            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                              AT JACKSON
                        JANUARY SESSION, 1999


                                                             FILED
STATE OF TENNESSEE,       )
                          )      No. 02C01-9801-CC-00012 February 5, 1999
     Appellee             )
                          )      MADISON COUNTY              Cecil Crowson, Jr.
                                                             Appellate C ourt Clerk
vs.                       )
                          )      Hon. FRANKLIN MURCHISON, Judge
FARRIS GENNER MORRIS, JR. )
                          )
     Appellant            )      CAPITAL CASE
                          )      (Premeditated First Degree Murder,
                          )      Two Counts; Aggravated Rape)



For the Appellant:               For the Appellee:

George Morton Googe              John Knox Walkup
District Public Defender         Attorney General and Reporter
227 W. Baltimore
Jackson, TN 38301                Michael E. Moore
                                 Solicitor General
Daniel J. Taylor
Asst. Public Defender            Elizabeth T. Ryan
                                 Assistant Attorney General
Jesse H. Ford, III               Criminal Justice Division
Attorney at Law                  425 Fifth Avenue North
618 N. Highland                  2d Floor, Cordell Hull Building
Jackson, TN 38301                Nashville, TN 37243-0493


                                 James G. (Jerry) Woodall
                                 District Attorney General

                                 Al Earls
                                 Asst. District Attorney General
                                 P. O. Box 2825
                                 Jackson, TN 38302




OPINION FILED:

AFFIRMED



David G. Hayes
Judge
                                            OPINION



        The appellant, in this capital case, Farris Genner Morris, Jr., was convicted by

a Madison County jury of two counts of first degree murder in the deaths of Erica

Hurd and Charles Ragland and the aggravated rape of Angela Ragland. At the

sentencing hearing for the premeditated murder convictions, the jury sentenced the

appellant to death by electrocution for the death of fifteen year old Erica Hurd and to

life without the possibility of parole for the death of Charles Ragland. In fixing the

appellant’s punishment at death for the murder of Erica Hurd, the jury found two

aggravating circumstances: (1) the murder was especially heinous, atrocious, or

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

produce death and (2) the murder was committed while the appellant was engaged

in committing “first degree murder, rape, burglary or kidnapping.” Tenn. Code Ann.

§ 39-13-204(i)(5) and (7) (1991). At a separate sentencing hearing, the trial court

imposed a sentence of twenty-five years for the aggravated rape conviction and

ordered the appellant to serve this sentence consecutive to his sentence of life

without the possibility of parole.1 The court further ordered that these sentences run

concurrent with the appellant’s sentence of death by electrocution.



            In this appeal as of right, the appellant raises the following issues for our

review:

        I. Whether the trial court erred in denying the appellant’s motion to
        suppress his statement to law enforcement officials;

        II. Whether the trial court’s exclusion of two jurors for cause violated
        Witherspoon;

        III. Whether the evidence was sufficient to establish that the appellant
        had the requisite culpable mental state to sustain his convictions for
        the premeditated first degree murders of Erica Hurd and Charles
        Ragland and whether the evidence was sufficient to support his
        sentence of death by electrocution;



        1
        The appellant does not challenge his conviction or his sentence for the aggravated rape
of Angela Ragland.

                                               2
      IV. Whether the trial court properly admitted testimony regarding the
      appellant’s statements of his future intent to kill Eckford, rob a bank,
      and leave town and allegations of his involvement in another rape
      incident;

      V. Whether the photographs of victim Erica Hurd introduced at the
      sentencing phase were more prejudicial than probative;

      VI. Whether the State committed prejudicial error during its closing
      argument at the sentencing phase by arguing about the pain of the
      families of the victims;

      VII. Whether a separate jury should have determined the appellant’s
      sentence; and

      VIII. Whether Tennessee’s death penalty statute is constitutional.


      Having carefully considered the appellant’s claims, we find no error of law

requiring reversal. Accordingly, we affirm the appellant’s convictions, his sentences,

and the imposition of the death penalty in this case.




                                    Background



                             A. Guilt/Innocence Phase

      In September 1994, twenty-one year old Angela Ragland lived with her

husband of six months, Charles, in a duplex located at 120 Ridgemont in Jackson,

Tennessee. On September 16, Charles Ragland made plans to socialize with a few

friends at the Mary-Lane Courts Project in Jackson. Because she did not like to stay

at home by herself, Angela Ragland visited her aunt and uncle, Charlie and Virginia

Hurd, who also lived in Jackson. She stayed at the Hurds' home watching television

with her family until approximately 3:00 a.m. when she decided to go home. Erica

Hurd, Angela’s fifteen year old cousin, who wanted to spend the night at the

Raglands’ Ridgemont duplex, left with Angela. The two drove back to the

Ridgemont duplex in Angela’s car. At home, Angela parked her car in front of the

duplex and the two young women entered the residence. Angela found her

husband in bed, but awake, with the light turned on. Shortly thereafter, Erica went


                                        3
outside to get a cassette tape she had left in Angela’s car.



            Angela heard Erica reenter the duplex. Angela also thought that she heard

Erica scream. Erica then appeared at the bedroom door accompanied by the

appellant, the couple’s neighbor from the adjoining duplex, who was holding a

shotgun to Erica’s head.



        The appellant confronted Charles Ragland and demanded to know “where

the dope was.” Charles replied that he did not have any “dope.” By this time, the

appellant, who was aiming the shotgun at Charles, had shoved Erica onto the bed

with Angela and Charles. Charles, in an effort to appease the appellant, asked if he

wanted money. However, the appellant said he did not want money and that he

would look for the “dope” himself. Angela observed that the appellant was talking

fast, was sweating, and appeared intoxicated. The appellant then ordered Charles

onto the floor, placed a pillow against his head, and fired one shot, instantly killing

Charles Ragland.



        The appellant then placed fifteen year old Erica into a closet and instructed

Angela to lay in her son’s bedroom on her stomach with her face towards the

window. 2 The appellant removed the mattress from the bed and placed it against

the window “so nobody could see if they walked by.” Meanwhile, he had Angela

warn Erica that, if she came out of the closet, he would “blow her head off.” He tied

Angela’s wrists and ankles with a belt, shoe strings, and some clothes, preventing

her from leaving the bedroom. The appellant walked out of the bedroom and took

Erica out of the closet. Although Angela could not see them, she could hear Erica

pleading with the appellant not to kill her and that “she would not tell anybody.”




        2
         The record indicates that Angela Ragland’s children were not at the Ridgemont duplex at
the time of the murders.

                                               4
Angela also heard the appellant tell Erica “to shut up.” Then, the hitting began.

Angela heard the appellant hitting Erica with “something;” the beating lasting for

about twenty minutes. Angela could hear Erica screaming, then gasping. “She was

trying to breathe, then it went quiet.” Erica was later found to have died from

multiple stab wounds and blunt trauma to the head inflicted during this assault.



      The appellant, still armed with the shotgun, returned to the bedroom where

Angela remained bound to the bed. He told Angela that he had been working all

day and that he needed a bath. He forced Angela to bathe him. The appellant

dried himself with a sheet from one of the beds. He told Angela that he wanted her

to wear something “sexy,” and proceeded to rummage through Angela’s dresser

drawers looking for satisfactory attire. The appellant finally emerged holding a

negligee and made Angela change. The appellant then stated that he was hungry

and asked Angela to make him something to eat. Angela prepared the appellant “a

sandwich and some Kool-Aid,” which he ate, all the while maintaining a tight hold on

the shotgun.



       When the appellant finished eating, he, again, led Angela into the child’s

bedroom, laid the shotgun on a nearby bed, and forced Angela to have sexual

intercourse with him three to four times. He also forced Angela to perform oral sex

upon him.



       At some point during the ordeal, the appellant remarked that “he had been

[falsely] accused of raping someone. . . and if he was going to go to jail, he was

going to go to jail for doing something.” He also told Angela that “society was the

reason that he was doing what he did. He said that society made him the way he

was.” The appellant continued to state:


                                          5
       . . . the woman that had accused him of rape didn’t know his name and
       that another guy, Marvin Eckford, had told the woman his name, . . . .
       [h]e said he was going to go home, tell his kids goodbye, kill Marvin,
       rob a bank and leave.


       Around 6:30 a.m., the appellant heard his wife moving around in their

adjoining duplex. He began to panic because he knew that she would be looking for

him as he had not been home since getting off from work the previous day. The

appellant told Angela that he was going to let her go. He advised her to tell the

police that she found the dead bodies of her husband and fifteen year old cousin

when she arrived home that morning. The appellant then “took a cloth and he wiped

down stuff that he had touched, [e.g.,] the television, the vacuum cleaner, door

knobs, [for fingerprints.]” Before leaving out the back door, he threatened Angela

that he would kill her if she went to the police.



       As the appellant left out the back door, Angela escaped through the front

door, got into her car, and drove to a friend’s house around the corner. When

Angela arrived at the residence of Shawn Edwards, Edwards and his brother noticed

that Angela was wearing “something skimpy” and was hysterical and crying. She

was mumbling something about her husband. Edwards then drove Angela to the

Jackson Police Department.



       At approximately 7:50 a.m., Officer Becky Davis noticed Edwards pull into the

police station parking lot. After talking with Edwards and Angela, she advised

Angela to go to the hospital and sent officers and an ambulance to the Raglands'

Ridgemont address.



       Officer Ronnie Wyatt, a hostage negotiator and crime scene technician with

the Jackson Police Department, was among the officers that responded to 120

Ridgemont. Upon Wyatt’s arrival, no attempt had yet been made to communicate

with the appellant, who had returned to his residence. Officer Wyatt contacted the


                                          6
appellant by telephone. Pursuant to this conversation, the appellant agreed to come



out of his duplex. When the appellant emerged from his residence, he appeared

“normal” and “relaxed.” He was taken into custody and transported to the City Jail.



        Upon entering the Raglands' residence, officers discovered the body of

Charles Ragland in the master bedroom and the body of Erica Hurd in the living

room. The shorts of the fifteen year old Hurd were unzipped. After a search of the

apartment, they located a blood stained steak knife behind the couch and a blood

stained butcher-type knife behind a teddy bear in a chair. 3 In the appellant’s

adjoining duplex, law enforcement officers found the appellant’s pistol grip 12-gauge

pump action shotgun hidden underneath the bottom of his dresser drawer.



        Later that day, at approximately 5:20 p.m., Jackson Police Department

Officers Patrick Willis and James Golden advised the appellant of his rights,

witnessed the appellant’s waiver of those same rights, and proceeded to interview

the appellant. Willis and Golden both observed that the appellant was “acting

normal,” appeared “calm,” and did not appear to be under the influence of any illegal

substance. During this interview, the appellant made the following statement:

        On September 16, 1994, I got off of work at 1:00 [p.m.]. I bought $250
        worth of cocaine during the evening. I made several purchases. I
        smoked the whole $250 worth up.

        Around 1:00 a.m. on September the 17th, 1994, I was sitting on my
        porch at 120 Ridgemont. My next door neighbor rode up with
        someone. He got out and came to the duplex. I asked him what was
        up. I asked dude, ‘Why don’t you sell me something?’ He said he
        didn’t sell dope. I asked him why he would walk out of his house every
        day and not speak to me, why he didn’t show me any respect? He
        said he didn’t have to listen to me and that he was going in his house
        and going to bed. I told him he was going to regret disrespecting me.

        I went into my house. I knew that his wife wasn’t at home yet. I knew
        that she would come in sooner or later. I got my shotgun from my
        bedroom. I loaded two shells into it. I sat in my living room waiting to


        3
         Angela Raglan d testified tha t neither the steak k nife nor the butche r knife be longed to
her or her husband.

                                                   7
hear her pull up.

I heard his wife and someone else pull up, but I missed them. They
went in the house and locked the door behind them, I assumed.

I heard someone go out to the car. I looked out and it was his wife.
When she opened the door, I got behind her with the shotgun. I
pointed it at her and walked in behind her. A young girl was on the
couch. I told her to get up. I told them to walk on back to the
bedroom. They went into the bedroom and got onto the bed. The
girl’s husband was lying on the bed. I told him to give me the dope.
He said he didn’t have any. I fired the shotgun into the floor. He rolled
off the bed. I asked him again for the dope. He said he didn’t have
any. He asked me if I wanted money. I told him, ‘No, I don’t want your
money.’

I picked a pillow up off of the bed and put it over the barrel of the
shotgun and I shot him. The girls were on the bed under a blanket or
something. I tried to put the young girl in the closet. She started
acting crazy. We were in the hallway. She picked up a knife from
somewhere. We struggled from the hallway into the front room. We
wrestled on the couch. I took the knife from her. I laid the shotgun on
the couch. I stabbed her down low with the knife. I hit her with my
hand. I think I broke my finger. I can’t raise it back up.

Before the struggle with the young girl, I had put her in the hall closet. I
took the dude’s wife into the other bedroom. I had her tied down on
the big bed to the right as you walk into the bedroom. I used a black
belt and some type of material to tie her hands and feet. It was dark in
the room.

I went to the closet and got the young girl out. That’s when she started
to struggle and acting crazy, as I explained earlier. My intentions for
getting her out of the closet was to tie her up, but she got to struggling
and got the knife. After I stabbed her and she was lying there on the
couch, I went and got a blanket that was already in the living room. I
covered the young girl up. The dude’s wife didn’t want to see her.

I went into the bedroom and untied the other girl and we talked. We
talked in the bedroom for a while. I told her I wanted to take a bath.
We went into the bathroom. I undressed by taking off my pants and
shirt. . . . I got in the tub and I told her to take my shorts off of me.
She did. She gave me a bath. I held a gun in my hand.

