              IN THE TENNESSEE COURT OF CRIMINAL APPEALS

                                   AT JACKSON                FILED
                           SEPTEMBER 1996 SESSION
                                                                 May 2, 1997

                                                             Cecil Crowson, Jr.
                                                             Appellate C ourt Clerk
STATE OF TENNESSEE,                  )
                                     )   No. 02-C-01-9601-CR-00002
                   Appellee,         )
                                     )   Shelby County
v.                                   )
                                     )   Jon Kerry Blackwood, Judge
                                     )   Sitting by Designation
PRESTON CARTER,                      )
                                     )   (Death Penalty)
                   Appellant.        )




FOR THE APPELLANT:                          FOR THE APPELLEE:

Glenn I. Wright                             Charles W. Burson
Suite 800                                   Attorney General and Reporter
200 Jefferson Avenue                        500 Charlotte Avenue
Memphis, TN 38103                           Nashville, TN 37243-0497

Howard L. Wagerman                          Amy L. Tarkington
200 Jefferson Avenue, Suite 1313            Assistant Attorney General
Memphis, TN 38103                           450 James Robertson Pkwy.
                                            Nashville, TN 37243-0493

                                            John W. Pierotti
                                            District Attorney General
                                            201 Poplar Avenue, Suite 3-01
                                            Memphis, TN 38103

                                            Phillip Gerald Harris
                                            Assistant District Attorney General
                                            201 Poplar Avenue, Suite 3-01
                                            Memphis, TN 38103

                                            Reginald R. Henderson
                                            Assistant District Attorney General
                                            201 Poplar Avenue, Suite 3-01
                                            Memphis, TN 38103




OPINION FILED:__________________________________


AFFIRMED


Joe B. Jones, Presiding Judge
                                       OPINION


       The appellant, Preston Carter, (defendant), was convicted of two counts of murder

in the first degree1 following his pleas of guilty to these two offenses. A jury of his peers

set his punishment at death by electrocution for both offenses. The jury found one

aggravating circumstance, namely, the murders were especially heinous, atrocious, or

cruel in that they involved torture or serious physical abuse beyond that necessary to

produce death.2

       The defendant presents eight (8) issues for review. He contends (1) the jury’s

verdict was not authorized by law and is facially void, (2) the indictment omitted an

essential element of felony murder, (3) aggravating circumstance (i)(5)3 is unconstitutionally

vague and was unconstitutionally applied to the facts of this case, (4) the trial court erred

by permitting the state to introduce irrelevant, inflammatory evidence, (5) the trial court

erred by denying his motion to suppress his confession, (6) the trial court erred in refusing

to permit the jury to consider life without the possibility of parole as an alternative

punishment for first degree murder, (7) the trial court erred by permitting the state to

engage in improper argument during final summation, and (8) the death penalty statutes

are unconstitutional.

           After a thorough review of the record, the briefs submitted by the parties, and the

law governing the issues presented for review, it is the opinion of this Court the convictions

and the death sentences should be affirmed.

       On Thursday evening, May 27, 1993, the defendant, Lewis Anderson, and Curly

Ivery, were present when Tony, a relative of Anderson’s, related he was purchasing illicit

narcotics at an apartment located in a large apartment complex. Tony opined it would be

“real easy for us to go in there and stick up for the dope and the money.” When the

defendant and his co-defendants, Anderson and Ivery, expressed interest in the robbery

scheme, Tony took the three men to the apartment complex, used the access code to open


       1
           Tenn. Code Ann. § 39-13-202(a)(2)(1991).
       2
           Tenn. Code Ann. § 39-13-204(i)(5)(1991).
       3
           Tenn. Code Ann. § 39-13-204(i)(5)(1991).

                                               2
the gates, gained entry in the complex, and showed the three men the apartment where

the illicit drugs were being sold. The apartment indicated was the apartment of Thomas

and Tensia Jackson.4 Tony told the co-defendants all they had to do was knock on the

door “and this girl would open the door to just anyone who said they wanted to buy some

[illicit drugs].”

        On Friday morning, May 28, 1993, at approximately 12:30 a.m., the defendant,

Anderson, and Ivery went to the apartment indicated by Tony with the intent to rob the

victims of their money and illicit narcotics. They were in a stolen automobile. The

defendant and Anderson went to the door of the apartment. Ivery, apparently having

second thoughts about participating in the robbery, remained in the vehicle. Anderson

knocked on the door of the apartment. When Mr. Jackson appeared at the door, Anderson

told him he “wanted to get something,” meaning illicit drugs. Mr. Jackson told Anderson:

“I don’t have anything, what [are] you talking about?” When Mr. Jackson refused to open

the door, the defendant realized they had gone to the wrong apartment. Nevertheless, the

defendant and Anderson kicked the door open and entered the apartment. The defendant

asked Mr. Jackson where he kept the money and illicit drugs. Mr. Jackson appeared to be

confused. He did not know what the defendant was requesting. Mr. Jackson was made

to get into a closet located in a child’s bedroom.

        The defendant ransacked the apartment. The mattress was pulled from the bed in

the master bedroom. Drawers had been pulled from chests of drawers and vanities. The

contents of the drawers had been dumped on the floor. Apparently, the defendant and

Anderson did not find any money or illicit drugs. This gave credence to the defendant’s

suspicion they were at the wrong apartment.

        The defendant went to the closet where Mr. Jackson had been placed. He shot Mr.

Jackson with a shotgun just above his right eye as Jackson was squatting or sitting inside

the closet. The pathologist testified the cause of death was the gunshot wound to Mr.

Jackson’s head. The barrel of the shotgun was “near” Mr. Jackson’s head when the

defendant shot him. Wadding from the shotgun shell was driven into the wound. The


        4
        Both Mr. and Mrs. Jackson were employed. The autopsy revealed the victims had
not ingested any form of illicit drug. Since no large sum of money or illicit narcotics were
found in the apartment, it is apparent they were not engaged in drug trafficking.

                                             3
numerous pellets from the shotgun blast struck Mr. Jackson’s brain; and, according to the

pathologist, his brain exploded. Mr. Jackson’s death was instantaneous. The Jacksons’

three-year-old child was subsequently found lying on a pillow next to Mr. Jackson. Her

nightgown was splattered with blood.

      The defendant also shot Mrs. Jackson in the bathroom off the master bedroom.

The blast entered Mrs. Jackson’s head in and around her left eye. The pathologist testified

the cause of death was the gunshot wound to Mrs. Jackson’s head. Again, the barrel of

the shotgun was “near” Mrs. Jackson’s head when the defendant shot her. Like Mr.

Jackson, the numerous pellets from the shotgun blast struck her brain; and, according to

the pathologist, her brain exploded. Mrs. Jackson’s death was also instantaneous.

       Mr. Jackson and his brother, Kenneth Jackson, worked for the same company.

Kenneth Jackson arrived at the Jacksons’ apartment at approximately 3:45 a.m. to take

Mr. Jackson to work. Kenneth Jackson noticed the kitchen door was open and the lights

were on inside the kitchen. When Mr. Jackson did not exit the apartment after Kenneth

Jackson honked his car horn, Kenneth Jackson felt something was amiss. Jackson and

Gernis James entered the apartment. When they saw the condition of the apartment and

were unable to find either Mr. or Mrs. Jackson, Kenneth Jackson called Mrs. Jackson’s

brother, Derrick Lot, and the Memphis Police Department.

       Lot and Kenneth Jackson reentered the apartment. They found Mr. Jackson in the

closet of the child’s bedroom. He was dead. They also found the Jacksons’ three-year-old

child in the closet with her father. In the master bedroom, a mattress blocked access to

the adjoining bathroom. They did not move the mattress. The police found Mrs. Jackson’s

body in the bathroom. Mr. Jackson’s wallet and the child’s purse were found outside the

front door of the apartment.

       The defendant was arrested on the evening of May 28, 1993. He gave a statement

to the police admitting what occurred. He identified himself as the person who killed Mr.

and Mrs. Jackson. The shotgun used to kill Mr. and Mrs. Jackson was found in the

defendant’s apartment. He admitted using this weapon to kill the two victims.

       The defendant introduced evidence in mitigation. He was 24 years of age when he

testified at the sentencing hearing. He has an eighth grade education. He scored a 75



                                            4
on a psychological test indicating a “borderline intellectual functioning” level. The other

defense witnesses established the defendant was the product of a broken home, and he

was not a violent person. He enjoyed spending time with his children, and he treated the

children well. They admitted the defendant abused alcohol, and he did not maintain steady

employment. The defendant admitted he began using alcohol and marijuana when he was

sixteen years of age.

      During the sentencing hearing, the defendant testified he was scared during the

burglary; and he was not in “his right state of mind” when he murdered Mr. and Mrs.

Jackson. He expressed remorse. He stated he understood the enormous amount of pain

he caused both the victims’ family and his own family. The defendant proclaimed he never

intended to shoot anyone.



                                             I.

