            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                                                                      FILED
                                     AT KNOXVILLE
                                                                  September 27, 1999

                               APRIL 1999 SESSION                  Cecil Crowson, Jr.
                                                                  Appellate Court Clerk



STATE OF TENNESSEE,                      *    No. 03C01-9808-CR-00272

      Appellee                           *    HAMILTON COUNTY

V.                                       *    Hon. Stephen M. Bevil, Judge

JAMES LEE CANNON                         *    (First Degree Murder)

      Appellant.                         *


For Appellant                                 For Appellee

Donna Robinson Miller                         John Knox Walkup
Assistant District Public Defender            Attorney General and Reporter
701 Cherry Street, Suite 300                  425 Fifth Avenue North
Chattanooga, Tennessee 37402                  Nashville, TN 37243-0493

                                              Erik W. Daab
                                              Assistant Attorney General
                                              425 Fifth Avenue North
                                              Nashville, TN 37243-0493

                                              Barry A. Steelman
                                              Assistant District Attorney General
                                              600 Market Street
                                              Chattanooga, TN 37402


OPINION FILED:


AFFIRMED


NORMA MCGEE OGLE, JUDGE
                                       OPINION

              The appellant, James Lee Cannon, appeals his sentence of

imprisonment for life without possibility of parole imposed by a jury in the Hamilton

County Criminal Court on October 15, 1997. The appellant contends that (1) the

jury failed to comply with Tenn. Code. Ann. § 39-13-207(e) (1997); and (2) the jury’s

imposition of the challenged sentence was arbitrary and constituted a gross abuse

of its “considered discretion.” Tenn. Code. Ann. § 39-13-207(c), (g). Based upon

our review of the record, we affirm the judgment of the trial court.



                                Factual Background

               On November 1, 1995, a Hamilton County Grand Jury indicted the

appellant for the first degree murder of Tonya Morris. On May 16, 1996, the State

filed a “Notice of Intent to Seek the Death Penalty,” relying upon the appellant’s

previous conviction of attempt to commit second degree murder. Tenn. Code. Ann.

§ 39-13-204(i)(2) (1995). Shortly before the scheduled trial date, on October 2,

1997, the appellant pled guilty to first degree murder upon the understanding that a

jury would determine whether he would receive a sentence of imprisonment for life

or imprisonment for life without possibility of parole. In accordance with the plea

agreement, the trial court conducted a sentencing hearing on October 13 through

October 15, 1997.



              At the sentencing hearing, the State’s proof established that the victim,

Tonya Morris, was twenty-six years old at the time of her death and had six children

under the age of twelve years. Prior to the murder, the appellant was attempting to

initiate a relationship with Ms. Morris. However, according to Dorothy Ann Morris,

Tonya Morris’ sister, the victim feared the appellant and, on one occasion, left

Chattanooga and lived in Cincinnati, Ohio for one year in order to escape the


                                           2
appellant. She returned from Cincinnati several months before the murder,

whereupon the appellant began to stalk her and, on several occasions, threatened

her life.



              Erica Batts, the victim’s cousin, recounted that several days before the

murder Ms. Morris telephoned her and asked that she immediately come to an

aunt’s home. When Ms. Batts arrived, she observed the appellant standing outside

the aunt’s home with a butcher knife, calling to the victim to come outside. The

appellant fled upon Ms. Batts’ arrival.



              Annette Morris, another sister of the victim, recounted that on the

evening prior to the murder the appellant called her home, where the victim was

temporarily residing. When Ms. Morris informed the appellant that the victim was

not at home, the appellant responded, “You better have some damn death

insurance out on her because she’s going to die.”



              On the day of the murder, the victim asked her brother, Lovest Morris,

and his fiancé to drive her to the food stamp office at the Eastside Community

Center in Chattanooga. While Ms. Morris was inside the office, the appellant

appeared and asked Mr. Morris where he could find the victim. When Mr. Morris

indicated that his sister was inside the food stamp office, the appellant entered the

Community Center building and quickly reemerged with Ms. Morris. While they were

conversing in the parking lot, the appellant withdrew a “nine-shot revolver” and fired

the weapon at the victim several times. When the victim collapsed onto the ground,

the appellant stood over the victim and shot her two times in the back of the head at

close range. Dr. Frank King, the Hamilton County Medical Examiner, testified that

Ms. Morris was shot a total amount of six or eight times.