We went back to the bedroom. I dried off with a sheet. I asked her if
she had anything to eat. She fixed me a sandwich and Kool-Aid. I ate
and then I laid the shotgun on the other bed and we had sex. We had
sex three or four times. She gave me oral sex. I took the mattress off
the other bed and put it up against the window because of the light
coming through. She didn’t act afraid.

About 6 or 7 this morning I told her I was going to let her go. I told her
not to try and make a story up, just do what she was supposed to do.

I put my clothes in a plastic bag and took them home. I put the bag in
the trash can in the bedroom where my dope was. I put the shotgun
up under the chest of drawers in my bedroom.


                                   8
      Dr. O.C. Smith, the Deputy Chief Medical Examiner for Western Tennessee,

performed the autopsies on the bodies of Charles Ragland and Erica Hurd. Dr.

Smith concluded:

      Mr. Ragland died as a result of a shotgun wound to the head. The
      wound was sufficiently characteristic to indicate that there was a
      presence of an intermediate target between the muzzle of the weapon
      and his head at the time the shot was fired. . . . The entire top of the
      head was damaged by fractures and a large amount of the contents of
      the head were absent. . . . Death for all intents and purposes would be
      instantaneous because the brain is destroyed . . . .

Smith also testified that Charles Ragland had a blood alcohol level of .06 at the time

of death. A drug screen performed on the deceased’s body was negative.



      After examining the body of Erica Hurd, Dr. Smith determined:

      Ms. Hurd died as a result of multiple injuries, primarily stab wounds,
      both before and after death and a blunt trauma to the head, or blows
      to the head, that produced skin tears, skull fractures and damage to
      the brain. . . . In this case cause of death would be blunt trauma to the
      head and stab wounds to the chest.
      ...
      In the conduct of the autopsy, wounds were found that were inflicted
      during life, stab wounds were found that were inflicted after death.
      She was alive at the time her skull was fractured and she was alive at
      the time that many of the stab wounds were received, but of the stab
      wounds received during life only one would be sufficiently life
      threatening.

He continued to explain that Ms. Hurd had sustained thirty-seven stab wounds

within a fifteen to twenty minute period. Twenty-three of these wounds were

sustained prior to death, while fourteen were post-mortem. Twenty-five of the

wounds were to the neck and the face area. Dr. Smith testified:

      [t]he number of superficial wounds and the location . . . does indicate
      that there may be some circumstances of the assault that have not yet
      come to life, but what they imply is the sites of selection are head,
      neck, chest, and back. These are vital target areas. . . . a lot of them
      just could be inflicted with the point or the tip of the knife and what
      their purpose is is not exactly clear and I cannot state with a medical
      certainty what their intent is, but this is seen in instances where an
      element of control may be attempted or in assaults in which an
      element of torment is present.

Additionally, Dr. Smith opined that the force used upon the victim was so great that it

caused the blades of the steak knife and the butcher knife to bend upon striking the

                                        9
bone. Dr. Smith also explained that he had to perform a alcohol content analysis

upon the victim’s urine as there was not enough blood left in the body to perform the

test.



        In addition to the State’s proof, the appellant introduced evidence that, on

September 16, 1994, around 5:15 p.m., the appellant was at his brother’s house

with Darryl Godwin. Russell Morris, the appellant’s brother, testified that the

appellant and Godwin were sitting in a car outside of his house smoking crack

cocaine. Both men appeared intoxicated. Russell Morris also related that his

brother informed him that he had already spent $200 on crack cocaine and was

going to buy some more crack. Morris stated that his brother left around 5:30 p.m.



        To explain the effects of crack cocaine, the defense introduced the testimony

of Dr. Robert Parker, a doctor of pharmacology at the University of Tennessee, and

Dr. William Bernet, the medical director of the Psychiatric Hospital at Vanderbilt

University. Specifically, Dr. Parker testified:

        Crack cocaine is a purified form of cocaine that is typically smoked,
        usually in a small pipe. . . . It’s a very purified form of the drug and it
        has very powerful effects. . . .
        ...
        The acute effects . . . occur within ten or fifteen seconds after they’ve
        smoked the drug and the primary effect is an intense - - what’s called
        ‘euphoria’, or high, that they experience with the drug.

        In addition to that euphoria, they may experience a number of other
        symptoms as well. Particularly, they become very excited, they may
        talk very rapidly, they may sweat a lot, they can become suspicious,
        they can become paranoid, they lose some of their inhibitions, their
        judgment is impaired and it can also lead to enhanced sexual drive
        and sexual performance as well.

        The euphoria, or the high, usually only lasts anywhere from ten or
        fifteen, maybe up to thirty minutes. The other effects, however, can
        persist longer.
        ...
        . . .Most users of crack cocaine. . . ingest a number of rocks over a
        period of time in what’s called a “cocaine run” or a “cocaine binge.”
        What they’re trying to do is they’re trying to maintain their high. As I
        said earlier, the high doesn’t last very long, ten to fifteen, maybe thirty
        minutes. When they go on these runs or binges, they’ll usually
        continue to use drugs until they don’t have any more. . . .[T]he
        euphoric effects are diminished, they can’t ever achieve the high that

                                           10
      they got with that first dose and a lot of the euphoric effects, or the
      high, is replaced by feelings of intense anxiety and irritability,
      tremendous fear, suspiciousness, paranoia.

      Again, their judgment can be impaired, there’s an increased risk of
      violent or homicidal behavior, and, again, these effects can persist
      long after the high is gone. They also can experience delusions,
      again, as mentioned earlier, paranoia, fear, and they can even have
      hallucinations as well during these runs or binges.
      ...
      In general, the larger the dose and the longer the duration that
      someone uses the drug in one of these runs, the more intense these
      symptoms are going to be and the longer that they’re going to last after
      they stop using the drug.

      It can cause mania. . . . Mania is a state of heightened, both mental,
      as well as physical, activity. Typically, the individuals would be moving
      around a lot, they can’t sit still, their thoughts are racing . . . .

      Psychosis can also occur with these runs or binges. . . . Psychosis is
      when one sort of loses their concept, or idea, of what reality is so
      they’re not able to perceive reality essentially.

      When they stop using the drug, they’ll usually go into what’s called the
      “crash phase,” or an acute withdrawal phase. And this is generally
      characterized first by an intense craving for using more cocaine.
      That’s their primary objective, to try to obtain more drugs. In addition
      to that, these feelings of intense cocaine craving are accompanied by
      profound depression and exhaustion, suicidal thoughts. They can also
      be accompanied by paranoia or feeling that someone is out to get
      them, as well as exhaustion and fatigue, extreme anxiety and
      irritability.

      [The crash phase] can last up to four days and that is going to be
      dependent on how long they’ve been using drugs before that and how
      much they used. Essentially, the more you use and the longer you
      use it, the longer this crash phase would last, but its described in the
      literature to last up to four days.


        Dr. Parker estimated that, in 1994, $250 worth of crack cocaine would be

“anywhere from 100 to maybe 200 of the individual rocks of cocaine. . . .” Moreover,

Dr. Parker concluded that the statement provided by the appellant, Mrs. Ragland’s

testimony, and the police reports of the double murder “were consistent with the

ingestion of cocaine.”



      Dr. Bernet, forensic psychiatrist, evaluated the appellant, which included

interviewing the appellant in prison and reviewing various documents. Based on the

information obtained during the evaluation process, Dr. Bernet concluded that, prior


                                        11
to the September 1994 accusation of rape, the appellant had a fairly stable life. Dr.

Bernet surmised that, because of the extreme disturbance caused by the rape

accusation, the appellant became suicidal and began using crack cocaine. On the

date of the murders, the appellant’s cocaine ingestion combined with the stress of

the rape accusation caused the appellant to “becom[e] paranoid and agitated and

delusional.” He concluded that, at the time the appellant entered the Raglands'

duplex, “the cocaine intoxication affected him mentally and it may have prevented

him from forming the intent to murder [Charles] Ragland.” Likewise, Dr. Bernet

concluded that “[the appellant] may have lacked the specific intent [for premeditation

regarding Erica Hurd.]” Finally, Dr. Bernet testified that it was his opinion that “a

combination of everything . . . the accusation of rape, the tremendous stress and

troubles with his family, with his wife and his children, and then feeling suicidal, and

then the large amount of cocaine. I think all of these together create an enormous

amount of mental stress” and that the appellant’s ingestion of such a large amount

of cocaine “affected his judgment and his ability to inhibit himself, his impulses, and

created confusion.”



       No further proof was introduced at the guilt phase. The jury was instructed as

to the applicable law and, following deliberation, found the appellant guilty of the

premeditated first degree murders of Charles Ragland and Erica Hurd and the

aggravated rape of Angela Ragland.



                                   B. Penalty Phase

       At the sentencing phase of the trial, the State recalled Dr. O.C. Smith as a

witness. Again, through the use of numerous photographs and a mannequin, Dr.

Smith described the wounds inflicted upon Erica Hurd. When the State posed the

hypothetical question of whether this murder was “especially heinous, atrocious or

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

produce death,” Dr. Smith responded that the numerous stab wounds would have


                                         12
been painful and that the stab wounds involving injury to the bones would cause

severe pain, particularly those wounds injuring the ribs, the lungs, and the spine. He

explained that

      . . . there are certain patterns or characteristics of injuries that may
      imply some certain circumstances. In Erica Hurd’s case, first the
      wounds are intentional. These are not the type wounds one gets from
      an accident. These wounds are very magnitude. [sic]. The ones
      during life, some are severe and some are very superficial. They are
      in areas that may be targeted, the face, the head, the chest, the back,
      showing sites of selection, as opposed to a random pattern of
      distribution. That may imply an element of control. . . or it may imply
      an element of torment by being very superficial in nature.

This concluded the State’s proof at the penalty phase.



       The appellant presented numerous character witnesses to testify on his

behalf. Mickey Granger, the funeral director of Griffin Funeral Home and a former

employer of the appellant, stated that “Farris was a good employee, very

dependable.” Mr. Granger explained that, when the appellant was accused of rape

in September 1994, he began to notice a “downward slide as far as [the appellant’s]

work and performance.” Granger eventually became aware of the appellant’s drug

problem when he found evidence at work, i.e., a Coke can with little holes punched

in it, an item commonly converted into a crude crack pipe. Jack Thomas, a friend of

the appellant, testified that he visited with the appellant at Northwest Correction

Center. During this visit, the appellant admitted responsibility for the deaths of both

Charles Ragland and Erica Hurd and, although he denied that he raped Angela

Ragland, he admitted to having sex with her. The appellant explained to Thomas

that he had ingested a large amount of cocaine that night in an effort to overdose.

He let Angela go because “reality had come on him.” In addition to this testimony,

numerous teachers and employees at Northwest Correction Center testified that the

appellant is a good student, that he participates in class and is punctual, and that he

helps other inmates, studies frequently in the library, and uses the available

reference materials including the encyclopedias and dictionaries.




                                         13
      The appellant elected not to testify and no further proof was presented.

Closing arguments were heard and the jury was instructed on the following statutory

aggravating factors:



      With regard to the murder of Charles Ragland:

       (1) That the defendant knowingly created a great risk of death to two
       or more persons other than the victim murdered during the act of the
       murder; and

       (3) The murder was committed while the defendant was engaged in
       committing or was an accomplice in the commission of or was
       attempting to commit or was fleeing after having committed or
       attempted to commit any first degree murder, rape, burglary or
       kidnapping.

       With regard to the murder of Erica Hurd:

       (2) The murder was especially heinous, atrocious or cruel in that it
       involved torture or serious physical abuse beyond that necessary to
       produce death; and

       (3) The murder was committed while the defendant was engaged in
       committing or was an accomplice in the commission of or was
       attempting to commit or was fleeing after committing or attempting to
       commit any first degree murder, rape, burglary or kidnapping.

The jury was also instructed that it should consider the following mitigating

circumstances:

       (1) The murder was committed while the defendant was under the
       influence of extreme mental or emotional disturbance;

       (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 or
       intoxication which was insufficient to establish a defense to the crime,
       but which substantially affected his judgment;

       (3) The defendant was a good worker and employee at Ridgecrest
       Cemetery, performing his duties at work well and faithfully;

       (4) The defendant surrendered to the authorities peacefully, without
       resistance, and did not attempt to leave the area to avoid arrest, but
       rather, went home to tell his family goodbye;

       (5) The defendant cooperated with the police investigators, giving a
       full confession;

       (6) The defendant has acknowledged and never denied his
       responsibility for these crimes;

       (7) The crimes committed were out of character for this defendant;

                                        14
       (8) The defendant can adapt well to a correctional setting if he is
       ordered to serve a sentence of life or life without parole;




       (9) The defendant changed his behavior and exhibited remorse and
       mercy toward the victim, Angela Ragland. He left the premises,
       allowing her to live and allowing her to go free knowing she was the
       only witness to the crime and that she could identify him and testify
       against him;

       (10) Any other mitigating factor which is raised by the evidence,
       produced by either the prosecution or defense at either the guilt or
       sentencing hearing; that is, you shall consider any aspect of the
       defendant’s character or record or any aspect of the circumstances of
       the offense favorable to the defendant which is supported by the
       evidence.


       Following submission of the instructions, the jury retired to consider their

verdict. After a little over five hours of deliberations, the jury returned a verdict

recommending a sentence of life imprisonment without the possibility of parole for

the murder of Charles Ragland. Specifically, the jury found that the State had

proven the two instructed aggravating circumstances beyond a reasonable doubt,

however, they found that the aggravating circumstances did not outweigh any

mitigating circumstances beyond a reasonable doubt. As to the murder of Erica

Hurd, the jury again found that the State had proven the two submitted aggravating

circumstances beyond a reasonable doubt and that the aggravating circumstances

outweighed the mitigating circumstances beyond a reasonable doubt. In

accordance with their verdict, the jury sentenced the appellant to death by

electrocution for the murder of Erica Hurd and fixed the appellant’s punishment for

the murder of Charles Ragland at life without the possibility of parole.