                             SUFFICIENCY OF INDICTMENTS



       The defendant contends the counts of the indictment of which he stands convicted

are defective because these counts do not allege the killings were “reckless.” He relies

upon this Court’s decision in State v. Perkinson.5 The State of Tennessee contends the

defendant waived this issue when he entered pleas of guilty to these counts. The state

argues Perkinson and other Tennessee cases are distinguishable upon the facts.

Moreover, the state asks this Court to adopt a rule of construction formulated by the

Supreme Court of Massachusetts. 6

       The Shelby County Grand Jury sitting at Memphis returned two indictments charging

the defendant and two co-defendants with the killings of Thomas Jackson and Tensia

Jackson. The defendant entered pleas of guilty to first degree murder committed during

the perpetration of a felony. The second count of the indictment in case number 93-09760

alleges:




       5
           867 S.W.2d 1 (Tenn. Crim. App. 1992), per. app. denied (Tenn. 1993).
       6
           See Commonwealth v. Bacon, 374 Mass. 358, 372 N.E.2d 780 (1978).

                                             5
               THE GRAND JURORS of the State of Tennessee, duly
               selected, empaneled, sworn and charged to inquire for the
               body of the county of Shelby, Tennessee, upon their oath,
               present that:

                                   PRESTON CARTER
                                         and
                                   LEWIS ANDERSON
                                         and
                                    CURLY D. IVERY

               during the period of time between May 27, 1993 and May 29,
               1993, in Shelby County, Tennessee, and before the finding of
               this indictment, did unlawfully kill THOMAS JACKSON during
               the perpetration of Aggravated Burglary, in violation of T.C.A.
               39-13-202, against the peace and dignity of the State of
               Tennessee.


The second count of the indictment number in case 93-09761 alleges:


               THE GRAND JURORS of the State of Tennessee, duly
               selected, empaneled, sworn and charged to inquire for the
               body of the county of Shelby, Tennessee, upon their oath,
               present that:

                                   PRESTON CARTER
                                         and
                                   LEWIS ANDERSON
                                         and
                                    CURLY D. IVERY

               during the period of time between May 27, 1993 and May 29,
               1993, in Shelby County, Tennessee, and before the finding of
               this indictment, did unlawfully kill TENSIA JACKSON during
               the perpetration of Aggravated Burglary, in violation of T.C.A.
               39-13-202, against the peace and dignity of the State of
               Tennessee.


       When the defendant killed the Jacksons, the statute defined first degree felony

murder, (felony murder), as the “reckless killing of another committed in the perpetration

of, or attempt to perpetrate any first degree murder, arson, rape, robbery, burglary, theft,

kidnapping or aircraft piracy.”7     The Tennessee General Assembly amended this

subsection in 1995.8 Today, this subsection is defined as the “killing of another committed




      7
          Tenn. Code Ann. § 39-13-202(a)(2)(1991).
      8
          1995 Tenn. Pub. Acts, ch. 460, § 1.

                                                6
in the perpetration of or attempt to perpetrate” one of the enumerated felonies. 9 As can

be seen from comparing the pre-1995 version and the 1995 amended version of this

subsection, the General Assembly deleted the word “reckless” from the definition of felony

murder.      In this case, the indictments state the killings were “unlawful” rather than

“reckless.”

       The defendant did not challenge the omission of “reckless” from these two counts

of the indictments prior to trial. The issue was not raised during the course of the

sentencing phase. It was not raised in the motion for a new trial or amended motion for

a new trial. In other words, the defendant has elected to raise the issue for the first time

in this Court.

       The defendant was aware the counts of the indictments charged the capital offense

of felony murder. Two attorneys were appointed to represent the defendant. The state

gave notice it intended to seek the death penalty. The defendant filed motions challenging

the constitutionality of the death penalty. Defense counsel reminded the trial court this was

a capital case during the hearing on the pretrial motions. The prospective jurors were

questioned regarding their respective views concerning the death penalty.

       Once the jury was empaneled, defense counsel announced to the trial court and the

assistant district attorney general for the first time his client was pleading guilty to Count

II in both indictments, the felony murder count. The assistant district attorney general

demanded that the defendant plead guilty to premeditated murder as alleged in Count I of

both indictments. Defense counsel insisted the defendant was pleading guilty to Count II

and he would not plead guilty to premeditated murder. The two assistant district attorney

generals discussed the matter. They subsequently agreed the defendant could plead guilty

to Count II, the felony murder count, in each indictment.



                                             A.



       A criminal prosecution is commenced by the return of an indictment or presentment

by the grand jury in the county where the offense occurred. The Tennessee Constitution


       9
           Tenn. Code Ann. § 39-13-202(a)(2)(Supp. 1996).

                                              7
provides an accused may not “be put to answer any criminal charge but by presentment,

indictment or impeachment.”10           The Constitution also requires an indictment or

presentment to state “the nature and cause of the accusation.”11 In addition, the statutes

of this state address the allegations to be contained in an indictment or presentment.

Tenn. Code Ann. § 40-13-202 states:


                 The indictment must state the facts constituting the offense in
                 ordinary and concise language, without prolixity or repetition,
                 in such a manner as to enable a person of common
                 understanding to know what is intended, and with that degree
                 of certainty which will enable the court, on conviction, to
                 pronounce the proper judgment; and in no case are such
                 words as “force and arms” or “contrary to the form of the
                 statute” necessary.


       While the description of an offense alleged in an indictment or presentment “must

be sufficient in distinctness, certainty, and precision to enable the accused to know what

offenses he [or she] is charged with and to understand the special nature of the charge he

is called upon to answer,”12 it is not necessary to “amplify and encumber the charge by

circumstantial detail and minute description.”13 As a general rule, it is sufficient to state the

offense charged in the words of the statute,14 or words which are the equivalent to the

words contained in the statute.15

       When determining the sufficiency of an indictment or presentment, several factors

must be considered. First, a court must consider whether the indictment or presentment

alleges the elements of the offense which is intended to be charged. Second, the court

must consider whether the indictment or presentment sufficiently apprises the defendant

of the offense he is called upon to defend. Third, the trial court must be able to determine



       10
            Tenn. Const. art. I, §14.
       11
            Tenn. Const. art. 1, § 9.
       12
            Church v. State, 206 Tenn. 336, 358, 333 S.W .2d 799, 809 (1960).
       13
            Jordan v. State, 156 Tenn. 509, 514, 3 S.W.2d 159, 160 (1928)(citations omitted).
       14
        State v. Overton, 193 Tenn. 171, 174, 245 S.W.2d 188, 189 (1951); Stanfield v.
State, 181 Tenn. 428, 432, 181 S.W.2d 617, 618 (1944); Jordan, 156 Tenn. at 514, 3
S.W.2d at 160; State v. Tate, 912 S.W.2d 785, 789 (Tenn. Crim. App. 1995).
       15
        Coke v. State, 208 Tenn. 248, 250-51, 345 S.W.2d 673, 674 (1961); Starks v.
State, 66 Tenn. 64, 66 (1872); see Tate, 912 S.W.2d at 789.

                                               8
by reading the indictment or presentment the offense it must apply the judgment to if the

defendant is convicted. Fourth, the defendant must be able to determine with accuracy

from reading the indictment or presentment to what extent he or she may plead former

acquittal or conviction in a subsequent prosecution for the same offense.



                                             B.



       As a general rule, the failure to raise an issue pertaining to an indictment pre-trial

constitutes a waiver of the issue.16      There are two exceptions to this rule.        First,

jurisdictional issues raised by the indictment or presentment are not waived.17 Also, issues

concerning whether the indictment or presentment alleges a criminal offense are not

waived.18 In this case, the defendant contends the two counts do not allege a criminal

offense because an element of the offense has not been alleged.

       When a defendant voluntarily, knowingly, and intelligently enters a plea of guilty, the

defendant waives all prior non-jurisdictional, procedural, and constitutional defects which

occurred prior to the time the plea of guilty was entered.19 This Court has reasoned that

a defendant who has entered a plea of guilty has no standing in an appellate court to

complain of any error committed in the fact-finding process leading to his conviction.20 This

rule is applicable to defects in an indictment.21

       While this Court is of the opinion the defendant has waived this issue, the issue will


       16
         Tenn. R. Crim. P. 12(f). See State v. Davis, 613 S.W.2d 218, 221 (Tenn. 1981);
State v. Joyner, 759 S.W.2d 422, 425 (Tenn. Crim. App. 1987); per. app. denied (Tenn.
1988); State v. Rhoden, 739 S.W.2d 6, 10 (Tenn. Crim. App.), per. app. denied (Tenn.
1987); State v. Farmer, 675 S.W.2d 212, 214 (Tenn. Crim. App. 1984); State v. Bowers,
673 S.W.2d 887, 888 (Tenn. Crim. App.), per. app. denied (Tenn. 1984).
       17
            Tenn. R. Crim. P. 12(b)(2).
       18
            Tenn. R. Crim. P. 12(b)(2).
       19
        See Capri Adult Cinema v. State, 537 S.W.2d 896, 899 (Tenn. 1976); Ray v. State,
224 Tenn. 164, 451 S.W.2d 854 (1970); State v. McKissack, 917 S.W.2d 714 (Tenn. Crim.
App. 1995); Roe v. State, 584 S.W.2d 257, 259 (Tenn. Crim. App.), cert. denied (Tenn.
1979); Ingram v. Henderson, 2 Tenn. Crim. App. 372, 379, 454 S.W.2d 167, 170, cert.
denied (1970); McFerren v. State, 1 Tenn. Crim. App. 688, 449 S.W.2d 724 (1969), cert.
denied (Tenn. 1970).
       20
            Porter, 495 S.W.2d 570 (Tenn. Crim. App.), cert. denied (Tenn. 1973).
       21
            Porter, supra.

