answers and responses of Juror White, we conclude that the
trial court did not err by failing to remove Juror White for cause. Juror White confirmed
that he would weigh the various enhancement and mitigating factors and determine the
appropriate punishment. While Juror White said that he did not think that life without the
possibility of parole was an adequate punishment for committing murder, he also said that
he could fairly and impartially consider all three punishments: life with the possibility of
parole; life without the possibility of parole; and a sentence of death. The Defendant has
not established by convincing evidence that the trial court’s determination was erroneous,
and he is, therefore, not entitled to relief on this issue.

                         5. Prospective Juror Manual Oskian
        The Defendant argues that the trial court erred when it removed Prospective Juror
Manual Oskian because Oskian never said he would be biased. The State argues that the
trial court properly dismissed Oskian based upon Oskian’s responses that his judgment
might be impaired because his co-worker’s son was also on trial for murder and that he
would be uncomfortable at work if he was empanelled on the jury.

       During the questioning of Oskian, the following transpired:

       The Court: And you had indicated that you worked with a person [at
                      Saturn], whose son . . . is charged with murder; is that
                      correct?
       A [Oskian]: He’s in trial. Uh-huh (affirmative).
              ....
       A: In Marshall County.
              ....
       A: [F]or me to be working with him, his son being tried and me being here,
              it’s kind of like trying to put me in the spot.
       The Court: So you think it might put you in a bad situation, because –
       A: Yes. Yes.
       Q: – his son was at trial as we speak?

                                            -13-
       A: Yes, sir.
       Q: And if you were on this jury, that might cause you some conflict with
              this gentleman, this person?
       A: Yes, sir.
       Q: Why would that be?
       A: When you work with somebody – I don’t know how to phrase it – but
              on an assembly line, and you work with somebody, you always
              communicate.
       Q: Would it make you uncomfortable then, to sit on this jury, because of
              that?
       A: I think so. I think so.
       Q: You think it might, in some manner, affect your judgment?
       A: It might. It might.

       Later, when being asked questions by defense counsel, Oskian elaborated, saying,
“[I]t would . . . affect[] me when I [was] . . . working. I have known [my coworker] for
12 years. I’ve worked next to him for 12 years. What’s going to happen to me the next
12 years, when his trial comes up?” He then said, “Just being in this trial” would “make
[him] feel uncomfortable either way” the verdict went. The trial court then excused
Oskian from the jury venire.

        As previously stated, a trial court may discharge from service any juror for any
reasonable or proper cause, to be judged by the court. T.C.A. § 22-1-105 (Supp. 2008).
Whether to excuse a juror from the venire is a matter left within the sound discretion of
the trial court. See Raspberry, 875 S.W.2d at 681. To be entitled to relief, the Defendant
would have to show that, because Oskian was excused, he was left with a jury what was
not fair and impartial. See generally, Howell, 868 S.W.2d at 248; Thompson, 768 S.W.2d
at 246.

       Our review of the record reveals that the trial court did not abuse its discretion
when it removed Prospective Juror Oskian. Oskian expressed his concern that his close
relationship with his co-worker, whose son was on trial for murder, might affect his
judgment in this case. Further, he said that serving as a juror would make him
uncomfortable at his place of employment. The Defendant has not shown that the trial
court erred by excusing Juror Oskian, and he has not shown that the jury that was
empanelled was not fair and impartial. As such, he is not entitled to relief on this issue.

                             C. Sufficiency of the Evidence
      The Defendant argues that the evidence presented was insufficient to support his
conviction for premeditated first degree murder because the evidence against him was
circumstantial and did not prove that he acted with premeditation. The State counters that

                                           -14-
the circumstantial evidence, including the evidence of the Defendant’s motive,
sufficiently supports the jury’s finding of premeditation.

       When an accused challenges the sufficiency of the evidence, this Court’s standard
of review is whether, after considering the evidence in the light most favorable to the
State, “any rational trier of fact could have found the essential elements of the crime
beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979) (emphasis in
original); see Tenn. R. App. P. 13(e); State v. Goodwin, 143 S.W.3d 771, 775 (Tenn.
2004) (citing State v. Reid, 91 S.W.3d 247, 276 (Tenn. 2002)). 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 witnesses,
the weight and value to be given the evidence, as well as all factual issues raised by the
evidence are resolved by the trier of fact.” State v. Bland, 958 S.W.2d 651, 659 (Tenn.
1997); Liakas, 286 S.W.2d at 859. “‘A guilty verdict by the jury, approved by the trial
judge, accredits the testimony of the witnesses for the State and resolves all conflicts in
favor of the theory of the State.’” State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978)
(State v. Grace, 493 S.W.2d 474, 476 (Tenn. 1973)). The Tennessee Supreme Court
stated the rationale for this rule:

       This well-settled rule rests on a sound foundation. The trial judge and the
       jury see the witnesses face to face, hear their testimony and observe their
       demeanor on the stand. Thus the trial judge and jury are the primary
       instrumentality of justice to determine the weight and credibility to be given
       to the testimony of witnesses. In the trial forum alone is there human
       atmosphere and the totality of the evidence cannot be reproduced with a
       written record in this Court.

Bolin v. State, 405 S.W.2d 768, 771 (Tenn. 1966) (citing Carroll v. State, 370 S.W.2d
523 (Tenn. 1963)). 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. Goodwin, 143 S.W.3d at 775 (citing State v. Smith, 24
S.W.3d 274, 279 (Tenn. 2000)). 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

                                            -15-
sustain a guilty verdict. State v. Carruthers, 35 S.W.3d 516, 557-58 (Tenn. 2000).