       At a separate sentencing hearing on March 11, 1997, the trial court

sentenced the appellant to twenty-five years incarceration for the aggravated rape of

Angela Ragland. The court ordered this sentence to run consecutive to the

sentence of life without parole. These sentences were ordered to be served

concurrent to the appellant’s sentence of death by electrocution. As the basis for its

                                          15
decision, the trial court found that the appellant had a previous history of criminal

convictions, that the appellant allowed the victim to be treated with exceptional

cruelty, that the appellant has a previous history of unwillingness to comply with a

condition of release into the community, and that the felony was committed while on

bail or probation. The court found no significant evidence in mitigation.

Furthermore, the court imposed consecutive sentences finding the appellant to be a

dangerous offender with little regard for human life and little hesitation about

committing an offense when the risk to human life was high and because he

committed these offenses while on probation.




                                I. Motion to Suppress



       Nine hours after his arrest on September 17, 1994, the appellant executed a

written waiver of his Miranda rights and provided law enforcement officers a

complete statement of his involvement in the deaths of Charles Ragland and Erica

Hurd and the aggravated rape of Angela Ragland. See supra. Prior to trial, the

appellant filed a motion to suppress this statement alleging that the statement was

not knowingly and voluntarily given due to the fact that he was under the influence of

crack cocaine. A hearing on the motion was heard on September 10, 1996.



       The evidence at the suppression motion revealed that the appellant had been

smoking crack cocaine on the evening of Friday, September 16, 1994. Russell

Morris, the appellant’s brother, verified that, when he saw the appellant at 5:30 p.m.

that evening, the appellant had informed him that he had spent $200 on crack

cocaine and was going to obtain more. He also testified that the appellant appeared

to be intoxicated. Next, the defense attempted to call the victim, Angela Ragland, to

the stand to testify regarding the appellant’s appearance and actions during the

commission of these offenses. The State objected on the basis that Angela


                                         16
Ragland was not “in any position to know anything about the condition that [the

appellant] was in at the time that the statement was given.” The trial court sustained

the State’s objection on the same ground, expressly finding that Ms. Ragland had no

knowledge of the appellant’s state of mind or whether he was under the influence of

cocaine when he gave his statement some fourteen hours after he committed these

offenses.



         Dr. Robert Parker was called as an expert witness on the effects of crack

cocaine on the human body. See supra. Specifically, Dr. Parker testified that

mania was present during the “crash phase” when the appellant’s statement was

given. He explained that, during the “crash phase,” one’s judgment was impaired

and usually was accompanied with confusion and suicidal thoughts. Moreover,

“crash phase” symptoms could cause one not to care about or understand the

consequences of their actions.



         At the conclusion of Dr. Parker’s testimony, the defense again attempted to

introduce the testimony of Angela Ragland. However, the trial court refused to

admit such testimony finding that “there’s been no proof here presented,

notwithstanding the use of cocaine, that he, because of the ingestion of cocaine,

didn’t understand what he was doing when he gave his statement. There’s been no

proof of that.”4



         The defense then offered to call the appellant to testify regarding “how [the

drugs] affected his body, . . . the way he was . . . acting, how he was feeling about

those things at the time he gave his statement and before that.” Defense counsel

asked the court to limit the examination of the appellant to these matters and to


         4
          At the co nclusion of the app ellant’s proo f, the trial court p erm itted defen se cou nsel to
make an offer of proof regarding the proffered testimony of Angela Ragland. Specifically, defense
cou nse l state d tha t Ang ela R aglan d wo uld te stify tha t she obse rved the a ppe llant s wea ting a nd in
an agitated state, talking and moving at a rapid pace, and looking for drugs when he came to her
resid enc e. De fens e cou nse l cont end ed th at this testim ony w as c orro bora tive of Dr. P arke r’s
testimony regarding the effects of crack cocaine on a person.

                                                      17
prohibit questioning as to the “facts of what happened on this alleged incident about

the killings.” The trial court refused this request, finding that there was no reason to

prohibit the State from eliciting the contents of the statement on cross-examination

and how it “reflects the truth of what occurred.” Moreover, the trial court concluded

that the appellant “can’t exercise [his] Fifth Amendment privilege on examination of

things which are relative to the things that he said . . . .” After this ruling, the

defense elected not to call the appellant to the stand.5



         The defense next called Officer James Golden to the stand. Officer Golden

testified that he first encountered the appellant between 8:30 and 9:00 a.m. on the

morning of September 17, 1994. At this time, the appellant “appeared normal to

[him].” Later that afternoon, approximately 5:20 p.m., Golden, accompanied by

Officer Willis, advised the appellant of his Miranda rights, witnessed the appellant

waive these rights, and proceeded to obtain a confession from the appellant.

Investigator Golden testified that, at the time the statement was obtained, the

appellant did not appear to be under the influence of crack cocaine.



        No further proof was presented. Based on this evidence, the trial court

denied the appellant’s motion to suppress. The trial court stated:

        . . . The basic premise here is that when he gave the statement, that
        statement was not the product of a free mind and rational intellect.
        ...
        . . . The only proof that we have is from Officer Golden who said he
        was normal.
        ...
        Now to adopt your idea, I would have to say that the rule of law is that
        you could prove that a person has had drugs. There’s an inference
        that he didn’t know - - that he couldn’t give a rational statement. There
        is no such inference that’s drawn from the proof that a person has
        used drugs that they can’t give a good statement. You’ve got to first
        give me some proof that he didn’t give a good statement.


        5
         At this point a t the supp ression hearing, th e defen se did m ake an offer of p roof relative to
the appellant’s anticipated testimony. Specifically, the proof would show that the appellant and
Darryl Godwin purchased $250 worth of crack cocaine on September 16, 1994. Later that same
day, the appellant purchased an additional $200-$250 worth of crack cocaine. The appellant
con sum ed th e ent ire am oun t of cr ack coc aine, with h is coc aine b inge e nding at ap prox ima tely
11:00 p.m. The appellant would further allege that he was in the “crash phase” at the time he
gave his statement to the police.

                                                   18
       ...
       . . . Well, what you’ve done is given me the corroborative proof, but
       you don’t have any proof - - You have zero proof that the statement . .
       . was the product of an irrational mind. You have zero proof of that.



       The appellant now contests the ruling of the trial court arguing (1) that the trial

court erred in refusing to permit Angela Ragland to testify at the hearing and (2) that

the testimony of Dr. Parker was sufficient to show that the appellant was in the

“crash phase” of cocaine intoxication, suffering from impaired judgment, confusion,

and suicidal thoughts, at the time his statement was given to the police.



                                        Analysis

       The trial court's determination that a confession has been given voluntarily

and without coercion is binding upon the appellate court unless the evidence

preponderates against the ruling. See State v. Odom, 928 S.W.2d 18, 22

(Tenn.1996); State v. Stephenson, 878 S.W.2d 530, 544 (Tenn.), reh’g denied,

(1994). Under this standard, matters regarding the credibility of witnesses, the

weight and value to be afforded the evidence, and resolution of conflicts in the

evidence are matters entrusted to the trial court as the trier of fact. Odom, 928

S.W.2d at 23. On appeal, the appellant bears the burden of demonstrating that the

evidence preponderates against the trial court's findings. See State v. Tate, No.

02C01-9605-CR-00164 (Tenn. Crim. App. at Jackson, Dec. 3, 1997), perm. to

appeal denied, (Tenn. Oct. 5, 1998) (citation omitted).



       The law in this state is well-established that “[t]he ingestion of drugs and

alcohol does not in and of itself render any subsequent confession involuntary.”

See State v. Robinson, 622 S.W.2d 62, 67 (Tenn. Crim. App. 1980), cert. denied,

454 U.S. 1096, 102 S.Ct. 667 (1981); see also State v. Beasley, No. 03C01-9509-

CR-00268 (Tenn. Crim. App. at Knoxville, Oct. 10, 1996), reh’g denied, (Sept. 15,

1997), perm. to appeal denied, (Tenn. Apr. 27, 1998); State v. Teeters, No. 02C01-

9304-CC-0051 (Tenn. Crim. App. at Jackson, Feb. 2, 1994). “It is only when an

                                         19
accused’s faculties are so impaired that the confession cannot be considered the

product of a free mind and rational intellect that it should be suppressed.”

Robinson, 622 S.W.2d at 67 (citing Lowe v. State, 584 S.W.2d 239 (Tenn. Crim.

App. 1979)). The test to be applied in these cases is whether, at the time of the

statement, the accused was capable of making a narrative of past events or of

stating his own participation in the crime. Beasley, No. 03C01- 9509-CR-00268

(citations omitted).



       In the present case, the defense presented the testimony of Officer Golden

who stated that, at the time the appellant’s statement was obtained, the appellant

was acting normal, was calm, and did not appear to be under the influence of

cocaine. He further testified that the appellant provided a complete narrative of the

events surrounding the double homicides/aggravated rape. No proof was presented

to rebut this observation other than the expert testimony of Dr. Parker whose

testimony was limited to the general effects of cocaine intoxication and not those

effects actually experienced by the appellant. Indeed, we find no proof that

preponderates against the trial court’s finding that the appellant made a voluntary

and knowing statement to law enforcement officials.



       Moreover, we conclude that the trial court properly prohibited the defense

from calling Angela Ragland to the stand. Per the appellant’s offer of proof, Angela

Ragland would only have been able to testify about the appellant’s state of mind and

physical condition during the actual perpetration of the crimes, which was not at

issue at the suppression hearing. There is no dispute that the appellant had

ingested a large amount of crack cocaine the prior evening and was intoxicated at

the time the crimes were committed. However, Ms. Ragland was not present at the

time the appellant’s statement was given, some fourteen hours after the crimes

occurred, and, therefore, could not testify regarding his demeanor during the police

interview, i.e., the issue at the suppression hearing. See Tenn. R. Evid. 402 and


                                        20
602. Accordingly, the motion to suppress was properly denied. This issue is without

merit.




                               II. Witherspoon Violations



         The appellant next contends that the jury selection process in his capital trial

violated Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770 (1968). Specifically, he

argues that the statements of two of the prospective jurors, Barbara Brooks and

Dennis Spellings, concerning the death penalty did not justify their excusal for

cause.



         “The right to trial by jury secured by our state and federal constitutions

necessarily contemplates that the jury will be unbiased and impartial.” See Wolf v.

Sundquist, 955 S.W.2d 626, 629 (Tenn. App.), perm. to appeal denied, (Tenn.

1997) (citing Thiel v. Southern Pacific Co., 328 U.S. 217, 220, 66 S.Ct. 984, 985

(1946); Ricketts v. Carter, 918 S.W.2d 419, 421 (Tenn. 1996); Durham v. State, 188

S.W.2d 555, 558 (Tenn. 1945)). “In its constitutional sense, impartiality envisions

not only freedom from jury bias against the defendant but also freedom from jury

bias in the defendant’s favor.” Id. (citing Swain v. Alabama, 380 U.S. 202, 219-20,

85 S.Ct. 824, 835 (1965); Hayes v. Missouri, 120 U.S. 68, 70-71, 7 S.Ct. 350, 351

(1887); Houston v. State, 593 S.W.2d 267, 272 (Tenn. 1980), rev’d on other

grounds, State v. Brown, 836 S.W.2d 530, 543 (Tenn. 1992); Toombs v. State, 270

S.W.2d 649, 650 (Tenn. 1954)). Essentially, an impartial juror is one who is free

from personal bias or prejudice and will find the facts and apply them to the law.

See Wolf v. Sundquist, 955 S.W.2d at 629; see also Buchanan v. Kentucky, 483

U.S. 402, 417, 107 S.Ct. 2907, 2914 (1987); Wainwright v. Witt, 469 U.S. 412, 423,

105 S.Ct. 844, 851-52 (1985); Eason v. State, 65 Tenn. 466, 469 (1873).




                                           21
       To ensure an impartial jury, the Tennessee Supreme Court has adopted the

rationale of the United States Supreme Court in determining the eligibility of

prospective jurors in a capital case. In Witherspoon v. Illinois, the Supreme Court

held that a prospective juror may be excluded for cause because of his or her views

on capital punishment. This standard was clarified in Wainwright v. Witt, 469 U.S. at

424, 105 S.Ct. at 852:

       That standard is whether the juror’s views would ‘prevent or
       substantially impair the performance of his duties as a juror in
       accordance with his instructions and his oath.’ We note that, in
       addition to dispensing with Witherspoon’s reference to “automatic
       decision making,” this standard likewise does not require that a juror’s
       bias be proved with “unmistakable clarity.”

See also State v. Alley, 776 S.W.2d 506 (Tenn. 1989), cert. denied, 493 U.S. 1036,

110 S.Ct 758 (1990); State v. Williams, 690 S.W.2d 517, 522 (Tenn. 1985). The

Supreme Court also acknowledged that the questions asked and answered during

the voir dire process do not always reveal a juror’s bias with absolute certainty;

“however, there will be situations where the trial judge is left with the definite

impression that a prospective juror would be unable to faithfully and impartially apply

the law.” See Wainwright v. Witt, 469 U.S. at 425- 26, 105 S.Ct. at 853. Therefore,

“deference must be paid to the trial judge who sees and hears the juror.” Id.

Indeed, in State v. Alley, our supreme court held that “the trial court’s finding of bias

of a juror because of his views of capital punishment shall be accorded a

presumption of correctness and the burden shall rest upon the appellant to establish

by convincing evidence that determination was erroneous.” Alley, 776 S.W.2d at

518; see also Adams v. Texas, 448 U.S. 38, 100 S.Ct. 2521 (1980).