                                              9
be considered on the merits.



                                             C.



       The two counts of the indictment attacked by the appellant contain sufficient

allegations to comply with the Tennessee Constitution, the applicable statute, and the

common law rules created by the supreme court. The counts allege the defendant killed

the victims, he killed the victims during the perpetration of one of the enumerated felonies,

and the killings were unlawful. Thus, it is clear the defendant was apprised of the specific

crimes he was required to defend; the trial court could read these counts and know the

offense to apply the judgment to when the defendant was convicted; and the specific

nature of the allegations will permit the defendant to interpose a plea of former conviction

in a subsequent prosecution.

       It is obvious from the record the defendant was not surprised or hampered in

defending these counts of the indictments. To the contrary, he specifically and strategically

insisted on pleading guilty to these two specific offenses. As previously stated, the

assistant district attorney general wanted him to plead to premeditated murder as alleged

in Count I of each indictment. Defense counsel rejected this. The discussion regarding

the choice of offenses -- the defendant’s desire to plead guilty to felony murder versus the

state’s desire for the defendant to plead guilty to premeditated murder -- consumes several

pages of the record. Finally, the two assistant district attorney generals conferred, and,

thereafter, agreed the defendant could plead guilty to Count II of each indictment. The

submission hearing illustrates the defendant knew the nature of the charges to which he

was pleading guilty. Moreover, he confessed to the commission of these very offenses,

namely, kicking the door open to gain entry into the apartment, arming himself and

Anderson with a shotgun when they entered the apartment, and killing both victims.

       It is apparent the defendant chose not to raise this issue before, during or after the

trial for strategic purposes. He simply placed this issue in his hip pocket, waited to see if

the jury would return death sentences, and, when the jury returned such sentences, he

asserted this issue for the first time in this Court. This tactical decision may have been the



                                             10
precise reason, or one of the reasons, why defense counsel continually insisted the

defendant be permitted to plead guilty to felony murder. The counts alleging premeditated

murder were facially regular. The defendant’s argument as to the sufficiency of these

counts of the indictment would not apply to the premeditated murder counts.

        This issue is without merit.



                                              II.

                 SUFFICIENCY OF THE AGGRAVATING CIRCUMSTANCE22



        The defendant contends the evidence contained in the record is insufficient, as a

matter of law, to support a finding by a rational trier of fact that the two felony murders in

this case were especially heinous, atrocious, or cruel in that they involved torture or serious

physical abuse beyond that necessary to produce death23 beyond a reasonable doubt. He

argues a single gunshot wound to the head which results in the instantaneous death of the

victim does not constitute “torture” within the meaning of this aggravating circumstance

(i)(5).24

        The State of Tennessee contends this aggravating circumstance was established

beyond a reasonable doubt. The state concedes that killing both victims with a single

gunshot wound to the head did not result in the “infliction of severe physical pain” or

“serious physical abuse beyond that necessary to produce death.” The state argues

however the evidence establishes this aggravating circumstance beyond a reasonable

doubt because the appellant inflicted severe mental pain to Mr. and Mrs. Jackson while

they were alive and conscious.

        The verdict form returned by the jury supports the state’s argument. The jury wrote



        22
         In the heading to this issue in his brief, the defendant claims that the especially
heinous, atrocious, or cruel aggravating circumstance is unconstitutionally vague. The
defendant fails, however, to address this claim in the body of his brief and cites to no
authority in support of his argument. Nonetheless, the supreme court has recently
addressed a similar claim and upheld the validity of this aggravator under constitutional
attacks. See State v. Odom, 928 S.W.2d 18 (Tenn. 1996). Accordingly, this feeble claim
must fail.
        23
             Tenn. Code Ann. § 39-13-204(i)(5)(1991).
        24
             Tenn. Code Ann. § 39-13-204(i)(5)(1991).

                                              11
on the form: “heinous, atrocious, cruel torture.”



                                                A.



         The first step in resolving this issue is the determination of the standard of appellate

review to be applied in this case. In State v. Williams,25 the supreme court stated the

standard of review set forth in Jackson v. Virginia26 governs the determination of whether

an aggravating circumstance has been established beyond a reasonable doubt.

         When an accused challenges the sufficiency of the convicting evidence, this Court

must review the record to determine if the evidence adduced at trial is sufficient "to support

the finding by the trier of fact of guilt beyond a reasonable doubt."27 This rule is applicable

to findings of guilt based upon direct evidence, circumstantial evidence, or a combination

of direct and circumstantial evidence.28

         In determining the sufficiency of the convicting evidence, this Court does not

reweigh or reevaluate the evidence.29        Nor may this Court substitute its inferences for

those drawn by the trier of fact from circumstantial evidence.30 To the contrary, this Court

is required to afford the State of Tennessee the strongest legitimate view of the evidence

contained in the record as well as all reasonable and legitimate inferences which may be

drawn from the evidence.31

         Questions concerning the credibility of the witnesses, the weight and value to be

given the evidence, as well as all factual issues raised by the evidence are resolved by the




         25
              690 S.W.2d 517 (Tenn. 1985).
         26
              443 U..S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).
         27
              Tenn. R. App. P. 13(e).
         28
              State v. Dykes, 803 S.W.2d 250, 253 (Tenn. Crim. App.), per. app. denied (Tenn.
1990).
         29
        State v. Matthews, 805 S.W.2d 776, 779 (Tenn. Crim. App.), per. app. denied
(Tenn. 1990).
         30
        Liakas v. State, 199 Tenn. 298, 305, 286 S.W.2d 856, 859, cert. denied, 352 U.S.
845, 77 S.Ct. 39, 1 L.Ed.2d 49 (1956).
         31
              State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978).

                                                12
trier of fact, not this Court.32 In State v. Grace,33 our Supreme Court said: "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."

       Since a verdict of guilt removes the presumption of innocence and replaces it with

a presumption of guilt, the accused, as the appellant, has the burden in this Court of

illustrating why the evidence is insufficient to support the verdicts returned by the trier of

fact.34 This Court will not disturb a verdict of guilt due to the sufficiency of the evidence

unless the facts contained in the record are insufficient, as a matter of law, for a rational

trier of fact to find that the accused is guilty beyond a reasonable doubt.35



                                              B.



       Prior to 1989, aggravating circumstance (i)(5) provided: “The murder was especially

heinous, atrocious or cruel in that it involved torture or depravity of mind.”36          The

Tennessee General Assembly amended this aggravating circumstance in 1989.37 The

1989 revision, which is applicable to this case, states: “The murder was especially heinous,

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

necessary to produce death.”38 As can be seen, the General Assembly deleted the phrase

“depravity of mind” and inserted “serious physical abuse beyond that necessary to produce

death.”

       In 1985, the supreme court defined the term “torture” in the context it is used in this

aggravating circumstance in State v. Williams.39 In Williams, the supreme court said:



       32
            Cabbage, 571 S.W.2d at 835.
       33
            493 S.W.2d 474, 476 (Tenn. 1973).
       34
            State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982).
       35
            Tuggle, 639 S.W.2d at 914.
       36
            Tenn. Code Ann. § 39-2-203(i)(5)(repealed)(emphasis added).
       37
            1989 Tenn. Pub. Acts, ch. 591, § 1.
       38
            Tenn. Code Ann. § 39-13-204(i)(5)(1991)(emphasis added).
       39
            690 S.W.2d 517 (Tenn. 1985).

                                              13
“‘Torture’ means the infliction of severe physical or mental pain upon the victim while he

or she remains alive and conscious.”40

      The question this Court must next consider is whether there is proof beyond a

reasonable doubt the defendant inflicted severe mental pain while the victims were alive

and conscious, and will these facts support the imposition of this aggravating circumstance

to support a death sentence.



                                            C.



       A search for a prior supreme court decision applying the “infliction of severe . . .

mental pain while the [victim] remains alive and consciousness” has been fruitless. Most

of the cases decided by the supreme court interpret the pre-1989 version of aggravating

circumstance (i)(5). As previously noted, the prior version stated there could be either

torture or depravity of mind. These decisions say either both prongs of the pre-1989

version have been established, or the actions of the defendant constituted torture or

depravity of mind. Thus, it is impossible for this Court to determine whether the supreme

court has concluded in these cases whether there was (a) the infliction of severe physical

pain, (b) the infliction of severe mental pain, or (c) the accused possessed a depraved

mind. It is apparent from reading the State of Tennessee’s brief the assistant attorney

general encountered this same dilemma.