                                          3
                  After shooting Ms. Morris, the appellant walked calmly away. Shortly

thereafter, Robert Ford, a security guard for the Department of Human Services,

was notified of the shooting and left the food stamp office to investigate. In the

parking lot, several witnesses indicated to the officer the direction in which the

appellant had fled. Officer Ford pursued the appellant, locating him three blocks

away from the scene of the murder. When he approached the appellant, the

appellant immediately surrendered.



                  The appellant declined to testify at the sentencing hearing. However,

Brenda Fuller, a friend of the appellant, presented an entirely different account of

the appellant’s relationship with Ms. Morris. She testified that Ms. Morris was a

prostitute who had been addicted to illegal drugs. According to Ms. Fuller, the

appellant attempted to help Ms. Morris by providing money to her and by assisting

her in the care of her children. Ms. Fuller asserted that the appellant encouraged

the victim to abandon prostitution and stay at home with her children. Ms. Fuller

remarked that the appellant “even” bought Ms. Morris drugs in order to encourage

her to remain at home with her children. She stated that the appellant always

treated his girlfriends well, including Ms. Morris. However, Ms. Morris “was always

just messing off, taking his money and using drugs and using another man . . . .”

She concluded:

                  [R]ight, this girl is dead, and it’s wrong . . . but . . . I’m
                  also looking at her lifestyle and what she did. Pig1 is just
                  the one that ended up killing her . . . .



                  The appellant’s proof further established that he was born on March 2,

1948, in Moundville, Alabama, and was one of five children. His father was a

sharecropper on a small farm. The appellant was born at home, with a midwife in


       1
           "Pig” is the appellant’s nickname.

                                                4
attendance. His mother was in labor for three days, and, when the appellant was

born, he fell on the floor, striking his head. Family members noted that the appellant

was a quiet, somewhat unhealthy child, but was never taken to a doctor.



              When the appellant was thirteen years of age, his father died, and the

family moved to Chattanooga where they lived in poverty. The appellant maintained

a poor academic record, attending high school through the eleventh grade. The

appellant apparently did not engage in criminal activity until the age of seventeen

when he participated in the burglary of a local laundry establishment.



              In 1971, at the age of twenty-three, the appellant attempted to enlist in

the United States Marine Corps. He was discharged prior to completing his training

due to “mental inaptitude” and “limited ability precluding successful completion of

recruit training.” The reviewing officer reported:

              [The appellant] possess[es] a bel[l]igerent disrespectful
              attitude which is complicated by the fact he won’t do
              anything that requires a little bit of effort on his part. . . .
              He was sent to conditioning platoon where he was
              transferred to Motivation Platoon after demonstrating that
              he has the ability if he will only attempt to use it. . . .
              “Mental ability is limited as probably is physical ability.
              Doubt if he has the assets to make it.”

The appellant later enlisted in the United States Army, from which he was also

discharged for “failure to meet acceptable standards for continued military service,”

including being absent without leave on several occasions. The appellant was

subsequently employed by various businesses in Chattanooga, including Hunt’s

Food Market, Cox & Moore Furniture, “Idex” Upholstery, and Wheland Foundry.



              Several family members testified concerning the appellant’s past

generosity, including providing food, clothing, and care to his niece and nephew,

and assistance to his alcoholic sister-in-law. Friends of the appellant also testified

                                             5
concerning the appellant’s past acts of kindness, including providing financial

assistance to friends, visiting sick friends, and babysitting their children.



                   In 1990, the appellant was convicted in the Hamilton County Criminal

Court of attempt to commit second degree murder. Upon his entry into the

Tennessee Department of Correction, the appellant underwent a psychological

evaluation. Clorinda Smithson, a licensed psychological examiner for the

Department of Correction, testified that she interviewed the appellant during the

course of his evaluation. Ms. Smithson reported that the appellant appeared to

“admit responsibility” for his offense, recounting to Ms. Smithson the circumstances

of the offense: “Me and my old lady got into it. I stabbed her 17 times.”2 Ms.

Smithson further observed that the appellant was cooperative during the interview,

his “[a]ffect [was] appropriate; mood and thought processes appear[ed] appropriate.”



                   The Department also administered several tests to the appellant,

including the “Beta, revised” (“a group test of general intelligence”), the Wide Range



Achievement Test, the Peabody Picture Vocabulary Test, and the Carlson

Psychological Survey. On the group intelligence test, the appellant achieved a full

scale I.Q. of 60, placing the appellant in the mildly mentally retarded range of

intellectual functioning. However, Ms. Smithson conceded during the sentencing

hearing that subsequent testing performed by a Dr. Eric Engum, which indicated a

higher I.Q., was probably a more accurate reflection of the appellant’s intelligence.