                            A. Prospective Juror Brooks

       During individual voir dire, Barbara Brooks was called as a potential juror.

When asked by District Attorney General Woodall whether she could impose the

death penalty in this case, Ms. Brooks responded that she could not do so for

religious reasons. Despite further questioning by General Woodall, Ms. Brooks

maintained that she did not believe in the death penalty and that she could not and

                                          22
would not impose such a sentence.



       The trial court, as well, questioned Ms. Brooks regarding whether she could

impose the death penalty. In response to the court’s questioning, she again stated

that she could not impose the death penalty no matter what the crime was because

she does not “believe that a person’s life should be taken because of it.” She further

admitted that “the death penalty is out of the question for [her]” and she would never

consider imposing the death penalty on the appellant or anyone else.



       Defense counsel, in an attempt to rehabilitate Ms. Brooks, asked her whether

she could fairly consider the aggravating and mitigating circumstances and keep an

open mind as to the three possibilities for sentencing in this case, to which Ms.

Brooks responded affirmatively. The court again questioned Ms. Brooks as to

whether she could impose the death penalty if it was called for by the law and the

facts. Although Ms. Brooks responded that she could consider the sentence of life

without the possibility of parole and that she could hear the evidence, she stated “I

don’t think I could be fair at that because of the death penalty . . . the only thing that

hinders me is when you said death penalty. That’s where it stops with me.”



       Despite this statement, defense counsel was again able to illicit answers from

Ms. Brooks that raised concern as to her position on the death penalty. As a result,

the trial court instructed Ms. Brooks to “just say how you feel.” After further

equivocation by the prospective juror, the trial court asked her point blank if the

death penalty was out; she responded, “Forget it.”



       At that point, the State challenged Barbara Brooks for cause and the court

sustained the challenge finding:

       . . . I finally put it to her as blank, I said, “The death penalty is out?”
       She said, “The death penalty is out, the death penalty is out. I will not
       impose it” and she said it multiple, multiple times.


                                          23
      Although Ms. Brooks' position on the death penalty was ambiguous at certain

times during her voir dire examination, we can reach no rational conclusion other

than finding that Ms. Brooks had a definite opposition to imposing the death penalty.

Giving deference to the trial court who was able to observe this prospective juror,

we conclude that the constitutional standard for excusing jurors due to their views on

the death penalty was met.



                                B. Dennis Spellings

      Later that same day, Dennis Spellings was called for individual voir dire. The

following dialogue occurred between Mr. Spellings and General Woodall:

      GENERAL WOODALL: . . . Can you fairly consider the death
      penalty along with other forms of punishment?

      MR. SPELLINGS: That’s a tough question.

      GENERAL WOODALL: As it should be. . . . [T]he law in the State of
      Tennessee is if the aggravating circumstances . . . outweigh the
      mitigating circumstances, you shall impose the death penalty. Can
      you do that or do you have personal convictions or religious
      convictions that would prevent you from doing it?

      MR. SPELLINGS: It’s a tough question to ask straight forward. I
      really don’t have an answer.
      ...
      GENERAL WOODALL: Well, can you make that decision? Do you
      think that you could vote to impose the death penalty?

      MR. SPELLINGS: Honestly I don’t.

      GENERAL WOODALL: Are you saying you don’t think you could or
      maybe you could or you just don’t know?

      MR. SPELLINGS: When we’re talking about when push comes to
      shove, I don’t know.

      GENERAL WOODALL: . . . So are you saying you don’t know whether
      you could or you won’t?

      MR. SPELLINGS: I don’t know.


       Defense counsel also attempted to elicit a definite position from Mr.

Spellings, but was unsuccessful. The trial court interrupted and asked Mr. Spellings,

“After you hear all the proof, then you could make a decision as to whether or not

death should apply?” Mr. Spellings responded, “I’ll be honest with you. I’d rather

                                        24
not make that decision.” During the court’s discourse with Mr. Spellings, Mr.

Spellings replied, at one point, that he could follow the law as instructed by the

court, but later admitted that “he did not know” if he could follow the law as related to

the death penalty.



       The State challenged Mr. Spellings for cause, relying on Mr. Spellings

admission that he did not know whether he would follow the law. The trial court

sustained the challenge, explicitly finding:

       This is the first time we’ve run into this where a person just . . . won’t
       answer the question or he feels like he can’t answer the question. As I
       interpret the law that means that we have to get commitment from a
       juror that they would follow the law and that they would consider the
       death penalty under certain circumstances. I don’t think that a juror is
       disqualified if they just continue to persistently say, “I don’t know what I
       would do.” That’s like a juror who’s really saying - - will you affirm to
       uphold the law and he would say, “Well, I just can’t answer that.” If
       you had a juror and you put him in the box and you say “Do you swear
       to tell the truth?” and he says, “I can’t say whether I will or not,” you
       wouldn’t let him testify. It takes an affirmative statement by a juror that
       he would consider all the penalties. . . and would not exclude the death
       penalty as a possibility. I think the statements by this juror render him
       unqualified to served on the jury.

       Again, this court gives deference to the decision of the trial court who was

able to observe the prospective juror. The record demonstrates that Mr. Spellings

could not state with certainty that he could perform his duties as a juror in

accordance with his oath. Accordingly, the trial court properly excused this juror for

cause. This issue is without merit.




                           III. Sufficiency of the Evidence



       The appellant asserts that the evidence adduced at trial is insufficient as a

matter of law to sustain the jury verdicts returned in both the guilt and penalty

phases of his trial. Specifically, the appellant argues that the evidence presented

fails to establish, beyond a reasonable doubt, the requisite element of premeditation



                                         25
necessary to sustain his convictions for first degree murder. 6 Additionally, the

appellant argues that the evidence does not support the jury’s finding that the

murder of Erica Hurd was “heinous, atrocious or cruel” or that the murder occurred




while the appellant was “engaged in committing or attempting to commit any first

degree murder, rape, burglary, or kidnapping.”



         When there is a challenge to the sufficiency of the convicting evidence, this

court must review the evidence in the light most favorable to the prosecution and

determine whether “any rational trier of fact could have found the essential elements

of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319,

99 S.Ct. 2781, 2789 (1979); State v. Cazes, 875 S.W.2d 253, 259 (Tenn. 1994),

cert. denied, 513 U.S. 1086, 115 S.Ct. 743 (1995); Tenn. R. App. P. 13(e). We do

not reweigh or reevaluate the evidence; these are issues resolved by the trier of

fact. State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). Furthermore, a guilty

verdict accredits the testimony of witnesses for the State, and a presumption of guilt

replaces the presumption of innocence. State v. Grace, 493 S.W.2d 474, 476

(Tenn. 1973). On appeal, the State is entitled to the strongest legitimate view of the

evidence and all reasonable inferences that may be drawn therefrom. State v.

Harris, 839 S.W.2d 54, 75 (Tenn. 1992), cert. denied, 507 U.S. 954, 113 S.Ct. 1368

(1993). The appellant bears the burden of proving that the evidence was insufficient

to support the jury verdict in his case. State v. Tuggle, 639 S.W.2d 913, 914 (Tenn.

1982).



                                         A. Guilt Phase




         6
         The appellant does not contest the sufficiency of the evidence regarding his conviction
for the aggravated rape of Angela Ragland.

                                                26
        Once a homicide has been proven, it is presumed to be second degree

murder, and the State has the burden of establishing first degree murder. Brown,

836 S.W.2d at 543. First degree murder not committed in the perpetration of a

statutorily designated crime requires the “intentional, premeditated and deliberate

killing of another.” Tenn. Code Ann. § 39-13-202 (a)(1) (1994 Supp.).7 Thus, the

State must prove premeditation and deliberation to raise the offense to first degree

murder. Brown, 836 S.W.2d at 543.



        Premeditation necessitates “a previously formed design or intent to kill,” State

v. West, 844 S.W.2d 144, 147 (Tenn. 1992), and “the exercise of reflection and

judgment,” Tenn. Code Ann. § 39-13-201(b)(2) (1991). Deliberation requires a

“cool purpose . . . formed in the absence of passion or provocation.” Brown, 836

S.W.2d at 538 (citations and internal quotations omitted); Tenn. Code Ann. § 39-13-

201(b)(1); Sentencing Commission Comments, Tenn. Code Ann. § 39-13-201.

Deliberation also requires “some period of reflection during which the mind is free

from the influence of excitement.” Brown, 836 S.W.2d at 538; see also Tenn. Code

Ann. § 39-13-201(b)(2).



        Again, although the jury may not engage in speculation, State v. Bordis, 905

S.W.2d 214, 222 (Tenn. Crim. App.), perm. to appeal denied, (Tenn. 1995), the jury

may infer premeditation and deliberation from the circumstances surrounding the

killing. State v. Gentry, 881 S.W.2d 1, 3 (Tenn. Crim. App. 1993), perm. to appeal

denied, (Tenn. 1994); Taylor v. State, 506 S.W.2d 175, 178 (Tenn. Crim. App.

1973). Our supreme court has delineated several circumstances that may be

indicative of premeditation and deliberation, including the use of a deadly weapon

upon an unarmed victim, the fact that the killing was particularly cruel, declarations

by the defendant of his intent to kill the victim, the making of preparations before the



        7
        Effective July 1, 1995 , “deliberation ” is no longe r an elem ent of first de gree m urder. See
Tenn. Code A nn. § 39-13-202(a)(1) (1995 Su pp.).

                                                  27
killing for the purpose of concealing the crime, and calmness immediately after the

killing. See State v. Bland, 958 S.W.2d 651, 660 (Tenn. 1997), cert. denied, --

U.S.--, 118 S.Ct. 1536 (1998) (citing Brown, 836 S.W.2d at 541-42; West, 844

S.W.2d at 148). This court has also recognized several factors from which the jury

may infer the two elements, including planning activity by the defendant before the

killing, evidence concerning the defendant’s motive, and the nature of the killing.



Bordis, 905 S.W.2d at 222 (quoting 2 W. LaFave and A. Scott, Jr., Substantive

Criminal Law § 7.7. (1986)).



       The evidence, in the light most favorable to the State, reveals that the

appellant lived in the duplex adjoining that of his victims. Despite being neighbors,

the Raglands and the appellant had only spoken to each other on a few occasions.

According to the appellant’s own statement, he had confronted Charles Ragland a

few hours before the murders, warning Mr. Ragland, “[you are] going to regret

disrespecting me.” See Gentry, 881 S.W.2d at 4-5 (prior relationship and conduct

with the victim from which motive can be inferred). The appellant then obtained a

shotgun and loaded the weapon with two shells. See Brown, 836 S.W.2d at 541

(procurement of weapon long held to establish premeditation). He then, armed with

the shotgun, proceeded to wait for Angela Ragland to arrive home to effectuate his

revenge. See Dickey v. Dutton, 595 F.Supp. 1 (M.D. Tenn. 1983) (fact of lying-in-

wait is, of itself, evidence of a wilful, deliberate and premeditated purpose); State v.

Bullington, 532 S.W.2d 556 (Tenn. 1976) (premeditation is obvious in killing

accomplished by lying-in-wait). Despite one missed opportunity, the appellant was

able to abduct Ragland’s cousin, Erica, at gunpoint to gain access to the inside of

the Raglands' duplex. Once inside, he forced the family onto one bed and

demanded that Charles Ragland give him the “dope.” Despite Ragland’s assertions

that he did not have any “dope” and his pleas that the appellant take their money

instead, the appellant proceeded to place a pillow on Ragland’s head and fatally


                                         28
shot him. Gentry, 881 S.W.2d at 4-5 (the nature of the killing was so exacting that

the defendant must have intentionally killed according to a preconceived design).

After he successfully restrained Angela in a rear bedroom, the appellant forced

Erica into a hall closet. Following an unsuccessful search for drugs, he retrieved

Erica from the closet and stabbed the fifteen year old girl thirty-seven times in the

face, head, chest and back. Id. After the appellant’s perpetration of terror among

this household, he carefully wiped his fingerprints from all items in the residence that

he had touched, and warned the remaining victim, Angela Ragland, that he would

kill her if she went to the police. He then returned home where he hid the shotgun

and remained until police arrived. See West, 844 S.W.2d at 148 (citations omitted)

(calmness immediately after a killing may be evidence of a cool, dispassionate,

premeditated murder). There is sufficient evidence concerning motive, planning

activity, and the nature of the killings to support the jury’s findings of both

premeditation and deliberation as to both counts. See generally Gentry, 881

S.W.2d at 4-5.



       Despite this proof, the appellant argues that, because of his severe cocaine

intoxication, he was unable to form the specific intent to commit first degree murder.

Tennessee law recognizes that, while voluntary intoxication is not a defense to

prosecution for an offense, evidence of such may be admitted to negate a culpable

mental state. See Tenn. Code Ann. § 39-11-503(a) (1991); see also State v.

Phipps, 883 S.W.2d 138, 148 (Tenn. Crim. App. 1994); State v. Shelton, 854

S.W.2d 116, 121 (Tenn. Crim. App. 1992), perm. to appeal denied, (Tenn. 1993);

State v. Hall, No. 02C01-9703-CC-00095 (Tenn. Crim. App. at Jackson, Apr. 29,

1998). However, the mere fact that a defendant is drunk or intoxicated from alcohol

or drugs does not render that defendant incapable of forming the requisite intent of

the crime charged. Rather, if the proof establishes that the defendant was

intoxicated at the time of the offense, the jury must determine the extent of its effect

upon his mental state. Accordingly, an intoxicated person is criminally responsible


                                          29
for his conduct unless the condition of his intoxication is so extreme that it negates

the existence of a mental state, that is to say, that the accused’s state of intoxication

acts to suspend his power of reason and renders him incapable of forming the

requisite intent of the crime charged. See generally State v. Bullington, 532 S.W.2d

556, 560-562 (Tenn. 1976).