       The state cites the case of State v. King41 as supporting its theory regarding the

infliction of severe mental pain. The state’s reliance on this case is misplaced. In King,

the defendant was convicted of felony murder. The felonies were simple kidnapping and

robbery. The defendant made the victim get into the trunk of her car, took her to a remote

location, and made her get out of the trunk and lay on the ground. The victim faced the

defendant, begged him not to kill her, and told him she would give him money if he spared

her life. The defendant told the victim to turn her head away from him. He then shot the

victim in the back of the head one or more times. The supreme court was not called upon


      40
           690 S.W.2d at 529.
      41
           718 S.W.2d 241 (Tenn. 1986).

                                            14
to decide the issue now before this Court. The defendant admitted the evidence contained

in the record was sufficient to support the aggravating circumstances found by the jury

beyond a reasonable doubt.         The only question before the supreme court was the

sufficiency of the jury instruction given by the trial court regarding this aggravating

circumstance. The court found the instruction was sufficient, and the evidence supported

this circumstance.

       In the recent case of State v. Odom,42 the supreme court in a three-to-two decision

held the evidence did not establish this aggravating circumstance. There, the defendant

attacked a lady who was 78 years of age. As he attempted to steal her purse, they fell into

the front seat of the victim’s automobile. The defendant subsequently forced the victim into

the back seat of the automobile and cut the victim with his knife. While the victim pleaded

with the defendant to stop, she referred to him as “son”. The defendant became angry due

to the use of the word “son” and told the victim “I’ll give you a son.” He then raped the

victim, who was still a virgin. He apparently stabbed the victim several times. According

to the defendant’s statement to the police, he felt the victim was alive during the entire

ordeal because she spoke to him before he left her. The victim literally bled to death

internally from the serious knife wounds inflicted by the defendant. The majority opinion

concluded these facts did not constitute torture or serious physical abuse beyond that

necessary to produce death. In ruling, the supreme court said:


                The issue remains whether the evidence in this case was
                sufficient to uphold a finding of the (i)(5) aggravating
                circumstance. We well understand that almost all murders are
                “heinous, atrocious, and cruel” to some degree, and we have
                no purpose to demean or minimize the ordeal this murder
                victim experienced. In our view, however, rape (penile
                penetration) does not ordinarily constitute “torture” or “serious
                physical abuse” within the meaning of the statute. Were we to
                hold otherwise, every murder committed in the perpetration of
                rape could be classified as a death-eligible offense. Such a
                result, obviously, would not sufficiently narrow the class of
                perpetrators, nor would it distinguish the “worst of the worse”
                for whom the ultimate penalty must be reserved. See State v.
                Middlebrooks, 840 S.W.2d 317 (Tenn. 1992). In a similar vein,
                and with the same disclaimer above-appearing, we must reject
                the conclusion that the three stab wounds evidenced in this
                case constituted “torture” or serious physical abuse beyond
                that necessary to produce death.


       42
            928 S.W.2d 18 (Tenn. 1996).

                                               15
              As we consider the circumstances here, we do not intend to
              diminish what surely must have been a terrifying and horror-
              filled experience for the victim. Most assuredly, the murder
              was reprehensible in the purest sense of the word -- nearly all
              murders are. However, the aggravating circumstance under
              review must be reserved for application only to those cases
              which, by comparison or contrast, can be articulately
              determined to be the very “worst of the worse.”

              As previously stated, the defendant contends that the evidence
              does not support the jury’s finding that the murder was
              “especially heinous, atrocious, or cruel.” We have thoroughly
              considered this contention and conclude that under the criteria
              we have discussed the evidence in the record does not
              support the jury’s finding of the “heinous, atrocious, or cruel”
              circumstance.43


       While the majority opinion adopted the Williams definition of torture, it is apparent

the majority opinion did not consider whether Odom inflicted severe mental pain to the

victim since she was still alive and conscious when Odom fled from the scene of the crime.

If mental pain remains part of the definition of “torture,” this was a classic case where

severe mental pain was inflicted. The majority opinion describes the ordeal the victim

endured as “terrifying” and “horror-filled.”

       43
         928 S.W.2d at 26-27. The author of this opinion does not agree with the holding
of the supreme court in Odom. However, this Court must religiously follow Odom as this
Court is required to follow each decision decided by the supreme court. Barger v. Brock,
535 S.W.2d 337, 340-41 (Tenn. 1976); State v. Davis, 654 S.W.2d 688, 690 (Tenn. Crim.
App. 1983). In Barger, the supreme court said:

              [T]he Supreme Court is a direct creature of the Constitution
              and constitutes the supreme judicial tribunal of the state and
              is a court of last resort. All other courts are constitutionally
              inferior tribunals subject to the actions of the Supreme Court.
              Its adjudications are final and conclusive upon all questions
              determined by it, subject only to review, in appropriate cases
              by the Supreme Court of the United States. Railroad v. Byrne,
              119 Tenn. 278, 104 S.W. 460 (1907).

                                             ****
              It is a controlling principle that inferior courts must abide the
              orders, decrees and precedents of higher courts. The slightest
              deviation from this rigid rule would disrupt and destroy the
              sanctity of the judicial process. There would be no finality or
              stability in the law and the court system would be chaotic in its
              operation and unstable and inconsistent in its decisions.
              Personal and property rights would be insecure and litigation
              would know no end.

535 S.W.2d at 340-41. In other words, neither a trial court nor this Court has the authority
to modify, revise, modernize or overrule a rule created by the Supreme Court. Barger,
supra; Bloodworth v. Stuart, 221 Tenn. 567, 572, 428 S.W.2d 786, 789 (1968); see
Richardson v. Johnson, 60 Tenn. App. 129, 136, 444 S.W.2d 708, 711, cert. denied (Tenn.
1969).

                                               16
      The dissenting opinion in Odom espouses the view that this aggravating

circumstance was established beyond a reasonable doubt because the victim was tortured

by the defendant. Justice Anderson, the author of the dissenting opinion, stated: “In this

case, the defendant inflicted severe physical and mental pain upon the victim while she

remained alive and conscious.”44

        This Court is of the opinion aggravating circumstance (i)(5) can be established by

proving the defendant inflicted severe mental pain while the victim was alive and

conscious. This Court has held such proof is sufficient.45 The next question this Court

must address is whether the evidence establishes this factor beyond a reasonable doubt.



                                           D.



      When Mr. Jackson told the defendant and Anderson he did not understand what

Anderson meant by “wanting to get something,” the defendant thought they were at the

wrong apartment. Nevertheless, the defendant and Anderson kicked the door open and

entered the apartment wielding a sawed-off shotgun. The defendant questioned Mr.

Jackson concerning the location of the money and drugs. Mr. Jackson told the defendant

he did not understand the nature of his inquiry. Jackson was placed in a closet located in

his daughter’s bedroom.

      Anderson went to the back of the apartment. He encountered Mrs. Jackson. He

made her submit while he raped her. She subsequently went into the bathroom off the

master bedroom. She was screaming and pleading for her life.

       The record reflects the Jacksons were hard-working, God-fearing people. They both

worked regularly, and they were raising their small child. The child was three years old

when both of her parents were murdered. One can imagine the terror which filled Mr. and

Mrs. Jackson when two strangers wielding a shotgun entered their apartment at 12:30 a.m.

The strangers were asking questions which did not make sense to Mr. Jackson. Thus, the

      44
           928 S.W.2d at 35.
      45
        State v. Henry Eugene Hodges, Davidson County No. 01-C-01-9212-CR-00382
(Tenn. Crim. App., Nashville, May 18, 1995), mandatory appeal pending in Tennessee
Supreme Court; see State v. Ronnie Michael Cauthern, Gibson County No. 02-C-01-9506-
CC-00164 (Tenn. Crim. App., Jackson, December 2, 1996).

                                           17
defendant and Anderson should have left when it became apparent Mr. and Mrs. Jackson

were not involved in drug trafficking. Instead, the defendant and Anderson scared and

horrified the Jacksons, and did what the Jacksons most assuredly feared -- they killed the

couple. The murders in this case were senseless and mean-spirited.

      When the defendant and Anderson kicked the door open and were wielding a

shotgun, Mr. Jackson knew the defendant and Anderson were extremely mean and

dangerous. Certainly, fear and horrible thoughts must have run through his mind. Was

he going to be injured or killed? Was his wife going to be injured or killed? And what

about his daughter? Would they harm her as well? He surely must have known his wife

was being raped since Anderson apparently began this act before Mr. Jackson was

confined to the closet. He must have heard his wife scream and plead for her life.

      There is evidence in the record from which a jury could find that the Jacksons’

daughter was laying on a pillow in the closet when her father was killed. Her nightgown

was splattered with blood. The pathologist said Mr. Jackson died instantly when he was

shot, and his heart would have stopped pumping blood. A rational trier of fact could

conclude the child was inside the closet when her father was murdered, and her nightgown

was splattered with blood from the gunshot wound inflicted by the defendant. It was a

horrible wound which opened the right side of Mr. Jackson’s head. The walls inside the

closet were sprayed with blood.