        The Defendant was convicted of premeditated first degree murder. First degree
murder is defined as a “premeditated and intentional killing of another.” T.C.A. § 39-13-
202(a)(1) (2001). Premeditation refers to “an act done after the exercise of reflection and
judgment.” T.C.A. § 39-13-202(d) (2001). Whether the defendant premeditated is for the
jury to decide, and the jury may look at the circumstances of the killing to decide that
issue. Bland, 958 S.W.2d at 660. The Tennessee Code states that, while “the intent to
kill must have been formed prior to the act itself,” that purpose need not “pre-exist in the
mind of the accused for any definite period of time” for a defendant to have premeditated
the killing. T.C.A. § 39-13-202(d). The following factors have been accepted as actions
that demonstrate the existence of premeditation: the use of a deadly weapon upon an
unarmed victim, the particular cruelty of the killing, declarations by the defendant of an
intent to kill, evidence of procurement of a weapon, preparations before the killing for
concealment of the crime, and calmness immediately after the killing. Bland, 958 S.W.2d
at 660. In addition, a jury may consider destruction or secretion of evidence of the
murder, State v. Nichols, 24 S.W.3d 297, 302 (Tenn. 2000), and “the planning activities
by the appellant prior to the killing, the appellant’s prior relationship with the victim, and
the nature of the killing.” State v. Halake, 102 S.W.3d 661, 668 (Tenn. Crim. App. 2001)
(citing State v. Gentry, 881 S.W.2d 1, 4-5 (Tenn. Crim. App.1993)).                      Also,
“[e]stablishment of a motive for the killing is a factor from which the jury may infer
premeditation.” State v. Leach, 148 S.W.3d 42, 54 (Tenn. 2004).

        After considering the evidence in the light most favorable to the State, we
conclude that the evidence is sufficient to support the jury’s finding that the Defendant
acted with premeditation when he killed the victim. The evidence proved that the
Defendant and Sanderson were quietly talking in the Defendant’s cell before this crime
and that they stopped their conversation each time the Defendant’s cellmate entered the
cell. The two admittedly agreed to go teach the victim some “respect.” They entered the
victim’s cell while he was quietly reading at a time that the guard would not be able to see
the victim’s cell. The Defendant took a sock and strangled the victim, telling his cellmate
that he was surprised at how much the victim struggled. The Defendant then tore off a
bloody section of his shirt, flushed the section down the toilet, and hid the rest of his
bloody clothes under his bed. Shortly after the killing, the Defendant fell asleep in his
cell. The Defendant told his cellmate, and later confirmed to investigators, that he killed
the victim because the victim’s sentence was not long enough for the crime the victim
committed and because being charged with the victim’s death would give him an
opportunity to escape while being transported to and from court. This evidence is
sufficient to support the jury’s finding that the Defendant acted with premeditation when
he killed the victim. He is not entitled to relief on this issue.



                                             -16-
                       G. Constitutionality of Death Penalty on Its Face
        The Defendant argues that the Tennessee death penalty statute is unconstitutional
on its face. Specifically, the Defendant alleges that the statute: (1) does not properly
guide a jury about the standards of proof when considering whether the aggravating
circumstances outweigh the mitigation evidence; (2) permits the jury to give too little
weight to non-statutory mitigating factors; (3) does not inform the jury of its right to
impose mercy; (4) does not require the jury to actually determine that death is appropriate
but rather calls for the foreperson to list aggravating and mitigating circumstances; (5)
fails to inform the jury about what happens if it does not reach a unanimous verdict; (6)
requires the jury to impose death if the aggravating circumstances outweigh the
mitigating circumstances; and (7) allows for the introduction of relatively unreliable
evidence for aggravated circumstances and for rebuttal to mitigation evidence. Also, the
Defendant argues that he was prejudiced because the State presented the final closing
argument and that the death penalty was imposed discriminately on the basis of his race,
sex, geographic region, and economic and political status. The State argues that
Tennessee courts have already reviewed and rejected these claims.

       The State correctly asserts that these arguments have already been made and
rejected as grounds of relief. State v. Bush, 942 S.W.2d 489, 524 (Tenn. 1997) (citations
omitted). This Court defers to, and is bound by, the rulings of the Tennessee Supreme
Court. As such, the Defendant is not entitled to relief on these issues.


                    H. Constitutionality of Death Penalty as Applied
        The Defendant claims that Tennessee’s death penalty statute is applied in a cruel
and unusual manner and that it is, therefore, unconstitutional. In Tennessee, an inmate
sentenced to death is administered three chemicals to carry out the imposed sentence.
The lethal injection protocol was upheld by the Tennessee Supreme Court in
Abdur’Rahman v. Bredesen, 181 S.W.3d 292 (Tenn. 2005). As recently as November
2008, the Tennessee Supreme Court continued to cite Abdur’Rahman for the principle
that the lethal injection protocol in Tennessee does not violate a defendant’s Eighth
Amendment right against cruel and unusual punishment. State v. Banks, 271 S.W.3d 90
(Tenn. 2008). In addition, the United States Supreme Court recently held that Kentucky’s
triple-injection method of execution was constitutional and did not violate an inmate’s
right against cruel and unusual punishment. Baze v. Rees, – U.S. – , 128 S. Ct.1520, 1529
(2008). In that opinion, the Supreme Court further stated, “A state with a lethal injection
protocol substantially similar to the protocol we uphold today would not create a risk” of
severe pain when compared to known and available alternatives. Id. at 1537.
Tennessee’s lethal injection protocol has been recognized as substantially similar to
Kentucky’s. Baze, – U.S. –, 128 S. Ct. at 1527 (citing Workman v. Bredesen, 486 F.3d

                                           -17-
896, 902 (2007)). Thus, we conclude the Tennessee method of lethal injection is
constitutional with respect to the Eighth Amendment, and the Defendant is not entitled to
relief on this issue.




                                          -18-