        At trial, the trial court permitted into evidence testimony concerning the

appellant’s alleged intoxication immediately preceding and during the perpetration of

the crimes. Likewise, the trial court instructed the jury as to voluntary intoxication.

Thus, the only issue before this court is whether the evidence of intoxication was

such that a reasonable jury could only have found that the defendant was unable to

form the requisite mens rea. See Hall, No. 02C01-9703-CC-00095. Stated another

way, the question remains what was the mental state of the defendant. Id.



        Although there is ample proof of the appellant’s intoxication, there is also

overwhelming proof of his “intentional” mental state.8 Supra. Intoxication is valuable

to the defense only if it is of such a degree that it negates premeditation and

deliberation. Hall, No. 02C01-9703-CC-00095. Whether the appellant was too

intoxicated to form the requisite mental state was for the jury to determine. See

State v. Bell, 690 S.W.2d 879, 882 (Tenn. Crim. App. 1985). The weight and

credibility of the witnesses’ testimony are matters intrusted exclusively to the jury as

the trier of fact. State v. Sheffield, 676 S.W.2d 542, 547 (Tenn. 1984); Byrge v.

State, 575 S.W.2d 292, 295 (Tenn. Crim. App. 1978). The jury obviously chose not

to accredit the proof presented regarding the appellant’s intoxication in light of the

other evidence establishing premeditation and deliberation, and this court will not


        8
          This is evidenced primarily by the appellant’s detailed confession to the police that
essentially mirrored the facts of the crimes provided by Angela Ragland. Additional
circu ms tanc es ind icative of the appe llant’s state of m ind at the tim e of th e off ens e inclu de his
obtaining a weapon, “lying-in-wait” to exact revenge, removing fingerprints from the crime scene,
and statements regarding his intent to kill Marvin Eckford, say goodbye to his kids, rob a bank and
leave town.

                                                   30
interfere with that determination in this case. See, e.g., Hall, No. 02C01-9703-CC-

00095; Witherspoon v. State, No. 01C01-9204-CC-00137 (Tenn. Crim. App. at

Nashville, Mar. 18, 1993), perm. to appeal denied, (Tenn. Jun. 7, 1993). This issue

is without merit.




                                         B. Penalty Phase



        Again, the appellant contends that the proof introduced at the penalty phase

is insufficient, as to the capital sentence imposed for the murder of Erica Hurd, to

support the jury’s finding of aggravating circumstance Tenn. Code Ann. § 39-13-

204(i)(5)(1994 Supp.) (“heinous, atrocious, or cruel”), and aggravating circumstance

Tenn. Code Ann. § 39-13-204(i)(7) (murder committed while committing a statutorily

enumerated felony). 9




                               i. Imposition of Aggravator (i)(5)



                                a. Sufficiency of the Evidence

        Tenn. Code Ann. § 39-13-204(i)(5) provides that the death penalty may be

imposed if the State proves beyond a reasonable doubt that “[t]he murder was

especially heinous, atrocious, or cruel in that it involved torture or serious physical

abuse beyond that necessary to produce death.” (Emphasis added). “Torture” has

been defined as “the infliction of severe physical or mental pain upon the victim

while he or she remains alive and conscious.” State v. Mann, 959 S.W.2d 503, 511

(Tenn. 1997), reh’g denied, (1998), cert. denied, -- U.S. --, 118 S.Ct. 2376 (1998);



        9
          The appellant does not contest the imposition of his sentence of life without the
possibility of parole.

                                                 31
Odom, 928 S.W.2d at 24; Williams, 690 S.W.2d at 529. “[S]erious physical abuse

beyond that necessary to produce death” means just that; there must be serious

physical, not mental, abuse, i.e., “an act that is ‘excessive’ or which makes ‘improper

use of a thing,’ or which uses a thing ‘in a manner contrary to the natural or legal

rules for its use.’” Odom, 928 S.W.2d at 26 (quoting BLACK’S LAW DICTIONAR Y 11

(6th ed. 1990)).



       In the present case, Erica Hurd and Angela Ragland were forced to watch the

appellant execute Angela’s husband by shooting him in the head. The appellant

then locked Erica in a closet while he tied Angela to another bed. He eventually got

Erica out of the closet and repeatedly stabbed the fifteen year old thirty-seven times

in her face, head, chest, and back, as she pleaded with him for her life. The

struggle ensued for fifteen to twenty minutes, or at least that is the length of time

Angela Ragland heard her cousin screaming and gasping for air.



       Twenty-three of the wounds occurred prior to death, while fourteen occurred

post-mortem. Only one such stab wound was, in and of itself, fatal. Several of the

wounds reached the bone, bending the two knives wielded by the appellant. Dr.

Smith explained that the wounds reaching the bone would be extremely painful.

Moreover, Dr. Smith explained that the patterns of injury to Erica Hurd imply an

element of control or torture and that the wounds were not randomly inflicted but

purposefully chosen. The autopsy of Hurd also indicated that she had sustained

crushing blows to her head, strong enough blows to fracture her skull in multiple

places.



       The “heinous, atrocious, or cruel” aggravating circumstance is “reserved for

those cases that can be articulately determined to be the very ‘worst of the worst.’”

Odom, 928 S.W.2d at 26-27. The proof before this court indicates both an element

of “torture” and of “serious physical abuse beyond that necessary to cause death.”


                                         32
Indeed, the multiplicity of the wounds, the infliction of gratuitous violence and the

evidence of both physical and mental torture amply support a finding of this

aggravating circumstance. See State v. Blanton, 975 S.W.2d 269, 280 (Tenn.),

reh’g denied, (1998); State v. Cauthern, 967 S.W.2d 726, 732 (Tenn.), cert. denied,

-- U.S. --, 119 S.Ct. 414 (1998). This issue is without merit.




                          b. Constitutionality of Aggravator (i)(5)

        Next, the appellant asserts that “[t]he heinous, atrocious and cruel aggravator

is unconstitutionally vague” and fails to narrow the class of persons eligible for the

death penalty. This contention has been rejected by our supreme court.10 See,

e.g., State v. Hall, 958 S.W.2d 679, 715 (Tenn. 1997), cert. denied, --U.S.--, 118

S.Ct. 2348 (1998); Odom, 928 S.W.2d at 26; State v. Hines, 919 S.W.2d 573, 587

(Tenn.1995), cert. denied, --- U.S. ----, 117 S.Ct. 133 (1996); State v. Black, 815

S.W.2d 166, 181-182 (Tenn. 1991); State v. Barber, 753 S.W.2d 659, 670 (Tenn.),

cert. denied, 488 U.S. 900, 109 S.Ct. 248 (1988); Williams, 690 S.W.2d at 526-30;

Thompson v. State, 958 S.W.2d 156, 174 (Tenn. Crim. App.), perm. to appeal

denied, (Tenn. 1997); Alley v. State, 958 S.W.2d 138, 155 (Tenn. Crim. App.), perm.

to appeal denied, (Tenn. 1997).



        The appellant also alleges that the jury instruction denied the appellant his

constitutional right to a unanimous jury verdict. Our supreme court has held that

"[a]s used in circumstance (i)(5), the three adjectives 'heinous,' 'atrocious,' and

'cruel' are complimentary. Although listed disjunctively, they state a unitary concept

defined and limited by 'torture or depravity of mind."' State v. Van Tran, 864 S.W.2d



        10
           Although several federal decisions have found Tennessee’s definitions of “heinous,
atrocious , or cruel” un constitution ally vague, see, e.g., Rickman v. Dutton, 854 F.Supp. 1305
(M.D. Tenn. 1994), rulings of federal district courts do not bind this court. The United States
Supre me C ourt is the o nly federal co urt Ten nesse e courts are bou nd to follow . See Thom pson v.
State , 958 S.W .2d 156, 1 74 (Te nn. Crim . App.), perm. to appeal denied, (Tenn. 1997)(citing State
v. McKay, 680 S.W .2d 447, 4 50 (Te nn. 1984 ), cert. denied, 470 U.S. 1034, 105 S.Ct. 1412
(1985); State v. Bowers, 673 S.W .2d 887, 889 (Tenn. Crim . App. 1984).

                                                 33
465, 479 (Tenn. 1993), cert. denied, 511 U.S. 1046, 114 S.Ct. 1377 (1994).

Accordingly, the appellant’s right to a unanimous jury verdict was not violated. This

issue is without merit.




                                        ii. Aggravator (i)(7)



                                   a. Sufficiency of Evidence

        The jury also found that the murder of Erica Hurd “was committed while [the

appellant] was engaged in committing, or was an accomplice in the commission of,

or was attempting to commit, or was fleeing after committing or attempting to

commit, any first degree murder, rape, burglary, or kidnapping.”11 Tenn. Code Ann.

§39-13-204(i)(7).       The appellant argues that no evidence exists to support the

finding of this aggravator. Specifically, he asserts that Mr. Ragland was murdered

prior to the murder of Erica Hurd; there is no evidence that he was attempting to flee

the murder of Charles Ragland while committing the murder of Erica Hurd; and the

rape of Angela Ragland did not occur until well after the murder of Erica Hurd.

Moreover, he contends that the jury was never asked to make any findings

regarding a burglary or a kidnapping. Accordingly, the appellant argues that the

State failed to prove, beyond a reasonable doubt, the applicability of aggravating

circumstance (i)(7).



        In State v. Terry, 813 S.W.2d 420, 423 (Tenn. 1991), our supreme court

addressed the quantum of evidence necessary to support a finding of aggravating



        11
         Concerning this aggravating circum stance, the trial court specifically instructed the jury
on the definitions of burglary and kidnapping, in addition to reminding them that they had already
been instructed as to the definition of first degree murder and rape.

                                                 34
circumstance (i)(7). In doing so, the court noted:

       Whether the evidence supports a finding that the murder was
       committed in the course of, during, or while engaged in the
       commission of another felony . . . generally depends on an analysis of
       the temporal, spatial and motivational relationships between the capital
       homicide and the collateral felony, as well as on the nature of the
       felony and the identity of its victim.


Terry, 813 S.W.2d at 423 (quoting 67 A.L.R.4th 887, 892 (1989)). See also Hall,

958 S.W.2d at 693. That is to say that the homicide must have a close connection

with the felony and not be separate, distinct, and independent from it. Cf. State v.

Farmer, 296 S.W.2d 879, 883 (Tenn. 1956) (citing Wharton on Homicide § 126).

The collateral felony and the homicide may be a part of a continuous transaction

with the collateral felony occurring either before or after the homicide. See, e.g.,

People v. Johnson, 609 N.E.2d 294, 300 (Ill. 1993); People v. Ward, 609 N.E.2d

252, 275 (Ill. 1992). Indeed, it is not necessary to prove that the defendant formed

the criminal intent to commit the aggravating felony before committing the murder.

Ward, 609 N.E.2d at 275. Rather, the proof is sufficient to establish the aggravating

factor if the State proves both the elements of the murder and the elements of the

accompanying felony and that they were both part of the same criminal episode. Id.

(citations omitted).



       Applying this standard to the circumstances of the present case, we conclude

that the jury properly applied this aggravating circumstance to the murder of Erica

Hurd. The proof shows that the appellant, armed with a weapon, forced himself into

the Raglands' residence with the intent to seek revenge upon Charles Ragland for

“disrespecting” him earlier that evening. Once inside the residence, the appellant,

prior to his fatal attack on Erica Hurd, shot and killed Charles Ragland. Moreover,

there is no dispute that, while the appellant was brutally stabbing the fifteen year old

girl to death, Angela Ragland was confined in an adjoining bedroom. After Erica’s

murder, the appellant returned to the bedroom where he repeatedly raped Angela

Ragland. We have already determined that the proof is more than sufficient to


                                         35
establish both the premeditated murder of Erica Hurd and the premeditated murder

of Charles Ragland. See supra. The appellant’s forceful entry into the Raglands'

residence is sufficient to establish the offense of aggravated burglary. See Tenn.

Code Ann. § 39-14-402 (a)(3) (1991); Tenn. Code Ann. § 39-14-403(a) (1991). The

appellant’s forceful and knowing confinement of Angela Ragland is sufficient to

establish the offense of kidnapping. 12 Finally, we conclude that the proof is likewise

sufficient to establish his subsequent aggravated rape of Angela Ragland. See

Tenn. Code Ann. § 39-13-502(a)(1) (1992 Supp.). Thus, the capital homicide and

the collateral felonies occurred at the same time and at the same place; sufficient to

support application of the (i)(7) aggravating factor. Hall, 958 S.W.2d at 693. This

issue is without merit.



                                     b. Narrowing of Factor (i)(7)

         The appellant contends that aggravating circumstance (i)(7), “committed

while engaged in committing or fleeing a first degree murder, rape, burglary, or

kidnapping” violates the principles of State v. Middlebrooks and fails to properly

narrow the class of defendants subject to the death penalty. Specifically, he asserts

that

         the application of the aggravator of other felonies is vague, did not
         require election by the jury as to which other felonies were committed,
         and fails to properly narrow the class of persons eligible for the death
         penalty or give the jury proper decision making guidance. Thus, the
         imposition of death from this factor would violate the Eighth and
         Fourteenth Amendments to the U.S. Constitution and Article One,
         Section Sixteen of the Tennessee Constitution.