       The pain Mr. Jackson endured when he realized he was going to be killed and his

daughter possibly murdered had to be severe. He was helpless to protect his daughter

from the defendant and the shotgun he had in his possession.

       Mrs. Jackson did not know if she was going to be killed. She did not know where

her husband and daughter were. She had to wonder whether her husband and daughter

were going to be harmed.      She was no doubt concerned about the remainder of her

family. Would she have a husband? Would she have a child? Would she live? What

other thoughts could she embrace while she was raped, threatened, and literally terrorized

by these two total strangers shortly before being killed.

       In State v. Hodges, the appellant handcuffed the victim, wrapped tape around his

legs, and placed a pillow over his head while he and his girlfriend ransacked the victim’s



                                            18
residence. They sat in the living room drinking soft drinks while they discussed whether

they were going to kill the victim. The victim could hear this conversation. This Court held

the conduct of Hodges constituted “torture” as defined in Williams -- the infliction of severe

mental pain while the victim was alive and conscious.

       What the Jacksons were caused to endure at the hands of the defendant and

Anderson before they were murdered was especially heinous, atrocious and cruel. The

defendant’s conduct was senseless, vile, repulsive, odious, mean, and evil. In summary,

the defendant inflicted severe mental pain to Mr. and Mrs. Jackson while they were alive

and conscious; and the evidence contained in the record is sufficient beyond a reasonable

doubt to support a finding by a rational trier of fact that the murders were heinous,

atrocious, and cruel because of the mental torture endured by the victims.



                                             III.

                                  EVIDENTIARY ISSUES



       The defendant contends the trial court committed error of prejudicial dimensions by

permitting the State of Tennessee to introduce “inflammatory and irrelevant evidence in

violation of [his] constitutional rights under the 8th and 14th amendments.” He argues the

trial court should have excluded (a) certain photographs because they were not relevant

to any aggravating circumstance, (b) the fact Anderson raped Tensia Jackson, and (c) the

state’s suggestion the defendant placed the Jacksons’ three-year-old child in the closet

with Thomas Jackson. The State of Tennessee contends the evidence challenged by the

defendant was properly admitted.



                                             A.



       When the defendant in a capital case pleads guilty, the sentencing hearing is

analogous to a new sentencing hearing ordered by an appellate court. In State v.




                                             19
Nichols,46 where the defendant entered a plea of guilty to a capital offense, the supreme

court applied the case law governing “resentencing” hearings. Consequently, this body of

law is to be applied in resolving the issues raised by the defendant in this case.

       As a general rule, any evidence that relates to the circumstances of the murders,

the aggravating circumstances of the murders, or the mitigating circumstances, is

admissible if it has probative value in determining the appropriate punishment.47 The

statute which governs the introduction of evidence in a capital sentencing hearing provides:


                 In the sentencing proceeding, evidence may be presented as
                 to any matter that the court deems relevant to the punishment
                 and may include, but not be limited to, the nature and
                 circumstances of the crime; the defendant’s character,
                 background history, and physical condition; any evidence
                 tending to establish or rebut the aggravating circumstances
                 enumerated in subsection (i); and any evidence tending to
                 establish or rebut any mitigating factors. Any such evidence
                 which the court deems to have probative value on the issue of
                 punishment may be received regardless of its admissibility
                 under the rules of evidence; provided, that the defendant is
                 accorded a fair opportunity to rebut any hearsay statements so
                 admitted. However, this subsection shall not be construed to
                 authorize the introduction of any evidence secured in violation
                 of the constitution of the United States or of the state of
                 Tennessee.48


       Since there is no guilt phase when the accused pleads guilty to the capital offense

or in resentencing after an initial finding of guilt by a jury, the parties are entitled to

introduce evidence that relates to the circumstances of the offense so the trier of fact “will

have [the] essential background information ‘to ensure that the jury acts from a base of

knowledge in sentencing the defendant.’” 49 The phrase “background information”50 includes

evidence as to (a) how the crime was committed, (b) the injuries, (c) the aggravating


       46
        877 S.W.2d 722, 731 (Tenn. 1994), cert. denied, ___ U.S.___, 115 S.Ct. 909, 130
L.Ed.2d 791 (1995).
       47
            Tenn. Code Ann. § 39-13-204(c); State v. Teague, 897 S.W.2d 248 (Tenn. 1995).
       48
            Tenn. Code Ann. § 39-13-204(c).
       49
        State v. Adkins, 725 S.W.2d 660, 663 (Tenn.), cert. denied, 482 U.S. 909, 107
S.Ct. 2491, 96 L.Ed.2d 383 (1987)(quoting State v. Teague, 680 S.W.2d 785, 788 (Tenn.
1984), cert. denied, 473 U.S. 911, 105 S.Ct. 3538, 87 L.Ed.2d 622 (1985)); see also
Nichols, 877 S.W.2d at 731; State v. Miller, 771 S.W.2d 401, 403 (Tenn. 1989), cert.
denied, 497 U.S. 1031, 110 S.Ct. 3292, 111 L.Ed.2d 801 (1990).
       50
        This phrase should not be confused with the phrase “background history” as used
in Tenn. Code Ann. § 39-13-204(c).

                                               20
circumstances, (d) the mitigating circumstances, and (e) any other evidence which is

relevant to punishment.51

       In State v. Teague,52 commonly referred to as Teague II, a new sentencing hearing

was conducted by the trial court after the case was remanded by the supreme court. The

trial court permitted the state to establish (a) the victim’s apartment had been forcibly

entered, (b) the victim had been drowned in the bathtub, (c) the accused’s arrest and the

fact he was armed with a pistol when arrested, and (d) the accused told two companions

he killed the victim. The supreme court rejected Teague’s assertion the evidence at the

sentencing hearing should be limited to evidence which is relevant to aggravating and

mitigating circumstances. In ruling, the court said:

                The defendant questions the introduction of background
                evidence concerning the murder, insisting that in the
                sentencing proceeding only evidence relevant to aggravating
                and mitigating circumstances should have been allowed at the
                hearing. Guidelines for re-sentencing hearings in general have
                been set out in Farris v. State, 535 S.W.2d 608, 621 (Tenn.
                1976); Hunter v. State, 496 S.W.2d 900, 903 (Tenn. 1972);
                and in Huffman v. State, 200 Tenn. 487, 292 S.W.2d 738, 743
                (1956). Under these guidelines, evidence of how the crime
                was committed, the injuries, and aggravating and mitigating
                factors are admissible. There appears to be no reason why
                such guidelines, carefully limiting evidence to the essential
                background, should not apply in capital cases in order to
                ensure that the jury acts from a base of knowledge in
                sentencing the defendant. See e.g., Blankenship v. State, 251
                Ga. 621, 308 S.E.2d 369, 371 (1983)(parties at capital re-
                sentencing are entitled to offer evidence relating to
                circumstances of crime). 53


       In State v. Nichols,54 the defendant, as in this case, entered a plea of guilty to the

capital offense of first degree murder in the perpetration of a felony. A jury was empaneled

to determine the appropriate punishment. The state was permitted to introduce evidence

regarding (a) the nature and circumstances of the crime, (b) the accused’s videotaped

confession, (c) the “testimony from the medical examiner about the nature and extent of

the victim’s injuries and the cause of her death,” (d) the testimony of the detectives who



       51
            Teague, 680 S.W.2d at 787-88.
       52
            680 S.W.2d 785.
       53
            680 S.W.2d at 787-88.
       54
            877 S.W.2d 722.

                                             21
questioned the accused, and (e) the evidence of the accused’s prior crimes of violence.55

Nichols contended on appeal the trial court committed error of prejudicial dimensions by

permitting “extensive evidence of the nature and circumstances of the crime.” He argued

the “only evidence relevant to aggravating and mitigating circumstances should have been

allowed.”56 In rejecting Nichols’ argument, the supreme court referred to the applicable

statute and the court’s opinion in Teague II, and said:


                Because the defendant pled guilty, the sentencing jury here, as
                in Teague, had no information about the offense, absent the
                complained of evidence. A description of the crime and its
                circumstances was thus clearly admissible. Moreover, an
                “individualized [sentencing] determination” based on the
                defendant’s character and the circumstances of the crime is
                constitutionally required. See Zant v. Stephens, 462 U.S. 862,
                879, 103 S.Ct. 2733, 2744, 77 L.Ed.2d 235 (1983). In this
                case, the trial court permitted the introduction of evidence
                tending to “individualize” the case for the jury, while carefully
                limiting the evidence to testimony relevant to the crime. We
                find no error in this regard.57


       In State v. Bigbee,58 the supreme court affirmed Bigbee’s conviction, but remanded

the case to the trial court for a new sentencing hearing. In doing so, the Court noted:


                We should point out, however, that “[a]t a resentencing
                hearing, both the State and defendant are entitled to offer
                evidence relating to the circumstances of the crime so that the
                sentencing jury will have essential background information ‘to
                ensure that the jury acts from a base of knowledge in
                sentencing the defendant.’” . . . On remand, that right should
                be afforded this defendant.59


       In State v. Teague,60 commonly referred to as Teague IV, the trial court granted

Teague’s motion that the prosecution disclose all exculpatory Brady material for use in the

defendant’s third sentencing hearing. The court denied the state’s motion in limine to

prevent the disclosure of evidence which challenged the defendant’s guilt. The state


      55
           877 S.W.2d at 726.
      56
           877 S.W.2d at 731.
      57
           877 S.W.2d at 731.
      58
           885 S.W.2d at 797.
      59
           885 S.W.2d at 813 (citations omitted).
      60
           897 S.W.2d 248 (Tenn. 1995).