On the Wide Range Achievement test, the appellant demonstrated reading skills at



         2
          Gen erally, in a sen tenc ing he aring , “it is no t app ropr iate to adm it evide nce rega rding spec ific
facts of the crim e res ulting in the p revio us c onvic tion, w hen the c onvic tion o n its fa ce s how s tha t it
involved violence or the threat of violence to the person.” State v. Bigbee, 885 S.W.2d 797, 811
(Tenn . 1994). However, in this case, defense counsel introduced the evidence concerning the
specific facts underlying the appellant’s conviction of attempt to comm it second degree m urder.

                                                          6
a fifth grade level, spelling skills at a third grade level, and knowledge of arithmetic

at a fifth grade level. On the Peabody Picture Vocabulary test, the appellant

“achieved an age equivalent of ten years and four months.” Finally, the Carlson

Psychological Survey produced the following conclusions:

              This type presents himself as the victim of circumstances
              rather than the offender. He rationalizes the offense and
              denies any guilt for it with an excuse ready for each
              crime committed. They are self-centered and do not
              listen to criticism or advice. Their judgment is faulty and
              so is their impulse control, making them easy targets for
              manipulative peers. Feelings of insecurity, lack of
              identity, emotional immaturity and dependence are also
              characteristic of this type. There is little insight, no
              ambition toward future goals, and they are polite,
              cooperative and sometimes shy and quiet. Many of this
              type have difficulties in understanding and directing their
              sexual desire. . . .



              Dr. Eric Engum, a clinical psychologist specializing in clinical

neuropsychology and forensic psychology, also testified on behalf of the appellant.

He interviewed the appellant in the Hamilton County Jail on two occasions following

Ms. Morris’ murder, for a total amount of twelve or fourteen hours. Dr. Engum

administered several tests during the interviews, including the Wechsler Adult

Intelligence Scale-Revised, a neuropsychological examination, the Carlson

Psychological Survey, and the Minnesota Multiphasic Personality Inventory-Revised.

Dr. Engum determined that the appellant possesses an I.Q. of 82, placing him in the

borderline range of intellectual functioning. Dr. Engum conceded that the appellant

is not retarded.



              Moreover, Dr. Engum concluded that the appellant is not insane, i.e.,

he does not suffer from a mental disease or defect which impairs his ability to

appreciate the wrongfulness of his conduct or conform his conduct to the

requirements of the law. However, Dr. Engum diagnosed the appellant with several


                                            7
mental diseases or defects, including cyclothymic disorder, either an organic

personality disorder or a schizoid personality disorder, and a cognitive disorder. Dr.

Engum opined that the appellant’s level of intellectual functioning and his other

mental defects substantially affected his judgment at the time of the murder.

Moreover, according to Dr. Engum, the appellant was under the influence of

extreme mental or emotional distress at the time of the murder, precluding his ability

to premeditate the murder. Dr. Engum explained:

             Recognize that what the test results are showing are first
             somebody with limited intellectual ability, okay? An IQ of
             82. . . .

             Second, you have somebody whose, what I call adaptive
             skills or problem solving skills are quite limited. This is
             an individual who works in a very structured and
             sequential fashion, he doesn’t understand all of
             complexities of interpersonal interaction.

             Third, you have somebody who is socially inept, not real
             sophisticated, he has some paranoid tendencies, he has
             a strong tendency to misperceive what other people’s
             intentions are towards him.

             Fourth, he is somebody who -- he internalizes and
             represses a lot of his feelings and emotions, and it’s
             pretty much like a pressure cooker, and he will almost
             deny that other people are abusing him or misusing him,
             and then it finally gets to the point of where he’s just
             overwhelmed by it and will explode . . . . Most of the time
             he is pretty much docile, depressed, dysphoric,
             withdrawn, but when the pressure build up, that is when
             he can act out in a manner that he did towards Ms.
             Morris.



             Dr. Engum conceded that his conclusion that the appellant was

experiencing an explosion of suppressed emotions at the time of the murder was

based upon the appellant’s account of the murder. The appellant informed Dr.

Engum that, on the day of the murder, he was searching for Ms. Morris in order to

collect money he had loaned to her. He denied to Dr. Engum that he intended to

harm the victim but admitted that he intended to threaten her. When the appellant


                                          8
located Ms. Morris, “the situation escalate[d] and he started shooting. Again, he

reached that boiling point, exploded, and unfortunately with lethal consequences.”