         In State v. Middlebrooks, 840 S.W.2d 317, 346 (Tenn. 1992), our supreme

court held that, when a defendant is convicted of felony murder, the aggravating

circumstance set out in Tenn. Code Ann. § 39-13-204(i)(7) does not narrow the

class of death eligible murderers sufficiently under the Eighth Amendment to the

United States Constitution and Article I, §16 of the Tennessee Constitution “because

         12
          “Kidnapping,” as properly instructed by the trial court, is “the knowing removal or
confinement of another so as to interfere substantially with the other’s liberty. The removal or
con finem ent m ust b e und er cir cum stan ces that e xpo se th e oth er to s ubs tantia l risk o f bod ily
injury.” See Tenn. Code A nn. § 39-13-303(a)(1) (1991).

                                                      36
it duplicates the elements of the offense.” See Hall, 958 S.W.2d at 692 (emphasis

in original). “Implicit in this statement is the recognition that the circumstance

properly may be applied if a defendant is convicted of premeditated first degree

murder.” Hall, 958 S.W.2d at 692 (emphasis added). In the present case, the

evidence sufficiently supports the jury’s finding that the premeditated murder was

committed during the appellant’s burglary of the Ragland residence, his murder of

Charles Ragland, and his kidnapping and rape of Angela Ragland. Id. at 697.

Moreover, we fail to find the wording of the aggravating circumstance vague or that

the court’s failure to require an election of offenses was error.13 See Blanton, 975

S.W.2d at 280. Accordingly, we conclude that factor (i)(7) sufficiently narrows the

death eligible class of defendants by ensuring reliability and requiring

particularization in the determination that death is the appropriate punishment in a

specific case. The appellant’s challenges to aggravating circumstance (i)(7) are

without merit.



             iii. Weighing of Aggravating and Mitigating Circumstances



        With regard to the jury’s finding that the aggravating circumstances in the

murder of Erica Hurd outweighed any applicable mitigating circumstances, our

supreme court has routinely held that “whether mitigation exists and the weight

given aggravating and mitigating circumstances are issues within the province of the

jury.” Mann, 959 S.W.2d at 512 (citing Barber, 753 S.W.2d at 669); see also Bland,

958 S.W.2d at 661.



        Notwithstanding this basic premise, the appellant contends that “there is


        13
           In Blanton, the trial court charged every felony listed under aggravating circumstance
(i)(7). Id. While the supreme court noted that the better practice is to charge only those felonies
that m ay be s upp orted by the facts , any e rror in char ging a ll of the enum erate d felo nies is
harm less if the ap plication of (i)(7 ) is sufficien tly supported by the eviden ce. Id. In the present
case, th e trial court on ly charged those en ume rated felon ies that we re raised by the eviden ce.
We have already concluded that the evidence is sufficient to support the aggravating
circum stance that the m urder w as com mitted d uring a k idnappin g. Any error , if error doe s exist,
is harmless.

                                                   37
evidence of mitigating circumstances in this case.” Specifically, the appellant

argues that (1) the appellant let Mrs. Ragland, the only witness, go; (2) he was

under extreme mental and emotional disturbance at the time of the crime; (3) he

was under the influence of cocaine which impaired his judgment and his ability to

inhibit himself; (4) he was a good worker; (5) he admitted his responsibility for the

offenses; and (6) he is a good student and a good prisoner. Apparently, the

appellant’s argument is premised upon the contingency that this court would find

insufficient evidence to support aggravating circumstances (i)(5) and (i)(7).

However, as we have previously determined, the evidence is not only sufficient to

support their application, but also compelling. See supra. We will not curtail the

jury’s role in weighing the aggravating and mitigating circumstances. It was well

within the jury’s prerogative to place great weight upon the aggravating

circumstances. As such, we conclude that the evidence is sufficient to support the

jury’s finding that the aggravating circumstances outweighed the mitigating

circumstances beyond a reasonable doubt. This issue is without merit.




        IV. Statement of Intent of Future Wrongdoing and Prior Bad Act



       Prior to the testimony of Angela Ragland, a jury-out hearing was held to

determine the admissibility of testimony regarding the appellant’s prior rape charge

and statements made by the appellant to Angela Ragland regarding his intent to kill

Marvin Eckford, to rob a bank, and to leave town. The trial court permitted the

introduction of the testimony, finding that

       it would be rare that any statements made by any defendant during the
       course of a criminal enterprise to be excluded if there are crimes that
       require proof of culpability, state of mind, et cetera, they would usually
       be considered res gestae, so closely connected with the crime, with
       the offense, that they can’t be separated from it. All of these
       statements reflect upon that, that he is on a killing spree, going to kill .
       . . that clearly is some proof of the defendant’s mental state, that he
       was on a violent binge. You know, he commits one murder, he
       commits two murders, he might as well commit three, what-difference-
       does-it-make sort of attitude. It’s also proof of, of course, the mental

                                         38
       state. W ords like, “I’ve been accused of one rape” . . . [w]ould serve
       as a motive. That’s another thing, motive, intent, state of mind. . . .
       Certainly shows intent. . . that he knew what he had done. . . .
       Arguably evidence that the defendant was coherent, that he knew
       what he had done, he knew what he was going to do and that he had
       presence of mind about all of these things. . . . In summary, all of
       these remarks are clearly admissible. . . . But all of these things,
       particularly when you’re thinking about the requirements of culpability
       being proven, when you’re thinking about the position that’s going to
       be taken . . . . Statements made during the course of the crime or
       even afterwards which would reflect upon the defendant’s thinking,
       mental state, what he had on his mind, and all of these things do that.
       So they’re going to be admissible for these numerous reasons, not to
       mention res gestae.


                           A. Statements of Future Intent



       Again, during the guilt phase of the appellant’s trial, the trial court permitted

the State to question Angela Ragland about statements made to her by the

appellant. On direct examination, Angela Ragland testified that, between instances

of rape, the appellant told her that he was going home to tell his children goodbye,

that he was going to kill Marvin Eckford because Eckford had provided his name to

the woman accusing the appellant of raping her, and that he was going to rob a

bank and leave town. On appeal, the appellant contends that such evidence is

irrelevant and is unduly prejudicial.



       The trial court correctly found such testimony admissible under the “state of

mind” exception to the hearsay rule. See Tenn. R. Evid. 803(3); State v. Roe, No.

02C01-9702-CR-00054 (Tenn. Crim. App. at Jackson, Jan. 12, 1998); Neil P. Cohen

et al., Tennessee Law of Evidence § 803(3).2 (3d ed. 1995). The testimony is

relevant to show the appellant’s existing state of mind at the time of the crimes, i.e.,

to show his intent, plan, and motive, including the fact that he was capable of

understanding the import of his actions. Id.; see also Tenn. R. Evid. 402.

Moreover, the trial court instructed the jury that the appellant did not kill Marvin

Eckford, did not rob a bank, and did not leave town. Accordingly, we cannot

conclude that introduction of this evidence was more prejudicial than probative. See


                                          39
Tenn. R. Evid. 403. This issue is without merit.




                   B. Evidence of Prior Bad Act: Alleged Rape



       Angela Ragland also testified that, during the crimes, the appellant told her

that “[h]e had been accused of raping someone and that he didn’t, and if he was

going to go to jail, he was going to go to jail for doing something.” The appellant

objected and a jury-out hearing was held to conduct a Tenn. R. Evid. 404(b)

analysis. The trial court found the testimony admissible, but determined that it

should only be considered on the issue of mental intent. The trial court instructed

the jury that “they’re not to presume that he’s guilty of any previous rape.”



       Generally, "[e]vidence of other crimes, wrongs, or acts is not admissible to

prove the character of a person in order to show action in conformity with the

character trait." Tenn. R. Evid. 404(b). Nonetheless, such evidence may be

admissible for other purposes. Id. Other acts may be admitted to prove such issues

as motive, intent, knowledge, absence of mistake or accident, common scheme or

plan, identity, completion of the story, opportunity, and preparation. Neil P. Cohen

et al., Tennessee Law of Evidence § 404.6. Thus, the trial court properly found that

testimony concerning the alleged rape was admissible pursuant to Tenn. R. Evid.

404(b), as it was highly relevant to the issue of intent and its probative value

outweighed the danger of unfair prejudice.




                  V. Photographs of Victim at Sentencing Phase




                                         40
        During the sentencing phase, the State was permitted, over objection, to

introduce multiple photographs of the body of the deceased victim, Erica Hurd.14

The trial court permitted the introduction of the photographs on the issue of

establishing the aggravating circumstance “heinous, atrocious, or cruel.” On appeal,

the appellant complains that the admission of the photographs was error.

Specifically, he argues that (1) the photographs were more prejudicial than probative

and (2) the photographs were cumulative to the testimony of Dr. Smith and the

demonstrative evidence of the mannequin.



        Tennessee courts follow a policy of liberality in the admission of photographs

in both civil and criminal cases. State v. Banks, 564 S.W.2d 947, 949 (Tenn. 1978)

(citations omitted). Accordingly, “the admissibility of photographs lies within the

discretion of the trial court” whose ruling “will not be overturned on appeal except

upon a clear showing of an abuse of discretion.” Id. However, before a photograph

may be admitted into evidence, it must be relevant to an issue that the jury must

decide and the probative value of the photograph must outweigh any prejudicial

effect that it may have upon the trier of fact. See State v. Braden, 867 S.W.2d 750,

758 (Tenn. Crim. App.), perm. to appeal denied, (Tenn. 1993) (citation omitted); see

also Tenn. R. Evid. 401 and 403.



        Of the ten photographs contested on appeal, two are of the victim at the

crime scene and the remaining are photographs from the autopsy. Eight of the ten

photographs depict wounds to the victim’s face and neck. The appellant contends

that the facial pictures are unduly prejudicial in that they are “gruesome and

inflammatory” and the “facial expression on the victim’s face . . . could produce a

terrible reaction in the jury.” The appellant argues that the introduction of the

photographs was unnecessary and cumulative due to the testimony of Dr. Smith


        14
          The State also sought to introduce pho tographs of Charles Ra gland. The trial court
refused to admit these photographs into evidence. The State later voluntary withdrew these
photographs.

                                                41
describing the wounds and his use of a mannequin to demonstrate the various

points of injury. The trial court permitted the photographs of Erica Hurd into

evidence, finding that “[g]ruesome pictures are admissible in these situations if it

would tend to show some of these factors that are involved in the heinous, atrocious

or cruel category, torture, physical abuse.”



       Although we concede that the photographs are not pleasant to view, they

accurately depict the nature and the extent of the victim’s injuries. There is no

dispute that the photographs were introduced to prove the aggravating circumstance

of “heinous, atrocious, or cruel.” This evidence was relevant to support the State’s

proof of the “heinous, atrocious, and cruel” aggravating circumstance. See, e.g.,

State v. Hall, 976 S.W.2d 121, 162 (Tenn. 1998); State v. Smith, 893 S.W.2d 908,

924 (Tenn. 1994), cert. denied, 516 U.S. 829, 116 S.Ct. 99 (1995); State v. Smith,

868 S.W.2d 561, 579 (Tenn. 1993), cert. denied, 513 U.S. 960, 115 S.Ct. 417

(1994) (citing State v. Payne, 791 S.W.2d 10, 19-20 (Tenn. 1990), judgment aff’d

by, 501 U.S. 808, 111 S.Ct. 2597 (1991); State v. Miller, 771 S.W.2d 401, 403-404

(Tenn. 1989), cert. denied, 497 U.S. 1031, 110 S.Ct. 3292 (1990); State v.

Porterfield, 746 S.W.2d 441, 449-450 (Tenn.), cert. denied, 486 U.S. 1017, 108

S.Ct. 1756 (1988); State v. McNish, 727 S.W.2d 490, 494-495 (Tenn.), cert. denied,

484 U.S. 873, 108 S.Ct. 210 (1987)).



       Notwithstanding, as a general rule, where medical testimony adequately

describes the degree or extent of the injury, gruesome and graphic photographs

should not be admitted. See State v. Duncan, 698 S.W.2d 63 (Tenn. 1985), cert.

denied, 475 U.S. 1031, 106 S.Ct. 1240 (1986). The photographs were used by the

physician who performed the autopsy to assist in explaining his testimony about the

manner and cause of death. The photographs clarify the complex testimony of Dr.

Smith regarding the severity of the injuries. See Stephenson, 878 S.W.2d at 542;

Smith, 868 S.W.2d at 576 (photographs used to illustrate witnesses’ testimony


                                         42
admissible for this purpose). Moreover, a relevant photograph is not rendered

inadmissible merely because it is cumulative. See State v. Bigbee, 885 S.W.2d

797, 807 (Tenn. 1994); Van Tran, 864 S.W.2d at 477.



      We conclude that the photographs were not especially gruesome or shocking

in nature so as to preclude their admission. Although any such photographs would

be prejudicial to the appellant’s case, the photographs introduced at the sentencing

hearing were highly probative in determining an aggravating circumstance. We

cannot conclude that the trial court abused its discretion by admitting these

photographs during the sentencing process. See Tenn. R. Evid. 403; State v.

Evans, 838 S.W.2d 185 (Tenn. 1992); Banks, 564 S.W.2d at 947. See also State v.

Brown, 756 S.W.2d 700, 704 (Tenn. Crim. App.1988); Freshwater v. State, 453

S.W.2d 446, 451-52 (Tenn. 1969); State v. Beckman, No. 02C01-9406-CR-00107

(Tenn. Crim. App. at Jackson, Sept. 27, 1995 ), perm. to appeal granted, (Tenn. July

8, 1996), perm. to appeal denied, (Tenn. Sept. 9, 1996). This issue is without merit.