                                               22
sought and was granted an interlocutory appeal pursuant to Rule 9, Tennessee Rules of

Appellate Procedure. This Court reversed the trial court’s finding that evidence of the

defendant’s innocence was admissible; the opinion was predicated upon prior supreme

court opinions. The supreme court reversed this Court. In doing so, the court said:


                 Both the statute and prior case law dictate that the defendant
                 has the right to present at the sentencing hearing, whether by
                 the jury which heard the guilt phase or by a jury on
                 resentencing, evidence relating to the circumstances of the
                 crime or the aggravating or mitigating circumstances, including
                 evidence which may mitigate his culpability. Evidence
                 otherwise admissible under the pleadings and applicable rules
                 of evidence, is not rendered inadmissible because it may show
                 that the defendant did not kill the victim so long as it is
                 probative on the issue of the defendant’s punishment.61


       Neither the supreme court nor this Court can delineate a bright-line rule for

determining the exact evidence that can be admitted at a sentencing hearing following a

defendant’s plea of guilty to a capital offense or the granting of a new sentencing hearing

from a trial or appellate court. The facts and evidence introduced at such hearings will vary

from case to case. The defendant in each case is different from the defendants in all other

capital cases.

       The applicable statute, Tenn. Code Ann. § 39-13-204(c), provides the determination

of what evidence may be admitted in a capital sentencing hearing rests within the sound

discretion of the trial court. Moreover, an appellate court will not interfere with the exercise

of this discretion unless clear abuse appears on the face of the record.



                                               B.



       Evidence is relevant if it has “any tendency to make the existence of any fact that

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

it would be without the evidence.”62 Although relevant evidence is generally admissible,63

it “may be excluded if its probative value is substantially outweighed by the danger of unfair


       61
            897 S.W.2d at 256.
       62
            Tenn. R. Evid. 401.
       63
            Tenn. R. Evid. 402.

                                               23
prejudice . . . or by considerations of undue delay, waste of time, or needless presentation

or cumulative evidence.”64

       The fact relevant evidence is prejudicial does not mean the evidence must be

excluded as a matter of law. As this Court said in State v. Dulsworth:65 “Any evidence

which tends to establish the guilt of an accused is highly prejudicial to the accused, but this

does not mean that the evidence is inadmissible as a matter of law.”66 As Rule 403,

Tennessee Rules of Evidence, states: “the danger of unfair prejudice” must “substantially

outweigh” the probative value of the evidence before the accused is entitled to have the

evidence excluded.67

       The determination of whether evidence is relevant, or, if relevant, should be

excluded for one of the reasons set forth in Rule 403, addresses itself to the sound

discretion of the trial court.68 In deciding these issues, the trial court must consider, among

other things, the questions of fact the jury will have to consider in determining the

accused’s guilt as well as other evidence which has been introduced during the course of

the trial.69 If the trial court in the exercise of its discretion finds the evidence is relevant

within the meaning of Rule 401, and the defendant is not entitled to have the evidence

excluded for one of the grounds set forth in Rule 403, this Court will not interfere with the

exercise of this discretion unless it appears on the face of the record the trial court clearly

abused its discretion.70




       64
            Tenn. R. Evid. 403.
       65
            781 S.W.2d 277, 287 (Tenn. Crim. App.), per. app. denied (Tenn. 1989).
       66
        781 S.W.2d at 287; see State v. Gentry, 881 S.W.2d 1, 6 (Tenn. Crim. App.1993),
per. app. denied (Tenn.1994).
       67
            State v. Williamson, 919 S.W.2d 69, 78 (Tenn. Crim. App. 1995).
       68
        Williamson, 919 S.W.2d at 78; State v. Hill, 885 S.W.2d 357, 361 (Tenn. Crim.
App.), per. app. denied (Tenn. 1994).
       69
            Williamson, 919 S.W.2d at 78; Dulsworth, 781 S.W.2d at 287.
       70
        Williamson, 919 S.W.2d at 79; State v. Hayes, 899 S.W.2d 175, 183 (Tenn. Crim.
App.), per. app. denied (Tenn. 1995).

                                              24
                                            C.



       The purpose for introducing photographs into evidence is to assist the trier of fact.

As a general rule, the introduction of photographs helps the trier of fact to see for itself

what is depicted in a photograph rather than relying upon a witness to describe what is

depicted.

       Before a photograph may be introduced into evidence, there must be a

determination by the trial court (a) the matter depicted in the photograph is relevant to an

issue which the jury must decide in determining the guilt or appropriate sentence for the

crime committed by the defendant, and (b) the probative value of the matter depicted in

the photograph outweighs any prejudicial effect it may have upon the trier of fact.71

       In this case, the trial court spent an extended period of time listening to the

arguments of counsel regarding the admissibility of the photographs the State of

Tennessee wanted to introduce. The court spent additional time carefully viewing these

photographs.    The court excluded some of the photographs.           The balance of the

photographs was introduced as evidence during the sentencing hearing.

       This Court has viewed the photographs which are attacked in this issue. They

depict the victims as they were found by the police officers who were called to the scene.

The trial court did not abuse its discretion in admitting these photographs because the

photographs were admissible as background information regarding the commission of the

crimes in question. In addition, the photographs establish where the victims were shot.

       This subissue is without merit.



                                            D.



       The defendant contends the fact Anderson raped Tensia Jackson before she was

killed should not have been admitted into evidence “since there was absolutely no

evidence that he participated in, or even knew of his co-defendant’s intentions to commit


       71
         Tenn. R. Evid. 403; State v. Banks, 564 S.W.2d 947, 951 (Tenn. 1978); see also,
State v. Bigbee, 885 S.W.2d 797, 807 (Tenn. 1994); State v. Van Tran, 864 S.W.2d 465,
477 (Tenn. 1993), cert. denied 511 U.S. 1040, 114 S.Ct. 1577, 128 L.Ed.2d 220 (1994).

                                            25
rape.” The State of Tennessee contends this evidence was clearly admissible.

       The rape of Mrs. Jackson was a relevant circumstance which, along with other

relevant circumstances, established the severe mental pain inflicted by the defendant and

Anderson while Mrs. Jackson was alive and conscious. The defendant knew Anderson

was raping Mrs. Jackson because he went into the room and retrieved the shotgun while

Anderson was in the act. The defendant did not urge or encourage Anderson to cease and

desist. Moreover, they shared the same culpable mental state. The defendant cannot now

divorce himself from the acts committed by Anderson. They were co-conspirators. They

committed the acts in question together.

        In summary, the actions of Anderson could be considered by the jury when

determining the existence of aggravating circumstance (i)(5) relative to the infliction of

severe mental pain while Mr. and Mrs. Jackson were alive and conscious.

       This subissue is without merit.



                                            E.



       The defendant contends “the suggestion that this defendant placed the child. . .in

the closet with her dead father was not relevant to any aggravating circumstance.” The

State of Tennessee takes the view the suggestion was in fact relevant.

       The suggestion the defendant or Anderson placed the child inside the closet with

her father is not far-fetched. The pictures of the child’s bed indicate the child was not in

her bed. There is a butcher knife lying on the child’s bed. Although the defendant stated

the small child was in her bed when he left the apartment, there is evidence to support the

theory that the child was inside the closet when the defendant killed Thomas Jackson.

       As previously stated, the pathologist testified the multiple pellets from the shotgun

blast literally exploded Mr. Jackson’s brain. According to the pathologist, Mr. Jackson’s

heart would have stopped pumping blood through his body immediately.               Yet the

nightgown of the small child was splattered with blood. Given the state of the record and

the nature of Mr. Jackson’s wound, the jury could have reasonably concluded the child was

in the closet when the defendant killed her father. The nature of the wound would have



                                            26
resulted in blood splattering inside the closet.

       In summary, the fact the child was not in her bed as the defendant stated lends

credence to the theory the child was required to get into the closet, and the child was inside

the closet when her father was shot. This was relevant to establish the infliction of severe

mental pain while Mr. Jackson was alive and conscious. His concern for his daughter and

the fact she might also be killed no doubt caused Mr. Jackson severe mental pain while

he was alive and conscious.

       This subissue is without.



                                              IV.

                                DEFENDANT’S STATEMENT



       The defendant contends the trial court committed error of prejudicial dimensions by

denying his motion to suppress the incriminating statements he gave to police officers.