              Dr. Engum qualified his testimony, remarking that, if the appellant had

previously threatened to kill Ms. Morris, this fact might change his opinion

concerning the degree of the appellant’s mental or emotional distress.

Nevertheless, Dr. Engum maintained that evidence of prior threats would not

necessarily preclude his “pressure cooker” theory. Dr. Engum concluded that, in the

future, the appellant “might present a risk to [any] individual who betrays his trust.”



                                       Analysis

I.     Imprisonment for Life Without Possibility of Parole

              a.     Sentencing Procedure

              Tenn. Code. Ann. § 39-13-207 delineates the sentencing procedure in

cases of first degree murder when the State declines to seek the death penalty.

Following a defendant’s conviction of first degree murder, the trial court conducts a

separate sentencing hearing during which a jury determines whether the defendant

should be sentenced to life or life without parole. Tenn. Code. Ann. § 39-13-207(a).

As in the case of capital proceedings, “evidence may be presented as to any matter

that the court deems relevant to the punishment . . . .” Tenn. Code. Ann. § 39-13-

204(c); Tenn. Code. Ann. § 39-13-207(a). This evidence may pertain 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 . . . ; and any evidence tending to establish or rebut any mitigating

factors.” Tenn. Code. Ann. § 39-13-204(c). Statutory aggravating and mitigating

circumstances are set forth in Tenn. Code. Ann. § 39-13-204(i) and (j).




                                            9
                 In sentencing a defendant, the jury must first determine whether the

State has proven at least one statutory aggravating circumstance beyond a

reasonable doubt. Tenn. Code. Ann. § 39-13-207 (b), (c). Only if the jury

unanimously finds a statutory aggravating circumstance beyond a reasonable doubt

may the jury consider, in its discretion, the imposition of a sentence of life without

parole. Id. In order to impose the harsher penalty, the jury need not find that the

statutory aggravating circumstances outweigh any mitigating circumstances beyond

a reasonable doubt, but must simply weigh and consider aggravating and mitigating

circumstances. Id. at (d).3



                 Following the presentation of the proof in this case, the trial court

instructed the jury on the aggravating circumstance set forth in Tenn. Code. Ann. §

39-13-204(i)(2), the appellant’s prior conviction of a felony whose statutory elements

involve the use of violence to the person. The trial court also instructed the jury on

the following mitigating circumstances:

                 Number 1, The murder was committed while the
                 defendant was under the influence of extreme mental or
                 emotional disturbance. [See Tenn. Code. Ann. § 39-13-
                 204(j)(2)].

                 Number 2, The capacity of the defendant to appreciate
                 the wrongfulness of his conduct or to conform his
                 conduct to the requirements of the law was substantially
                 impaired as a result of mental disease or defect, which
                 was insufficient to establish a defense to the crime, but
                 which substantially affected his judgment. [See Tenn.
                 Code. Ann. § 39-13-204(j)(8)].

                 Number 3, The defendant’s family, personal and
                 professional relationships and any effect these


        3
          W e do note that the trial cou rt in its genera l instructions erroneo usly directed the jurors to
consider whether the aggravating circumstance in this case outweighed any mitigating circumstances
beyond a reasonable doubt. Nevertheless, despite the trial court’s improper instruction, “[r]equiring
the jury to make such a determination held the state to a higher burden than our legislature dictates
and thus, provided a heightened protection for the appellant.” State v. Lee, No. 02C01-9603-CC-
00085 , 1997 W L 6862 58, at *10 (T enn. Cr im. Ap p. at Jack son, No vem ber 5, 19 97), perm. to appeal
denied, (Te nn. 1 998 ). Acc ordin gly, we conc lude t hat a ny erro r was harm less beyon d a re aso nab le
doubt.

                                                     10
              relationships may have had upon him.

              Number 4, The defendant’s family, military and personal
              background, including any history of emotional
              disturbance, familial instability or childhood problems.

              Number 5, The defendant’s mental, emotional and
              psychological history and any impact this may have had
              on the defendant.

              Number 6, The defendant’s conduct when arrested and
              since the offense, any evidence of the defendant’s regret
              or remorse, and any evidence of the defendant’s
              acceptance of responsibility for the offense and/or any
              cooperation with the authorities.

              Number 7, The defendant’s self-perception and its effect
              on him.

              Number 8, The defendant’s positive personal
              relationships and history with family members and other
              individuals.

              Number 9, The defendant’s history of good character.

              Number 10, The defendant’s potential for treatment in
              prison.