                            VII. Victim Impact Evidence



      During closing argument during the penalty phase, General Woodall made

the following statements:

       It’s up. We know for sure that Erica is now gone, at peace and out of
       pain. There’s a lot of other pain here and that’s the families of these
       victims. That’s what Angela Ragland went through and will have to go
       through and there are just not any mitigating circumstances that
       outweigh these aggravating circumstances, absolutely none. That’s
       why we have this law and where the aggravating circumstances do not
       (sic) outweigh the mitigating circumstances, the punishment shall be
       death.


       The appellant objects to this argument; contending that this statement

constitutes victim impact evidence which is inadmissible, irrelevant to any

aggravating or mitigating circumstance, and constitutes argument of matters not in


                                        43
evidence.15 Additionally, he asserts that the inflammatory argument posed a

substantial risk that the death penalty was imposed arbitrarily, jeopardizing the

reliability requirements of the Eighth Amendment.



         The issues raised by the appellant herein were recently addressed in detail

by our supreme court in State v. Nesbit, No. 02S01-9705-CR-00043 (Tenn. at

Jackson, Sept. 28, 1998) (for publication). In a thorough review of the case law

development of the admissibility of victim impact evidence, the supreme court

reached several conclusions on the issue.



         First, noting prior decisions of the United States Supreme Court and its own

precedent, the court held that “victim impact evidence and argument is [not] barred

by the federal and state constitutions.” Nesbit, No. 02S01-9705-CR-00043. See

also Payne v. Tennessee, 501 U.S. 808, 827, 111 S.Ct. 2597,2609 (1991) (holding

that the Eight Amendment erects no per se bar against the admission of victim

impact evidence and prosecutorial argument); State v. Shepherd, 902 S.W.2d 895,

907 (Tenn. 1995) (holding that victim impact evidence and prosecutorial argument is

not precluded by the Tennessee Constitution); State v. Brimmer, 876 S.W.2d 75, 86

(Tenn.), cert. denied, 513 U.S. 1020, 115 S.Ct. 585 (1994) (same). Thus, the

appellant’s argument challenging the constitutionality of the admissibility of victim

impact evidence and argument under the Eighth Amendment has been precluded

by the Tennessee Supreme Court.




         15
           As cor rectly noted b y the State a nd con ceded by the app ellant, the ap pellant failed to
ma ke a cont em pora neo us ob jectio n to th e pro sec utor’s state me nts re sultin g in wa iver o f this
issue. T enn. R. C rim. P. 52 (a); see State v. Renner, 912 S.W .2d 701, 705 (Tenn. 1995 );
Teag ue v. State , 772 S.W .2d 915, 926 (Tenn. Crim . App.1988), cert. denied, 493 U.S. 874, 110
S.Ct. 210 (1989); State v. Killebrew, 760 S.W.2d 228, 235 (Tenn. Crim. App.1988). Due to the
qualitative diffe rences betwee n death a nd other senten ces, the appellate c ourts of th is state
conside r issues occurrin g during th e sente ncing he aring in a ca pital case. See Bigbee, 885
S.W .2d at 805 ; Duncan, 698 S.W .2d at 67-6 8; State v. Stro uth, 620 S.W.2d 467, 471 (Tenn.
1981), cert. denied, 455 U.S. 983, 102 S .Ct. 1 491 (198 2). T hus , notw ithsta nding waive r of th is
claim, this court elects to consider this issue on the merits.




                                                     44
        Additionally, the court addressed the relevancy of argument and evidence

regarding the impact of the crime(s) on the victim’s family. The court noted that,

although “[Tenn. Code Ann. § 39-13-204(c)] . . .permits admission of all relevant

mitigating evidence, whether or not the category of mitigation is listed in the

statutory scheme,”16 “this Court repeatedly has held that the State may not rely

upon nonstatutory aggravating circumstances to support imposition of the death

penalty.” Nesbit, No. 02S01-9705-CR-00043 (citing State v. Thompson, 768

S.W.2d 239, 251 (Tenn. 1989), cert. denied, 497 U.S. 1031, 110 S.Ct. 3288 (1990);

State v. Cozzolino, 584 S.W.2d 765, 768 (Tenn. 1979)). Notwithstanding, the court

stated that, “in several subsequent decisions we have expressly recognized that a

sentencing jury must be permitted to hear evidence about the nature and

circumstances of the crime even though the proof is not necessarily related to a

statutory aggravating circumstance.” Nesbit, No. 02S01-9705-CR-00043 (citing

State v. Harris, 919 S.W.2d 323, 331 (Tenn. 1996); State v. Teague, 897 S.W.2d

248, 251 (Tenn. 1995); Bigbee, 885 S.W.2d at 813; State v. Nichols, 877 S.W.2d

722, 731 (Tenn. 1994), cert. denied, 513 U.S. 1114, 115 S.Ct. 909 (1995)).

(Emphasis in original). Accordingly, the court concluded that “the impact of the

crime on the victim’s immediate family is one of those myriad factors encompassed

within the statutory language nature and circumstances of the crime.” Id. (emphasis

in original).



        In so holding, the court reasoned:

        The Tennessee statute delineates a procedure which enables the
        sentencing jury to be informed about the presence of statutory
        aggravating circumstances, the presence of mitigating circumstances,
        and the nature and circumstances of the crime. The statute allows the
        sentencing jury to be reminded ‘that just as the murderer should be
        considered as an individual, so too the victim is an individual whose
        death represents a unique loss to society and in particular to his
        family.’ Payne, 501 U.S. at 825, 111 S.Ct. at 2608 (internal citations
        and quotations omitted). As this Court emphasized in its decision in


        16
         See Nes bit, No. 02S01-9705-CR-00043 (citing Cazes, 875 S.W.2d at 266 (discussing
McKoy v. North Carolina, 494 U.S. 433, 442, 110 S.Ct. 1227, 1233 (1990) and Mills v. Maryland,
486 U.S. 367, 375, 108 S.C t. 1860, 1865-66 (1988))).

                                              45
       Payne, it would be ‘an affront to the civilized members of the human
       race’ to allow unlimited mitigation proof at sentencing in a capital case,
       but completely preclude proof of the specific harm resulting from the
       homicide. Accordingly, the defendant’s claim that victim impact
       evidence is not admissible under the Tennessee capital sentencing
       statute is without merit.

Nesbit, No. 02S01-9705-CR-00043.



       The supreme court, however, limited this ruling, by holding that “victim impact

evidence may [not] be introduced ‘that is so unduly prejudicial that it renders the trial

fundamentally unfair,’ thus implicating the Due Process Clause of the Fourteenth

Amendment.” Id. (citing Payne, 501 U.S. at 825, 111 S.Ct. at 2608). Moreover, the

trial court, in its discretion, “may exclude victim impact proof if its probative value is

substantially outweighed by its prejudicial effect.” Id. (citing Tenn. R. Evid. 403).

Indeed, “victim impact evidence should be limited to information designed to show

those unique characteristics which provide a brief glimpse into the life of the

individual who has been killed, the contemporaneous and prospective

circumstances surrounding the individual’s death, and how those circumstances

financially, emotionally, psychologically or physically impacted upon members of the

victim’s immediate family.” Id. (internal citations omitted) (citing Payne, 501 U.S. at

822, 111 S.Ct. at 2607; Payne, 501 U.S. at 803, 111 S.Ct. at 2611 (O’Connor, J.,

concurring); Cargle v. State, 909 P.2d 806, 826 (Ok. Ct. Crim. App. 1995)).

Similarly, the court “cautioned the State against engaging in victim impact argument

which is little more than an appeal to the emotions of the jurors as such argument

may be unduly prejudicial.” Id. (citing Shepherd, 902 S.W.2d at 907 (parenthetical

omitted); Bigbee, 885 S.W.2d at 808 (parenthetical omitted)).



       In the present case, the victim impact argument, in essence, is limited to

“[t]hat’s what Angela Ragland went through and will have to go through.” It would be

farfetched to conclude that this statement prejudiced the outcome of the sentencing

phase as the effects of the double homicide on Angela Ragland were directly

fashioned by the appellant and were clearly foreseeable. See Payne v. Tennessee,

                                          46
501 U.S. at 838, 111 S.Ct. at 2615-2616 (Souter, J., concurring). Indeed, the fact

that the death of a loved one is devasting requires no proof. Accordingly, the

challenged argument was properly admitted.17 This issue is without merit.




                            VII. Separate Jury for Penalty Phase



        The appellant claims that a separate jury should have been impaneled for the

penalty phase of his trial. He asserts that, by requiring the same jury to hear both

the guilt and penalty phases of his capital trial, he was deprived of his right to a fair

and impartial jury under the Tennessee and United States Constitutions.

Specifically, he contends that “he was denied a cross-section of the community

because those jurors that could not enforce the death penalty were removed and he

got a jury that was prone to give the death penalty.”



        This argument has been previously considered and rejected by our supreme

court. In State v. Harbison, 704 S.W.2d 314, 318-319 (Tenn. 1986), cert. denied,

476 U.S. 1153, 106 S.Ct. 2261 (1986), the court rejected a claim by the defendant

that separate juries should have been sworn to hear the guilt and sentencing phases

of the trial and held that a single jury in a capital case neither denied a fair cross

section of the community nor resulted in a conviction prone process. See also

State v. Teel, 793 S.W.2d 236, 246 (Tenn.), cert. denied, 498 U.S. 1007, 111 S.Ct.

571 (1990) (guilt prone jury argument “has been rejected by both the Tennessee

and United States Supreme Courts”); State v. Jones, 789 S.W.2d 545, 547 (Tenn.),

cert. denied, 498 U.S. 908, 111 S.Ct. 280 (1990) (rejecting guilt prone jury claim);

State v. Zagorski, 701 S.W.2d 808, 814-15 (Tenn. 1985), cert. denied, 478 U.S.

1010, 106 S.Ct. 3309 (1986) (rejecting cross section claim);. This issue is without

        17
          Although not applicable to the present case as the murders occurred prior to the
supreme court’s decision in Nes bit, we note that the supreme court established procedures under
which victim impac t evidenc e ma y be introduc ed during capital sen tencing p hases . See Nes bit,
No. 02S01-9705-CR-00043.

                                                47
merit.18



                                  VIII. Constitutional Challenges



         Finally, the appellant raises a myriad of challenges to the constitutionality of

Tennessee’s death penalty provisions. The appellant concedes that these issues

have been previously rejected by the Tennessee Supreme Court, however, he

raises these challenges to preserve them for future appellate review.



                                      A. Death by Electrocution

         The appellant first contends that “[t]he electric chair constitutes cruel and

unusual punishment,” emphasizing that “the Eighth Amendment forbids inhuman

and barbarous methods of execution that go beyond the mere extinguishment of life

and cause torture or a lingering death.” (citing Glass v. Louisiana, 471 U.S. 1080,

105 S.Ct. 2159 (1985)). As support for his argument, the appellant refers to recent

legislation in this state moving beyond death by electrocution and substituting lethal

injection. See Tenn. Code Ann. § 40-23-114 (1998 Supp.) (changes the method of

execution from electrocution to lethal injection for those persons sentenced to death

after January 1, 1999). 19 We do not see how this amendment renders death by

electrocution unconstitutional. The appellate courts of this state are of the opinion

that electrocution is a constitutionally permissible method of execution and have

routinely rejected this argument. See Black, 815 S.W.2d at 179; see also Hines,

919 S.W.2d at 582.




         18
         Additionally, we note that Tennessee’s statutory scheme for first degree murder
man dates tha t the “sam e jury that de termin ed guilt” “sh all fix the pun ishm ent in a se parate
sentencing hearing.” See Tenn. Code A nn. § 39-13-204(a) (1994 S upp.).

         19
          The bill also provides that those persons sentenced to death prior to January 1, 1999,
may c hoose to be exe cuted b y lethal injection b y signing a w ritten waiver. See Constitutionality of
House Bill 2085 as amended -- Change in Method of Execution, Tenn. Op. Atty. Gen. No. 98-074
(Mar. 31, 1998); Constitutionality of House Bill 2085 -- Change in Method of Execution, Tenn. Op.
Atty. Gen. No. 98-068 (Mar. 25, 1998).

                                                     48
                   B. Death penalty is cruel and unusual punishment.

        Within this challenge, the appellant makes numerous challenges alleging that

the Tennessee death penalty statutes violate the Fifth, Sixth, Eighth, and Fourteenth

Amendments to the United States Constitution, and Article I, Sections 8, 9, 16, and,

17, and Article II, Section 2 of the Tennessee Constitution. These arguments have

previously been rejected by our supreme court:

1. Tennessee’s death penalty statutes fail to meaningfully narrow the class of
death eligible defendants, specifically because Tenn. Code Ann. § 39-13-204 (i)(4),
(5), (6), and (7) encompass a majority of the homicides committed in Tennessee,20
have been rejected by our supreme court. See State v. Keen, 926 S.W.2d 727,
742 (Tenn. 1994).

2. The death sentence is imposed capriciously and arbitrarily in that:

        (1) Unlimited discretion is vested in the prosecutor as to whether or not
        to seek the death penalty. This argument has been rejected. See
        Hines, 919 S.W.2d at 582.

        (2) The death penalty is imposed in a discriminatory manner based
        upon economics, race, geography, and gender. This argument has
        been rejected. See Hines, 919 S.W.2d at 582; Brimmer, 876 S.W.2d
        at 87; Cazes, 875 S.W.2d at 268; State v. Smith, 857 S.W.2d 1, 23
        (Tenn.), cert. denied, 510 U.S. 996, 114 S.Ct. 561 (1993).

        (3) There are no uniform standards or procedures for jury selection to
        insure open inquiry concerning potentially prejudicial subject matter.
        This argument has been rejected. See State v. Caughron, 855
        S.W.2d 526, 542 (Tenn.), cert. denied, 510 U.S. 979, 114 S.Ct. 475
        (1993).