Since the defendant entered pleas of guilty to the offenses of felony murder, this issue was

waived.

       As previously stated, when a defendant voluntarily, knowingly, and intelligently

enters a plea of guilty, the defendant waives all prior non-jurisdictional, procedural, and

constitutional defects which occurred prior to the time the plea of guilty was entered.72 This

Court has said that a defendant who enters a plea of guilty has no standing in an appellate

court to complain of any error committed in the fact-finding process leading to his

conviction.73

       No effort was made to preserve this issue for appellate review pursuant to Tenn. R.

App. P. 3(b) or Tenn. R. Crim. P. 37(b)(2)(iv). If the defendant has preserved this issue

in conformity with these rules, it is doubtful whether this issue would be dispositive of the

prosecution against the defendant.

       72
         See Capri Adult Cinema v. State, 537 S.W.2d 896, 899 (Tenn. 1976); Ray v. State,
224 Tenn. 164, 451 S.W.2d 854 (1970); State v. McKissack, 917 S.W.2d 714 (Tenn. Crim.
App. 1995); Roe v. State, 584 S.W.2d 257, 259 (Tenn. Crim. App.), cert. denied (Tenn.
1979); Ingram v. Henderson, 2 Tenn. Crim. App. 372, 379, 454 S.W.2d 167, 170, cert.
denied (Tenn. 1970); McFerren v. State, 1 Tenn. Crim. App. 688, 449 S.W.2d 724 (1969),
cert. denied (Tenn. 1970).
       73
            Porter v. State, 495 S.W.2d 570 (Tenn. Crim. App.), cert. denied (Tenn. 1973).

                                              27
       This Court has reviewed the evidence admitted at the suppression hearing. It is

parenthetically noted the defendant is not entitled to relief on this ground.



                                             V.

                SENTENCE OF LIFE WITHOUT POSSIBILITY OF PAROLE



       The defendant contends the trial court committed error of prejudicial dimension by

failing to answer a juror’s question concerning the defendant’s parole eligibility if a life

sentence was imposed by the jury. The defendant further contends the court should have

included an instruction on the sentencing option of life without the possibility of parole in

the charge given to the jury. The state asserts the trial judge acted according to the

mandates of the law.

       Just as soon as the trial court completed giving the charge to the jury, one of the

jurors asked the judge, “On life imprisonment, are they eligible for parole in the State of

Tennessee, or is that life?” After discussing the question with counsel, the judge informed

the juror that he could not answer it.

       The trial court was correct in refusing to answer the question propounded by the

juror. In State v. Smith,74 the supreme court specifically ruled a trial court should not

answer a jury’s question concerning the meaning of a life sentence and the defendant’s

eligibility of parole.   This Court has also answered this question adversely to the

defendant.75

       The defendant’s claim that the trial court should have instructed the jury on life

without the possibility of parole as a sentencing option is equally without merit. The

Tennessee General Assembly specifically provided the sentencing option of life without the

possibility of parole was to apply in first degree murder cases on and after July 1, 1993.76

The appellant killed the Jacksons prior to the effective date of this sentencing option.

       74
        857 S.W.2d 1, 10-11 (Tenn. 1993), cert. denied, 510 U.S. 996, 114 S.Ct. 561, 126
L.Ed.2d 461 (1993), and cert. denied, 510 U.S. 1040, 114 S.Ct. 682, 126 L.Ed.2d 650
(1994).
       75
         State v. Michael Dean Bush, Cumberland County No. 03-C-01-9403-CR-00094,
slip op. at 30, (Tenn. Crim. App., Knoxville, February 12, 1996).
       76
            1993 Tenn. Pub. Acts, ch. 473, § 16.

                                             28
Therefore, the trial court properly refused to instruct the jury on this sentencing option.77

       This issue is without merit.



                                               VI.

                                  CALDWELL VIOLATIONS



       The defendant contends the assistant district attorney general violated the rule

enunciated by the United States Supreme Court in Caldwell v. Mississippi78 during rebuttal

argument. The state contends the defendant has waived this issue by failing to interpose

a contemporaneous objection when the statements were made. In the alternative, the

state argues the assistant district attorney general’s statements were appropriate.

       During rebuttal argument, the assistant district attorney, responding to statements

made by defense counsel, stated:


                 The last thing that he said and was talking about mitigation,
                 about you taking a life. And I . . . respectfully have to take
                 exception to what you say. You [the jury] can’t take a life. You
                 can’t walk out of that jury box and touch that man.

                                             ****

                 Be like you’d like that surgeon to be, dispassionate,
                 professional. Don’t let somebody put a guilt trip on you.
                 You’re not taking anybody’s life. You can’t do that. You don’t
                 have that power. Neither do I.


       As previously stated, the failure to interpose a contemporaneous objection when

adversary counsel engages in allegedly erroneous argument constitutes a waiver of the

issue.79 However, due to the qualitative differences between death and other sentences,

the appellate courts of this state consider issues occurring during the sentencing hearing



       77
       State v. Christopher S. Beckham, Shelby County No. 02-C-01-9406-CR-00107
(Tenn. Crim. App., Jackson, Sept. 27, 1995), per. app. granted (Tenn. July 8,
1996)(supreme court remanded the case to the trial court for a new sentencing hearing
pursuant to State v. Harris, 919 S.W.2d 323 (Tenn. 1996)).
       78
            472 U.S. 320, 105 S.Ct. 2633, 86 L.Ed.2d 231 (1985).
       79
        State v. Renner, 912 S.W.2d 701, 705 (Tenn. 1995); Hunter v. State, 222 Tenn.
672, 702, 440 S.W.2d 1, 15 (1969), judgment vacated on other grounds, 403 U.S. 711, 91
S.Ct. 2285, 29 L.Ed.2d 820 (1971), cert. denied, 403 U.S. 955, 91 S.Ct. 2286, 29 L.Ed.2d
865 (1971); State v. Gregory, 862 S.W.2d 574, 578 (Tenn. Crim. App. 1992).

                                               29
in a capital case notwithstanding waiver of the issue.80          Therefore, this Court opts to

consider this issue on the merits.

         In Caldwell, the prosecuting attorney stated to the jury during summation "your

decision is not the final decision," "your job is reviewable," and "the decision you render is

automatically reviewable by the Supreme Court."81               The trial court overruled the

defendant’s objection to these statements.            However, the trial court instructed the

prosecuting attorney to inform the jury its decision was automatically reviewable. The

United States Supreme Court held "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."82        The Court found the argument was improper and violative of the

Constitution.

         In Romano v. Oklahoma,83 a case decided subsequent to Caldwell, the Court noted

it has

                   since read Caldwell as "relevant only to certain types of
                   comment - those that mislead the jury as to its role in the
                   sentencing process in a way that allows the jury to feel less
                   responsible than it should for the sentencing decision."
                   Darden v. Wainwright, 477 U.S. 168, 184, n.15, 106 S.Ct.
                   2464, 2473, n.15 (1986), 91 L.Ed.2d 144 (1986). Thus, "[t]o
                   establish a Caldwell violation, a defendant necessarily must
                   show that the remarks to the jury improperly described the role
                   assigned to the jury by local law." Dugger v. Adams, 489 U.S.
                   401, 407, 109 S.Ct. 1211, 1215, 103 L.Ed.2d 435 (1989).84


         This Court has reviewed the statement made by the assistant district attorney

general in the context it was made. The statement clearly does not violate Caldwell.



         80
        See State v. Bigbee, 885 S.W.2d 797, 805 (Tenn. 1994); State v. Duncan, 698
S.W.2d 63, 67-68 (Tenn. 1985), cert. denied, 475 U.S. 1031, 106 S.Ct. 1240, 89 L.Ed.2d
348 (1986); State v. Strouth, 620 S.W.2d 467, 471 (Tenn. 1981), cert. denied, 455 U.S.
983, 102 S.Ct. 1491, 71 L.Ed.2d 692 (1982); see also State v. Nichols, 877 S.W.2d 722
(Tenn. 1994), cert. denied ___ U.S. ___, 115 S.Ct. 909, 130 L.Ed.2d 791 (1995)(supreme
court addressed merits of this very issue even though appellant failed to
contemporaneously object to the statements).
         81
              Caldwell, 472 U.S. at 325-26, 105 S.Ct. at 2637-38, 86 L.Ed.2d at 237.
         82
              Caldwell, 472 U.S. at 328-29, 105 S.Ct. at 2639, 86 L.Ed.2d at 239.
         83
              __ U.S. __, 114 S.Ct. 2004, 129 L.Ed.2d 1 (1994).
         84
              ___ U.S. at ___, 114 S.Ct. at 2010, 129 L.Ed.2d at 11.

                                                 30
         This issue is without merit.



                                              VII.

                               VALIDITY OF VERDICT FORM



         The defendant contends the jury’s verdict was not authorized by law, and, therefore,

the jury’s verdict was facially void. He argues the verdict form given to the jury for the

return of its verdict was designed for verdicts returned before the 1989 amendment to

Tenn. Code Ann. § 39-13-204(g)(1). The State of Tennessee contends this issue was

waived because the defendant failed to (a) make a contemporaneous objection when the

verdicts of the jury were read in open court and (b) include the issue in his motion for a new

trial. In the alternative, the state argues the use of the verdict form constituted harmless

error.