              Number 11, The defendant’s advanced age at the time of
              his first eligibility for parole.

              [Number 12,] Any other mitigating factor which is raised
              by the evidence produced by either the prosecution or
              defense at the sentencing hearing . . . . [See Tenn.
              Code. Ann. § 39-13-204(j)(9)].

Additionally, in accordance with the appellant’s request under Tenn. Code. Ann. §

40-35-201(b) (Repealed May 18, 1998), the trial court informed the jury that, if it

chose to impose a sentence of life instead of life without parole, the appellant would

be eligible for parole after serving at least fifty-one years in the Department of

Correction. As previously noted, the jury imposed a sentence of life without parole.



              b.     The Jury’s Compliance with Tenn. Code.
                     Ann. § 39-13-207(e)

              When a criminal defendant appeals a sentence of life without parole,

this court must first consider any errors assigned and then review the propriety of

                                           11
the sentence. Tenn. Code. Ann. § 39-13-207(g). The appellant assigns as error the

jury’s failure to comply with Tenn. Code. Ann. § 39-13-207(e), which requires the

jury to return its verdict upon a form reflecting the jury’s unanimous finding of at least

one statutory aggravating circumstance beyond a reasonable doubt.



              Following its deliberation in this case, the jury announced that it had

unanimously sentenced the appellant to life without parole. Immediately thereafter,

the trial court and the jury foreperson engaged in the following colloquy:

Court:               And did the jury find a statutory aggravating
                     circumstance, and, if so, is that listed on the
                     documents?
Jury Foreperson:     There is nothing listed there.
The Court:           All right. Members of the Jury, I’m going to
                     ask you to step back into the jury room and
                     reread the portion of the charge that says,
                     Punishment of Imprisonment For Life
                     Without Possibility of Parole or
                     Imprisonment For Life.

                     We, the jury unanimously find the State has
                     proven the following listed statutory
                     aggravating circumstance beyond a
                     reasonable doubt. (Here list the statutory
                     aggravating circumstance so found.)

                     Tennessee law provides that no sentence
                     of imprisonment for life without possibility of
                     parole shall be imposed by a jury, but upon
                     a unanimous finding that the State has
                     proven beyond a reasonable doubt the
                     existence of the following aggravating
                     circumstance:

                     The defendant was previously convicted of
                     a felony, other than the present charge,
                     whose statutory elements involve the use of
                     violence. The State is relying upon the
                     crime of Attempt to Commit Second Degree
                     Murder, as a felony involving the use of
                     violence to the person.

                     Members of the Jury, the Court has read to
                     you the statutory aggravating circumstance,
                     which the law requires you to consider if
                     you find beyond a reasonable doubt that
                     the evidence was established. You shall

                                           12
                      not take into account any other facts or
                      circumstances as the basis for deciding
                      whether imprisonment for life without
                      possibility of parole would be appropriate
                      punishment in this case.

                      If you will, at this time, please, step back
                      into the jury room and complete the verdict
                      form.

When the jury returned to the courtroom once more, the verdict form reflected the

jury’s unanimous finding of the requisite aggravating circumstance. The trial court

polled the jurors to confirm their unanimity with respect to both the aggravating

circumstance and the sentence of life without parole.



              “[W]hen a jury returns an incorrect or imperfect verdict, the trial court

has both the power and the duty to send them back to the jury room with directions

to amend the verdict to put it in the proper form.” State v. Stephenson, 878 S.W.2d

530, 554 (Tenn. 1994). See also State v. Harris, 989 S.W.2d 307, 314 n.7 (Tenn.

1999); State v. Nichols, 877 S.W.2d 722, 730 (Tenn. 1994). In State v. Jefferson,

938 S.W.2d 1, 22 (Tenn. Crim. App. 1996), this court articulated the appropriate

procedure to be applied by a trial court when a jury returns an incorrect or imperfect

verdict:

              The trial court should advise the jury that the court
              cannot accept the verdict, direct the jury to either reread
              the charge given by the court or the court can give a
              supplemental charge, and have the jury retire to consider
              its verdict.

The trial court in this case complied with this procedure and properly accepted the

resultant verdict of the jury.



              Nevertheless, the appellant argues that, because the trial court failed

to ascertain whether the jurors had unanimously found the requisite aggravating

circumstance before asking the jurors to return to the jury room and correct the


                                           13
verdict form, the record does not reflect whether the jury found the aggravating

circumstance beyond a reasonable doubt. In other words, the appellant posits that

the jury, in amending the verdict form, may have simply “complet[ed] the form as the

Court had ordered them to complete it.”