        (4) The death qualification process skews the make-up of the jury and
        results in a relatively prosecution prone guilt-prone jury. This
        argument has been rejected. See Teel, 793 S.W.2d at 246; Harbison,
        704 S.W.2d at 318.

        (5) Defendants are prohibited from addressing jurors’ popular
        misconceptions about matters relevant to sentencing, i.e., the cost of
        incarceration versus cost of execution, deterrence, method of
        execution. This argument has been rejected. See Brimmer, 876
        S.W.2d at 86-87; Cazes, 875 S.W.2d at 268; Black, 815 S.W.2d at
        179.

        (6) The jury is instructed that it must agree unanimously in order to
        impose a life sentence, and is prohibited from being told the effect of a
        non-unanimous verdict. This argument has been rejected. See
        Brimmer, 876 S.W.2d at 87; Cazes, 875 S.W.2d at 268; Smith, 857
        S.W.2d 22-23.


        20
            We note that factors (i)(4) and (i)(6) do not pertain to this case as they were not relied
upon b y the State. T hus, an y individual claim with respe ct to these factors is without m erit. See,
e.g., Hall , 958 S.W .2d at 715 ; Brimmer, 876 S.W.2d at 87.

                                                   49
      (7) Requiring the jury to agree unanimously to a life verdict violates
      Mills v. Maryland and McKoy v. North Carolina. This argument has
      been rejected. See Brimmer, 876 S.W.2d at 87; Thompson, 768
      S.W.2d at 250; State v. King, 718 S.W.2d 241, 249 (Tenn. 1986),
      superseded by statute as recognized by, State v. Hutchinson, 898
      S.W.2d 161 (Tenn. 1994).

      (8) The jury is not required to make the ultimate determination that
      death is the appropriate penalty. This argument has been rejected.
      See Brimmer, 876 S.W.2d at 87; Smith, 857 S.W.2d at 22.

      (9) The defendant is denied final closing argument in the penalty
      phase of the trial. This argument has been rejected. See Brimmer,
      876 S.W.2d at 87; Cazes, 875 S.W.2d at 269; Smith, 857 S.W.2d at
      24; Caughron, 855 S.W.2d at 542.




      3. Appellate Review process in death penalty cases is
      constitutionally inadequate.


The defendant argues that the appellate review process in death penalty cases is

constitutionally inadequate in its application. He contends that the appellate review

process is not constitutionally meaningful because the appellate courts cannot

reweigh proof due to the absence of written findings concerning mitigating

circumstances, because the information relied upon by the appellate courts for

comparative review is inadequate and incomplete, and because the appellate

courts' methodology of review is flawed. This argument has been specifically

rejected by our supreme court on numerous occasions. See Cazes, 875 S.W.2d at

270-71; see also Harris, 839 S.W.2d at 77; Barber, 753 S.W.2d at 664. Moreover,

the supreme court has recently held that, “while important as an additional

safeguard against arbitrary or capricious sentencing, comparative proportionality

review is not constitutionally required.” Bland, 958 S.W.2d at 663.




                            XII. Proportionality Review



      Finally, this court must consider whether the appellant’s sentence of death is


                                        50
disproportionate to the penalty imposed in similar cases. See Tenn. Code Ann. §

39-13-206(c)(1)(D) (1997). If the imposition of a death sentence in the appealed

case is “plainly lacking in circumstances with those in similar cases in which the

death penalty has previously been imposed,” the sentence of death will be deemed

disproportionate. See Bland, 958 S.W.2d at 665. However, just because the

circumstances of the offense are similar to those of another offense for which the

defendant has received a life sentence does not per se require a finding of

disproportionately. Id. at 665. Thus, it is the duty of the appellate court, not to

“assure that a sentence less than death was never imposed in a case with similar

characteristics,” but to “assure that no aberrant death sentence is affirmed.” Id.



       In conducting our review, we begin with the presumption that the sentence of

death is proportionate with the crime of first degree murder. See Hall, 958 S.W.2d

at 699. Second, while there is no mathematical or scientific formula involved, this

court, in comparing similar cases, should consider (1) the means of death; (2) the

manner of death; (3) the motivation for the killing; (4) the place of death; (5) the

similarity of the victim’s circumstances, including age, physical and mental

conditions, and the victim’s treatment during the killing; (6) the absence or presence

of premeditation; (7) the absence or presence of justification; and (9) the injury to

and effects on nondecedent victims. Nesbit, No. 02S01-9705-CR-00043 (citing

Bland, 958 S.W.2d at 667). When reviewing the characteristics of the defendant,

we consider: (1) the defendant’s prior record or prior criminal activity; (2) the

defendant’s age, race, and gender; (3) the defendant’s mental, emotional or

physical condition; (4) the defendant’s involvement or role in the murder; (5) the

defendant’s cooperation with authorities; (6) the defendant’s remorse; (7) the

defendant’s knowledge of the helplessness of the victim; and (8) the defendant’s

capacity for rehabilitation. Id.



       Erica Hurd was a fifteen year old high school freshman at the time of her


                                         51
death. Her terror began when she was abducted by the appellant at gunpoint

outside her cousin’s duplex. After demanding “dope” from Charles Ragland, the

appellant murdered Ragland execution style while Erica and Angela, Charles’ wife,

were forced to watch. After killing Charles, the appellant separated Erica and

Angela, placing the terrified Erica in a closet and restraining Angela in another

bedroom. He then returned and removed Erica from the closet. For the next fifteen

to twenty minutes, Angela Ragland, who could not see her cousin, heard Erica

pleading for her life, then she heard her gasping for air, then -- nothing. During the

appellant’s assault, thirty-seven stab wounds were inflicted to Erica’s face and neck.

Twenty-three wounds were inflicted prior to her death and of these, only one was life

threatening. These wounds were particularly painful as they struck her ribs and

other bones, bending the knives. Moreover, the superficial nature and placement of

the wounds were indicative that the appellant intended to torment the victim.

Despite the numerous stab wounds inflicted upon Erica’s person, the cause of death

proved to be a crushing blow to the skull by a blunt object, causing multiple fractures

to the skull.



       At the time of the offenses, the appellant was a married thirty-eight year old

African-American male. Although at the time of this offense he was on bond for an

unrelated rape charge, the appellant had no prior convictions for violent felonies.

There is no dispute that, at the time of the murders, the appellant was under the

effects of crack cocaine. Despite his assertions of remorse and accepted

responsibility for these crimes, the record indicates otherwise. Specifically, his

behavior with law enforcement officials immediately after the crime belie a finding of

remorse. The appellant believes that his use of illegal substances and his

“remorse” found after his incarceration render his death sentence disproportionate

to his crime. However, the nature of his crime, his wanton infliction of violence

upon innocent, unarmed human beings, and his complete disregard for human life

places him into that class of criminals for whom a sentence of death is appropriate.


                                         52
See Blanton, 975 S.W.2d at 285.



      While no two capital cases and no two defendants are alike, we have

reviewed the circumstances of the present case with similar first degree murder

cases and conclude that the penalty imposed in the case sub judice is not

disproportionate to the penalty imposed in similar cases. See, e.g.,

      (1) State v. Bush, 942 S.W.2d 489 (Tenn.), cert. denied, -- U.S. --,
      118 S.Ct. 376 (1997) (imposition of death penalty upheld based on
      aggravating circumstances (i)(6) and (i)(7) where defendant killed
      seventy-nine year old woman, whom he knew, by stabbing her forty-
      three times during burglary);

      (2) State v. Smith, 868 S.W.2d 561 (Tenn. 1993) (death penalty
      upheld based on aggravating circumstances (i)(5), (6), (7) and (12)
      where defendant found guilty of triple murder of ex-wife and her two
      children; defendant shot wife twice, slashed her throat, and stabbed
      with knife and ice pick; older son shot three times, stabbed with ice
      pick and knife; and younger son had been shot and stabbed in the
      chest);

      (3) State v. Payne, 791 S.W.2d 10 (Tenn. 1990) (death penalty upheld
      based on finding aggravating circumstances (i)(3) and (i)(5) where
      cocaine intoxicated defendant stabbed one victim forty-two times and
      death occurred within thirty minutes, other victim stabbed nine times);

      (4) State v. Jones, 789 S.W.2d 545 (Tenn. 1990) (death penalty
      imposed upon finding aggravating circumstances (i)(2), (5), (7), where
      defendant bound, gagged and blindfolded victim with duct tape; while
      victim pleaded for mercy, defendant stabbed victim six times);

      (5) State v. Henley, 774 S.W.2d 908 (Tenn. 1989) (death penalty
      affirmed based upon finding aggravating circumstance (i)(5), where
      defendant, intoxicated on drugs and alcohol, forced married couple to
      their house at gunpoint demanding money, defendant later refused
      offered money and without provocation shot husband and wife, wife
      shot two more times, defendant then poured gasoline on her body and
      set house on fire, wife died from burns and smoke inhalation);

      (6) State v. West, 767 S.W.2d 387 (Tenn. 1989) (death penalty
      affirmed based upon finding aggravating circumstances (i)(5),(6),(7),
      where intoxicated defendant and co-defendant forcefully obtained sex
      from mother and daughter, separated victims, and stabbed one victim
      seventeen times and other victim stabbed numerous times, evidence
      of torture type wounds inflicted prior to death, victims were restrained
      during the attack);

      (7) State v. O’Guinn, 709 S.W.2d 561 (Tenn. 1986) (death penalty
      affirmed based on aggravating circumstance (i)(5) where defendant,
      intoxicated on drugs and alcohol, assaulted and murdered girl whom
      he had picked up at nightclub, victim had been severely beaten, cause
      of death ligature strangulation with her halter top, victim was raped


                                       53
       prior to death);

       (8) State v. Miller, 674 S.W.2d 279 (Tenn. 1984), remanded for new
       sentencing hearing and sentence affirmed on remand by, 771 S.W.2d
       401 (1989) (death penalty affirmed based upon finding aggravating
       circumstance (i)(5), where defendant, intoxicated and on LSD, stabbed
       mildly retarded female victim five times in chest with Bowie knife,
       struck her twice in the face with a poker, and bound victim with hemp
       rope);

       (9) State v. Cone, 665 S.W.2d 87 (Tenn. 1984) (death penalty
       affirmed based on aggravating circumstances (i)(2),(5) and (6), where
       defendant suffering from “chronic amphetamine psychosis” murdered
       elderly couple during commission of burglarizing their home, death of
       victims caused by crushing blows to the head, deaths were neither
       instantaneous nor simultaneous);

       (10) State v. Melson, 638 S.W.2d 342 (Tenn. 1982) (death penalty
       affirmed based on aggravating circumstances (i)(5) and (i)(6) where
       defendant used hammer to repeatedly beat victim in head, victim had
       attempted to defend herself during ordeal, only motive was victim’s
       discovery of defendant’s theft, defendant had no significant prior
       history of criminal activity).


       In the cases cited, the defendants tortured, stabbed and assaulted

unresisting and defenseless victims without provocation. Upon comparing the facts

of these cases with those now before this court, we conclude that the multiplicity of

wounds and the manner of their infliction upon Erica Hurd were particularly heinous,

atrocious, and cruel. Additionally, although the appellant had ingested “crack

cocaine” at sometime preceding the crimes, his statement provided to the police and

his actions after the murders are evidence of preparation and planning immediately

before the crimes. Moreover, although motive is unclear from the facts, it is clear

that he intended to enact revenge upon Charles Ragland, his neighbor, for

“disrepectin’ him.” The infliction of gratuitous violence in this case appears to be

equally as horrifying or worse than that inflicted in previous cases. The penalty

imposed by the jury in the present case is clearly not disproportionate to the penalty

imposed for similar crimes.




                                     Conclusion



                                         54
         In accordance with the mandate of Tenn. Code Ann. § 39-13-206(c)(1) and

the principles adopted in prior decisions of the Tennessee Supreme Court, we have

considered the entire record in this cause and find that the sentence of death was

not imposed in any arbitrary fashion, that the evidence supports, as previously

discussed, the jury’s finding of the statutory aggravating circumstances, and the

jury’s finding that the aggravating circumstances outweighed mitigating

circumstances beyond a reasonable doubt. Tenn. Code Ann. § 39-13-206 (c)(1)(A)-

(C). A comparative proportionality review, considering both the circumstances of

the crime and the nature of the appellant, convinces us that the sentence of death is

neither excessive nor disproportionate to the penalty imposed in similar cases.

Likewise, we have considered the appellant’s assignments of error as to each of his

convictions on appeal and the respective sentences and determined that none have

merit. Additionally, we conclude, in reference to the murder of Charles Ragland,

that the jury appropriately found two statutory aggravating circumstances and did

not arbitrarily impose a sentence of life without the possibility of parole as to that

count. Thus, we affirm the appellant’s conviction for the first degree murder of

Charles Ragland and the accompanying sentence of life without the possibility of

parole, his conviction for the first degree murder of Erica Hurd and the

accompanying sentence of death by electrocution, and his conviction for the

aggravated rape of Angela Ragland and the accompanying sentence of twenty-five

years.21




                                             ____________________________________
                                             DAVID G. HAYES, Judge

CONCUR:


____________________________________


         21
          No e xec ution date is set . Ten n. Co de A nn. § 39-1 3-20 6(a) (1) pr ovide s for auto ma tic
review by the Tenn essee Suprem e Cou rt upon a ffirma nce of th e death p enalty. If the dea th
sentence is upheld by the higher court on review, the supreme court will set the execution date.

                                                    55
JOE G. RILEY, Judge


____________________________________
JOHN EVERETT W ILLIAMS, Judge




                               56