         The trial court instructed the jury on the state’s burden of proof as to each

aggravating circumstance asserted by the state. The court also instructed the jury on the

mitigating circumstances raised by the defendant. The trial court then told the jury:


                If you unanimously determine that at least one statutory
                aggravating circumstance or several statutory aggravating
                circumstances have been proven by the State, beyond a
                reasonable doubt, and said circumstance or circumstances
                have been proven by the State to outweigh any mitigating
                circumstance or circumstances beyond a reasonable doubt,
                the sentence shall be death. The Jury shall reduce to writing
                the statutory aggravating circumstance or statutory aggravating
                circumstances so found and signify that the State has proven
                beyond a reasonable doubt that the statutory aggravating
                circumstance or circumstances outweigh any mitigating
                circumstances.


The defendant concedes the jury was properly instructed by the trial court.

         The form given to the jury for the recordation of its verdict stated:


                                  PUNISHMENT OF DEATH


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

                       (Here list the statutory aggravating circumstance
                       or circumstances so found, which shall be limited

                                               31
                      to those enumerated by the Court for your
                      consideration)

               (Written by Jury) Heinous, Atrocious, Cruel, Torture

                       (2) We the jury, unanimously find that there are no
               mitigating circumstances sufficiently substantial to outweigh
               the statutory aggravating circumstance or circumstances so
               listed above.

                     (3) Therefore, we, the Jury, unanimously find that the
               punishment for the defendant, Preston Carter, shall be death.

               (All of the jurors signed here)



The two verdict forms and verdicts were the same in both cases.

      When the jury returned its verdicts, they were examined by the trial court. The two

verdicts were then read in their entirety. In other words, the above verdict form was read

in open court.

                                                 A.



      In this jurisdiction, the failure to make a contemporaneous objection when the

defendant is aware there has been an error in the proceedings constitutes a waiver of the

issue. Rule 36(a), Tennessee Rules of Appellate Procedure, provides that nothing

contained in the rule “shall be construed as requiring relief be granted to a party

responsible for an error or who failed to take whatever action was reasonably available to

prevent or nullify the harmful effect of an error.” The Supreme Court has applied this rule

in capital cases.85 However, most of the cases have applied the rule to issues raised

during the determination of guilt as opposed to the sentencing phase of the trial.

       In State v. Brimmer,86 a case factually similar to this case, the defendant complained

the trial court did not give an instruction that aggravating circumstances must outweigh

mitigating circumstances beyond a reasonable doubt. The supreme court found this issue

was without merit because the killing occurred prior to the amendment to the statute. In

addressing the issue on the merits, the supreme court said:

      85
        See State v. West, 844 S.W.2d 144, 151 (Tenn. 1992); State v. Hines, 758 S.W.2d
515, 519 (Tenn. 1988); State v. Coker, 746 S.W.2d 167, 173 (Tenn. 1987), cert. denied,
488 U.S. 871, 109 S.Ct. 180, 102 L.Ed.2d 149 (1988).
      86
           876 S.W.2d 75 (Tenn. 1994).

                                                 32
                 Normally, defendant’s failure to take any action to call this
                 issue to the trial court’s attention and his active procurement
                 of an instruction he now claims is erroneous would preclude
                 review on appeal. See T.R.A.P. 3(e) and 36(a). In the present
                 case, however, if defendant was tried under the law
                 inapplicable to his case, his substantial rights may have been
                 affected. Under these circumstances we exercise our
                 discretion to review this issue in order to insure substantial
                 justice is done. See T. R. Cr. P. 52(b).87


       The failure to raise this issue in the motion for a new trial also results in waiver of

the issue. Rule 3(e), Tennessee Rules of Appellate Procedure, states in part:


                 [I]n all cases tried by a jury, no issue presented for review shall
                 be predicated upon error in the admission or exclusion of
                 evidence, jury instructions granted or refused, misconduct of
                 jurors, parties or counsel, or other action committed or
                 occurring during the trial of the case, or other ground upon
                 which a new trial is sought, unless the same was specifically
                 stated in a motion for a new trial; otherwise such issues will be
                 treated at waived.


The supreme court has applied this rule in death penalty cases. 88 Again, the use of this

rule has been limited to issues occurring during the guilt phase of the proceedings.

       While this issue has been waived, this Court will nevertheless address this issue on

its merits.89




       87
            876 S.W.2d at 82.
       88
         See Walker, 910 S.W.2d 381, 386 (Tenn. 1995), cert. denied, ___ U.S. ___, 117
S.Ct. 88, 136 L.Ed.2d 45 (1996); State v. Bigbee, 885 S.W.2d 797, 804 (Tenn. 1993);
State v. Bane, 853 S.W.2d 483, 488 (Tenn. 1993), cert. denied, 510 U.S. 1040, 114 S.Ct.
682, 126 L.Ed.2d 650 (1994); State v. Caldwell, 671 S.W.2d 459, 465 (Tenn. 1984), cert.
denied, 469 U.S. 873, 105 S.Ct. 231, 83 L.Ed.2d 160 (1984).
       89
            Tenn. R. App. P. 13(b); Tenn. R. Crim. P. 52(b).

                                                 33
                                              B.



       As previously noted, the trial court correctly instructed the jury on the law it was to

apply in determining whether the State of Tennessee had met its burden of proof on the

aggravating circumstances raised by the evidence, how the jurors were to consider

mitigating circumstances submitted by the defendant, and how the jury was to determine

whether the aggravating circumstances outweighed the mitigating circumstances. The jury

is presumed to follow the instructions given by the trial court absent proof to the contrary. 90

       Any error in using the aforementioned jury verdict form was harmless beyond a

reasonable doubt. Considering the entire record, this error did not affect the jury verdict,

and it did not result in prejudice to the judicial process or the defendant.91

       This issue is without merit.



                                             VIII.

                     CONSTITUTIONALITY OF THE DEATH PENALTY



       In his last issue, the appellant makes standard attacks against the constitutionality

of the death penalty in Tennessee. The appellant acknowledges that these claims have

repeatedly been rejected, but raises them in order to preserve them for later review. The

supreme court has repeatedly upheld the constitutionality of the death penalty in the face

of similar challenges.92

       This issue is without merit.

       90
        See State v. Laney, 654 S.W.2d 383, 389 (Tenn. 1983), cert. denied, 464 U.S.
1003, 104 S.Ct. 510, 78 L.Ed.2d 699 (1983).
       91
            Tenn. R. App. P. 36(b).
       92
        See State v. Smith, 893 S.W.2d 908, 924 (Tenn. 1994), cert. denied, ___ U.S.
___, 116 S.Ct. 99, 133 L.Ed.2d 53 (1995); State v. Brimmer, 876 S.W.2d 75, 86 (Tenn.
1994), cert. denied, ___ U.S. ___, 115 S.Ct. 585, 130 L.Ed.2d 499 (1994); State v. Cazes,
875 S.W.2d 253, 268-70 (Tenn. 1994), cert. denied, ___ U.S. ___, 115 S.Ct. 743, 130
L.Ed.2d 644 (1995); State v. Smith, 857 S.W.2d 1, 23 (Tenn. 1993), cert. denied, ___ U.S.
___, 114 S.Ct. 561, 126 L.Ed.2d 461 (1993); State v. Black, 815 S.W.2d 166, 185 (Tenn.
1991); State v. Boyd, 797 S.W.2d 589, 599 (Tenn. 1990), cert. denied, 498 U.S. 1074, 111
S.Ct. 800, 112 L.Ed.2d 861 (1991); State v. Teel, 793 S.W.2d 236, 251 (Tenn. 1990), cert.
denied 498 U.S. 1007, 111 S.Ct. 571, 112 L.Ed.2d 577 (1990); State v. Thompson, 768
S.W.2d 239, 252 (Tenn. 1989), cert. denied, 497 U.S. 1031, 110 S.Ct. 3288, 111 L.Ed.2d
796 (1990).

                                              34
                                      CONCLUSION



       This Court has considered the issues raised by the defendant in considerable detail.

Based upon the analysis of the issues hereinabove set forth, it is the opinion of this Court

the death sentences should be affirmed.

       The death sentences have been reviewed by this Court in the manner mandated

by Tenn. Code Ann. § 39-13-206(c)(1). The report of the trial court has been reviewed.

This Court is of the opinion the sentences were not imposed in an arbitrary manner. In

addition, a comparative proportionality review, which considers both the nature of the crime

and the defendant, reveals the death sentences, in the context of this case, are neither

excessive nor disproportionate to death sentences imposed in similar cases.




                                          ____________________________________
                                             JOE B. JONES, PRESIDING JUDGE



CONCUR:




_____________________________________
     DAVID H. WELLES, JUDGE




_____________________________________
     JERRY L. SMITH, JUDGE




                                            35