              However, the appellant’s argument completely ignores the trial court’s

explicit supplemental instruction that, in order to impose a sentence of life without

parole, the jury was required to find the aggravating circumstance beyond a

reasonable doubt. Moreover, the appellant’s argument ignores the trial court’s

polling of the jury, following the amendment of the verdict form, to ensure that the

jurors had found the aggravating circumstance beyond a reasonable doubt. This

issue is without merit.



              c.     The Propriety of the Sentence

              With respect to the propriety of the appellant’s sentence, Tenn. Code.

Ann. § 39-13-207(g) provides:

              A sentence of imprisonment for life without possibility of
              parole shall be considered appropriate if the state proved
              beyond a reasonable doubt at least one (1) aggravating
              circumstance contained in Tenn. Code. Ann. § 39-13-
              204(i), and the sentence was not otherwise imposed
              arbitrarily, so as to constitute a gross abuse of the jury’s
              discretion.

The appellant does not contest that the State proved beyond a reasonable doubt

the aggravating circumstance that the appellant was previously convicted of a felony

whose statutory elements involve the use of violence to the person. Tenn. Code.

Ann. § 39-13-204(i)(2). In fact, the parties stipulated the appellant’s prior conviction

of attempt to commit second degree murder. Additionally, the Tennessee Supreme

Court has previously held that the crime of attempt to commit second degree murder

is a crime whose statutory elements involve the use of violence within the meaning


                                           14
of Tenn. Code. Ann. § 39-13-204(i)(2). State v. Cribbs, 967 S.W.2d 773, 782-83

(Tenn. 1998). However, the appellant argues that, in light of the numerous

mitigating circumstances, the jury’s imposition of a sentence of life without parole

was arbitrary and constituted a gross abuse of discretion. We disagree.



              Initially, in reviewing the jury’s imposition of a sentence of life without

parole, neither this court nor the appellant may resolve questions concerning the

credibility of witnesses, the weight and value to be accorded the evidence, or factual



issues raised by the evidence. State v. Collier, 03C01-9602-CR-00072, 1997 WL

9722, at *7 (Tenn. Crim. App. at Knoxville, March 4, 1997). Rather, the jury as the

trier of fact was entitled to assign to each aggravating or mitigating circumstance

whatever weight it deemed appropriate. Id. Keeping this principle in mind, we

conclude that the record in this case amply supports the jury’s verdict.



              In reaching this conclusion, we note generally that the evidence

introduced by the appellant in mitigation was not uniformly helpful to the appellant.

Moreover, although the record reflects the appellant’s borderline range of intellectual

functioning and various mental defects, Dr. Engum confirmed that the appellant is

neither retarded nor insane. Also, the record does not otherwise support Dr.

Engum’s conclusion that the appellant committed the instant offense due to a

sudden explosion of suppressed emotions. Rather, the evidence suggests that, due

to the victim’s rejection of the appellant, the appellant had been stalking her for

some time and planned to kill her. Indeed, even the appellant’s version of events

supplied an additional motive for the murder: the victim’s failure to repay a loan by

the appellant. On the morning of the murder, the appellant was searching for the

victim, carrying a fully loaded revolver. When the appellant located the victim, after


                                            15
briefly conversing with her, he unloaded his revolver into the victim and calmly

walked away. Finally, even if the appellant’s judgment was impaired at the time of

the murder, we cannot say that the jury erred in according more weight to the

appellant’s previous lapse in judgment when he stabbed a former girlfriend

seventeen times.



              Similarly, we agree with the State that the appellant’s prior conviction

and the circumstances of the instant offense significantly undercut the testimony by

the appellant’s relatives and friends concerning the appellant’s good character as

well as other mitigating circumstances arguably raised by the evidence.

Furthermore, Dr. Engum testified that the appellant was likely to commit violent acts

in the future. See, e.g., State v. Bogus, No. 02C01-9506-CC-00169, 1998 WL

22031, at *7 (Tenn. Crim. App. at Jackson), perm. to appeal denied, (Tenn.

1998)(because the jury could have reasonably believed that the defendant would

not conform to society’s laws, this court could not conclude that the jury abused its

discretion in imposing a sentence of life without parole). This issue is without merit.



                                     Conclusion

              For the foregoing reasons, we affirm the judgment of the trial court.




                                                        Norma McGee Ogle, Judge



Jerry L. Smith, Judge




Joe G. Riley, Judge

                                          16
